A TREATISE 
 
 ON THE 
 
 LAW OF AGENCY 
 
 UfCLUDINQ NOT ONLY A DISCUSSION OF THE GENERAL SUBJECT, 
 
 SPECIAL CHAPTERS 
 
 ATTORNEYS, AUCTIONEERS, BROKERS AND FACTORS. 
 
 FLOYD R. MECIIEM. 
 
 CHICAGO : 
 CALLAGHAN AND COMPANY. 
 
 1889.
 
 T 
 
 Entered according to Act of Congress, in the year 1888, by 
 
 FLOYD R. MECHEM, 
 In the office of the Librarian of Congress, at Washington. 
 
 FOURTH IMPRESSION. 
 
 stereotyped and Printed at the 
 Detroit Free Press Printing Housb.
 
 TO THE 
 
 Hon. BENJAMIN F. GRAVES, LL. D., 
 
 FOK MANY YEARS A 
 
 JUSTICE OP THE SUPREIME COURT 
 OF MICHIGAN, 
 
 THIS VOLUME IS RESPECTFULLY DEDICATED. 
 
 NOT ONLY 
 
 AS A TOKEN OP THE GREAT 
 
 PERSONAL REGARD 
 
 WHICH THE AUTHOR FEELS FOR HIM, BUT ALSO 
 
 AS A SLIGHT RECOGNITION 
 
 of the appreciation which he, In common with all citizens, feels 
 for one who, in the course of a career extending through every 
 grade of judicial oflice, from the local magistracy of his town 
 to the chief -justiceship of his State, has so unsparingly 
 devoted the best energies of a long and honorable 
 life to one of the highest of human pursuits, — 
 the pure and impartial administration of 
 justice; and who now, in voluntary retire- 
 ment from judicial life, is experienc- 
 ing that satisfaction which must 
 come from the conscionsnesa 
 of such work well done. 
 
 f.na'i On
 
 PEEFAOE. 
 
 What here follows is the result of an earnest endeavor to make 
 a reliable, useful and comprehensive statement of the law of 
 Agency, including not only its general form, but certain also of 
 its more important special forms. How far this effort has been 
 successful, those who use the book can alone determine. 
 
 The plan pursued has been to state in as clear and accurate 
 form as possible, the principles of law involved, supported by a 
 full citation of the authorities, and to illustrate and fortify these 
 statements by examples and quotations from leading and charac- 
 teristic cases. Upon doubtful questions there has been given, 
 either in the text or in the notes, a more or less full presentation 
 of the conflicting views, and the writer has endeavored to extract 
 from them what seemed to him to be the true principle. This 
 has involved, in many cases, an expression of his own opinion, 
 for which he is, of course, alone responsible. 
 
 For the benefit of tliose to whom complete libraries are not 
 accessible, — and they embrace the great majority of the profes- 
 sion, — he has, in many instances, made the statements of cases 
 and the excerpts from the opinions of the courts, fuller than 
 might otherwise seem necessary. While this course has added 
 to the size of the book, the writer hopes it has also added propor- 
 tionately to its value. If he has erred in this regard, it is the 
 error of a too abundant caution. To further increase the practi- 
 cal usefulness of the book he has, at the expense of no little 
 additional labor, given parallel references to those excellent series 
 of reports, the American Decisions, American Reports, American 
 State Reports and Moak's English Reports, as well as to the 
 various Reporters and Law Journals. In several of the States 
 the law of agency has been, to a greater or less extent, reduced
 
 VI PKEFACE. 
 
 to the form of a code. The more important of these statu tor j 
 provisions will be found collected in the Appendix. 
 
 The work is divided into five parts or books. Of these, 
 the first four are devoted to a general exposition of the law 
 of Agency, while the fifth contains a consideration of the law 
 applicable to Attorneys, Auctioneers, Brokers, and Factors. 
 That this method of treatment involves something of repetition 
 is true, but in the writer's opinion the advantages of consecutive 
 and separate treatment more than compensate for it. The sub- 
 jects of ship and bank oflficers, and others sometimes treated in 
 works upon agency, have not been separately dealt with, not only 
 because they belong more appropriately to other topics, but 
 because the size of the work would not permit of it. Each of 
 the four separate forms treated might well be, as each has been, 
 made the subject of an independent treatise, and to compress 
 them into single chapters p-revents exhaustive discussion. It is 
 believed, however, that no important principle has been omitted, 
 and that what these chapters lack will be matter which is cumu- 
 lative or of detail only. Trusting that his work will be of use to 
 those for whom it was intended, the writer submits it to the 
 profession. 
 
 Floyd E. Mechem. 
 
 Dktboit, Octobeb 1, 188&
 
 TABLE OF CONTENTS. 
 
 BOOK I. 
 
 OF THE RELATION IN GENERAL; EOW CREATED AND 
 TERMINATED. 
 
 CHAPTER I.— DEFINITIONS AND DIVISIONS. 
 
 Agency defined § 1 
 
 Relation to Master and Servant 2 
 
 Other Names employed 3 
 
 Actual and Ostensible Agencies 4 
 
 Classes of Agents 5 
 
 Universal, General and Special Agents 6 
 
 Uses of these Distinctions 7 
 
 Difficulty of Determination 8 
 
 How Question determined 9 
 
 Special Forms of Agency 10 
 
 Attorneys at Law 11 
 
 Auctioneers 12 
 
 Brokers 13 
 
 Factors and Commission Merchants 14 
 
 Officers of Ships 15 
 
 Partners 16 
 
 Bank Officers 17 
 
 CHAPTER II.— FOR WHAT PURPOSES AN AGENCY MAY 
 BE CREATED. 
 
 General Rule — For any lawful Purpose § 18 
 
 Illegal and personal Acts cannot be delegated 19 
 
 I. Undertakings Contrary to Law or opposed to Public Policy. 
 
 In general — Void 20 
 
 The Element of Contingent Compensation 21 
 
 Lobbying Agents 22 
 
 Same Subject — Legitimate Services 23 
 
 Procuring Contracts from Government and Heads of Departments 24 
 
 Same Subject — Illustrations 25 
 
 Services in prosecuting Claims 26 
 
 Compromise of Crime 27 
 
 Services in procuring Appointments to Office 28 
 
 [vii]
 
 viii TABLE OF CONTENTS. 
 
 Same Rule applies to private Offices and Employments § 29 
 
 Services in improperly influencing Elections *J0 
 
 Same Subject — What Services legitimate 31 
 
 Services in procuring Pardons 32 
 
 How when Conviction illegal 33 
 
 Services in procuring or suppressing Evidence 34 
 
 Unlawful dealings in Stocks and^Merchandise 35 
 
 Marriage Brokerage Contracts void 36 
 
 Corruption of Agents 37 
 
 Other Cases involving same Principles 38 
 
 Agent must participate in unlawful Purpose 39 
 
 Whole Contract void when entire 40 
 
 II. Powers op a Personal Nature. 
 Personal Duty, Trust or Confidence cann'ot be delegated 41 
 
 CUAPTER III.— WHO MAY BE PRINCIPAL OR AGENT; AND 
 HEREIN OF JOINT PRINCIPALS AND AGENTS. 
 
 Purpose of Chapter § 42 
 
 I. Who may be Princifals. 
 
 The general Rule— Every Person competent to act in his own Right 43 
 
 Same Subject — Corporations 44 
 
 Same Subject— Part nerships 45 
 
 Incompetency — In general 46 
 
 a. Persons INaturally Incompetent. 
 
 Persons of unsound Mind 47 
 
 Exceptions— Innocent Party— Sane Intervals 48 
 
 Drunken Persons as Principals 49 
 
 Same Subject — Ratificaiion or Disaffirmance 50 
 
 6. Persons Legally Incompetent. 
 
 Infants as Principals 51 
 
 Same Subject — Ratification by 52 
 
 Further of this Rule 53 
 
 Same Subject— Dissent— Exceptions 54 
 
 In Reason how 55 
 
 Married Women as Principals 56 
 
 II. Who mat be Agent. 
 
 a. Competency in General. 
 
 General Rule — Any competent Person 57 
 
 Less Degree of Competency required in Agent than in Principal 58 
 
 Infants as Agents 59 
 
 Slaves as Agents 60 
 
 Married Women — As Agents for third Persons 61 
 
 Same Subject — Wife as Agent for her Husband 62
 
 TABLE OF CONTENTS. IX 
 
 Husband as Agent for his Wife § 63 
 
 Corporations as Agents 64 
 
 Partnerships as Agents 65 
 
 b. Disqualification from Adoime Inierenl. 
 
 One cannot be Agent if Duty and Interest conflict 66 
 
 One cannot be Agent of both Parties — When 67 
 
 Cannot be Party and Agent for opposite Party 68 
 
 III. Joint Prikcipals. 
 
 When Power of Appointment is joint 69 
 
 Partners '^0 
 
 Joint Tenants and Tenants in Common 71 
 
 Associations, Clubs, Societies and Committees 73 
 
 Same Subject — Illustrations 73 
 
 Same Subject— The Rule stated 74 
 
 Inchoate Corporations "^^ 
 
 IV. JoiKT Agents. 
 
 Authority to several ~6 
 
 Private Agency must be executed by all 77 
 
 Public Trust or Agency may be executed by a Majority 78 
 
 CHAPTER IV.— OF THE APPOINTMENT OF AGENTS AND THE 
 EVIDENCE THEREOF. 
 
 Purpose of Chapter §79 
 
 I. How Agents mat be appointed. 
 
 Only by the Will of the Principal 80 
 
 How Principal's Will may be expressed 81 
 
 Authority by Law and of Necessity 83 
 
 Authority by Implication — Presumption — Estoppel 83 
 
 Same Subject— The Rule stated 84 
 
 Same Subject — Limitations of this Rule 85 
 
 Same Subject — What sufficient— Instances 86 
 
 Same Subject — What not sufficient— Instances 87 
 
 Authority by express, unwritten Appointment 88 
 
 By Parol — To sell or lease Lands 89 
 
 By Parol — To demand and collect Rents , 90 
 
 By Parol — To execute written Instruments not under Seal 91 
 
 What Writing sufficient when Writing required 93 
 
 Authority to execute sealed Instruments must be under Seal 93 
 
 Same Subject — Authority to fill Blanks in Deeds 94 
 
 Same Subject — How when Seal superfluous 95 
 
 How in Principal's Presence and by his Direction 96 
 
 Appointment by Corporations 97 
 
 Same Subject — To execute Deed of corporate Realty 98
 
 X TABLE OF CONTENTS. 
 
 II. Evidence op Appointment. 
 
 Purpose of the Subdivision §99 
 
 Agent's Authority cannot be established by his own Statements or Admis- 
 sions 100 
 
 Agent's Authority cannot be proved by general Reputation 101 
 
 Agent must be called as a Witness 102 
 
 Written Authority must be produced — When 103 
 
 Construction of Writing for Court 104 
 
 Effect of undisputed Facts to be determined by Court 105 
 
 In other Cases, Question is for the Jury 106 
 
 Authority by Ratification 107 
 
 Acceptance of Agency by Agent 108 
 
 CHAPTER v.— OF RATIFICATION. 
 
 Purpose of Chapter § 109 
 
 I. What is meant by Ratification. 
 
 What Ratification is 110 
 
 II. What Acts may be ratified. 
 
 In general .... Ill 
 
 The general Rule 113 
 
 Torts may be ratified 113 
 
 Void Acts cannot be ratified — Voidable Acts may be 114 
 
 Illegal Acts cannot be ratified 115 
 
 Ratification of Forgery 116 
 
 III. Who may ratify. 
 
 General Rule 117 
 
 Corporations may ratify 118 
 
 Partners may ratify 119 
 
 Infant cannot ratify 120 
 
 When Agent may ratify 121 
 
 Ratification by incompetent Person 122 
 
 Ratification by Guardian or Executor 128 
 
 IV. Conditions of Ratification. 
 
 1. Principal must have been identified 124 
 
 2. Principal must have been in Existence 125 
 
 3. Principal must have present Ability 126 
 
 4. Act must have been done as Agent 127 
 
 5. Knowledge of material Facts 128 
 
 Same Subject — General Rule 129 
 
 6. No Ratification of Part of Act 130 
 
 7. Rights of other Party must be prejudiced 131 
 
 Burden of Proof 132 
 
 Relief of Principal when Facts not fully known 133
 
 TABLE OF CONTENTS. XI 
 
 "V. What amounts to a Ratification. 
 
 Importance of Question § 134 
 
 Written — Unwritten, Express — Implied 135 
 
 a. Express Ratification. 
 
 General Rule 136 
 
 Deed at Common Law ratified only by Instrument under Seal 137 
 
 Same Subject — Rule relaxed in Partnership Cases 138 
 
 Same Subject — ^lassachusetts Rule 139 
 
 Same Subject — Modern Rule more liberal 140 
 
 Unnecessary Seal may be disregarded 141 
 
 By Authority subsequently conferred 142 
 
 By Answer in Chancery 143 
 
 Contract for sale or leasing of Land ratified by parol 144 
 
 " Lawfully authorized " under Statute of Frauds 145 
 
 b. Implied Ratification. 
 
 In general. 146 
 
 Variety of Methods 147 
 
 By accepting Benefits 148 
 
 Same Subject — Instances 149 
 
 Same Subject — Other Instances 150 
 
 By bringing Suit based on Agent's Act 151 
 
 Mere Delay in suing, no Ratification 152 
 
 Ratification by Acquiescence — Silence 153 
 
 Same Subject — Election 154 
 
 Same Subject — Must elect within a reasonable Time 155 
 
 Same Subject — Sleeping on Rights 156 
 
 Same Subject — Rules 157 
 
 Same Rule applies to private Corporations 158 
 
 And to Municipal and Quasi-Municipal Corporations 159 
 
 How when assumed Agent is a mere Stranger 160 
 
 Same Subject — True Rule 161 
 
 Silence does not ratify if Stranger acts in his own Name 163 
 
 Information by Letter 163 
 
 Ratification by Acquiescence — Illustrations 164 
 
 Rule applies only to Principals 165 
 
 VI. The Results op Ratification. 
 
 "What for this Subdivision 166 
 
 1. In general. 
 
 Equivalent to precedent Authority 167 
 
 Cannot affect intervening Rights 168 
 
 RaLiflcalion irrevocable 169 
 
 t. As between Principal and Agent. 
 
 In general 170 
 
 The general Rule 171 
 
 Agent's Motives unimportant 172 
 
 Efforts to avoid Loss no Ratification 173
 
 Xii TABLE OF CONTENTS. 
 
 Ratification must be t/i toto § 1'''4 
 
 Ratification of Appointment of Subasient I'J'S 
 
 Ratification of Torts does not discbarge Agent's Liability to third Per- 
 
 176 
 
 sons ^ ' " 
 
 Acts of Ratification liberally construed 177 
 
 S. As between Principal and the other Party. 
 
 a. Other Party against Principal 178 
 
 b. Principal against the other Party 179 
 
 4. A8 between Agent and the other Party. 
 
 In general 1°" 
 
 Ratification releases Agent in Contract 181 
 
 Otherwise in Tort ^^^ 
 
 CHAPTER VI. -OF DELEGATION OF AUTHORITY. 
 In general § ^^^ 
 
 I. Delegation by the Principal. 
 
 II. Delegation by the Agent. 
 
 Delegatus non potest delegari 1^4 
 
 General Rule ^^^ 
 
 Same Subject — Judgment and Discretion cannot be delegated 186 
 
 Attorneys cannot delegate personal Undertakings 187 
 
 Arbitrators cannot delegate their Powers 188 
 
 Executors, «fec. cannot delegate personal Trusts 189 
 
 Same Rule applies to Municipal Corporations 190 
 
 And to private Corporations 1^1 
 
 Exceptions and Modifications 192 
 
 1. Mechanical and ministerial Duties may be delegated 193 
 
 2. When Necessity requires it 194 
 
 3. When justified by Usage or Course of Trade 195 
 
 4. When originally contemplated 196 
 
 Effect of Appointment 1^7 
 
 CHAPTER VII. — TERMINATION OF THE RELATION. 
 
 Purpose of Chapter § 19S 
 
 Variety of Methods 199 
 
 I. By original Agreement. 
 
 1. By Efflax of Time 200 
 
 2. By Accomplishment of Object 201 
 
 Same Subject 202 
 
 II. By Act of the Parties. 
 1. Revocation by the Piincipal. 
 A. Private Agency. 
 
 General Rule — As between Principal and Agent, Agency is revocable at 
 
 any Time if not coupled with an Interest 204
 
 TABLE OF CONTENTS. XI U 
 
 What Interest sufficient § 205 
 
 Bame Subject — Instances 206 
 
 What Interest not sufficient — Instances 207 
 
 Same Subject — Bare Powers 208 
 
 Power to revoke — How distinguished from Right to revoke 209 
 
 When Right to revoke exists 210 
 
 What amounts to Contract for definite Time — Unilateral Agreements. . 211 
 
 Same Subject — When definite Time will be implied 212 
 
 Agency terminable for Agent's Incompetence 213 
 
 When Agency may be terminated for Agent's Misconduct 214 
 
 Same Subject — Illustrations 215 
 
 How the Authority may be revoked 216 
 
 Bame Subject — By sealed Instrument 217 
 
 Same Subject — Express Revocation not required 218 
 
 Revocation may be implied 219 
 
 By disposing of Subject-matter 220 
 
 By Dissolution of Partnership or Corporation 221 
 
 By Severance of joint Interest 222 
 
 Notice of Revocation ... 223 
 
 a. To third Person. 
 
 When Authority was general 224 
 
 When Authority was special 22S 
 
 b. To Agents. 
 
 Notice must be given to Agent 226 
 
 c. To Subagents. 
 
 Notice must be given to Subagents — When , , 227 
 
 Notice — How given — What sufficient 228 
 
 When Evidence of Agency recorded, Revocation should be recorded . . 229 
 
 Notice should be unequivocal 230 
 
 How Sufficiency of Notice determined 231 
 
 B. Public Agency. 
 
 Statutory Agency not revocable at will of Principal 283 
 
 S. Renunciation by Agent. 
 
 General Rule — Agent may renounce at any Time 238 
 
 By mutual Consent 234 
 
 Abandonment may be treated as Renunciation 235 
 
 Agent may abandon if required to do unlawful Act 236 
 
 Notico of Renunciation 237 
 
 III. By Operation of Law. 
 
 1. By Death of one of the Fartiet. 
 
 a. By Death of the Principal. 
 
 In general 239 
 
 General Rule — Death of Principal terminates Agency 240 
 
 Same Subject — Not when coupled with an Interest 241 
 
 Same Subject — What Interest sufficient 242
 
 XIV TABLE OF CONTENTS. 
 
 Same Subject — What Interest sufficient — Instances § 243 
 
 Same Subject — What Interest not sufficient — Instances 244 
 
 Eow when Death unknown 245 
 
 Same Subject — Instances 246 
 
 Death of Partner or Joint Owner dissolves Agency 247 
 
 Death of Principal dissolves Authority of Substitute 248 
 
 b. By Death of the Agent. 
 
 General Rule — Death of Assent terminates Agency 249 
 
 Not when coupled with an Interest 260 
 
 When Death of one of two Agents terminates Agency 261 
 
 Effect on Substitute 263 
 
 2. By Insanity of one of the Parties. 
 
 a. By Insanity of the Principal. 
 
 In general 253 
 
 General Rule 254 
 
 But — Ignorance of Insanity 255 
 
 When coupled with an Interest 256 
 
 What Evidence of Insanity sufficient 257 
 
 b. By Insanity of the Agent. 
 
 In general 258 
 
 General Rule — Terminates Agency unless coupled with an Interest 259 
 
 How when Insanity is unknown 260 
 
 Insanity of one of two or more Agents 261 
 
 Subagents 262 
 
 S. By Bankruptcy of one of the Parties. 
 
 a. Bankruptcy of Principal. 
 
 General Rule — Bankruptcy of Principal terminates Agent's Authority. 263 
 
 Mere Insolvency not enough 264 
 
 Agent's Authority not dissolved when coupled with an Interest 265 
 
 How when Bankruptcy unknown 266 
 
 b. Bankruptcy of the Agent. 
 
 General Rule 267 
 
 U. By Marriage. 
 
 In general 268 
 
 6. By War. 
 
 In general 269 
 
 6. By Termination of Principars Authority. 
 
 Principal's Removal from Office removes Subordinates 270
 
 TABLE OF CONTENTS. XV 
 
 BOOK II. 
 
 OF TEE AUTHORITY CONFERRED— ITS NATURE AND EFFECT. 
 
 CHAPTER L— OF THE NATURE OP THE AUTHORITY. 
 
 Purpose of Book II §271 
 
 Nature and Extent of the Authority 272 
 
 I. Of Express and Implied Authority. 
 
 Where Authority is express 278 
 
 Where Authority is implied 274 
 
 II, Universal, General and Special Agencies. 
 
 In general 275 
 
 Persons dealing with Agent must ascertain his Authority 276 
 
 Different Aspects of Question 277 
 
 Authority an Attribute of Character bestowed by Principal 278 
 
 The Province of Instructions — Apparent Authority cannot be limited by 
 
 secret Instructions 279 
 
 The Doctrine of implied Powers 280 
 
 Powers conferred by Usage 281 
 
 What constitutes Authority 282 
 
 General and special Authority 283 
 
 Bame Subject 284 
 
 Same Subject — The true Distinction 285 
 
 General Agency not unlimited 286 
 
 General Agent binds Principal only when acting within the Scope of his 
 
 Authority 287 
 
 Special Agent's Authority must be strictly pursued 288 
 
 Third Persons must act in good Faith 289 
 
 Person dealing with Agent must exercise reasonable Prudence 290 
 
 Same Subject — Must ascertain whether necessary Conditions exist 291 
 
 Same Subject — Authority of Public Agents must be ascertained 292 
 
 CHAPTER II.— OF THE CONSTRUCTION OF THE AUTHORITY. 
 
 Purpose of this Chapter § 293 
 
 I. When Authority is Conferred by Writing. 
 
 Construction of Writing for Court 294 
 
 Intention to govern 295 
 
 How Intention discovered — Language used 296 
 
 Entire Writing— Other Writings 297 
 
 Surroundings of the Parties 298 
 
 Parol Evidence — Latent and patent Ambiguities 299 
 
 Same Subject— Identifying Subject-matter 800 
 
 Same Subject — Parol Evidence cannot enlarge Authority 801 
 
 a
 
 XVI TABLE OF CONTENTS. 
 
 Same Subject — Parol Evidence cannot contradict Writing § 302 
 
 Effect must be given to every Word and Clause <J03 
 
 Transaction to be upheld rather than defeated 304 
 
 Authority to be interpreted in Light of Lex Loci 305 
 
 General Powers limited by specific Object or Recital 306 
 
 Construed to apply only to Principal's private Business 307 
 
 Only those Powers expressly given or necessarily implied 308 
 
 IL Wheke Authority is Unwritten or Implied. 
 
 Where Authority is unwritten but express 809 
 
 Where Authority is unwritten but implied 310 
 
 Authority carries with it every power necessary to accomplish Object. . 311 
 
 Implied Authority not to be extended beyond its legitimate Scope 313 
 
 Implied Power limited to Principal's Business 813 
 
 III. Where Atjthoritt is Ambiguous. 
 
 Duty of Principal to make his Instructions clear 314 
 
 Where ambiguous, Construction adopted in Good Faith sufficient 315 
 
 CHAPTER III.— OF THE CONSTRUCTION OF AUTHORITIES OF 
 CERTAIN KINDS. 
 
 Purpose of this Chapter § 316 
 
 In general 317 
 
 1. Of Agent autTwrized to sell Land. 
 
 What Authority is sufficient 818 
 
 When Authority to be exercised 319 
 
 What Execution authorized 320 
 
 Authority to sell implies Right to convey 321 
 
 To insert usual Covenants of Warranty 322 
 
 But not to mortgage 323 
 
 Authority to receive Payment 324 
 
 Authority to give Credit 325 
 
 Adthority to sell does not authorize Exchange or Gift 326 
 
 Does not authorize Waste, or Sale of Timber separate from the Land. . . 327 
 
 Does not authorize changing Boundaries of Land 328 
 
 Does not authorize Partition 329 
 
 Does not authorize Dedication to Public Use 330 
 
 Nor Conveyance in Payment of Agent's Debts 331 
 
 No implied Power to revoke Contracts 332 
 
 No implied Power to discharge Mortgage 333 
 
 No implied Power to .invest Proceeds 384 
 
 2. Of Agent authorized to sell Personal Property. 
 
 When Authority exists 835 
 
 Authority to receive Payment — In general 836 
 
 Authority to receive Payment not implied from Possession of Bill 337 
 
 Agent having Possession or other Indicia of Ownership may receive 
 
 Payment 338
 
 TABLB OF CONTENTS. XVU 
 
 Agent to sell merely or to solicit Orders without Possession of Goods not 
 
 authorized to receive Payment § 339 
 
 When travelling Salesman may receive Payment 340 
 
 Same Subject — When Payment to Agent Part of Terms of Sale 341 
 
 Same Subject— Notice of Want of Authority 342 
 
 Same Subject — No implied Authority to sell his Samples 343 
 
 Same Subject — Purchaser can not set off Debt due from Agent 344 
 
 Same Subject— Implied Authority to hire Horses 345 
 
 Same Subject — Authority to procure other Supplies 346 
 
 Implied Authority to warrant Quality.. 347 
 
 Same Subject — The general Rule 348 
 
 Illustrations of this Rule 349 
 
 Limits of this Rule 350 
 
 Authority to warrant Title 351 
 
 No implied Power to exchange or barter 352 
 
 No implied Power to give Credit 853 
 
 No Authority to appropriate to his own Use 354 
 
 No implied Authority to release Principal's Right or to pay Principal's 
 
 Debts 355 
 
 No Authority to pledge Goods 356 
 
 No Authority to promise Commissions for Sub-sales 357 
 
 No Authority to sell at Auction 358 
 
 Authority — When to be exercised 359 
 
 No Authority to rescind the Sale 360 
 
 No Authority to mortgage 361 
 
 Authority to fix Price and Terms of Sale 362 
 
 3. Of Agent authorized to Purchase. 
 
 May not buy on Credit when furnished with Funds 363 
 
 May buy on Credit when not supplied with Funds 364 
 
 Has Power to agree upon Price and Terms of Purchase. 365 
 
 May not exceed Limits as to Quantity 366 
 
 Must observe Limits as to Quality or Species 367 
 
 May be restricted as to Persons with whom to deal 368 
 
 May make Representations as to Principal's Credit 369 
 
 May not execute negotiable Paper 370 
 
 4. Of Agent authorized to Receive Payment. 
 
 What constitutes such Authority 371 
 
 When implied from negotiating the Contract 372 
 
 When implied from Possession of the Securities 373 
 
 When implied from having sold the Goods 374 
 
 Can receive nothing but Money 375 
 
 No Authority to release or compromise the Debt 370 
 
 May receive part Payment 377 
 
 But may not extend Time 378 
 
 Authority to collect Interest does not authorize Collection of Principal. 379 
 
 Not authorized to receive before due 380 
 
 No Authority to take Checks 381
 
 XVni TABLE OF CONTENTS. 
 
 If authorized to take Check or Note, has no Authority to indorse or col- 
 lect it §389 
 
 Authority to collect does not authorize Sale 383 
 
 No Authority to deal with Funds collected 384 
 
 May give Receipt or Discharge 886 
 
 Implies Authority to sue 386 
 
 May sue in his own Name — When 387 
 
 May employ Counsel 388 
 
 5. Of Agent authorized to Make and Indirt-.e N<(ptiahle Paper. 
 
 What constitutes such Authority 389 
 
 Same Subject— Authority strictly construed 390 
 
 When Authority implied 391 
 
 Must be confined to Principal's Business 393 
 
 Execution must be confined to Limits specified 393 
 
 Negotiable Paper or Deeds delivered to Agent in Blank 394 
 
 6. Of Agent authorized to Manage Badness. 
 
 Extent of Authority depends on Nature of Business 395 
 
 When Power implied to pledge Principal's Credit 396 
 
 Implied Power to sell Product of Business 397 
 
 None to bind by Negotiable Instrument 398 
 
 When may borrow Money 399 
 
 May not make Accommodation Paper 400 
 
 ]\Iay not pledge or mortgage the Property of his Principal 401 
 
 May not sell Principal's Land 402 
 
 May not embark in new and different Business 403 
 
 May not sell the Business 404 
 
 7. Of Agent autTwrized to Settle. 
 
 May not submit to Arbitration 405 
 
 May not assign Demand 406 
 
 BOOK III. 
 
 OF THE EXECVTION OF THE AUTHORITY, 
 
 CHAPTER L-IN GENERAL. 
 
 Purpose of Book III §407 
 
 Primary Purpose to bind Principal and not Agent 409 
 
 Must act within Scope of Authority 409 
 
 Necessity of proper Execution 410 
 
 How Question determined 411 
 
 Execution within, and exceeding Authority. ... 413 
 
 Slight Deviation does not invalidate 413 
 
 When separable, authorized Part may stand 414
 
 TABLB OF CONTENTS. XIX 
 
 When Execution lacks essential Elements § 415 
 
 Summary of the Rules 416 
 
 Should act in Name of the Principal 417 
 
 CHAPTER n.— OP THE EXECUTION OF SEALED INSTRUMENTS. 
 
 Purpose of Chapter § 418 
 
 Must purport to be made and sealed in Name of the Principal 419 
 
 How Question determined 420 
 
 Same Subject — Not enough that the Agent is described as such 421 
 
 Same Subject — Illustrations 422 
 
 Same Subject — Further Illustrations 423 
 
 Same Subject — Further Illustrations — DescripHo Ferttonce 424 
 
 Same Subject — What Form sufficient 425 
 
 Distinction in Case of Public Agent 426 
 
 Whether necessary that Deed should purport to be executed by Agent — 
 
 Rule of Wood v. Goodridge 427 
 
 Same Subject— Further of this Rule 428 
 
 Same Subject — How in Reason 429 
 
 Parol Evidence not admissible to discharge Agent 430 
 
 CHAPTER III.— OP THE EXECUTION OF SIMPLE CONTRACTS. 
 Purpose of this Chapter § 431 
 
 1. Of the Execution of Negotiable Paper. 
 
 In general — The proper Manner 432 
 
 Same Subject — General Rule 433 
 
 Same Subject — Not necessary that Agent's Name appear 434 
 
 Not enough that Principal be named only in Body of Instrument 435 
 
 Same Subject — Where Intent to charge Principal is manifest 436 
 
 Same Subject — Other Cases 437 
 
 Where no Principal is disclosed, Agent is bound notwithstanding he signs 
 
 as • ' Agent " 438 
 
 Negotiable Paper drawn payable to an Agent and indorsed by him 439 
 
 How when made by Public Agents 440 
 
 Admissibility of parol Evidence to show Intent 441 
 
 Same Subject — What Rules applied 442 
 
 Same Subject — The true Rule 443 
 
 Further of this Rule 444 
 
 3. Of the Execution of other Simple Contracts. 
 
 The proper Manner 445 
 
 Intention of the Parties the true Test 446 
 
 Agent may bind himself by express Words 447 
 
 Same Subject — Contrary Intention manifest 448 
 
 The Admissibility of parol Evidence to show Intent 449
 
 XX TABLE OF COi^TJiiJTS. 
 
 BOOK ly. 
 
 OF THE RIGHTS, DUTIES AND LIABILITIES ARISING OUT OF 
 
 THE RELATION. 
 
 CHAPTER I.— IN GENERAL. 
 
 Purpose of Book IV §450 
 
 What Parties interested 451 
 
 How Subject divided 452 
 
 CHAPTER n.— OF THE DUTIES AND. LIABILITIES OF THE AGENT 
 TO HIS PRINCIPAL. 
 
 In general — Duty the Measure of Liability ^ 453 
 
 I. Agent must be lotal to his Trust. 
 
 Loyalty to his Trust the first Duty of the Agent 454 
 
 May not put himself in Relations antagonistic to his Principal 455 
 
 May not deal in Business of his Agency for his own Benefit 456 
 
 Agent authorized to purchase for his Principal may not purchase for 
 
 himself 457 
 
 Same Subject — Same Principle applies to Leases 458 
 
 Same Subject— What Evidence of Trust sufficient 459 
 
 Same Subject — When Rale does not apply 460 
 
 Agent authorized to sell may not become the Purchaser 461 
 
 Agent authorized to purchase may not purchase of himself 469 
 
 To what Agents the Rule applies 463 
 
 Further of the Rule — Indirect attempts — Ratification 464 
 
 This Rule cannot be defeated by Usage 465 
 
 Agent may purchase with Principal's Consent 466 
 
 Agent employed to settle Claim, may not buy and enforce it against his 
 
 Principal 467 
 
 Agent may not acquire Rights against his Principal based on his own 
 
 Neglect or Default 408 
 
 Profits made in Course of the Agency belong to the Principal 469 
 
 Same Subject— Illustrations 470 
 
 When Principal entitled to Agent's Earnings 471 
 
 Same Subject — Rule does not extend to mere Gratuities received by 
 
 the Agent 472 
 
 II. To Obey Instructions. 
 
 Agent's Duty to obey Instructions 473 
 
 Results of Disobedience — Agent liable for Losses caused by it 474 
 
 Same Subject — Illustrations 475 
 
 Form of Action — When Agent liable in Trover 476 
 
 Same Subject — The Rule stated — Intent immaterial 477
 
 TABLE OF CONTENTS. XX i 
 
 How when Agency is gratuitous § 478 
 
 Exceptions to this Rule 479 
 
 Agent not bound to perform illegal or immoral Act 480 
 
 Departure from Instructions may be justified by sudden Emergency. . . . 481 
 
 Same Subject — Limitations 483 
 
 Where the Authority has been substantially pursued, Agent not liable 
 
 for immaterial Departure 483 
 
 Where Instructions are ambiguous, and Agent acts in good Faith 484 
 
 How affected by Custom 485 
 
 Same Subject — When Presumption conclusive 486 
 
 No Presumption of Disobedience 487 
 
 III. Not to be Negligent. 
 
 In general 488 
 
 Difficulty of defining Negligence 489 
 
 The general Rule 490 
 
 Consideration of this Rule 491 
 
 Same Subject 492 
 
 Same Subject — Agent bound to exercise usual Precautions 493 
 
 Same Subject — Not bound to exercise highest Care 494 
 
 Same Subject — Good Faith — Reasonable Diligence 495 
 
 Same Subject — When Agent warrants Possession of Skill 496 
 
 How when Agency is gratuitous 497 
 
 Same Subject — When employed in a Capacity which implies Skill 498 
 
 Same Subject — Bound to exercise the Skill he possesses 499 
 
 Reasonable Skill — How determined 600 
 
 Agent not liable for unforeseen Dangers 601 
 
 Agent presumed to have done his Duty 502 
 
 Agent not liable if Principal also negligent 503 
 
 When Agent liable for Neglect of Subagents 504 
 
 Effect of Ratification upon the Agent's Liability 505 
 
 The Measure of Damages 506 
 
 Same Subject — Judgments, Costs, Counsel Fees 507 
 
 Illustrations of this Rule 608 
 
 1. Neglect of Agent in making Loans. 
 
 Liable for resulting Loss 509 
 
 2, Neglect of Agent to effect Insuraiice. 
 
 When liable for Loss 510 
 
 S. Neglect of Agent in -making Collections. 
 
 Liable for Loss from Negligence 611 
 
 Same Subject — Neglect in making Remittance 512 
 
 Same Subject — Liability for Neglect of Correspondents and Subagents. 518 
 
 Same Subject — Liability of Banks 514 
 
 Same Subject — Liability of Attorneys 515 
 
 Same Subject — Liability of Mercantile or Collection Agencies 516 
 
 Same Subject — Liability of Express Companies 617
 
 XXU TABLE OF CONTENTS. 
 
 Same Subject— The Measure of Damages §518 
 
 Principal's Right of Actiou against Subagents 519 
 
 Del Credere Agents — How liable to Principal 520 
 
 "When Agent liable for selling to irresponsible Parties 521 
 
 IV. To ACCOUNT FOB MONEY AND PkOPERTT. 
 
 In general 522 
 
 Account only to Principal— Joint Principal 523 
 
 Subagents— Account to whom 524 
 
 Agent may not dispute his Principal's Title 525 
 
 May not allege Illegality of Transaction to defeat Principal's Claim 526 
 
 When may maintain Interpleader 527 
 
 Agent's Duty to keep correct Accounts 528 
 
 Duty to keep Principal's Property and Funds separate from his own- 
 Liability for commingling • 529 
 
 When Agent should account 530 
 
 Necessity for Demand before Action 531 
 
 When Agent liable for Interest 532 
 
 When Liability barred by Statute of Limitations 533 
 
 Form of Action— When equitable 534 
 
 Of the Right of Set-off 535 
 
 How far Principal may follow trust Funds 536 
 
 Same Subject— Illustrations 537 
 
 V. To GIVE NOTICB. 
 
 Duty to give Notice of Facts material to his Agency 538 
 
 CHAPTER in.— THE DUTIES AND LIABILITIES OF THE AGENT 
 TO THIRD PERSONS. 
 
 A. Private Agents. 
 
 Agent not liable to third Person for Non-feasance I 539 
 
 Liable when he binds himself —Liable for Misfeasance 540 
 
 I. In Contract. 
 1. Where Tie acts toiihout Authority. 
 
 In general "'^^ 
 
 Where Agent erroneously believing himself authorized makes express 
 
 Representations as to his Authority 542 
 
 Where Agent makes express Representations known to him to be false. 543 
 Where Agent knowing he has no Authority makes a Contract implying 
 
 its Possession '^** 
 
 Where Agent erroneously believing himself authorized makes no express 
 
 Representations ^^^ 
 
 Where Agent discloses all the Facts relating to his Authority 546 
 
 How in Case of Public Agent 517
 
 TABLE OF CONTENTS. XXiii 
 
 Contract must have been one enforceable against Principal if author- 
 ized §548 
 
 In what Form of Action is Agent liable 549 
 
 When Ageiit liable on Contract itself 650 
 
 2. Where though Authorized he fails to bind his Principal. 
 
 In general 551 
 
 Where Agent intending to bind Principal uses apt Words to bind him- 
 self 553 
 
 Where Agent intending to bind Principal binds no one 553 
 
 Where Agent conceals Fact of Agency or Name of Principal 554 
 
 Where Agent makes full Disclosures 555 
 
 Where Agent acts for foreign Principal 556 
 
 Where there is no responsible Principal 557 
 
 Where Agent contracts personally 558 
 
 Same Subject — Public Agent 559 
 
 S, "Where the Agent has received Money. 
 [n general 560 
 
 a. Where Money has been paid to him for Principal. 
 
 Not liable for Money paid over to Principal before Notice 661 
 
 2*l«t liable where before Notice his Situation has been changed 5G3 
 
 Agent liable for Money mispaid though paid over, if Agency was not 
 
 known 668 
 
 A.gent liable without Notice for Money illegally obtained 504 
 
 Agent not liable for Money voluntarily paid 5G5 
 
 Where Agimt is a mere Stakeholder , 566 
 
 b. Where Money has been paid to Agent for Third Person, 
 
 Whea Agent liable to such third Person 667 
 
 Same Subject— What constitute Assent — Consideration 568 
 
 II. In Tort. 
 
 a. For Non-feasance. 
 In general— JN ol liable 669 
 
 Same Subject — Illustrations 67q 
 
 b. For Misfeasance. 
 
 Agency no Excuse for Misfeasance 671 
 
 Same Subject — Distinction between Non-feasance and Misfeasance 572 
 
 Same Subject— Principal's Knowledge or Direction no Defense 573 
 
 Same Subject — Illustrations 574 
 
 Liability in Respect to Subagents 575 
 
 Same Subject— Agent who conceals Principal liable as Principal to Sub- 
 agents 676 
 
 B. Public Agents. 
 I. Liability for their own Torts. 
 
 In general — Classification 577 
 
 No Action by Individual for Breach of Duty owing solely to the Public. 578 
 Liable for Wrongs committed in private Capacity 579
 
 Xxiv TABLE OF CONTENTS. 
 
 1, Judicial Officers. 
 
 Judicial Officers not liable when acting within their Jurisdiction § 580 
 
 Liability not affected by Motive 581 
 
 This Immunity extends to Judicial Officers of all Grades 583 
 
 Jurisdiction essential 583 
 
 Act must be confined within his Jurisdiction 584 
 
 Same Subject— When Jurisdiction presumed— Superior and inferior 
 
 Courts 585 
 
 Same Subject — Limitations of this Rule 586 
 
 Not liable when Jurisdiction assumed through Mistake of Fact 587 
 
 g. Quasi- Judicial Officers. 
 
 What Duties are Judicial — Quasi-Judicial 688 
 
 S. Legislative Officers. 
 
 Same Immunity extends to legislative Action 589 
 
 4. Ministerial Officers. 
 
 In General— Liable to Party specially injured 590 
 
 Same Subject— Nature of Duty governs Liability 591 
 
 Same Subject— What Duties are ministerial 593 
 
 II. Liability for Torts op their Official Subordinates. 
 Public Officers of Government not liable for Acts of official Subordi- 
 nates 5"" 
 
 Same Subject— To what Officers this Rule applies. 594 
 
 c. For Torts of his Private Servant or Agent. 
 
 Liable for Torts of his private Servant or Agent 595 
 
 CHAPTER IV.— THE DUTIES AND LIABILITIES OF THE PRINCI- 
 PAL TO THE AGENT. 
 
 In general— Payment of Compensation — Indemnity § 598 
 
 I. The Payment of Compensation. 
 1. The Agent's Right to Compensation. 
 
 Agreement to pay Compensation 597 
 
 Express Agreement conclusive 598 
 
 Where Agreement must be express 599 
 
 When Agreement to pay will not be implied 600 
 
 When Promise to pay will be implied 601 
 
 Unauthorized Agent entitled to Compensation if Acts are ratified 603 
 
 S. Tli6 Amount of Compensation. 
 
 Express Contract governs 603 
 
 May be left for Principal to determine 604 
 
 In the Absence of express Agreement, Law implies reasonable Compen- 
 sation 605 
 
 What Elements may be considered 606 
 
 What Evidence as to Value is admissible 607
 
 TABLE OF CONTENTS. XXV 
 
 Agent continuing after Expiration of Term presumed to be at prior 
 
 Compensation § 608 
 
 S. When Compensation is Considered to be Earned. 
 
 In general 609 
 
 Compensation earned when Undertaking fully completed 61 
 
 Same Subject — When full Performance a Condition precedent 611 
 
 Same Subject — Not defeated by Principal's Default 613 
 
 Same Subject — No Defense that Principal realized no Profit 613 
 
 1. Revocation by Act of Principal. 
 
 When Agent is entitled to Compensation if Authority is revoked before 
 
 Performance ■ ... 614 
 
 a. Authority Rightfully Revoked. 
 
 Same Subject — Authority rightfully Revoked 615 
 
 Same Subject — Agency at Will of the Principal 616 
 
 Same Subject — Agency terminable on Contingt'ncy 617 
 
 Same Subject — Agency terminable only on Breach of express or 
 
 implied Condition 618 
 
 Same Subject — When terminated for Agent's Misconduct 619 
 
 b. Authority Wrongfully Revoked. 
 
 When Agent discharged without Cause, Breach of implied Contract.... 620 
 
 Same Subject — Breach of express Contract, Agent's Remedies 631 
 
 Same Subject — The Measure of Damages 623 
 
 Same Subject — Duty of Agent to seek other Employment 623 
 
 When Right of Action accrues 624 
 
 No Damages if Agent acquiesces in Discharge 625 
 
 2. Reoocation by Operation of Law. 
 
 No Damages where Agency revoked by Death of the Principal 626 
 
 Same Rule where Agency revoked by Insanity of the Principal 627 
 
 Rule where Agency revoked by Bankruptcy of Principal 628 
 
 Rule where Agency revoked by Death of the Agent 639 
 
 Rule where Agency revoked by Insanity of the Agent 630 
 
 How when Atiency terminated by Agent's Sickness or Incapacity 631 
 
 S. Abandonment by Agent. 
 
 1. When Abandonment lawful 633 
 
 2. When Abandonment wrongful 633 
 
 Same Subject — Entire and severable Contract, Right to Compensation.. 634 
 
 Same Subject— The Rule stated 635 
 
 Same Subject— The more liberal Rule, Britton v. Turner 636 
 
 Same Subject— Further of the Rule of Britton v. Turner 637 
 
 Brief Absences no Abandonment 638 
 
 Condonation of Abandonment 639 
 
 What will excuse Abandonment — Sickness — Epidemic 640 
 
 Contracts not to terminate without Notice, Forfeiture for Breach 641 
 
 SameSubject — What works a Forfeiture 643
 
 XXvi TABLE OF CONTENTS. 
 
 A.gent can not recover Compensation from either Party when double 
 
 Agency unknown § 643 
 
 Same Subject— May recover when double Agency was fully known 
 
 aud assented to 644 
 
 A2;ent cannot recover Compensation if Agency was Unlawful 645 
 
 When Agent can recover for extra Services G46 
 
 Principal's Right of Recoupment 647 
 
 Same Subject— What damages may be Recouped 648 
 
 bame Subject — Limit of Recovery 649 
 
 Same Subject — Not cut off by Assignment 650 
 
 No Recoupment against an luf ant 651 
 
 11. The Agent's Right to Reimbursement. 
 
 Agent must be reimbursed for proper Outlays 652 
 
 III. The Agent's Right to Indemnity. 
 
 Agent must be indemnified against Consequences of lawful Acts 653 
 
 No Indemnity where Act is unlawful 654 
 
 IV. The Agent's Right to Protection from Injury. 
 
 In general 655 
 
 1. From the Risks incident to the Business. 
 
 General Rule — Principal not Liable 656 
 
 g. From the Negligencs of the Principal. 
 
 Principal responsible for his own Negligence 657 
 
 1. For dangerous Premises 658 
 
 2. For dangerous Tools and Machinery 659 
 
 3. For Injuries resulting from Failure to repair as agreed 660 
 
 Same Subject 661 
 
 4. For Employment of Incompetent Servants 662 
 
 5. For Injuries outside of Employment 663 
 
 S. For Negligence of his General Superintendent. 
 
 Principal cannot relieve himself by delegating Duties 664 
 
 Liable foi Negligence of General Agent cr Superintendent 665 
 
 When liable to Agents of Contractors 6GG 
 
 4. For Negligence of Fellow- Servants. 
 
 Principal not liable to one Servant for Negligence of a Fellow-Servant. . 667 
 
 Same Subject — Who is a Fell ow- Servant ? 668 
 
 Volunteer assisting Servant can not recover 669 
 
 Contributory Negligence of Servant defeats his Recovery 670 
 
 Agreements to waive Liability invalid 671 
 
 V. Agent's Right to a Lien. 
 
 In general 672 
 
 Lien defined — General and Particular Liens 673 
 
 Foundation of the Claim of Lien 674
 
 TABLE OF CONTENTS. XXVll 
 
 Nature of Lien §675 
 
 Requisites of Lien — Possession 676 
 
 Possession must have been lawfully acquired 677 
 
 Possession must be com inuous 678 
 
 Possession must have been acquired in Course of Employment 679 
 
 No Lien if contrary to Intention of Parlies — Waiver 680 
 
 "Waiver by inconsistent Conduct 681 
 
 Claim of Lien no Waiver of personal Remedies 683 
 
 How Lien may be enforced 683 
 
 How these Rules apply to Agents 684 
 
 Agent's Lien ordinarily a particular Lien 685 
 
 For what Sums the Lien attaches 686 
 
 VI. Agent's Right op Stoppage in Transit. 
 
 Agent liable for Price of Goods may stop them in Transit 687 
 
 Right exercised as in other Cases 688 
 
 Right of such an Agent to retain Title until paid for 689 
 
 VII. Rights of Subagent against Principal. 
 
 When Principal liable for his Compensation 690 
 
 Same Rules govern Reimbursement and Indemnity 091 
 
 How as to Protection against Injury 692 
 
 When Subagent entitled to a Lien 693 
 
 CHAPTER v.— THE DUTIES AND LIABILITIES OF THE PRINCI- 
 PAL TO THIRD PERSONS. 
 
 Purpose of Chapter § 694 
 
 I. Liability of Pkincipal in contract. 
 1. The Liability of an Undisclosed Principal. 
 
 Undisclosed Principal liable where discovered on simple Contracts 695 
 
 Same Sul)ject— The Rule stated 696 
 
 Same Subject— Of the first Exception 697 
 
 Same Subject— Of the second Exception 698 
 
 Same Subject — What constitutes an Election 699 
 
 Same Subject — Election must be made within a reasonable Time 700 
 
 Rule applies to all simple Contracts 701 
 
 Does not apply to Contracts under Seal — When 702 
 
 a. The Liability of a Disclosed Principal, 
 
 a. For Agent's Acts and Contracts. 
 
 In general 703 
 
 Principal liable for Agent's Acts and Contracts in Execution of Autlior- 
 
 ity 704 
 
 Same Subject — The Rule stated 705 
 
 Third Person must ascertain Agent's Authority 706 
 
 What constitutes Authority , 707 
 
 Same Subject — Secret Instructions and Restrictions 708
 
 xxvlii TABLE OF CONTENTS. 
 
 General and Special Agents § 709 
 
 Same Subject — Special Agent's Authority must be strictly pursued 710 
 
 Eflfect of Ratification 711 
 
 Performance of unlawful Act not enforced 712 
 
 Principal not bound where Agent has an adverse Interest 713 
 
 b. For the Agent's Statements and Representations. 
 
 When Agent's Admissions and Representations binding on Principal. . . 714 
 
 What embraced within Res Oestce 715 
 
 Agent's Authority must be first shown 716 
 
 When Principal bound by Agent's Representation of extrinsic Facts 
 
 upon which Authority depend 717 
 
 c. By Notice given to the Agent. 
 
 General Rule — Notice to the Agent is Notice to the Principal 718 
 
 Same Subject — The Reason of the Rule 719 
 
 Same Subject— Notice acquired during Agency 720 
 
 Same Subject — Knowledge acquired prior to Agency. 721 
 
 Same Subject — Of the first Exception 723 
 
 Same Subject — Of the second Exception 723 
 
 What Notice includes — Actual and constructive Notice 724 
 
 Rule applies only to Matters within Agent's Authority 725 
 
 Notice after Termination of Authority does not bind 726 
 
 Notice must be of some material Matter 727 
 
 Notice to Subagent when Notice to Principal 728 
 
 These Rules apply to Corporations 729 
 
 Same Subject— When Notice to Director is Notice to Corporation 730 
 
 Same Subject — Notice to Stockholder, not Notice to the Corporation . . 731 
 
 II. Liability op the Pkincipal in Tort. 
 
 a. For Agent's Wrongful Acts. 
 
 In general 732 
 
 Principal liable for Acts expressly directed 733 
 
 Liable for Agent's negligent Act in Course of Employment 734 
 
 Same Subject — Acts in the Course of his Employment 735 
 
 Same Subject — Illustrations. 736 
 
 Not liable for Negligence not in Course of Employment 737 
 
 Same Subject — Illustrations 738 
 
 Liability for Agent's fraudulent Act 739 
 
 When Principal liable for Agent's willful or malicious Act 740 
 
 Same Subject — Illustrations 741 
 
 Same Subject — Liability for excessive Force 742 
 
 Liability of Principal for Agent's false or fraudulent Representations. .. 743 
 
 Same Subject — Third Person's Remedies 744 
 
 Principal's civil Liability for Agent's criminal or penal Act 745 
 
 Principal's criminal Liability for Agent's criminal or penal Act 746 
 
 Principal's Liability for Acts of independent Contractor 747 
 
 Same Subject — Illustrations 748 
 
 Principal's Liability for Acts of Subagent 749 
 
 Eflectsof Ratification 750
 
 TABLE OF CONTENTS. XXIX 
 
 The Measure of Damages against the Principal § 751 
 
 Unsatisfied Judgment against Agent no Bar to Action against Principal. 753 
 
 CHAPTER VI.— THE DUTIES AND LIABILITIES OF THIRD PER- 
 SONS TO THE AGENT. 
 
 I. In Contract. 
 
 In general — Right of Action in Principal alone § 753 
 
 Agent may sue on Contract made by him 754 
 
 Agent may sue on Contract made with him personally 755 
 
 Agent may sue when he has a beneficial Interest. 756 
 
 Same Subject — Principal may sue or control Action 757 
 
 Agent only may sue on sealed Contract made with him personally 758 
 
 Agent's Rights depend upon the Contract 759 
 
 Right of assumed Agent to show himself Principal 760 
 
 Agent may recover Money paid to him under Mistake or illegal Con- 
 tract , 761 
 
 What Defenses open to third Person 763 
 
 What Damages Agent may recover on Contract 763 
 
 II. In Tort. 
 
 Agent may sue for personal Trespass 764 
 
 When Agent may sue for Injuries to Principal's Property 765 
 
 CHAPTER VII.— THE DUTIES AND LIABILITIES OP THIRD PER- 
 SONS TO THE PRINCIPAL. 
 
 In general 766 
 
 The Rule stated 767 
 
 1. The Right to Sue on Contract made by Agent. 
 
 May sue on Contracts made in Name of Principal 768 
 
 May sue on Contracts made in his Behalf but in Agent's Name 769 
 
 Same Subject— How when Contract involves Elements of personal 
 
 Trust and Confidence 770 
 
 Same Subject — Principal can not sue where Contract solely with Agent 
 
 personally 77I 
 
 Same Subject— Principal's Rights superior to Agent's 772 
 
 Principal subject to Defenses which could have been made against 
 
 Agent 773 
 
 Same Subject — Limitation of Rule 774 
 
 How Principal affected by Agent's Fraud 775 
 
 Third Person cannot dispute Principal's Right— When 776 
 
 Summary of Rules 777 
 
 S. Eight to Recover Money paid or used by Agent. 
 
 In general 779 
 
 A. 
 
 Right in Cases of first Class 779
 
 XXX TABLE OF CONTENTS. 
 
 B. 
 
 Principal's Right to follow trust Funds 780 
 
 Same Subject— Illustrations 781 
 
 Same Subject— Further Illustrations— Restrictive Indorsements 783 
 
 Right to recover Money wrongfully paid by Agent 783 
 
 S. Rigid to Recover Property. 
 In general— Principal may recover Property wrongfully applied or dis- 
 posed of by Agent 784 
 
 Principal's Title can not be divested except by his Consent or voluntary 
 
 Act 785 
 
 Where Possession is Evidence of Authority 786 
 
 Possession coupled with Indicia of Ownership 787 
 
 Same Subject— Illustrations 788 
 
 Principal may recover Property appropriated to Agent's uses 789 
 
 Right to recover Securities wrongfully released 790 
 
 Right to recover Property wrongfully sold 791 
 
 4,. Right to Recover for Torts. 
 
 May recover for Injuries occasioned by third Person's Torts 792 
 
 For enticing Agent away 793 
 
 For preventing Agent from performing 794 
 
 For personal Injury to Agent causing Loss of Service 795 
 
 Third Person not liable for Agent's Fraud or Neglect 796 
 
 5, Remedies for Double Dealing. 
 
 How when third Person conspires with Agent 797 
 
 How when Agent in secret Employment of the other Party 798 
 
 6. Conclusiveness of Judgment against Agent. 
 Principal not bound by Judgment against Agent to which he was not a 
 
 Party 799 
 
 BOOK V. 
 
 PARTICULAR CLASSES OF AGENTS. 
 
 CHAPTER I.— OF ATTORNEYS AT LAW. 
 
 Scope of Chapter § 800 
 
 I. Op the Office. 
 
 Who meant by Attorney at Law 801 
 
 Attorney at Law defined 802 
 
 Is an Officer of the Court 803 
 
 Who may be 804 
 
 Party may appear in Person 805 
 
 May not appear by Agent 806
 
 TABLE OF CONTENTS. XXXI 
 
 n. Op the Relation of Attorney and Client. 
 
 1. A Relation of Agency. 
 
 Rules of Agency govern g 807 
 
 t. How Created. 
 
 No formal Power necessary 803 
 
 III. Appearance presumptitelt Authorized. 
 
 Presumption of Authority 809 
 
 This Presumption not conclusive 810 
 
 IV. Implied Authority op Attorneys. 
 
 Has general Control of Conduct of Suit 811 
 
 Same Subject — What included 812 
 
 Same Subject — What not included 813 
 
 Can not delegate his Powers 814 
 
 May employ Subordinates , 815 
 
 Authority to bind Client by Bonds 816 
 
 Authority to receive Payment 817 
 
 Same Subject — After Judgment 818 
 
 Same Subject — What constitutes Payment 819 
 
 Authority to enforce Judgment 820 
 
 V. Duties and Liabilities op Attorney to Client. 
 
 Bound to highest Honor and Integrity. 821 
 
 Duty to disclose adverse Interests , 822 
 
 Duty to remain loyal 823 
 
 Duty to use reasonable Care and Skill 824 
 
 Same Subject — Errors in Law or Judgment 825 
 
 Same Subject — Negligence in Collecting 826 
 
 Same Subject — Negligence in bringing Suit 827 
 
 Same Subject — Negligence in Trial of Action 828 
 
 Same Subject — Negligence in examining Titles 829 
 
 Same Subject — Negligence in preparing Contracts, &c 830 
 
 Same Subject— Neglect of Partners, Clerks, &c 831 
 
 Liability for exceeding Authority, or violating Instructions 832 
 
 Liability for Money collected — Liability for Interest 833 
 
 Attorney liable though acting gratuitously 834 
 
 The Measure of Damages 835 
 
 VL Liability op Attorney to Third Persons. 
 
 Not liable for Breach of Duty owing to Client only 836 
 
 Liable when he contracts personally 837 
 
 Liability for Clerk's, Officer's and Witness's Fees 838 
 
 Liability to third Person in Tort 839 
 
 VIL Liability op Client to Attorney. 
 
 1. Attorney's Right to Reimbursement and Indemnity. 
 
 Attorney entitled to Reimbursement and Indemnity 840 
 
 iii
 
 XXXU TABLE OF CONTENTS. 
 
 2. Attorney's Right to Compensation, 
 
 Attorney entitled to Compensation §841 
 
 Attorney may sue for Compensation 843 
 
 a. Wliere there was a special Contract. 
 
 Parties may agree upon Amount of Compensation 843 
 
 Contracts for contingent Compensation 844 
 
 What Contracts champertous 845 
 
 Such Contracts do not prevent Settlement by Client 846 
 
 But Attorney may recover from Client 847 
 
 b. Where there was no special Contract. 
 
 Attorney entitled to reasonable Value of his Services 848 
 
 What Evidence admissible 849 
 
 What Evidence not admissible 850 
 
 Lack of Success no Defense 851 
 
 Negligence or bad Faith may be shown 852 
 
 Fees forfeited by Breach of Trust 853 
 
 How when Attorney abandons Service 854 
 
 What will justify Abandonment 855 
 
 When discharged by Client 856 
 
 What will justify Discharge 857 
 
 When Attorney's Claim barred by Limitation 858 
 
 S. Attorney's Bight of Lien. 
 
 Two Kinds of Lien. 859 
 
 1. The General or Retaining Kind. 
 
 General Nature of this Lien 860 
 
 Declared by Statute in some States 861 
 
 What this Lien adheres to 862 
 
 a. Upon Papers. 
 
 b. Upon Property. 
 
 c. Upon Money. 
 
 What Charges the Lien secures 863 
 
 Against what Parties, Lien prevails 864 
 
 How Lien may be lost 865 
 
 How Lien may be waived 866 
 
 Enforcement of Lien 867 
 
 S. The Special or Charging Lien. 
 
 General Nature of this Lien 8'"S 
 
 In what States it exists 8P9 
 
 What this Lien protects 870 
 
 When Lien attaches 871 
 
 To what Lien attaches 873 
 
 How Lien protected , 873 
 
 How Lien enforced 874 
 
 How Lien lost or waived 875 
 
 By what Law governed 876
 
 TABLE OF CONTENTS. XXXlll 
 
 VIII. Dealings between Attorney and Client. 
 
 In general — Good Faith and perfect Fairness required § 877 
 
 Purchases from, and Sales to Client — Adverse Purchases 878 
 
 Relation of Attorney and Client must exist 879 
 
 IX. Privileged Communications. 
 
 Confidential Communications privileged 880 
 
 Under what Circumstances privileged 881 
 
 Same Subject 883 
 
 Relation of Attorney and Client must exist 883 
 
 Communications must have been made to an Attorney 884 
 
 Privilege is the Client's 885 
 
 How long it continues 886 
 
 Attorney may disclose for his own Protection 887 
 
 X. Termination op the Relation. 
 
 By Operation of Law 888 
 
 By Act of the Parties 889 
 
 CHAPTER II.— OF AUCTIONEERS. 
 
 Purpose of this Chapter | 890 
 
 1. Of the Auctioneer. 
 
 Definition 891 
 
 Who may be 892 
 
 Whose Agent he is 893 
 
 S. Row authorized. 
 
 Like other Agents 894 
 
 S. Auctioneer's implied Powers. 
 
 To fix Terms of Sale 895 
 
 To accept the Bid 896 
 
 To receive the Price 897 
 
 To sue in his own Name for the Price 898 
 
 None — To delegate his Authority 899 
 
 None— To sell on Credit 900 
 
 None— To rescind Sale 901 
 
 None — To sell at private Sale 903 
 
 None— To bid himself 903 
 
 None — To warrant Quality 904 
 
 4. Auctioneer's Duties and Liabilities to Principal. 
 
 Bound for reasonable Skill and Diligence 905 
 
 To obey Instructions 906 
 
 To account for Proceeds 907 
 
 To take care of Goods 908 
 
 To sell for Cash only 909 
 
 To sell to third Parties only 910
 
 XXXIV TABLK OF CONTENTS. 
 
 To sell in Person § 911 
 
 To disclose his Principal 912 
 
 B. Auctioneer's Duties and LiaJnlities to Third Persons 
 
 Liable when he conceals Principal 913 
 
 Liable when he exceeds his Authority 914 
 
 Liability for selling Property of Stranger 915 
 
 Not liable for not holding Auction as advertised 916 
 
 6. Auctioneer's Rights against his Principal. 
 
 Compensation, Reimbursement, Lidemnity 917 
 
 Recoupment of Damages 918 
 
 Auctioneer's Lien 919 
 
 Can not dispute Principal's Title 920 
 
 7. Auctioneer's Rights against Third Persons. 
 
 Right to sue Bidder 921 
 
 Right to sue Wrong-doer 922 
 
 8. PrineipaVs Rights against Third Persons, 
 
 To recover Purchase Price 923 
 
 Where Bidder refuses to complete Purchase 924 
 
 9. Rights of Third Persons against Principal. 
 
 Principal's Liability for Auctioneer's Acts 925 
 
 Liable for Breach of Contract 926 
 
 CHAPTER III— OF BROKERS. 
 
 L Definitions and Divisions. 
 
 Brokers — In general § 927 
 
 Different Kinds of Brokers 928 
 
 Bill and Note Brokers 929 
 
 Exchange Brokers 930 
 
 Insurance Brokers 931 
 
 Merchandise Brokers 932 
 
 Pawnbrokers 933 
 
 Real Estate Brokers 934 
 
 Ship Brokers 935 
 
 Stock Brokers 936 
 
 II. Appointment and Termination. 
 
 Appointed like other Agents 937 
 
 How Authority terminated 938 
 
 III. Implied Powers op Brokers. 
 
 In general 939- 
 
 How affected by Usage 940^ 
 
 Usual and necessary Powers 941
 
 TABLE OF CONTENTS. XXXV 
 
 Effect of his Instructions § 942 
 
 Acting for both Parties 943 
 
 Cannot delegate his Powers 944 
 
 Usually must act in the Name of his Principal 945 
 
 Implied Power to fix Price 946 
 
 May sell with Warranty — When 947 
 
 When may sell on Credit 948 
 
 No Authority to receive Payment 949 
 
 No Authority to rescind or arbitrate 9o0 
 
 IV. Duties and Liabilities to Principal. 
 
 Reasonable Skill and Diligence required 951 
 
 Fidelity to his Principal 953 
 
 Same Subject — Acting for both Parties 953 
 
 Duty to obey Instructions 954 
 
 Duty to keep and render Accounts and pay Proceeds 955 
 
 V. Duties and Liabilities to Third Persons. 
 
 Not liable when Principal disclosed 956 
 
 Liable when Principal concealed 957 
 
 Liable when he expressly charges himself 958 
 
 Liable when he acts without Authority 959 
 
 Liability for Money received 960 
 
 Whei. guilty of Conversion 961 
 
 VI. Rights op Brokers against Principal, 
 
 1. Right to Compensation. 
 
 Entitled to Compensation 962 
 
 How Amount determined 963 
 
 Broker must show Employment 964 
 
 Broker must have performed Undertaking 965 
 
 Same Subject — Real Estate Brokers 966 
 
 Same Subject — Not defeated— how 967 
 
 Same Subject — Revocation of Authority 968 
 
 Employment of two or more Brokers 969 
 
 Broker to effect Loan 970 
 
 Broker to effect Exchange 971 
 
 Cannot have Commissions from both Parties 972 
 
 How in case of mere Middleman 973 
 
 No Compensation when Undertaking illegal 974 
 
 How affected by Misconduct 975 
 
 How when not licensed 976 
 
 S. Right to Reimbursement. 
 
 Entitled to Reimbursement 977 
 
 How when Undertaking not performed 978 
 
 S. Right to a Lien. 
 
 No general Lien 979 
 
 Liens in special Cases — Insurance Brokers 980 
 
 No Lien except for Debt due from Principal 981
 
 XXXVi TABLE OF C0NTKNT8 
 
 VII. Rights op Brokers against Thikd Persons. 
 
 In general, no Right of Action on Contracts § 982 
 
 When he may sue 983 
 
 VIII. Rights op Principal against Third Persons. 
 8ame as in the other Cases of Agency 984 
 
 IX. Rights of Third Persons against Principal. 
 
 Same as in other Cases of Agency 985 
 
 No Set-off of Broker's Debts 986 
 
 CHAPTER IV.— OF FACTORS. 
 
 1. Definitions and Distinctions. 
 
 Factors and Commission Merchants defined § 986a 
 
 2. How Appointed. 
 
 Same as other Agents 987 
 
 3. Implied Powers of Factors. 
 
 In general 988 
 
 How affected by Usage 989 
 
 To seU on Credit 990 
 
 To sell in his own Name 991 
 
 To warrant Quality 992 
 
 To receive Payment 993 
 
 To pledge 994 
 
 To pledge— Under Factor's Acts 995 
 
 To pay his own Debts 996 
 
 To barter or exchange 997 
 
 To delegate his Authority 998 
 
 To compromise the Debt 999 
 
 To submit to Arbitration 1000 
 
 To rescind Sale 1001 
 
 To extend Time of Payment 1002 
 
 To receive anything but Money in Payment 1003 
 
 To make negotiable Paper. 1004 
 
 To insure Property 1005 
 
 4. Duties and Liabilities to Principal. 
 
 To use reasonable Care and Prudence 1006 
 
 To act in good Faith 1007 
 
 To obey Instructions 1008 
 
 Same Subject— Instructions to sell 1009 
 
 Same Subject — Instructions to sell for Cash 1010 
 
 Same Subject — Instructions to insure 1011 
 
 Duty to inform Principal 1012 
 
 Duty to sell only to responsible Purchaser 1013
 
 TABLE OF CONTENTS. XXXvii 
 
 Same Subject — Del Credere Commissions §1014 
 
 Factor's Duty to care for Property ... 1015 
 
 General Duty at the Sales 1016 
 
 Duty as to the Place of Sale 1017 
 
 Duty as to Time of Sale 1018 
 
 Duty as to Price 1019 
 
 Duty in collecting Price 1020 
 
 Factor's Duty in keeping Accounts 1021 
 
 Not obliged to keep Funds separate 1022 
 
 Factor's Duty to account for Money and Property 1023 
 
 Duty in remitting Money 1024 
 
 When Principal may sue Factor 1025 
 
 Liability for Acts of Subagents 1026 
 
 5. Rights op FACxoit against PrincipaIj. 
 
 a. Commissions. 
 
 Factor entitled to Compensation 1027 
 
 When Factor may have Commissions from both Parties. 1028 
 
 b. Reimbursement. 
 
 Factor entitled to Reimbursement 1029 
 
 Same Subject — Conclusiveness of Accounts 1030 
 
 c. Indemnity. 
 Factor entitled to Indemnity against Losses 1031 
 
 d. Lien. 
 
 Factor entitled to Lien 1083 
 
 When Lien does not exist 1033 
 
 Nature of the Lien 1034 
 
 When Lien attaches 1035 
 
 Who may confer Lien 1036 
 
 How Lien may be lost 1037 
 
 How Lien enforced 1038 
 
 6. Rights op Factor against Third Persons. 
 a. In Contract. 
 
 May sue for Price of Goods sold 1039 
 
 May sue on Contracts made in his Name 1040 
 
 b. In Tort. 
 
 May maintain Trespass, Replevin or Trover 1041 
 
 7. Rights of PRmcrpAL against Third Person. 
 a. In Contract. 
 
 May sue for Price of Goods sold 1043 
 
 Same Subject — What Defenses Principal subject to 1043 
 
 Right to follow Property 1044 
 
 b. In Tort. 
 For Injuries to or Conversions of the Goods 1045
 
 XXXVlll TABLK OF CONTENTS. 
 
 8. RiGnxa op Third Persoh against Principal. 
 
 Same as in other Cases § 1046 
 
 How when Principal undisclosed 1047 
 
 How when exclusive Credit given to the Factor 1048 
 
 9. Rights op Third Person against Factor. 
 
 Same as in other Cases 1049 
 
 When liable for Conversion 1050 
 
 How in case of foreign Factor 1051 
 
 10. How RkiuAtion Terminated. 
 As in other Cases of Agency 1052
 
 TABLE OF CASES CITED. 
 
 •^' SECTION 
 
 Abbe V. Rood (6 McLean, 108) 155 
 
 Abbey v. Chase (6 Gush. 56). .. 446, 549, 550 
 
 Abbott V. Dutton (44 Vt. 546) 810 
 
 V. May (50 Ala. 97) 149 
 
 V. McKinley (2 Miles, 220) 63 
 
 W.Rose (63 Me. 194) 879 
 
 V. yawmut Ins. Co. (3 Allen, 215) . . 433 
 
 V. Smith (4 Ind. 452) 514, 515 
 
 Abell V. Howe (43 Vt. 403) 721, 722 
 
 Abernathy v. Black (2 Cold. 814) 635 
 
 Abrahams v. Weiller (87 111. 179). 78, 287, 339 
 
 Acheson t). Chase (28 Minn. 211) 745 
 
 Ackar V. Ledyard (8 N. Y. 65) 810 
 
 Ackenburg v. McCo.)! (36 Ind. 473) .... 4tJ9 
 Ackerley v. Parkinson (3 Maule & Sel. 
 
 435) 580, 585, 586 
 
 Ackert V. Barker (131 Mass. 436) 845 
 
 Ackley v. Kellogsr (8 Cow. 223) 475 
 
 Adams u. Boies (24 Iowa, 96) 363 
 
 V. Bourne (9 Gray, 100) 288 
 
 V. (apron (21 Md. 186) 1016 
 
 V. Clark (9 Gush. 215) 685 
 
 v. Cost(63Md. 264) 738 
 
 V. Flanagan (36 Vt. 400) 393 
 
 V. Fort Plain Bank (36 N. Y. 255) ... 858 
 
 v. Freeman (9 Johns. 118) . 839 
 
 V. Hannibal. &c., R. R. Co. (74 Mo. 
 
 5.'J3) 714, 715 
 
 V. Hopkins (5 Johns. . 253) 838 
 
 V. Humphreys (54 Ga. 496) 714 
 
 V. Manufacturers' & Builders' Ins. 
 
 Co. (17 Fed. Rep. 630) 931 
 
 V. McMillan (7 Port. 73) 893, 934 
 
 V. Nellis (59 How. Pr. 385) 888 
 
 V. Pittsburgh Ins. Co. (95 Penn. St. 
 
 348) 281 
 
 V. Powers (52 Miss. 828) 93, 95, 141 
 
 V. Robinson (65 Ala. 53) . . 474. 476, 48.S 
 
 V. Roller (35 Tex. 711) 813 
 
 V. Say re (70 Ala. 818) 468 
 
 Adams Express Co. v. Schlessinger (75 
 
 Penn. St 246) 279 
 
 V. Trego (36 Md. 47). . . . 129, 133, 215, 307 
 Adams Mining Co. r. Senter (26 Mich. 
 
 73) 67, 644 
 
 Adamson v. Jarvis (4 Bing. 66). 653, 915, 917 
 
 V. Hartman (40 Ark. 58) 94 
 
 Addison v. Gandassequi (4 Taunt. 574) 
 
 698, 699 
 
 Adrian v. Lane (13 S. C, 153) 360 
 
 Adriance v. Rutherford (57 Mich. 170). 210, 
 
 249, 616 
 
 Adslt V. Brady (4 Hill, 630) 590 
 
 Advertiser & Tribune Co. v. Detroit (43 
 
 Mich, lib) 719 
 
 .ffltna Ins. Co. v. Alton City Bank (25 
 
 111. 243) 514 
 
 V. Church (21 Ohio St. 492) 473 
 
 V. N. W. Iron Co. (31 Wis. 458) 129 
 
 V. Olmstead (31 Mich. 246) 931 
 
 V. Reed (33 Ohio St. 283) 743 
 
 V. Sabin e (6 McLean, 393) 171 
 
 Agricultural Bank v. Commercial Bank 
 
 (7Smedes&M. 69 J) 514 
 
 Ahern v. Baker (34 Minn. 98). . . 202, 220, 969 
 
 V. Goodspeed (73 N. Y. 108) 348, 349, 
 
 947, 993 
 
 Alabama, &c., R. R. Co. v. Hawk (73 
 
 Ala. 112) 715 
 
 V. Waller (48 Ala. 459) tJ63 
 
 Alba V. Moriarty (36 La Ann. 680) .... 313 
 Albany & Rensselaer Co. v. Luudberg 
 
 (131 U.S. 451) ^ 7.55 
 
 Albany Fire Ins. Co. v. Bay (4 N. Y. 9) SSi 
 
 Albertson v. Goldsby (38 Ala. 711). ... 830 
 
 Albro V. Agawam Canal Co. (6 Gush.75), 668 
 
 Alderman v. People (4 Mich. 414) 683 
 
 Aldrich v. Equitable Safety Ins. Co. (1 
 
 Wood&M. 276) 931 
 
 V. Jackson (5 R. 1.318) 9:^9 
 
 V. Kinney (4 Conn. S.'-O) 810 
 
 Alemany v. Daly (36 Cal. 90) 330 
 
 Alexanders Alexander (3 Ves. 644).. 416 
 
 V. Burns (6 La. 704) 386 
 
 w. Gib.son (3 Camp. 555) 348 3.50 
 
 V. Hoffman (5 W. & S. 382) 635 
 
 V. Jones (64 Iowa, 307) 155, 164, 334 
 
 V. Noithwestern University (57 
 
 Ind. 466)... 67,644,953,972 
 
 V. Vane (1 Mees. & Wels.511) 600 
 
 V. Walter (8 Gill. 339) 831 
 
 Alffer v. Gardner (54 N. Y. 360) 745 
 
 Allaire v. Ouland (3 Johns. Cas. 52).... 917 
 
 Allaire Works v. Guion (10 Barb. 55).., 64S 
 
 Allard v. Lamirande (29 Wis. 502) . . . . 843 
 
 844,845 
 Allegheny Valley R. R. v. McLain (91 
 
 Penn. St. 443) 751 
 
 Allen r. Allen (60 Mich. 635) 599 
 
 V. Bennett (3 Taunt. 175) 211 
 
 V. Bryson (67 Iowa, 591) 600 
 
 V. Gray (11 Conn. 95i 585 
 
 V. Harrison (30 Vt. 319) 883 
 
 W. Ham (63 Me. 633)... 674 
 
 w. Mc( 'alia (35 Iowa, 464) 722 
 
 V. McKibben (5 Mich. 449) 637,648 
 
 V. Mf gguire (15 Mass. 496) 679 
 
 V. Merchants' Bank (23 Wend. 215) 
 
 511, 514 
 
 V. Eichard (83 Mo. 55) 459 
 
 V. Root (39 Tex. 589) 883 
 
 V. Suydam (30 Wend. 321).. 511, 514, 518 
 
 V. Steers (39 La. Ann. 586) 1040 
 
 V. St. Louis Bank (130 U. S. 30).. 994, 995 
 
 V. Willard (57 Penn. St. 374) 666 
 
 V. Williams (12 Pick. 397) 1035 
 
 Allerton Packing Co. v. Egan (86 Qa. 
 
 2.53) 670 
 
 Allis V. Billings (6 Mete. 415) 50 
 
 AUredu. Bray (41 Mo. 484) 137 
 
 Alsop V. Carnes (10 Johns. 396) 755 
 
 Alston V. Hartman (3 Ala. 699) 755 
 
 Althorf V. Wolfe (33 N. Y. 355) 669 
 
 Alton v. Gilinanton (2 N. H. 530) 812 
 
 Amann V. Lowell (66 Cal. 306) 773 
 
 Amazon Ins. Co. v. Wall (31 Ohio St. 
 
 638) 931 
 
 Ambrose v. McDonald (53 Cal. 28) 813 
 
 Ames V. Drew (31 N. H. 475) 383 
 
 V. Palmer (42 Me. 197) 673, 1034 
 
 V. Port Huron Log Driving C!o. (11 
 
 Mich. 139) 68 
 
 V. St. Paul, &c., B. R Co. (13 Minn. 
 
 413) 769 
 
 [xxxi x]
 
 zl 
 
 TABLE OF OASES CITED. 
 
 SECTION 
 
 Ames V. Union Ry Co. (117 Mass. 541 . ) . . 795 
 Ames Packing & Frov. Co. v. Tucker 
 
 iSMo. App. 95) 699 
 
 American Central lus. Co. v. McCrea 
 
 (8 Lea, 513) 931 
 
 V. McLanaihau (11 Kana. 533) 281 
 
 American Express Co. v. Hairo (21 Ind. 
 
 4) 614,517 
 
 V. Milk (73 Ul. 224) 287 
 
 V. Patterson (73 Ind. 430) 751 
 
 American Steamship Co. v. Landreth 
 
 102 Penn. St. 131) 714 
 
 American ins. Co. v. Stratton (59 Iowa, 
 
 696 ) 440, 441 
 
 Amiable Nancy (3 Wheat, 546) 751 
 
 Amison v. Ewinff (2 Cold. 3b7) 439 
 
 Amite City v. (jlementz (24 La. Ann. 
 
 27) 892 
 
 Amor V. Fearon (9 Ad. & E. 548) 215 
 
 Amory v. Hamilton (17 Mass. 103) 474 
 
 Amy V. Supervisors (11 Wall. 136) 590 
 
 Ancher v. Bank of England (2 Doug, 
 
 637) 799 
 
 Anderson v. Bruner (112 Mass. 14) 3.50 
 
 w. Burnett (5 How. 165) 743 
 
 V. Coonley (21 Wend. 279) 6 
 
 V. Coxae Neb. 10) 966 
 
 V. Estate (42 Vt. 850) 48 
 
 V. Gregg (44 Miss. 170) 63, 87 
 
 ». Harold (10 Ohio, 399) 211 
 
 V. Morrison (22 Minn. 274) 658 
 
 «. RadclifEe (E. B. & E. 806) 845 
 
 V. Rome, etc., R. R. Co. (54 N. Y. 
 
 834) 714 
 
 V. Sanderson (2 Stark. 204) 87 
 
 i>. State (2 Geo. 370) 532 
 
 V. Wallace (8 CI. & Fin. 26) 188 
 
 V. Watson (3 C. & P. 214) 812 
 
 Andrews v. .ffltna L. Ins. Co. (92 N. Y. 
 
 596) 154 
 
 V. Estes (11 Me. 267) 436, 445, 448 
 
 V. Kneeland (6 Cow. 354) 349, 947, 992 
 
 V. Morse (12 Conn. 444) 869, 870 
 
 Andnis v. Howard (36 Vt. 248) 735, 736 
 
 Angle V. Hanna (22 III. 429) 635 
 
 Anglo-Californian Bank v. Mahoney 
 Mining- Co. (5 Sawy. 255; s. O., 
 
 104 U.S., 192) 121 
 
 Anonymous(l Salk. 86) 8l0 
 
 Ansley v. Jordan (61 Ga. 482) 622 
 
 Anthony v. Eastabrook (1 Colo. 75) 714 
 
 Antram v. Thorndell (74 Penn. St. 442). 87 
 
 Antrobus v. Sherman (65 Iowa, 230) 814 
 
 Appleton V. Binks (5 East. 147) 558 
 
 Appleton Bank v. McGilvray (4 Gray, 
 
 518) 185, 194, 197 
 
 Applegate v. Moffltt (60 Ind. 104) 348 
 
 Archard v. Hornor (3 C. & P. 34'.)) 022 
 
 Archer v. McMechan (21 Mo. 4-3) 10-37 
 
 Arden v. Patterson (5 Johns. Ch. 44). . . 845 
 Ardesco Oil Co. v. North American, 
 
 &c., Co. (66 Penn. St. 375) 535 
 
 Areav. Mil liken (35 La. Ann. 1150).... 510 
 
 1005, 1011, 1012 
 
 Arlington v. Hinds (1 D. Chip. 431). ... 769 
 
 V. Peirce (122 Mass. 270 118 
 
 Arnifield v. Nash (31 Miss. 361) 623 
 
 Armil v. Chicago, &c., R. R. Co. (70 
 
 Iowa, 130) 715 
 
 Armitage v Widoe (3S Mich. 124) 51 
 
 52. 53, 112, 114 
 Armour v. Michigan Cent. R. R. Co. (65 
 
 N. Y. 11) 717 
 
 Armstrong v. Clarion Co. (62 Penn. St. 
 
 218) 6.54 
 
 V. Cooley (5 Gilm. 512) 739 
 
 In re (33 Fed. Rep. 405) 519. 783 
 
 «. Smith (3 Blackf. 2.^1).. .. ....522, .^31 
 
 V. Stokes (L. R. 7 Q. B. 603) 556 
 
 697, 698 
 Arnold v. Clifford (2 Sumner, 238) 653 
 
 BEOTTOM 
 
 Arnold r. Nye (23 Mich. 286) 809 
 
 V. Richmond Iron Works (1 Gray, 
 
 434) 50 
 
 V. Spurr (130 Ma«s. 847) 63, 86 
 
 V. Stevenson (2 Nev. 2:M) 229 
 
 Arno V. Wayne Circuit Judge (42 Mich. 
 
 36:;) 810 
 
 Amot i». Coal Co. (68 N. Y. 5.58) 35 
 
 Arrington v. Sneed (18 Tex. 135) 27 
 
 Arrott V. Brown (6 Whart. Penn. 9). 638, 1012 
 
 Ash u. Guie (97 Penn St. 493) 72 
 
 V. Putnam (1 Hill, N. Y. 302) 678 
 
 Ash by L'. White (2Ld. Raym. 9.38) 590 
 
 Ash rv. Sutton (31 Kans. 286) 287 
 
 Ashley v. Bird (1 Mo. 640) 801, 318 
 
 Ashmore v. Penn. Steam Towing Co. 
 
 (38N. J.L. IJ) 714 
 
 Aslop V. Caines (10 Johns. 396) 756 
 
 Aspain V. Austin (5 Ad. & Ell., N. S. 
 
 671) 211,622 
 
 Aspinwall v. Torrance (1 L.ins. 38;) 555 
 
 Atcheson v. Malton (43 N. Y. 149) 22 
 
 Atchison, &c., R. R. Co. v. Holt (29 
 
 Kans. 149) 659 
 
 Atkin V. Acton (4 C. & P. 208) 214, 215 
 
 Atkins V. Brown (59 Me. 90) 4-32 
 
 Atkins V. Johnson (43 Vt. 78) 654 
 
 Atkinson v. Burton (4 Bush. 299)... 1006, 1018 
 
 ■u. Manks (1 Cow. 691) 527 
 
 Atkyns v. Ambler (2 Esp. 493) 756, 1039 
 
 Atlantic Cotton Factory Co. v. Speer (69 
 
 Ga. 137) 658 
 
 Atlantic Bank v. Merchants Bank (10 
 
 Gray, ^32) 729 
 
 V. Savery (18 Hun, 41) 730 
 
 Atlantic Cotti >n Mills v. Indian Orchard 
 
 Mills (17 North E. Rep. 49B)..72:i, 729 
 Atlantic National Bank v. Harris (118 
 
 Mass. 147) 723 
 
 Atlantic, &c.. Ry Co. v. Dunn (19 Ohio 
 
 St. 962) 7?.l 
 
 Atlee V. Bartholomew (69 Wis. 4-3) 1'. i 
 
 V. Fink (75 Mo. 100) 37, 357, 797, 95^: 
 
 Attorney General v. Alford (4 De G. M. 
 
 & G. 843) 469 
 
 V. Chesterfield (18 Beav. 596) 523 
 
 V. Siddon (1 Cromp. & .!er. 220). ... 746 
 Attrill V. Patterson (58 Md. 226).. 204, 612. 966 
 Attwood V. Mtmnings (7 B. & C. 278) 306 
 
 807, 393 
 At water v. Lockwood (39 Conn. 45) .... 964 
 Auburn Bauk v. Leonard (40 Barb. 119) 
 
 441, 443 
 Audenried v. Betteley (8 Allen, 302)... 267 
 
 Aultman v. Lee (43 Iowa, 404) 875 
 
 Aurora Agl. Soc. v. Paddock (80 III. 263) 148 
 Au Sable Boom Co v. Sanborn (36 Mich. 
 
 358) 6S0 
 
 Austinv Austin (45 Wis. 523) 63 
 
 V. Helms i65 N. C. 5H0) 78 
 
 V. Latham (19 La. 88) 812 
 
 Austin's Case (5 Rawle. 191) 803 
 
 Averill V. Longfellow (66 Me. 2-38).. ..869, 871 
 
 V. Williams (4 Denio, 295) 386, 820 
 
 V. Williams (1 Denio, 501) 8.39 
 
 Avery i>. Dougherty (102 Ind. 443) 4-18 
 
 V. Halsey (14 Pick. Mass. 174) 6.>3 
 
 V. Lauve (1 La. Ann. 4.^7) S90 
 
 Aycrigg v. New York, &c., R. R. Co. 
 
 (.30 N'. J. L. 460) 738 
 
 Ayrault v Pacific Bank (47 N. Y. 570). . 514 
 Ayres v. Farmers' & Merchants' Bank 
 
 (79 Mo. 421) 619 
 
 «. Hull (5 Kans. 419) 699 
 
 B. 
 
 Babbettr. Young (51 N. Y. 23.S).... 441, 443 
 
 Babcock v. Beman (1 1 N. Y. 200) 441 
 
 V. Granville ( 44 Vt. 325) .'.88 
 
 V. Orbison (25 Ind. 75) 495, 1007
 
 TABLE OF OASES CITED. 
 
 Xll 
 
 SECTION 
 
 Bach V. BaUard (13 La. Ann. 487) 813 
 
 Bacheller v. Pinkham (68 Me. 255) 733 
 
 Backman v. Chariestowu (4:3 N. H. 125) 322 
 
 Backus V. ByroQ (4 Mich. 535) «45 
 
 Bacon v. Johnson (5(j Mich. 182) 1(X), 148 
 
 V. Markley (46 Ind. 116) 796 
 
 V. Sondley (3 Strobh. 542) 554 
 
 Badger V. Gallaher(113 111. 662) 843 
 
 V. Williams (1 D. Chip. 137) 34 
 
 Badgley v. Beale (3 Watts. 263) 38 
 
 Bailey v. Bensiey (87 Ul. 556). . . 281, 485, 989 
 
 V. Chapman (41 Mo. 536) 9b7 
 
 t>. Cornell (m N. W. Rep. 50) 561 
 
 ». Mayor (3 Hill, 531) 590 
 
 V. Shaw (24 N. H. 297) 683 
 
 V. Troy & Boston R. R. CJo. (57 Vt. 
 
 252) 747,748 
 
 V. Wiggins (5 Harr. 462) 580 
 
 Bain v. Brown (56 N. Y. 285) .... 68, 461, 470 
 
 V. Clark i39 Mo. 252) 102;i 
 
 Baines v. BurbridRe (15 La. Ann. 628).. 149 
 
 Baird v. Randall (58 Mich. 175) 376 
 
 V. Walker (12 Barb. 298) 531, 533 
 
 Baker v. Allegheny, &c., R. R. Co. (95 
 
 Penn. St. 211) 658 
 
 V. Bliss (39 N. Y. 70) 724 
 
 V. Chambles (4 Greene, 488) 440 
 
 V. Cook (11 Mass. 23G) 869 
 
 V. Cotter (45 Me. 236) 118 
 
 V. Drake (66 N. Y. 518) 936, 954, 1009 
 
 V. Freeman (35 Me. 485) 93 
 
 V. Fuller (21 Pick. 318) 1035, 1037 
 
 V. Hughes(2Col. 79) 670 
 
 V. Humphrey (101 U. S. 494).... 877, 878 
 
 V. Joseph (16 Cal. 173) 533 
 
 V. Knickerbocker L. Ins. Co. (24 
 
 Wis. 630) 622 
 
 V. Mechanics' Fire Ins. Co. (3 
 
 Wend. 94) 438 
 
 t>. New York National Bank (100 N. 
 
 Y. 31) 536, 780, 781, 1044 
 
 V. State (27 Ind. 485) 588, 5S9 
 
 V. Wasson (53 Tex. 157) 573 
 
 V. Whiting (3 Sumner, 476) 457, 459 
 
 Balch V. Symes (1 Turn. & R. 92). . . 862, 866 
 
 Baldwin v. Bank (1 Wall. 239) 439, 441 
 
 442, 443, 755 
 V. Bank of Louisiana (1 La. Ann. 13) 
 
 194, 514 
 
 V. Bennett (4 Cal. 392) 854,856 
 
 V. Burrows (47 N. Y. 212) 1 29 
 
 V. Cole (6 Mod. 212) 574 
 
 V. Leonard (39 Vt. 260). 119, 554, 957, 1049 
 
 V. Merrill (8 Humph. 132) 819 
 
 V. Potter (4(1 Vt. 4U::i) 522, 526, 1023 
 
 Balfe V. We.st (13 C. B. 466) 478 
 
 Ball V. Bank of Alabama (8 Ala. 590) 
 
 714, 813 
 
 u Bender (22 La. Ann 493) ... 397 
 
 V. Clark (28 Fed. Rep. 179) 936 
 
 V. Duusterville (4 T. R. 313) 96 
 
 Ballard v. Burgett (40 N. Y. 314). . . . 786, 788 
 
 Balliuger v. Bourland (87 111. 513) 745 
 
 Ballou V. Talbot (16 Mass. 4';l). . 432, 549, 650 
 BaUston Spa Bank v. Marine Bank (16 
 
 Wis. 120) 121 
 
 Balsbaugh v. Frazer (19 Penn. St. 95) . . 
 
 862, 865 
 
 Baltimore v Eschbach (18 Md. 276) 224 
 
 V. Reynolds (20 Md. 1) 546 
 
 Baltimore Coal Tar Co. v. Fletcher (61 
 
 Md. 288) 773 
 
 Baltimore Marine Ins. Co. v. Dalrym- 
 
 ple (25 Md. UM2) 936 
 
 Baltimore, &c., R. R. Co. v. Christie (5 
 
 W. Va. 325) 714 
 
 V. Wilkens (44 Md. 11) 717 
 
 Baltimore & Ohio R. R. Co. v. Jameson 
 
 (13 W. Va. 833) 647 
 
 Baltimore Turnpike, Case of (5 Binn. 
 
 481) 78 
 
 SECTION 
 
 BaltzeU v. Nosier (1 Iowa, 588 1 810 
 
 Baltzen v. Nioolay (53 N. Y. 467). . . . 548, W9, 
 650, 554, 957 
 Bangor Boom Co. v. Whiting (29 Me. 
 
 123) 118 
 
 Bangs V. Hornick (30 Fed. Rep. 97). . . . 487 
 
 Bank v. Bininger (26 N. J. Kq. 345) 527 
 
 V.Butler (41 Oliio St. 519) 511 
 
 V. Campbell (4 Hump. 396) 721 
 
 V. Cook (38 Ohio St. 442) 438 
 
 V. Earp (4 Rawle, 386) 514 
 
 V. MacalesLer (9 Penn. St. 475) 535 
 
 V. McWillie (4 McCord, 438) 393 
 
 W. Sturgis (9 Bosw. 660) 1037 
 
 V. Wheeler (21 Ind. 90) 439 
 
 Bank of Augusta v. Conrey (.28 Miss. 
 
 607) 151 
 
 Bank of Batavia v. New York, &c., R. 
 
 R. Co. (106 N. Y. 195) 717 
 
 Bank of Beloit v Beale (34 N. Y. 473). . 151 
 Bank of Deer Lodge v. Hope Mining 
 
 Co. (3 Montana, 146) 393 
 
 Bank of Hamburg v. Johnson (3 Rich. 
 
 L. 42) 307,400 
 
 V. Wray (4 Strob. 87) 542, 543, 545 
 
 Bank of Louisville v. First National 
 
 Bank (8 Baxt. 101) 514 
 
 Bank of Lindsborg v. Ober (31 Kans. 
 
 599) 514 
 
 Bank of Mobile v. Huggins (3 Ala., N. 
 
 S.206) 511 
 
 V. King (9 Ala. 279) 393 
 
 Bank of New Milford v. Town of New 
 
 Milford (30 Conn. 93) 729 
 
 V. Bank of Ohio (29 N. Y. 619) 439 
 
 Bank of New York v. Bank of Ohio (29 
 
 N. Y. 619) 439 
 
 v.Vanderhorst (32 N. Y. 553)... 247, 251 
 Bank of North America v. Hooper (5 
 
 Gray, 567) 437, 442 
 
 Bank of Odessa v. Jennings (18 Mo. 
 
 App 651) 769 
 
 Bank of Orleans v. Smith (3 Hill, 560). 514 
 Bank of Owensboro v. Western Bank 
 
 (13 Bush. 526) 129, 171. 172, 509 
 
 Bank of Pittsburg v. Neal (22 How. 
 
 107) 394 
 
 V. Whitehead (10 Watts, 397). . . . 730 
 Bank of Rochester v. Jones (4 N. Y. 
 
 497) 684, 10.35 
 
 V. Montenth (1 Denio, 402) 442 
 
 Bank of St. Mary's v. Calder (3 Strob. 
 
 403) 171 
 
 Bank of Trinidad v. First Nat. Bank (4 
 
 Dill. 290) 514 
 
 Bank of United States v. Beirue (1 
 
 Gratt. 234) 393 
 
 V. Davis (2 Hill, 451 ) 714, 721, 730 
 
 V. Dand ridge (12 Wheat. 04) 97 
 
 Bank of Utica v. Magher (18 Johns. 
 
 342) 441 
 
 V. Mersereau (3 Barb. Ch. 529).... 8«(), 
 881, 883 
 Bank of Washington v. Pierson (2 
 
 Cranoh, 6S5) 
 
 V Triplett (1 Pet. 25) 518 
 
 Bankhead v. Owen (60 Ala. 4!)7) 929 
 
 Banks v. Evans (10 Smed. & U. 35) 
 
 813, K^>o 
 
 «. Hornick (30 Fed. Rep. 97) 487 
 
 V. Judah (8 Conn. 145) 461 
 
 V. Sharp (6 J. J. Marsh. 180) 421 
 
 Banner Tobacco Co. v. Jenison (48 
 
 Mich. 459) . 4.5, 70. .396 
 
 Bannon v. Warfield (42 Md. 22) 129, 509 
 
 Barber v. Mechanics' Ins. Co. (3 Wend. 
 
 94) 441 
 
 Bard v. Stewart (3 T. B. Mon. 72) 1037 
 
 V. Yohn ( 26 Penn. St. 482) 737, 738. 
 
 740, 741 
 Barger v. Miller (4 Wash. 284) 333
 
 xlii 
 
 TABLE OF CASES CITED. 
 
 SECTION 
 
 Barhydt v. Clark (12 Dl. App. 646) 130 
 
 Barhyte v. Shepherd (35 N. Y. 238). ... 588 
 
 Baring V. Corne (2 B. & Aid 13?).. 773, 774, 
 
 ° 945, 949, 986, 991 
 
 V Peirce (5 Watts & Serg. 548) 288 
 
 Barker v. Barker (14 Wis. 131) 536 
 
 V. Bradley (42 N. Y. 323) 567 
 
 V. Braham .3 Wils. 368; 839 
 
 V. Diusmore (72 Pena. St. 427) 785 
 
 V. Knickerbocl<er L. Ins. Co. (24 
 
 Wis. 630) 622 
 
 V. Mechanics' Fire Ins. Co. (3 
 
 Wend. 94) 438 
 
 V St Que.itin(12M.&W. 441)...868, 869 
 V. Troy, &c., K. R. Co. (27 Vt. 766). 648 
 
 Barkiey v. Rensselaer, &c., Co. (71 N. 
 
 Y. 205) 224 
 
 Barksdale i'. Brown (1 Nott. & McC. 
 
 517) 195, 281, 485, 1010 
 
 Barksloo v. IlandaU (4 Blackf. 476). ... 580 
 Barlow v. Congregational Society (8 
 
 Allen, 4601 435, 438, 7,5^3 
 
 u Myers (64 N. Y. 43) 567 
 
 Barnard v. Backhaus (52 Wis. 597) 3o 
 
 V. Campbell (.55 N. Y. 456) 787, 788 
 
 V. Coffin (141 Mass. 37) 197 
 
 t). Duncan (38 Mo. 170) 924 
 
 V Jewett (97 Mass. 87) 459 
 
 V. Kellogg (10 Wall. 383) 281, 486 
 
 V. Kobbe (54 N. Y. 516) 1021 
 
 u Monnot (34 Barb. 90) 966 
 
 Barnes r. Ewing (L. R. 1 Exch. 320) . . .. 274 
 
 •u. Harris (7 Oiish. 576) 884 
 
 V. Insurance Co. (45 X. H. 21) 756 
 
 V. McClinton (3 Pen. & Watts, 67).. 
 
 718, 721 
 
 V. Taylor (30 N. J. Eq. 467) 869 
 
 V. Trenton Gas L. Co. (27 N. J. Eq. 
 
 33) 729 
 
 I'. State (19 Conn. 398) 746 
 
 Barnett v. Warren (82 Ala. 557) 1036 
 
 Barney t'. Newcomb (9 Cush. 46) 755 
 
 Barr v. Schroeder (32 Cal. 6U0) 6 
 
 204, 206, 207 
 
 Barret v. Bhem (6 Bush. 466) 186 
 
 Barrett v. Third Ave. R. R. Co (45 N.Y. 
 
 628) 812 
 
 Barretto v. Snowden (5 Wend. 181) 74o 
 
 Barrow v. Dy? ter (13 Q. B. Div. 635). ... 957 
 
 Barron v. Tucker (.53 Vt. 3:^8) 27 
 
 Barrows v. Cushway (37 Mich. 481). 233, 1015 
 
 Barry v. Boninger (46 Md. 59) 685 
 
 ^ 979, 980, 981 
 
 w. McQrade (14 Minn. 163) 816 
 
 v. Page (10 Gray. 3H8) 1043 
 
 V. Pike (21 La. Ann. 221) 555 
 
 V. Schmidt (.57 Wis. 17-.i) 9.53 
 
 V. St. Louis (17 Mo. 121) 747 
 
 Bar-tow t). Gray (3 Greenl. 409) 211 
 
 Barteau v. West (23 Wis 416) .......... 830 
 
 Bartholomew v. Jackson (20 Johns. 28) 600 
 
 V Leech (7 Watts, 472) 468, 469 
 
 Bartlett v. Board of Education (59 111. 
 
 371) 788 
 
 V. Farrington (120 Mass. 284) 648 
 
 V. Hamilton (46 Me. 433) 529 
 
 V. Hawley (120 Mass. 92) 442 
 
 V. Pickersgill (1 Eden, 515; S. c 1 
 
 Cox, 15, 4 East, 577) 459 
 
 V. Raymond (139 Mass. 275) 554 
 
 V. Smith (13 Fed. Rep. 2H3) 487 
 
 V Sparkman (14 West. Rep 725)... 481 
 V. Tucker (104 Mass. 3.36),4-32, 542, 545, 5.50 
 
 Barton v. Gra v (57 Mich. 622) 93 
 
 V. Moss (32 111. 50) 468 
 
 Bartonshill Coal Co. v. Reid (3 Macq. 
 
 266) 658 
 
 Barzlza v. Story (39 Tex. 354) 457, 4.59 
 
 Bash V. Hill (62 111. 216) . 967 
 
 Bass V. Chicago & N. W. Ry. Co. (42 
 
 Wia. 654) 714. 715. 741, 751 
 
 BKOTIOM 
 
 Bass Furnace v. Glasscock (8 Ala. 452). 215 
 
 Bassett v. Brown (lOo Mass. 551) 464 
 
 V. Fish (12Hun, 209) 590 
 
 V. Kinney (24 Conn. 267) 532 
 
 Bast V. Byrne (51 Wis. 531) 639 
 
 Basten v. Carew (3 B. & C. 652) 580 
 
 Basye v. Ambrose (28 Mo. 39) 641 
 
 Bates u. Ball(72Ill. lOS) 49 
 
 V. Copeland (4 Mc Arthur, 50). . . .953, 972 
 
 V. Desenberg (47 Mich. 643) 843 
 
 V. Pilling (6 B. & C. 38) 839 
 
 Bathgate v. Haskiu (59 N. Y. 535).... 854, 858 
 
 Battey V. Carswell (2 Johns. 48) 393 
 
 Batty D. Fout (54 Ind. 482) 835 
 
 Baudouine V. Grimes (64 Iowa, -370) ... 224 
 Bauerman v. Kadenius (7 T. R. 659) . . 1039 
 Baugh V. Kirkpatrick (54 Penn. 84). 915, 1037 
 Baulec V. New York, &c., R. R. Co. (59 
 
 N. Y. 3.56) 662 
 
 Baum V. Dubois (43 Penn. St. 260) 414 
 
 Bayard v. McLane (3 Harr. 212) 845 
 
 Bayley v. Onondaga Co. Mut. Ins. Co. 
 
 . (6 Hill, 476) 769 
 
 Bayliffe v. Butlerworth (1 Exch. 425), 
 
 947, 989 
 
 Bayliss v. Peterson (15 Iowa 279) 440 
 
 Baxter v. Duren (29 Me. iM) 929, 9.57, 983 
 
 V. Lament (60 HI. 237) 5;73, a88 
 
 r. Maxwell(8 Atl. Rep 581) fA 
 
 V Roberts (44 Cal. 187) 659 
 
 Beach v. Branch (57 Ga. 362). . .652, 977, 1031 
 
 Beadles v. Haitmus (7 Baxt. 476) 1009 
 
 Beal V. McKiernan (6 La O. S. 407).... 462 
 
 V Polhemus (34 N. W. Rep. 532). . . . 24 
 
 Beall V. January (62 Mo. 434) 169 
 
 Beals V. All-n (18 Johns. 363) 288 
 
 V. See (10 Penn. St. 5fi) 48 
 
 Bean v. Howe (85 Penn. St. 360) 9 
 
 V. Pioneer Min. Co. (66 Cal. 451).. 432, 441 
 
 Beard v. Kirk (11 N. H. 397) 224 
 
 Beardslte v. Richardson (11 Wend. 25). 497 
 
 Beardsley v. Davis (52 Barb. 159) 510 
 
 V. Root (11 Johns. 464) 820 
 
 Beatie V. Butler 1 21 Mo. 313) 243 
 
 Beattie v. Lord Ebury (L. R. 7 H. L. 
 
 102) 545 
 
 V. Lord Ebury (L. R. 7 Ch. Ap. 777) 5.53 
 Beaulieu v. Portland Co. (48 Me. 295) .. . 668 
 Beaubien v. Poupard (Harr. Ch. 206). . . 257 
 i;eauchanip v Higgins (20 Mo. Ap. 514) 966 
 
 Beaurain v. Scott (3 Camp. 3S8) 585 
 
 Beavan v. JIcDonnell (0 Exch. 309).... 48 
 
 Beck V. Bellamy (93 N. C. 129) 811 
 
 Becker v. Torrance (31 N. Y. 643) 567 
 
 Beckham v. Drake (9 M. & W. 99) 45 
 
 70, 430, azi 
 
 V. Nacke (56 Mo. 546) 74b 
 
 Beckwith v. B.imer (6 C. & P. 681) 882 
 
 V. Butler (1 Wash. 224) 48 
 
 V. Sibley (11 Pick. 482) 682, 1029 
 
 Bedell v. Janney (4 Gilm. 193) 522 
 
 530, 531, 532 
 
 Beebe v. Knapp <28 Mich. 53) 86 
 
 f. Mead ,33 N. Y. 587) 1033 
 
 V. Young (14 Mich. 136) 86 
 
 Beecher i'. Bennett (11 Barb. 380) 206 
 
 W.Venn (35 Mich. 466) 396 
 
 Beedman v. Goodell (56 Iowa, 592) 151 
 
 Beeson v. Green Moimtain Co. (57 Cal. 
 
 20) 604, 665, 667, 668 
 
 Beers v. Hendrickson (45 N. Y. 665). . . . 819 
 
 Behm v. Amour (58 Wis 1) 659, 670 
 
 Behrens v. McKenzie (23 Iowa, 343)... 48 
 
 Beidman v. Goodell (5fi Iowa, 592) 151 
 
 Beldingu Smy the (1.38 Mass. 5.30) 845 
 
 Belknap v. R» inhart (2 Wend. 375) 426 
 
 Bell V. Bell (3 W. Va. 1&3) 470 
 
 V. Caflferty (21 Ind. 411) 929 
 
 V. Cunningham (3 Pet. 69).. .129, 171, 506 
 
 V. Day (32 N. Y. 165) 745 
 
 V. Josselyn (3 Gray. 311). 539, 571, 572, 574
 
 TABLE OF OASES CITED. 
 
 xliii 
 
 SECTION 
 
 Bell V. Kaiser (50 Mo. 150) 9ti«, 967 
 
 V. McConnell (37 Ohio St. 396) 66 
 
 67, S88, 643, 953, 97a 
 
 «. Ofifutt (10 Bush, 632) 279 
 
 V. Palmer (6 Cow. 12S) 1008 
 
 V. Pierce (40 Barb. 51) . . 588 
 
 V. Western, etc., R. R. Co. (70 Ga. 
 
 566) 656, 659, 670 
 
 Bell's Gap R R. Co. v. Christy (79 Penn. 
 
 iSt. .4) 74,125 
 
 Bellas V. Hays (5 Serg. & R. 427) 137, 421 
 
 Bellefontaiue Ry Co. v. Hunter (33 Ind. 
 
 335) 715 
 
 Bellemire c Bank of U. S. (4 Whart. 
 
 105) 514 
 
 Belton Compress Co. v. Belton Brick 
 
 MnfgCo. (64 Tex. 337) 354 
 
 Beller v. Block (19 Ark. 560) 698 
 
 Beltzhoover v. Blackstock (3 Watts. 20i 
 
 880,881 
 
 Benden v. Manning (2 N. H. 289) 478, 4U8 
 
 Benedict v. Smith (10 Paige 126) 813 
 
 V. State (44 Ohio St. 679) 884 
 
 Benjamin v. Benjamin (15 Conn. 347) . . 62 
 311, 396, 869 
 
 V. Coventry (19 Wend. 353) 8^5 
 
 V. Dockham (134 M.iss. 418) . . 1, 82 
 
 Bennett, Ex parte (10 Vesey, 384) 463 
 
 V. Austin («1 N. Y. 308) 457, 459 
 
 V. Bates (94 N. Y. 370) 567 
 
 V. Ci y Ins. Co. (115 Mass. 241) 931 
 
 V. Covington (22 Fed. Rep. 816) 977 
 
 V. Davis (6 Cow. 393) 51, 53 
 
 V. Ives (30 Conn. 3;:9) 571 
 
 w. Judson (21 N. Y. 238) 775 
 
 t>. Stout (98 111 47) 63 
 
 V. Truebody (66 Cal. 509) 747, 748 
 
 V. Whitney (94 N. Y. 8:i2) 590 
 
 Bennecke v. Ins. Co. (105 U. S. 355) .... 129 
 Bennint-hnfif v. Agricultural Ins. Co. 
 
 (93 N. Y. 495) 311 
 
 Benny v. Pegram (18 Mo. 191) 994, 996, 1044 
 
 V. Rodes (18 Mo. 147) 994, 996, 1044 
 
 Benoit v. Conway (10 Allen 528) 20i 
 
 Benschoter v. Lalk (38 N. W. Rep. 746) 320 
 Bensley V. Moon (7 111. App. 415) ... Iii07 
 
 Benson v. Carr (73 Me. 76) 811, 812 
 
 V. Liggett (78 Ind. 452) 151 
 
 Bent V. Cobb (9 Gray 397) 12, 893 
 
 Bentleyv Craven (18 Beav. 76) 455 
 
 «. Doggett (51 Wis. 244) 845 
 
 Bercich v. Marye (9 Nev. 312) 784 
 
 Berea Stone Co. v. Kraft (31 Ohio St. 
 
 287) 668 
 
 Bergen ti. Bennett (1 Caine's Cases 1). . 
 
 241, 243, 1052 
 
 Berger v. Dufif (4 Johns. Ch. 369) 189 
 
 Berghoff v. McDonald (87 Ind. 519). . . . 
 
 554, 571, 574 
 Beringer v. Meaner (85 Penn. St. 223) 9, 276 
 
 Berkelt-y r. Hardy (5 B. &. C. 355) 758 
 
 Berkey v. Judd (22 Minn. 287) 428 
 
 Ben.shouse v. Abbott (16 Vroom. 531) 339 
 
 344, 773 
 
 Berry r. Barnes (23 Ark. 411) 363 
 
 V. Harnage (39 Tex. 638) 306, 3)8 
 
 V. Skinner (30 Md. 567) 243, 2.i6 
 
 Bertholf V. QuinlaM (68 111. 297) 784, 786, 789 
 
 Berthoud v Gordon (6 La. 579) 510 
 
 Bessant v. Harris (63 N. C. 542) 315, 484 
 
 Bettelf-y v. btainsby (12 O. B. 499) 510 
 
 Betts V. Pimon (3 Conn. 107) 592 
 
 V. Gibbins (2 Ad . & E. 57) 653 
 
 Sevan v. Waters (8 Car. & P. 520) 673, 
 
 674, 882 
 
 Beveridge v. Rawson (51 El. 504) 127 
 
 Beverly v. Stephens (17 Ala. 701) 812 
 
 Bevin v. Conn. Mut. L. Ins. Co. (23 
 
 Conn. 244) 129 
 
 Bexwell v. Christie (1 Cowp. 395) . . .912, 906 
 Beyer v. Bush (50 Ala. 19) 765, 922, 1041 
 
 SECTION 
 
 Beymer v. Bonsall (79 Penn. St. 298) 
 
 554 699 957 
 Bickerton v. Burrell ;5 M. & S.' 385) 
 
 757, 760, 769 
 Bickford v. First Nat. Bank (42 111. 2o8) 
 
 438, 554 
 V. Menler (107 N. Y. 390) 85, 274, 370, 
 
 3!*1, 399 
 
 Biddle v. Bond (6 Best. & Smith 224) .. . 625 
 Bierce v. Red Bluff Hotel (31 Cal. 160) 
 
 721, 722 
 Bierbauer v. Wirth (5 Fed. Rep. 336, 10 
 
 Biss. 60) 34 
 
 Bigelow V. Benedict (70 N. Y. 202) 35 
 
 V. Heaton (6 Hill 43) 678 
 
 V. Stearns (19 Johns. 39) 585 
 
 r. Walker (24 Vt. 149) 362, 1019 
 
 Bigler v. Toy (68 Iowa 687) 819 
 
 Billings V. Mason (6 N. Eng. Rep. 791). 341 
 
 V. Morrow (7 Cal. 171) 129, 318 
 
 Billingsley v. Dawson (27 Iowa, 210;.... 221 
 
 Bills V. Polk (4 Lea, 494).... 851 
 
 Bmgham i\ Supervisors (6 Minn. 136).. 812 
 
 Birkbeck v. Stafford (14 Ab. Pr. 285 .. . 831 
 
 Bird V. Breedlove (24 Ga. 623) 32 
 
 V. Brown (4 Excheq. 786) 114 
 
 V. Daggett ( 97 Mas.s. 494) 892 
 
 i». Daniel (9 Ala. 302) 755 
 
 Birdsall V. Clark (73 N. Y. 73) 190 
 
 Birt V. Burt (11 Ch. D. 773) 781 
 
 Bischoffsheim v. Baltzer (20 Fed. Rep. 
 
 890) 936 
 
 Bishop V. Ranney (7 Atl. Rep. 820) 6.32 
 
 V. Williamson (11 Me. 495) 593, 594 
 
 Bissell V. New York, &c. R. B. Co. (29 
 
 Barb. S15) 497 
 
 V. Roden (34 Mo 63) 574 
 
 V. Terry (69 111. 1.S4) 220 
 
 Bixby V. Dunlap (59 N. H. 456) 793 
 
 V. Parsons (49 Conn. 483).. 214, 215, 648, 650 
 
 V. Moor (51 N. H. 402) 38 
 
 Bize V. Dickason (1 T. R 285) 1014 
 
 Black V. Herscli (18 Ind. 342) .531, 833 
 
 V. Wilmington, &c. R. R. Co. (92 N. 
 
 C. 42) 717 
 
 V. Woodr"W(39 Md. 194). 211 
 
 Blackburn v. Sclmles (2 Camp. 348). ... 201 
 
 V. Vigors ( 17 Q B. Div. 553) 725 
 
 Blackman v. Charlestown (42 N. H. 125) 322 
 
 u. Green (24 Vt. 17) .. 1044 
 
 V. Wright (27 Vt. 187) 718 
 
 Black River Lumber Co. v. Warner (93 
 
 Mo.374) 449 
 
 Blackstone v. Buttermore (53 Penn. St. 
 
 266) 204, 205, 207 
 
 Blackwell v. Ketcham (53 Ind. 184, 
 
 273, 288, 393, 394 
 
 V. Willard (65 N. C. 555) 269, 888 
 
 Blaine t). Bourne (11 H. L 119) 782 
 
 Blair w Childs (10 Heisk 199) 1009 
 
 Blaisdellu. Ahern (144 Mass. 393). .844, 845 
 
 Blake v. Ferris (5 N. Y. 48) 73.5, 736 
 
 V. Maine Cent. R. R. Co. (70 Me. 00) 
 
 6(J2, 667, 668 
 
 Blakely v. Bennecke (59 Mo. 193) 557 
 
 Blakelev v. Blakeley (33 N. J. Eq. 508).. 50 
 
 V. Jacobson (9 Bosw. 140) 520, 1014 
 
 Blakeniore v. Heymau (23 Fed. Rep. 
 
 648) 936 
 
 Blanchard v. Ely (21 Wend. 342) 649 
 
 V. KauU (44 Cal. 440) 4:^8 
 
 V.Page (8 Gray, 281) 755 
 
 Bland v O'Hairan (64 N. C: 472) 394 
 
 Blane I'. Proudflt (3 Call, 207) 288 
 
 Blantin V. Whitaker (11 Hump. 313)... 175 
 
 Bleaden V. H.tucoek (4 Car &P. 156).. 673 
 
 Bleecker v. Franklm (2 E. D. Smith, 93) 7.56 
 
 Blevins V. Pope (7 Ala. 371) 101, 149, 750 
 
 Blin V. Hay (2 Tyler 304) 77 
 
 Bliss t>. Arnold (8 Vt. 252) 195, 281, 485, 
 
 990. 1010
 
 xliv 
 
 TABLE OF OASES CITED. 
 
 SECTION 
 
 Bliss V. Bliss (7 Bosw. 339) 774, 957 
 
 V. Clark (16 Gray. 60 359 
 
 V. Cutter (19 Barb. 9) 380 
 
 V. Railroad Co. (24 Vt. 424) 47 
 
 Bliven v. Hudson River B. R. Co. (36 N. 
 
 Y. 406) 625 
 
 Blodgett V. Berlin Mills Co. (53 N. H. 
 
 215) 617, 648 
 
 Blodgett's Estate v. Converse's Estate 
 
 aS.'Vtl. Rep. 109) 532 
 
 Blood V. French (9 Gray, 197) 904 
 
 V. Goodrich (9 Wend. 68) 93, H7 
 
 t). Palmer (11 Me. 414> 1044 
 
 Bloom v. Burdick (1 Hill, 130) 585 
 
 Blooming Grove, &c. Ins. Co. v. Mc- 
 
 Anerney (102 Penn. St. 835) . . 931 
 
 Blore V. Sutton (3 Mer. 237) 893, 998 
 
 Blot V. Boiceau (3 N Y. 78) . . . .474, 1008, 1009 
 
 Boardman v. Sill (1 Camp. 410) 6S1 
 
 V. Spooner (13 Allen 353) 917 
 
 V. Taylor (66 Ga. 638) 7x;6 
 
 Board of Commissioners V. Younger 
 
 (29Cal. 147) 811 
 
 Board of Ju-stioes v. Fennimore (1 N. 
 
 J.L 242) 632 
 
 Bodine v. Exchange Ins. Co. (51 N. Y. 
 
 123) 193, 931 
 
 Bogart V. DeBussy (6 Johns. 94) 419 
 
 Bogel V. Teutonia Bank (28 La. Ann. 
 
 933) 164 
 
 Bohart v. Oberne (36 Kan. 284) 129, 148, 
 
 273, :«3 
 
 Boisblanc's succession (32 La. Ann. Hi9) 784 
 
 Boinest v. Leignez (2 Rich. 464) . . ..901, 9-'4 
 
 Bolanv. Williamson (1 Brev. 181) 591 
 
 Bollman v. Loomis (41 Conn. 681) 29, 3^, 
 
 643, 797. 972 
 Bolton V. Corporation of Liverpool (1 
 
 My. &K.88)... 881 
 
 Bonlto V. Mosqaera (2 Bosw. 401). . 994, 995 
 
 Bonner v. Marsh (10 S. & M. 376) 1035 
 
 Bonney v. Morrill (57 Me. £68) 813 
 
 V. Smith (17 111. 531) 204. 205, 207 
 
 Bonynge v. Field (44 N. Y. Super. Ct.581) 838 
 
 Bond V. Bond (7 Allen, 1) 48 
 
 V. Hopkins (1 Sch. & Lef. 433) 459 
 
 Bool V. Mix (17 Wend. 120) 51 
 
 Boone v. Clark (3 Cran'-h. 390) 77, 240 
 
 Boormanu Brown (3 Q. B. 511) 948 
 
 Booth V. Wiley (102 111. 84) 1.55, 287 
 
 Boothby v. Scales (27 Wis. 626) 848, 349 
 
 Boothe V. State (4 Tex. App. 202) 715 
 
 Borcherling v. Katz (37 N. J. Eq. 150) 
 
 696, 701, 702 
 
 r.Trefz (40 N.J. Eq. 502) 745 
 
 Borden V. Fitch (15 Johns. 121) 585 
 
 Borelv. Rollins (30 Cal. 408) 309 
 
 Boren v. McGehee (6 Port 432) 819 
 
 Borough of Frepport v. Marks (59 
 
 Penn. St. 253) 689 
 
 Borries v. Imperial Ottoman Bank (L. 
 
 R. 9 C. P. 38) 773 
 
 Borrowscale v. Bosworth (99 Mass. 378) 755 
 
 756, 757 
 
 Borup V. Nininger (5 Minn. 523) 518 
 
 Bosseau v. O'Brien (4 Biss. 395).. ..89, 129 
 
 Bostick V. McLaren (2 Brev. 275) 34 
 
 Boston Ice Co. v. Potter (123 Mass. 28), 7R0, 
 
 770 
 
 Boswell V. Laird (8 Cal. 469) 666, 747 
 
 Bosworth V. Tallman (66 Wis. 22). . .869, 873 
 
 Botsford. t). Burr (2 Johns. Ch. 406) .... 4.'J9 
 
 Bott V. McCoy (20 Ala. 578) 994 
 
 Bougher v. Scobev (23 Ind. 583) 531 
 
 Boulden v. neber(17 S. & R. 312) 814 
 
 Boulton V. Jones (2 H. & N. 564).. . .760, 770 
 
 Bourne v. Diggles (2 Chit. 311) S^U 
 
 Boursot V. Savage (L. R. 2 Eq. 134). .. ^36 
 
 Bowcher V. Noidstrom (1 Taunt. 568).. 741 
 
 Bowen V. Bowen (74 Ind. 470) 607 
 
 V. Morris (2 Taunt. 374) 181 
 
 SECTION 
 
 Bower w. Jones (8 Bing. 65) 963 
 
 V Peate (L. R. 1 Q, B. Div 341). . . 747 
 Bowers v. Evans (3ii N . W. Rep. 629) 536, 537 
 
 V. Johnson (18 Miss. 169) 775 
 
 Bowie v. Napier (1 McCord, 1) 991 
 
 Bowlby V. Bell (3 0. B. 284) 977 
 
 Bowling V. Arthur (ai Miss. 41) 514 
 
 Bowling Green Savings Bank v. Todd 
 
 (.■)2N. Y. 489) 8ii2. 863 
 
 Bowman v. Coflfroth (59 Penn. St 19).. H8 
 
 V Ililtou (11 Ohio, 303) 67S 
 
 V. Omoer(53 Iowa, 640) 468 
 
 Boyce v. Commerce Bank (22 Fed. Rep. 
 
 53) M4 
 
 Boyd V. Boyd (4 McCord . 246) 6>i5 
 
 V. Brinckin (55 Cal. 427) 636 
 
 V. Chesapeake, &c.. Canal Co. (17 
 
 Md. 195) 730 
 
 V. Corbitt (37 Mich. 52) 243, 387 
 
 V. Satterwhite (10 S. C. 45) 811 
 
 V. Vandenbuig (1 Barb. Ch. 273). . . . 7'28 
 
 V. Vanrierkemp (1 Barb. Ch. 273). . . 728 
 
 Boy Ian v. Holt (4.i Miss. 277) 850 
 
 Boyle V. Boyle (lOfi N. Y. 634) 873 
 
 v. Parker (46 Vt. 343) 625 
 
 Boyl.ston v. Bain (90 111. 283) 746 
 
 Bt>7.on V. Bolland (4 Myl. & C. 354). ... f-60 
 
 867, 868 
 Brabbits u Chicago, &c., R. R. (38 Wis. 
 
 289) 1)6') 664, 665 
 
 Bracken v. Miller (4 Watts and Serg. 
 
 110) 721 
 
 Brackett t;. Norton (4 Conn. 517). . ..820, 8.v2 
 
 v. St-ars (15 Mich. 244) 851 
 
 Braden v. Ward (42 N. J. L. 518) 869 
 
 V. Louisiana State Ins. Co. (1 La. 
 
 220) 931, 983 
 
 Bradford v. Bush (10 Ala. S86) 348, 3.50 
 
 V. Menard (35 Minn. 197) 966 
 
 Bradlee v. Boston Glass Co. (16 Pick. 
 
 .S47) 432, 435 
 
 Bradley's Case (7 Wall. 364) 803 
 
 Bradley v. Chester VaUey R. R. Co. (36 
 
 "Penn St. 141) 243 
 
 V. Fisher (13 Wall. 335) 
 
 580, 581, 584, 686, 588 
 
 V. Richardson (23 Vt. 720) 520 
 
 V. Salmon Falls Mufg Co. (30 N. H. 
 
 487) 641 
 
 V. Wheeler (44 N. Y. 500) 281, 486 
 
 Brady v. Mayor (1 Sandf. 509) 841 
 
 V. Mayor (16 How Pr. 432) 112 
 
 V. Todd (9 C. B. N. S. 592) 6, 381,. .. 8.50 
 
 Bradstreet v. Baker (14 B. L 546) 425 
 
 «. Everson (72 Penn. St. 124) 516 
 
 Bradt v. Walton (8 Johns. 298) 834 
 
 Bragg V. Bradford (33 Vt. 35) 635 
 
 Brahn v. Jersey City Forge Co. (38 N. 
 
 J. L. 74) 167 
 
 Brandao v. Barnett (12 CI. & F. 787) 680, 932 
 
 Brainard v. Elwood (53 Iowa, 30) 869 
 
 Brainerd v. Dunning (30 N. Y. 211) l'.>7 
 
 Brandt v. Klein (17 Johns. 335) 882 
 
 Branham v. San Jos6 (24 Cal. 585) 565 
 
 Brannanu. Strauss (75 III. 234) 619, 1027 
 
 Brantley v Southern Life Ins. Co. <T>S 
 
 Ala. 554) 390,391, 893 
 
 Brass v. Worth (10 Barb. 648) 129 
 
 Braswell v. American L. Ins. Co. (75 N. 
 
 C. 8) 224. 228 
 
 Brawn v. Chicago, &c. R. R. Co. (53 
 
 Iowa, 595) 6.59 
 
 Brayr Giinn(53 Ga. 144) 155, 171 
 
 V. KettelKl Allen. 80) 556, 1051 
 
 V. Morse (41 Wis. 343) 67 
 
 Breck v. Jones (16 Tex. 461) 169 
 
 Bredin v. Dubarry (14 Serg. & R. 27)... 155 
 
 B-ee V. Holliech (2 Dong!. 6.54) 714 
 
 Breed v. Central City Bank (6 Col. 235) 155 
 
 V. First Nat. B.ink (4 Colo. 481) 893 
 
 Breithaupt v. Thurmond (3 Rich. 216). 149
 
 TABLE OF CASES CITED. 
 
 xlv 
 
 SECTION 
 
 Bremsen v. Engler (49 N. Y. Super. 
 
 Ct. 173) 32 
 
 Brennan v. Wilson (71 N. Y. 502) 77 
 
 Brent v Green (6 Leigh. 16) 893 
 
 V. MiUer (81 Ala. 309) 554 
 
 Brewster v. Carnes (103 N. Y. 556). .373, 379 
 
 V. Saul (8 La. 296) 1042 
 
 Bridge v. Wellington (1 Mass. 219) 421 
 
 Bridges v. Garreit (L.R. 5 O.P. 454) 375, 381 
 
 Bridgtonw. Bennett (23 Me. 420) 810 
 
 Brigliam v. Gurney (1 Michi. 318) 387 
 
 V. Hawlev ( 17 111. 38) 648 
 
 V. Myers (51 Iowa, 397) 745 
 
 r. Peters (1 Gray, 145) 100, 155 
 
 Briggs V. Boston, &c. R. K. Co. (6 Allen, 
 
 246) 683 
 
 V. Briggs (46 Vt. 571) 599 
 
 t». Central National Bank (89 N. Y. 
 
 182) 511 
 
 «. Georgia (10 Vt. 68) 816, 814 
 
 V. Hodsdon (78 Me. 514) 878 
 
 V. Munchon (56 Mo. 467) 769 
 
 «. Partridge (64 N. Y. 3.57) 419, 421, 
 
 430, 419, 696, 701, 702 
 
 Bright V. Taylor (4 Sneert. 159 > 843 
 
 Brind v. Hampshire (1 Mees. & Wel3. 
 
 365) 567 
 
 Brink v. Dolsen (8 Barb. 337) 1025, 1024 
 
 Brinkman v. Shaffer (23 K.an. 528) 810 
 
 Brinley v. Mann (2 Cush. 337). .417, 419, 422 
 
 Brisban v. Boyd (4 Paige. N. Y. 17). 510, 1005 
 British & Amer. Mtg Co. v. Tibballs 
 
 (63 Iowa, 463) 375 
 
 Britton v. Lorenz (45 N. Y. 51) 880, 8S2 
 
 V. Niceolls (104 U. S. 757) 514 
 
 V. Turner (6 N. H. 431) 636, 637, 638, 649 
 
 Broadman v. Brown (25 Iowa, 489) 843 
 
 Brock w. Jones (16 Tex. 461) 169 
 
 V. Rice (27 Gratt. 812) 903 
 
 Brockway v. Allen (17 Wend. 40) . . .441, 443 
 
 V. Munin(46N. J. L. 448) 396 
 
 Brocklebank v. Sugrhe (5 C & P. 21). . . 84 
 Broderick v. Detroit Union Depot Co. 
 
 (56 Mich. 261) 663 
 
 Brook 1'. Hook (L. R. 6 Exch. 89) 116 
 
 Brooke v. New York, &c., R. R. Co. 
 
 (108 Penn. St. 529) 717 
 
 Brooklyn v. Breslin (57 N. Y. 591) 190 
 
 V. Railway Co. (47 N. Y. 475) 507 
 
 Brooks V. Fletcher (56 Vt. 624) 150 
 
 V. Hanover Bank (26 Fed. Rep. 301) 995 
 
 V. Jameson (55 Mo. 505) 338, 714 
 
 «. Martin (2 Wall. 70) 526 
 
 V. New Durham (.55 N. H. 559) 812 
 
 Brookshire V. Brookshire (8 Ired.74).. 217 
 
 Brookshire v. Voncannon (6 Ired. 231). 204 
 
 Bronson v. Coffla (118 Mass. 156) 822 
 
 r. Chappell (12 Wall. 681) 84, 167 
 
 Brothers v. Cartter (52 Mo. 373) 664, 
 
 665, 667, 668 
 
 Brotherton v. Hatt (2 Vern. 574) 721 
 
 Broughton u Silloway (114 Mass. 71).. 897 
 
 Brower v. Peabody (13 N. Y. 121 ) 677 
 
 Brown v. Arrott (6 Watts & S. 4'J2) 474 
 
 V. Austin (1 Mass. 208) 426 
 
 V. Bankers, &c., Tel Co. (30 Md. 39) 698 
 
 V. Beauchamp (5 T. B. Mou. 413). . . 845 
 
 t». Bigley (3 Tenn. Ch. 618) 860, 
 
 867, 869, 871, 872 
 
 V. Blydenburgh (7 N. Y. 141) 373 
 
 V. Central Land Co. (42 Cal. 257) ... 325 
 
 « Combs (63 N. Y. 598) 1032 
 
 ». Dean (123 Mass. 269) 539 
 
 V. Eaton (21 Minn. 409) 89, 92, 93 
 
 V. Fitch (33 N. J. L. 418) 635 
 
 V. Foster (11:^ Mass. 136) 281 
 
 V. Hiatts (15 Wall. 177) 269 
 
 V. Hodgson (4 -Taunt. 189) 756 
 
 «. Howard (14 Johns. 119) 480 
 
 V. Johnson (12 Smedes & M. 398)... 
 
 288. 273 
 
 BEOTION 
 
 Brown v. Lent (20 Vt. 533) 539 
 
 V. McGran (14 Pet. 479) 1009 
 
 V. Minneapolis, &c., Ry. (31 Minn. 
 
 553) 667 
 
 t). Nichols (42 N. Y. 26) 810 
 
 V. Parker (7 Allen, 339) 891, 443 
 
 V. I'ayson (6 N. H. 443) 882 
 
 V. Pforr (38 Cal. 550) 204, 207, 968 
 
 V. Purviance (2 H. & G. 316) 740 
 
 V. Rundlett (15 N. H. 300) ... 558 
 
 V. Sennett (68 Cal. 225) 664, 665, 668 
 
 V. Smith (24 Barb. 419) 5S8 
 
 •u. Smith (67 N. C. 245) 352 
 
 V. Wiggin(16 N. H. 312) 1035 
 
 V. Winnisimmtt Co, (11 Allen, 826). 118 
 V. Winona, &o., R. R. (27 Minn. 162) 
 
 667, 668 
 Browning v. Provincial Ins. Co. (L. R. 5 
 
 P. C. App. 263) 698, 760, 931, 983 
 
 Brownell v. Pacific R. R. Co. (47 Mo. 
 
 239) 715 
 
 Bruce v. Baxter (7 Lea, 477) 835 
 
 V. Dickey (116 III 527).... 849 
 
 Brunson v. Martin (17 Ark. 270).647, 648, 649 
 
 Bni.sh V. Miller 03 Barb., N. Y. 481) 388 
 
 Bryan v. Brazil (52 Iowa, 350) 449 
 
 V. Reynolds (5 Wis. 200) 22 
 
 V. Nix (4M.&W.791) 1035 
 
 Bryant v. Burlin-ton, &c., R. R. Co. (66 
 
 Iowa, 30.5) 656 
 
 V. Hendrioks (5 Iowa, 256) 457 
 
 V. Moore (26 Me. 84) ... . 129, 273, 279, 282, 
 
 318, 36.5, i^94 
 
 V. Rich (106 Mass. 180) 734,740, 741 
 
 Byrne v. Schwing (6 B. Mon. 201) 990 
 
 Bryson v. Lucas (84 N. C. 680) 425, 558 
 
 V. Rayner (25 Md. 424) 936 
 
 V. Wylie (1 Bos. & Pul. 83) 1044 
 
 Buck V. First National Bank (27 Mich. 
 
 293) 27 
 
 Buckbee v. Brown (21 Wend. 110) 753 
 
 Buckland v. Conway (16 Mass. 396). . . 194, 
 
 195, 812 
 
 Buckley v. Handy (2 Miles, 449) 681 
 
 V. VVells (33 N. Y. 518) 63 
 
 Buckwalter v. Craig (55 Mo. 71) 8.53 
 
 Budd V. Zoller (52 Mo. 238) 970 
 
 Buell V. Chapin (99 Mass. 594). ..475. 511, 512 
 Buffalo Catholic Institute v. Bitter (87 
 
 N. Y. 250) 421 
 
 Buffalo, &c., R. R. Co. v. Supervisors 
 
 (48 N. Y. 93) 588 
 
 Buflfum V. Chad wick (8 Mass. 103) 755 
 
 Bull V. Sigerson (24 Mo. 53) 1037 
 
 Bulkley v. Derby Fishing Co. (2 Conn. 
 
 252) 118 
 
 Buller V. Harrison (2 Cowp. 568) . . . .561, 562 
 Bulmer V. Oilman (4 Man. & Qrang. 
 
 108) 825 
 
 Bunce v. Gallagher (5 Blatch. U. S. C. 
 
 C. 481) 254, 257 
 
 Bunker V. Bliles (30 Me. 431) 456, 470 
 
 Bunnell w. St. Paul, &c., R. R. Co. (29 
 
 Minn. 305) 662 
 
 Bimney v. Poyntz (4 B. & Ad. 568) 680 
 
 Buuton V. Lyf ord (37 N. H. 512) 808 
 
 Burbridge v. Sackler (2 McAr. 407) 26 
 
 Burden v. Sheridan (.36 Iowa, 125) 4.''j9 
 
 Burgan w. Lyell (2 Mich. 102) 45 
 
 Burgess V. Carpenter (2 S. O. 7) 795 
 
 V. Stevens (76 Me. 559) 811 
 
 Burk w. Webb (32 Mich. 173) 765 
 
 Burks V. Hubbard (69 Ala. 379) 353, 854 
 
 Burley v. KItchell (20 N. J. L, 305) 896 
 
 Burling v. Gunther (12 Daly, 6) 9ii6, 967 
 
 Burlingame v. Brewster (79 111. 515) 435, 438 
 
 Burn t). brown (2 Stark, N. P. 272) 677 
 
 Burnap v. Marsh aS 111. 5: 5). . . 182, 839, 855 
 
 Burnet v. Hope (9 Ont. Rep. 10). . . .240, 247 
 
 Burnett v. Gustafson (54 Iowa, 86) 536 
 
 Bumham w. Ellis (39 Me. 319) 714
 
 xlvi 
 
 TABLE OF CASES CSITED. 
 
 SECTION 
 
 Burnham v. Grand Trunk By Co. (63 
 
 Me. 298) "14 
 
 V. Holt (14 N. H. 367) 786 
 
 V. Stevens (33 N. H. 247) 580 
 
 V. Web-<ter (19 Me. 232) 4y9, 511 
 
 Burns v. Campbell (71 Ala. 271, 292).750, 751 
 
 r. Lynde (6 Allen, 305) 94 
 
 V. Pillsbury (17 N. H. 66) 1023 
 
 Burnside v Grand Trunk Ry Co. (47 N. 
 
 H. 554) 714 
 
 Burr V. Beers (24 N. Y. 178) 567 
 
 Burrell v. Bull (3 Sanf ord Ch. 15) . . . .457, 459 
 
 V. Jom-s (3 Burn. & Aid. 47) 447 
 
 V. Phillips (1 Gall, 3h0) 1029, 1032 
 
 Burrill v. Nahant Bank (2 Mete. 163) . . 97, 
 
 98, 121 
 
 Burrough v. Skinner (5 Burr, 2639) 566 
 
 Burrus u. Kyle (56 Ga. 24) 1035 
 
 Bursot V. Savage (L. R. 2 Eq. 134) 5-36 
 
 Burt i;. Dutcher (34 N. Y. 493) 1009 
 
 V. Laihrop(52Mich. 106) 72 
 
 r. Palmer (5 Esp. 145) 87 
 
 Burtis V. Thompson (42 N. Y. 346) 624 
 
 Burton v. Collin (3 Mo. 315) 531 
 
 V. Fulton (49 Penn. St. 151) 588 
 
 V. Goodspeed (69 111. 238) 990 
 
 V. Great Northern Ry Co. (9 Ex- 
 
 cheq. '•07) 211 
 
 V. Lark-in (36 Kans. 246) 567 
 
 V. Lyfordi37N H. 512) 810 
 
 V. Wilkinson (18 Vt. 186) 525 
 
 Bush, ex parte 7 Viu. Ab 74) 864 
 
 V. Br. inig (113 Penn. St. 310) 47, 49, 50 
 V. ( ole 1 28 N. Y. 261 i . . . . 326, 895, 913, 925 
 
 V. Devine (5 Harr. .375) 698 
 
 V Miller (13 Barb. 481) 386 
 
 V. Steinman (1 B. & P 404) 575 
 
 Bushbv V. Nevir York, &c., R. R. Co. 
 
 ■ (107N. Y.374) 665 
 
 Bushell's Case (1 Mod. 119) 580 
 
 Bushuell V. Chicago, &c., Ry Co. (69 
 
 Iowa 620) 396 
 
 Busteed v. Parsons (54 Ala. 393) 580 
 
 Butcher v. Krauth (14 Bush 713). .. 461, 465 
 
 Butler u Basing i2C.& P. 613) 737 
 
 V. Dorman (68 Mo. 298) 338, 339, 340 
 
 U Hunter (7 H. & N. 826) 748 
 
 V. Keniiard (36 N. W. Rep. 579) 967 
 
 V. Kent (19 Johns. N. Y. 223) 578 
 
 V. Knight (L. R 2 Exch. 109) 816 
 
 V. Maples (9 Wall. 766i 279 
 
 «. Potter (17 Johns. 145) 580, 582 
 
 V. Price (110 Mass. 97) 61 
 
 V. Winona Mill Co. (28 Minn. 205)... 604 
 Butlers v Glass (81 U. C. Q B. 379).... 932 
 
 Butterfleld V. Beal (3 Ind. 20.3) 422 
 
 t;. Stephens (59 Iowa, 596) 1009 
 
 Button V. Winslow (53 Vt. 430) 554, 957 
 
 Butts V. Collins (13 Wend. 139) 756 
 
 V. Newton ( 2D Wis. 632) 375 
 
 V. Phelps (79 Mo. 302) 475 
 
 Buzard v. Jolly (6 S. W. Rop. 422) 289 
 
 Buzzell V. Laconia Mfg Co. (48 Me. 113) 
 
 659, 670 
 
 Byan v. Jackson (4 Conn 291) 87 
 
 Byars V Doores (20 Mo. 284) 550 
 
 Byerlee v. Mendall (39 Iowa, 382) 6.37 
 
 Byers v. Danley (27 Ark. 77) 1035 
 
 Byington v. Simpson (134 Mass. 169) — 449, 
 
 696, 701 
 
 Byne v. Hatcher (75 Ga. 289) 775 
 
 By rd v. Boyd (4 McCord, 246) 635 
 
 w. Hughes (84 111. 174) 29 
 
 Byrne v. Schwing (6 B. Mon. 199).. . .485, 990 
 
 C. 
 
 Cadyt). Shepherd (11 Pick. 400) 138 
 
 Caimes v. Bleecker (12 Johns. 300). 171, 476 
 Cairo, &c., B. R. Co. v. Mahoney (82 111. 
 
 73) 121, 89« 
 
 SECTION 
 
 Calais Steamboat Co. v. Van Pelt (2 
 
 Black. S72) . 788 
 
 Calder v. Dobell (L. R. 6 C. P. 486). . .696 699 
 
 V. Halket (3 Moo. P. C. 28) 587 
 
 Caldicott V. Griff (22 Eng. L. & Eq. 627) 72 
 Caldwt-U V. Dawson (4 Mete. 121).. 281, 486 
 
 V. Dickson (17 Mo. 575) 635 
 
 V. Waters (13 Penn. St. 79) 56 
 
 V. Harrison (11 Ala. 755) 77, 78 
 
 V. Meshew (44 Ark. 564) 769 
 
 Caledonia Ry Co. v. Lockhart (3 Macq. 
 
 808) 188 
 
 California, The (1 Sawyer, 603) 189 
 
 California Bank v. Western Un. TeL Co. 
 
 (52 Cal. 280) 719 
 
 Call V. Palmer (116 U.S. 98) 745 
 
 Cal laghan v. HalK 1 Serg. & R. 241) ... . 469 
 
 Callahan v. Shot well (60 Mo. 398) 640 
 
 Callander v. Oelrichs (5 Bing. N. C. 58). 510 
 
 538, 908, 954, 1011, 1012 
 
 Callender v. Golsan (27 La. Ann. 311). . . 893 
 
 CalUs V. Bothamly (17 Wk. Rep. 87). . . . 211 
 
 Callo V. Brouncker (4 C. & P. 518) 214 
 
 215, 622 
 Cambridge Valley Bank v. Delano (48 
 
 N. Y. 326) 724 
 
 Camden Safe Dep. Co. v. Abbott (44 N. 
 
 J. L. 257) 307, 392 
 
 Camerlin v. Palmer Co. (10 Allen, 5:39) 62 
 Cameron v. Stratton (14 111. App. 270). . 818 
 
 V. Lewis (56 Miss. 76) 457, 459 
 
 V. Durkheim i5o N. Y. 425) 35 
 
 Camp V. Gan (6 Wend. 535) 838 
 
 Campan v. Konan (39 Mich. 362). . . 718, 721 
 Campbell v. Atlantic, &e. R. R. Co. (53 
 
 Ga. 488) 670 
 
 V. Benjamin (69 111. 244) 723 
 
 V. BoKgs (48 Penn. St. 524) 633 
 
 V. City of Providence (9 R. 1. 262) . . 738 
 
 V. Cothran (56 N. Y. 279) 838 
 
 V. Dr.<\ke (4 Ired. Eq 94) 536 
 
 V. Goddard (17 111. App. 385) 849 
 
 V Hastings (29 Ark. 512) 403, 714 
 
 V. Hassel (1 Stark. 233) 949 
 
 V. Hillman (15 B. Mon. 508) 571, 674 
 
 V. Hooper (3 Smale & G. 153) 48 
 
 V. Kuhn (45 Mich. 513) 50 
 
 V. Portland Sugar Co. (62 Me. 552), 
 
 570, 571 
 
 V. Sherman (49 Mich. 534) 288 
 
 V. Smith (71 N. Y 26) 394, 567 
 
 V. Somerville (114 Mass. 334) 648 
 
 V. Reeves (3 Head. 226) 197, 998 
 
 Campbell's Appeal (29 Penn. St. 401). . . 819 
 Camp Point Mnfg Co. v. Ballou (71 111. 
 
 417) 659, 670 
 
 Canadian Bank of Commerce v. 
 
 Coumbe (47 Mich. 358) 168 
 
 Cannee v. Spauton (8 Scott's N. R. 714) 681 
 Canney v. Railroad Co (63 Cal. 501) ... 396 
 Cannon v. Mitchell (2 Desaus. Eq. 321).. 895 
 
 Cantine v. Phillips (5 Harr. 428) 54 
 
 Cantrell i>. Coiwell (3 Head. 471) 62 
 
 Capel V. Thornton (3 Car. & P. 352). ... 338 
 Capen v. Pacific Mat. Ins. Co. (1 
 
 Dutch. 67) 2-24, 2-37 
 
 Capron v. Strout (11 Nev. 304) 634 
 
 Carey v. Rochereau (16 Fed. Rep. 87), 
 
 539, 570 
 Carleton v. Brickf ord (13 Gray, 691) .... 810 
 
 V. Haywood (49 N. H. 314) 61 
 
 V. Iron Co. (99 Mass, 216) 658 
 
 V. Taylor (50 Vt. 220) 585 
 
 Carley V. Jenkins (46 Vt. 721) 45, 70 
 
 Carlisle v. Quattlebaum (2 Bailey, 452). 674 
 Carman v. Railroad Co (4 Ohio St. 399) 748 
 
 Carmichael v. Buck (10 Rich. 3;32) 27» 
 
 282, 287, 288 
 V. W. & L. Railway Co. (13 Ir. L. 
 
 R. 313) 761 
 
 Camahan v. Alderdice (4 Harr. 99) 61
 
 TABLE OF CASES CITED. 
 
 xlvii 
 
 SECTION 
 
 Camochan v. Gould (1 Bailey, L. 179). 1000 
 Carpenter v. American Ins. Co. (1 Story 
 
 57) 714 
 
 V. Blake (60 Barb. 488) 49S 
 
 V. Farns worth (106 Mass. 561) 43(> 
 
 V. Holcom b ( 105 Mass. 284) 623 
 
 w.Le Count (93 N. Y. 562) 892 
 
 V. Le Count (22 Hun, 106) 907, 917 
 
 V. Rodgers (61 Mich. .384) 50 
 
 Carr v. Chartiers Coal Co. (25 Penn, St. 
 
 337) 646 
 
 V. Houser (46 Ga. 477) 462 
 
 Carrick v. Lamar (1 16 U. S. 423) 592 
 
 Carrier v. Sears (4 Allen, 337> 50 
 
 Carrigan v. Lycoming F. Ins. Co. (53 
 
 Vt. 418) 931 
 
 Carroll County v. Cheatham (48 Mo. 
 
 385) 817 
 
 Carroll v. Welch (26 Tex. 147) 619, 637 
 
 Carrugi v. Atlantic Fire Ins. Co. (40 Ga. 
 
 135) 931 
 
 Carson v. Cummine:s (69 Mo. 32.5) 161 
 
 V. Jersey City F. Ins. Co. (14 Vroom, 
 
 300) 931 
 
 V Smith (5 Minn. 78) 324, 325 
 
 Carter v. Bennett (6 Fla. 214) 869, 870 
 
 V. Buchannon (3 Ga. 513) 715 
 
 V. Burnham (31 Ark. 212) 100, 396 
 
 V. Chaudron(21 Ala. 72) 419 
 
 V. Davis (8 Fla. 183) 869, 870 
 
 V. Dow (16 Wis. 298) 580, 582 
 
 V. Harrison (5 Blackf. 138) 588 
 
 V. Howe Hewing Machine Co. (51 
 
 Md. 290) 740, 741 
 
 Cartmell v. .'i.Uard (7 Bush. 482) 629 
 
 Cartwright v. Greene (47 Barb. 16).. 520, 1014 
 
 V. Wilmerding (24 N. Y. 521) 995 
 
 Casco Bank v. K>-ene (53 Me. 103) 116 
 
 Case of the Marshalsea (10 Coke, 68) . . 585 
 
 Case V. Carroll (35 N. Y. 385).. ..467, 468, 878 
 
 «. Jennings (17 Tex. 661) 215 
 
 V Woolley (6 Dana, 17) 586 
 
 Casey v. March (30 Tex. 180) 862, 869 
 
 "^assaday v. Seeley (69 Iowa, 509) 966 
 
 Cas.sel V. Thornton (3 Car. & P. 352>. . . . 338 
 Cassiday v. M.-Kenzie (4 W. & S. 282). 
 
 240,245 
 
 Casson v. Field (52 N. Y. 196) 10U9 
 
 Castellain v. Thompson (13 G. B., N. S. 
 
 105) 685 
 
 Castle I'. Noyes (14 N. Y. 332) 654, 917 
 
 Castrique v. Buttigieg (10 Moore, P. C. 
 
 94) 443 
 
 Caswell V. Cross (120 Mass. 545) 747 
 
 Catlin V. Bell (4 Camp. 183) 481, 998 
 
 V. Smith (24 Vt. 85) 195, 281, 485 
 
 Cator V. Merrill (16 La. Ann. 137) 1037 
 
 Catterall v. Hindle (L. R. 1 C. P. 187)).. 354 
 
 375, 1043 
 
 C^tterlin v. Somerville (22 Ind. 482) 531 
 
 Caudle v. Rice (3 S. E Rep. 7) 8:3 
 
 Caulfleld v. Bullock (18 B. Mon. 494). ... 588 
 
 Caulkins w. Fry (35 Conn. 170) 49 
 
 Cavanagh v. Dinsmore (12 Hun, 465) .. 738 
 
 Cave V Cave (15 Ch. Div. 639) 723 
 
 V. McKenzie (46 L. J. Ch. Div. 564). 459 
 Cavender v. Waddingham (5 Mo. Add. 
 
 457) ..:. 49 
 
 Caverly v. McOwen (123 Mass. 574) 821 
 
 V. McOwen (126 Mass. 222) 8.")2 
 
 Cavin v. Gleason (105 N. Y. 2o6) 536, 537 
 
 Cecil Bank v. Farmers' Bank (22 Md. 
 
 148) 783 
 
 Cedar Rapids, &c., R. R. C5o. v. Stew- 
 art (25 Iowa, 115) 77 
 
 Central Bank v. Hammett (50 N. Y. 153) 786 
 Central Branch U. P. R. R. Co. v. But- 
 
 man(22Kan 639) 714 
 
 Central Penn. Tel. Co. v. Thompson 
 
 (112 Penn. St. 118) 106 
 
 Central E. R. Co. v. Pettus (113 U. S. 116) 869 
 
 iv 
 
 SECTION 
 
 Chadsey V. McCreery (27 111. 253) 438 
 
 Cbadwick V. Collins (26 Penn. St. 138). . 976 
 
 V. Knox (31 N. H. 234) 32, 600 
 
 Chaffe V. Stubbs (37 La. Ann. 656) 273 
 
 276, 289 
 
 Challise V. McCrum (22 Kans. 157) 929 
 
 ChaDoner v. Bouck (57 Wis. 652) 89 
 
 Chamberlain v. Chandler (3 Mason, ai2) 740 
 
 V. Clayton (56 Iowa, 331) 588 
 
 Chamberlin v. Morgan (68 Penn. St. 168) 623 
 
 Chambers v. Seay (73 Ala. 372) 204 
 
 205, 207, 616 
 
 V. Short (79 3Io. 204) 339, 340 
 
 W.Miller (7 Watts, 63) 876 
 
 CHiampiii v. King (ti Jlu-. 35) 840 
 
 Champlin v. Parish (11 Paige, 405) 89 
 
 Chandler v. Beldeu (18 Johns. 157) 680 
 
 V. Hogle (58 III. 46) 495, 951, 10(16 
 
 V. Mason (2 Vt. 193) 34 
 
 Chapel V. Raymond (20 La. Ann. 277).. 378 
 
 Chapman v. Burt (77 111. 337) 833 
 
 V. Cowles (41 Ala. 10.3) 819 
 
 V. Durant (10 Mass. 47) 699, 1048 
 
 V. Erie Ry Co. (55 N. Y. 579) 662 
 
 V. Glassell (13 Ala. 50) 724 
 
 V. Lee (47 Ala. 143) 114, 750 
 
 V. McCrea (63 Ind. 360) 511 
 
 V. Spence (22 Ala. 588) 827 
 
 C!harles v. Eschelmann (5 Col. 107) 45, 70 
 
 ('. Taylor (L. R. 3 C. P.D. 49;i) 668 
 
 Chase ' . Heaney (70 111. 268) 824, 829 
 
 v. Pattberg (12 Daly, 171) 432 
 
 V. Westmore (5 Maule & Sel. 180)... 6'<0 
 
 Chase's Case (1 Bland. Ch. 206) 88.) 
 
 Chastain v. Bowman (1 Hill. 270) 60 
 
 V. Smith (30 Ga. 96), 457, 459 
 
 Chat field v. Simonson (92 N. Y. 209). . . . 852 
 Chedworth v. Edwards (8 Ves. Jr. 46).. 469 
 
 Cheeseman v. Sturges (9 Bosw. 255) 791 
 
 Cbeever v. Smith (15 Johns. 276) 698 
 
 V. Mirrick (2 N. H. 376) 820 
 
 Cheney v. Eberhardt (8 Neb. 423) 745 
 
 V. White (5 Neb 261) 745 
 
 V. Woodruff (6 Neb. 151) 745 
 
 Cherry v. Colonial Bank of Australasia 
 
 (L. R 3P. C. 24) 553 
 
 Chesapeake, &c., Co. v. County Com- 
 missioner (57 Md. 201) 507 
 
 (Chester Co. v. Barber (97 Penn. St. 463) 844 
 (Jhesterfleld Mnfg Co. v. Dehon (5 Pick. 
 
 7) 536,1044 
 
 Chetwood v. Berrian (39 N. J. Eq. 203). 790 
 
 Chew V. Bank (14 Md. 318) 48 
 
 Chicago Citv Ry Co. v. McMahon (103 
 
 111. 485 734 
 
 Chicago, &c., Ry Co. v. Bayfield (37 
 
 Mich. 205)... 21 4, 657, 663, 668, 670, 737 
 
 V. Clarke (11 111. App. 104) 670 
 
 V. Dickson (63111.151) 734, 740, 741 
 
 V. Doyle (18 Kan. 58) 662 
 
 t). Doyle (60 Miss 977) 667 
 
 v. Flexman (103 111 .546) 734.740,741 
 
 V. Fillmore (57 111. 265.) 715 
 
 w. Fox (41 111. 106) 100 
 
 V.Harney (28 Ind. 28) 662 
 
 V. James (22 Wis. 194) 84 
 
 w. Kcefe (47 lU. 108).... 667 
 
 V. Mav (108 111. 288) 668 
 
 V Rulule(60 111 534) 714, 715 
 
 V. Scurr (59 Miss. 456) 751 
 
 Chickering v. Robinson (3 Cush. Mass. 
 
 543) 580, 688 
 
 Child V. Dwight (1 Dev. & Bat. Eq. 171) 819 
 V. Eureka, &c.. Works (44 N. H. 
 
 354) 813 
 
 r. Hugg (41 01. 619) 936 
 
 Crhilders v. Bowen (68 Ala. 221) 774 
 
 Childs V. Bank of Missouri (17 Mo. 213) 741 
 Chillicothe Ferry, &c., Co. v. Jameson 
 
 (48111.281) 882 
 
 Chinn v. Chinn (22 La. Ann. 599). . .526, iUS
 
 xlviii 
 
 TABLE OF OASES CITED. 
 
 SECTION 
 
 Chipman v. Foster (119 Mass. 189^ 437 
 
 Chirac -'. Reinicker (11 Wheat. 280) .. . 882 
 Chorpenning v. Royce (58 Henn. St. 476) 714 
 
 Choieauw. Allen (70 Mo, 290) 121, 721 
 
 Chouteau v. Ooddins (39 Mo. 229).. ..119, 895 
 Chouteaux v. Leech ( 18 Penn. St. 224) . 281 
 
 Christian v. Smith (30 Ga. 96) 4.59 
 
 Christy v. Dou-lass (Wright, 485) 863 
 
 Christie i;- Sawy.-r (44 N. H. 29S) 845 
 
 Church V. Mansfield (20 Conn. 284) 740 
 
 V. Sterling (10 Conn. 38:-!). 118, 457, 459, 461 
 Churchward v. The Queen (6 B. & S. 
 
 807) 211 
 
 V. The Queen (L. R. & Q. B. 173)... 211 
 
 Cilley V. Tenny (31 Vt. 401) 647, 648 
 
 Cincinnati, &(-.,R.R. Co. i;. Lee (37 Ohio 
 
 St. 479) 600 
 
 Citizens' Bank v. Grafflin (31 Md. 507). 
 
 281, 486 
 Citizens' SaA . Bank v. Hart (32 La. Ann. 
 
 23) 392. 393 
 
 Citizens' Bank v. Howell (8 Md. 530). ... 514 
 Citizens' National Bank v. Culver (51 
 
 N. H. 3-^7) 876 
 
 City Bank v. Barrow (5 App. Cas. 664) . . 788 
 
 V. Bateman (7 Har. & J. 104) 714 
 
 V. Weiss (67 Tex 333) 519 
 
 City of Cleveland v. State Bank (16 
 
 Ohio St. 24fi) 352 
 
 City of Decatur v.Vermillion (77 111.315), 616 
 City of Detroit v. Jackson (1 Doug. 106), 
 
 ' 118, 446 
 
 City of Blansas v. Hannibal, &c., R. R. 
 
 Co. (77 Mo. 180) 422 
 
 City of Pontiac v. Carter (82 Mich. 164) 589 
 City of Providence v. Miller (11 R. L 
 
 272) 419 
 
 Caty of Richmond v. Long (17 Gratt 
 
 375) 593 
 
 aty of St. Paul V. Seitz (8 Minn. 297).. 
 
 747, 748 
 Claflln v. Lenheim (66 N.Y. 801). . . .221, 228, 
 ^^^ 230, 2:n 
 
 V. Ostrom (54 N. Y. 584) 567 
 
 Clap fl. Day (2 Greenl. 30.i) 755 
 
 Clapp V. Hughes (1 Phila. 382) 967 
 
 Clark t). Courser (29 N. H. 170) 816 
 
 1J. Cox (33 Mich. 204) 62 
 
 «. Cushman (5 Mass. 505) 892 
 
 V Des Moines 19 Iowa, 199) 291 
 
 tJ. Dobbins (.^2 Ga. G56) 1035 
 
 V. Foster (8 Vt. 98) 650 
 
 t>. Fry (8 Ohio St. .358) 747 
 
 ». Gilbert (26 N. Y. 279) 635 
 
 ». Holdridge (58 Barb. 61) 580 
 
 «. Jones (16 Lea. 351) 653 
 
 V Kinsrsland (1 S. & M. 248) 819 
 
 V. Lowell, &c., R. R. Co. (« Gray, 
 
 231) 677 
 
 «. Marshall (34 Mo. 429) 829 
 
 r Maur.an (8 Paige, 373) 1035 
 
 t> Miller 54 N. Y 528) 590 
 
 «. Moody (17 Mass. 145) 528, 628, 630, 
 
 531, 53i 533, 1022, 1024, 1025 
 
 r. Morse (16 La. 575) 812 
 
 r Perrier (2 Freeman, 48) 171 
 
 V Randall (9 Wis. 135). .388, 811. 818, 840 
 
 V Roberts (26 Mich. 506). . .475, 521, 1013 
 
 V. School District (29 Vt. 217) 635 
 
 V. Smith (88 III. 298) 839, 340 
 
 «. Tipping (9 Beav, 284) 1007 
 
 V. Van North wick (1 Pick. 343). . 195, 281, 
 
 485, 1010 
 
 ». Wa.shington (12 Wheat. 54) 190 
 
 Clarke v. Holmes (7 H. & N. 937) 656, 659, 661 
 
 V. Lyon Co. (8 Nev. 1S8) 112 
 
 V. May (2 Gray, 410). ...580, 685, 586, 687 
 
 t». Shee (Cowp. 200) 781 
 
 t». Spence (4 A. & E. 448) 634 
 
 t>. Van Reimsdyk (9 Cranch, 158) . . 
 
 168, 179 
 
 6E0TIOM 
 
 Classman v. Lacoste (28 Eng. L. & Eq. 
 
 140) 621 
 
 Clay V. Spratt (7 Bush. 334) 155, 171 
 
 Claypool V. Gish (9 N. E. Rep. 382) 531 
 
 Clayton v. Martin (31 Ark. 217) 396 
 
 V. Merrett(52 Miss. 353) 240, 245 
 
 Clayton's Case (1 Mer. 5?2) 781 
 
 Clealand v. Walker (11 Ala. 1058) 167, 417, 698 
 
 Cleave V. Jones (7 Exch. 421) 881 
 
 Glegg V. Baumberger (110 Ind. 536). . . . 888 
 V. Townshend (16 L. T. R., N. S. 
 
 180) 977 
 
 Cleghom v. New York Cent. R. R. Co. 
 
 (56 N. Y. 44) 741 
 
 Clendenon v. Pancoast (75 Penn. St. 
 
 213) 966 
 
 Clerks' Savings Bank v. Thomas (2 Mo. 
 
 App. 367) 730 
 
 Cleveland v. Newsome (45 Mich. 62) 715 
 
 V. Spier (16 C. B.. N. S. 398) 669 
 
 V. Williams (29 Tex. 204). .. .240, 245 246 
 CJleveland, &c., R. R. Co. v. Mara (28 
 
 OhioSt. 185) 715 
 
 V. Pattison (15 Ind. 70) 619 
 
 Clifford V. Burton (1 Bing. 199) 87 
 
 V. Turrill (2 De G. & Sim. 1) 862 
 
 Clippenger v. Hepbaugh (5 W. & S. 815) 
 
 22 645 
 
 Clough V. Whitcomb (105 Mass. 482) . . .' 841 
 
 Clute V. Barron (2 Mich. 194) 461, 463 
 
 Coat V. Coat (63 111. 73) 468 
 
 Cobb u. Cowdery (40 Vt. 25) 34 
 
 V. Hall (49Iowa,366) 87 
 
 V. Johnson (2 Sneed. 73) 714 
 
 V. Judge (43 Mich. 289) 806 
 
 V. Knapp (71 N. Y. 349). . . . 554, 658, 
 
 696, 699, 957, 1049 
 
 V. Prell (15 Fed. Rep. 77) 85 
 
 Coburn v. Omega Lodge (71 Iowa, 681). 438 
 
 V. Paine (36 Me. 105) 100 
 
 Cochran v. Chit wood (59 m. 53). . . . 150, 151 
 
 Cocke V. Campbell (13 Ala. 286) 348 
 
 V. Dickens (4 Yerg. 29) 754, 755 
 
 Coakcrof t v. Muller (71 N. Y. 367) 92!j 
 
 Cockerell v. Acompte (2 Com. B. 440). . 72 
 
 Coekran v. Irlam (i M. & S. 301) . .. 6.<)3, 99.S 
 
 Cockrill V. Kirkpatrick (9 Mo. 688).. 530, 531 
 
 Coddington v. Bay (20 Johns. 637) 519 
 
 Cod wise v. Hacker (1 Cai. 526) 148 
 
 Cody V. Raymond (1 Col. 272) 635 
 
 Coe V. Smith (4 Ind. 79) 631, 637 
 
 V. Wager (42 Mich. 49) 599, 600 
 
 Cofian V. Landis (46 Penn. St. 426) 204, 
 
 210, 233, 616 
 
 V. LinxweUer (34 Minn. 820) 964 
 
 Coffman v. Hampton (2 Watts & Serg. 
 
 377) 875 
 
 V. Harrison (24 Mo. 524) 550 
 
 Cohen v. Teller (12 Norris, 123) 116 
 
 Colburn v. Phillips (13 Gray, 64) . . . 755, 758 
 
 Cole u. Bennett (6 Price, 15) 871 
 
 V. Northwestern Bank (L. R. 10 C. 
 
 P. 354) 788 
 
 V. Pennover (14 111. 158) 61 
 
 Coleman v. Billings (89X11. 183) 845 
 
 V. First National Bank (53 N. Y. 89-3) 
 
 801,696, 701 
 
 V. Meade (18 Bush. 3.58) 968 
 
 V. Stark (1 Oregon. 115) 130 
 
 Coles V. Trecothick (9 Ves. Jr. 234) 899 
 
 CoUen V. Wright (8 E. & B. 647). . . . 645, 
 
 649 553 
 
 Collender v. Dinsmore (55 N. Y. 800). . ! 968 
 
 Colley V. Merrill (6 Greenl. 50) 682 
 
 Collier v. Pulliam (13 Lea, 114) ftiS 
 
 V. Steinhart (51 Cal. 116) 668 
 
 Collins V. Allen (13 Wend. 856) 550 
 
 V. Buck (63 Me. 459) 676, 678 
 
 V, Buckeye State Ins. Co. (17 Ohio 
 
 St 215) 448 
 
 V. Fowler (8 Mo. App. 688) 953, 973
 
 TABLE OF OASES CITED. 
 
 xlix 
 
 ~ ,., -, _ SECTION 
 
 OoIUiis V. Hopkins (7 Iowa, 568) 250 
 
 V. Insurance Co. fir Ohio St. 215)... 441 
 V. New England Iron Co. (115 Mass. 
 
 „23) 641 
 
 ». Rainey (42 Ark. 531) 468 
 
 V. St. Paul, &e., R. R. (30 Minn. 31). 667 
 
 V. Suau (7 Robt. 623) 1^7 
 
 V. Sullivan (135 Mass 401) 459 460 
 
 i>. Tillou (26 Conn. 368) 525 
 
 V. Wagsjoner (Breese, 26) 127 
 
 Colorado, &c., R. R v. Ogden (3 CoL 
 
 499) 667 
 
 Colt V. Noble (5 Mass. 167). ... 511 
 
 Col ton V. Richards (123 Mass. 484) . . ! ! ! * 667 
 Columbia Bridge Co. v. Geisse (33 N. J. 
 
 L. 39) g4 JQ3 
 
 Columbia Ins. Co. v. Cooper (50 Pen n' 
 
 St. 331) 931 
 
 Columbus, &c., R. R. Co. v. Arnold (31 
 
 Ind. 174) :.. 668 
 
 •. Troesch (68 lU. 545) 660. 662. 607 
 
 V. Webb (12 Ohio St. 475). ... 667 
 
 Colvln V. Holbrook (3 N. Y. 126) . . . 531 539 
 Colwell V. Keystone Iron Co. (36 Mich. 
 
 53) . 67 
 
 V, Simpson (16 Ves. Jr. 275) 865 
 
 Combe's Case (9 Co. 76) 419 99^ 
 
 Combs V. Hannibal Ins. Co. 43 Mo' 148)' 931 
 
 ». Scott (12 Allen, 493) 128,129; 148 
 
 Commercial Bank v. Cunningham (24 
 
 Pick. 270) 7^ 730 
 
 V. French (21 Pick. 488) .' 753* 755 
 
 V. Jones (18 Tex. 811) 127, 129 197 
 
 V. Kortright (22 Wend. 348) . .94, 279 788 
 i>. Martin (1 La. Ann. 344).... 194 
 
 r. Norton (1 Hill, 501) 186 193 
 
 V. Union Bank (11 N. Y. 212) ... '514 
 V. Warren (15 N. Y. 577) . . ' n6 
 
 Commercial Nat. Bank v. Heilbronner 
 
 (108N. Y. 439) 1044 
 
 Commercial Ins. Co. v. Ives (58 HI 402) 931 
 ». Spankneble(52Ill. 53)... 931 
 
 Commissioners v. Chambers (75 Ind 
 
 409) ■ gQj 
 
 Commissioners, &c. v. Reynolds (44 
 
 Ind. 559) 463 
 
 Commissioners v. Rose (1 Desau, 46 1) 819 
 Commonwealth v. Boynton (2 Allen' 
 
 160) ' 745 
 
 V. Commissionprs (9 Watts, 470) 77 
 
 w. Cooper (130 Mass. 288) '" 953 
 
 «. Eastman (1 Cnsh. 189) ' " i63 
 
 V. Emmons (98 Mass. 6) " ' 745 
 
 V. Farren (9 Allen, 489) '.'," 745 
 
 V. F^nnegan (124 Mass. 334) * 749 
 
 «. Hackett (2 Allen, 136) .... 715 
 
 t>. Harnden(]9Pick. 483).... "'" ft<)9 
 V. Holbrook (10 Allen, 200). . . '746 
 
 V. Holmes (119 Mass. 195) .84' 746 
 
 V. McPike (3 Cush. 181).. ' 715 
 
 t>. Nichols (10 Mete. 259) ■" 745 
 
 V. Park (1 Gray, 553). . . ; 745 
 
 u Putnam (4 Grav, 16) ' 746 
 
 t». Raymond (97 Mass 667) 746 
 
 V. Smith (103 Mass. 444). . . . 746 
 
 r.Waite (11 Allen, 264).... *"* 745 
 
 »• Wentworth (118 Mass. 441) ",' 746 
 
 Condit V. Baldwin (21 N. Y. 219) 74'; 
 
 Condon v. Pearce (4-3 Md. 83) . . . ! 44^ 
 
 Coney v. Sanders (28 Ga. 511) ... .".' '2'4'4' 245 
 Congar v. Chicago, &c. Ry Co. (34 Wis' 
 
 157) ,72i" 725 
 
 Conger v. Fincher (28 111. 347) ' 648 
 
 Congregation v. Peres (2 Cold. 6a)) 619. 622 
 Conkey v. Bond (36 N. Y. 427) . . . . . . .68 462 
 
 Conley v. Portland (78 Me. 217) .. . 668 
 
 Connecticut Mut. L. Ins. Co. v Bulte 
 
 (45 Mich. 113) 84 
 
 Conners v. Hennessey (112 Mass. 96) 748 
 
 V. Holland (113 Mass. .50) 243 
 
 Gannett v. Chicago (114 EL 233), ...165, 813 
 
 Connop V. Challls (2 Exch. 484) ^^^^^m 
 Connor v.Chicugo, &c. R. R. (59' Mo'. 
 
 285) 667 
 
 Connor v. Parker (114 Mass. 331). .'.' laV 993 
 
 Conover v Van Mater il8 N. J. Eq. 481) 745 
 Conrey v. Brandegee (2 La. Ann? 132) 
 
 234 2.^ A 
 Conroy V. Vulcan Iron Works (6.; Mo. 
 
 "5) ygi^ ggj 
 
 Considerant v. Brisbane (23 N. Y. 3S9) 
 
 Continental L. Ins. Co. t>. Perry Tes ^^ 
 
 Iowa, 709) ' 468 
 
 Continental Nat. Bank v. Weems'is's 
 
 W. Rep 802) ^ ■ 5.0a 
 
 Couturier v. Hastie (8 Exch. 40) 1014 
 
 Converse v. Blumrich (14 .Mich lo'g') '" 714 
 Conway County v. Little Rock, &c Ry 
 
 Co. (39 Ark. 50) .'sis, 830 
 
 Conway v. Lewis (13 Atl. Rep. 826). .... 1016 
 Conwell i>. Voorhees (13 Ohio 52;3i 594 
 
 Conyers v. Magrath (4 McCord. 392)! " ' 555 
 Cook V. Berlin Woolen Mills Co (43 
 
 Wis. 433) •.463, 466 
 
 V. Bradley (7 Conn. 57).... 600 
 
 V. Fiske (12 Gray, 491) "986 967 
 
 r. Gray (133 Mass. 106) ' ' 44^ 
 
 V. Hopper (23 Mich. 511) '.'. 839 
 
 V. Kroemeke (4 Daly, 268) ' * 966 
 
 V. Sanf ord (3 Dana. 237) .... 430 
 
 V. Tullis (18 Wall. 332) 111, 126, m, 167 
 Cooke V. Thresher (51 Conn. 105). . .862 863 
 w. Welch (9 Allen. a50) .... 954 
 
 Cooley V. Betts (24 Wend. 203)531, 1023", 
 
 ^,„ 1024! 1025 
 
 V. O'Connor (12 WaU, 391). . . 73 
 
 V. Perrine (13 Vroom, 322) 34a 850 
 
 » Willard (34 111. 68) 274, 87^ 373 
 
 Coohdge V. Smith (139 Mass. 554). . 63 
 
 Coombs V. New Bedford Cordage Co' 
 
 (102 Mass. 572) essj 6.59 
 
 Cooney v. Wade (4 Humph. 444) 375 
 
 Coons V. Renick (11 Tex. 134).... '45 70 
 
 Cooper V. Borrall (10 Penn. St. 491) * ' 934 
 
 V. Rankin (5 Bmn. 613). . . 93 
 
 V. Schwartz (40 Wis. 54) '.'.' 155' 163 
 
 Cope r. Dodd (1 Harris. 33) ' 963 
 
 Copeland v. Mercantile Ins. Co (6 
 
 Pick. 198) 67, 217, '219, 461 
 
 Copenrath v. Kienby (83 Ind. 18). ... 48 
 
 Copley V. Grover & Baker Sewing Ma- 
 chine Co. (2 Woods, 494). . 741 
 Coppin V. Craig (3 Marsh, 501) ... . " 756 
 
 V. Craig (7 Taunt. 243 > gb's 912 
 
 V. Walker (7 Taunt. 237) 769' 897 
 
 Coqulllard v. French (19 Ind. 274).. 806 818 
 
 V. Suydam (8 Blackf. 24) ' 53^ 
 
 Corbett v. Underwood (83 111. 824) . . 938 
 
 Corbin v. Adams (6 Cush. 93) .' 714 
 
 V. American Mills (27 Conn. 274)'.!! 747 
 Corbitt V. Salem Gas Co. (6 Oreg. 405)" 211 
 Corby V. Hill (4 C. B., N. S. 556) . . . . '.'. 658 
 Corcoran v. Holbrook (59 N. Y 517) 
 « ,. ^ . -« 659,664,665, 668 
 
 Corlies v. Cummmg (6 Cow. 181) 71, 757, 
 
 993! 1039 
 
 ». Widdifleld (6 Cow. 181) 1021 
 
 Coming u. Calvert 1 2 Hilt. 56). ... . " 970 
 
 r. Southland (3 Hill. 552) "" 179 
 
 V. Strong (1 Ind. 329) "' 3-5 
 
 Corser v. Paul (4 1 N. H. 24) '.'iVo' 151 
 
 Corzierw. Carr (11 Tex. 876) ' 414 
 
 Cosgrove v. Ogden (49 N. Y. 255)' 279, 
 
 Cossitt t>. Hobbs (56 111. 233) ' 894 
 
 Cost V. Qenette (1 Port. 212) ! " 819 
 
 Costlgan V. Railroad Co. (2 Den. 609) ' 62-3 
 
 Coster V. Mayor (43 N. Y. 411) 667 
 
 Cothay V. Fennell (10 B. & C. 671). " ' 698 
 
 Cothren v. Connaughton (24 Wis. 124)' 803 
 
 Cottom t>. Holliday (59 m. 176) (ff 461
 
 TABLE OF CASES CITED. 
 
 SECTION 
 
 Coudert v. Flagg (31 N. J. Eq. 394) . . ... 745 
 Couchlin v. N^-w York Ceutral R. R. 
 
 Co. (71 N. Y. 443) 846,869, 871 
 
 Coughtry v. Globe Woolen Co. (66 N. Y. 
 
 124) 666, 748 
 
 County Commissioners v. Duckett (20 
 
 Md. 469) 589 
 
 Courcler v. Ritter (4 Wash. 549) 171, 
 
 1008, 1009 
 
 Coursin's Appeal (79 Penn. St. 220) 469 
 
 Courtney v. Baker (2 Jones & Sp. 529). 715 
 
 V. McQavock {Zi Wis. 622) 871 
 
 Couturier v. Hastie (8 Exch. 40) 1014 
 
 Covellf. Hill (6 N. Y. 374) 995 
 
 Coveney v. Tannehill (1 Hill, 33) 880, 881, 8S2 
 Coventry v. Great Eastern R. R. Co. 
 
 11 Q. B. Div. 776) 717 
 
 V. Barton (17 Johns. 142) 654 
 
 Covey V. t^ampbell (52 Ind. 157) 849 
 
 Covin V. Hill (4 Den. 323) 788, 786 
 
 Covington V. Newberger (6 S. W. Rep. 
 
 205) 346 
 
 Cowell V. Simpson (16 Ves. Jr. 280) 680 
 
 Coweta Falls Mnfg Co. v. Rogers (19 
 
 Ga. 416) 287, 714 
 
 Cowles I). Richmond, &c. R. Co. (84 N. 
 
 C. 309) 664, 665, 667 
 
 Cowley V. Smith (46 N. J. L. 380; 743 
 
 Coxe V. Devine (5 Harr. 375) 698 
 
 Coxv. Afiams(l N.&MGC.284) 635 
 
 r. Hoffman (4 D. & B. 180) 62 
 
 V. Leech (1 Com. B. 617) 827 
 
 V. Life Ins. Co. (113 111. 382) 745 
 
 V. Livingston (2 \V. & S. 103) 515, 826, 8 J2 
 V. New York, &c. R. R. Co. (63 N. 
 
 Y.414) 813 
 
 V. Prentice (3 JI. & S. 348) 562 
 
 «. Sullivan (7 Ga. 144) .. .8,21,826, 835 
 
 Cozzens v. wnitney (3 R. I. 79) 872 
 
 Cracker v. Chicago & N. W. Ry Co. (36 
 
 Wis. 657) 741 
 
 Craft V. McConoughy (79 III. 346) 35 
 
 Craig V. Chambers 1 17 Ohio St. 253) .... 498 
 
 V. Ely (5 Stew. & P. 354) 813, 819 
 
 V. Burnett (32 Ala. 728) 680, 585 
 
 u Godfrey (1 Cal. 415) 803 
 
 V. Mansfield (1 Ves. 379) 878 
 
 Craighead v. Peterson (72 N.Y. 279) 129, 
 
 ^ 308, 311, 890. 393 
 
 Crandall v. State (28 Ohio St. 479) 892 
 
 Crane v. Bedwell (25 Miss. 507) 1^ 
 
 w. Burntrager (1 Ind. 165) 527 
 
 V. OndHrdonk(67 Barb. AT) 671 
 
 Cransu Hunter (28 N. Y. .389) 130 
 
 Cravens V. Gillilan (63 Mo. 28) 116 
 
 Crawford v. Barkley (18 Ala. 270) 130 
 
 V. Dean (6 Blackf. 181) 755 
 
 V. Fisher (1 Hare, 436) 527 
 
 «. Reders (54 Miss. 700) 63, 87 
 
 V. Russell (62 Barb. 92) 36 
 
 c. Spencer (92 Mo. 498) 35 
 
 Crawshayu Homfray (4 B. & Aid. 50). 680 
 
 t). Thornton (2 Mv. & Cr. 1) 527 
 
 Cray v. Mansfield (1 Ves. Sr. 379) 878 
 
 Craycraf t v. Selvage (10 Bush. 696) 273, 290 
 
 Creager v. Link (7 Md. 259) . . 204 
 
 Crenshaw v. Harrison (8 Ala. 342) 820 
 
 Cresswell v. Byron (14 Vesey. Jr. 272). . 854 
 Crew V. St. Louis, &c. Ry (20 Fed. Rep. 
 
 87) 667 
 
 Cribben v. Maxwell (34 Kans. 8) 48 
 
 Crlchfleld v. Porter (3 Ohio, 518) 810 
 
 Crispin v. Babbitt (81 N. Y. 516> 667 
 
 Critchett v. American Ins. Co. (53 Iowa, 
 
 404) 931 
 
 Crltchfleld v. Porter (3 Ohio, 518) 61o 
 
 Croaker v. Chicago, &c. Ry Co. (35 
 
 Wis. 657) 740, 741, 751 
 
 Croft V. Alison (4 B. & Aid. 590). . .737, 741 
 Crooker ». Hutchinson (2 D. Chip. 117) 
 
 820, 835 
 
 8KC7TTON 
 
 Crooker v. Hutchinson (1 Vt. 73). . .495, 496 
 
 Crookham v. State (5 W. Va. 510) 715 
 
 Croom v. Shawd Fla 211) 348 
 
 Crosby v. Berger (11 Paige, 377) . . 882, 880 
 
 V. Hill (39 Ohio St. 100) ...339, 773, 986 
 
 Cross u. Riggins (50 Mo. 3-35) 883 
 
 Crothers v. Leo (29 Ala. S'iT) 5:i4 
 
 Croutw. DeWolf (1 R. L 393) 116 
 
 Crowe V. Ballard (2 Bro. ( h. 117) 469 
 
 Crowley V. LeDue (21 Minn. 412) 869 
 
 Croy u. Busenbark(72 In.l. 48) 84, 96 
 
 Crozier u. Carr (11 Tex. 376) 414 
 
 Cru mbacker v. Tucker { 9 A rk. 365) .... 683 
 
 Cruzan v. Smith (41 Ind. Z-^S) 27'3, 279 
 
 CuhbHrly «. Scott (98 111. 38) 63 
 
 Cuff V. Newark, &c. R. R. Co. (35 N. J. 
 
 L. 17) 747 
 
 Culver «. Ashley (10 Pick. 301) 161 
 
 V. Benedict (13 Gray, 7) 519 
 
 Cullen V. O'Hara (4 Mich. 132) 765 
 
 (Cumberland Coal Co. v. Hoffman 
 
 Steam Coal Co. (30 Barb. 1.59) . . 463 
 Cumberlatid, &c. Coal Co. v. Scally (27 
 
 Md. 5H9) 667 
 
 Cumberland Coal Co. v. Sherman (30 
 
 Barb. 553) 461 
 
 Cumberland, &c. R. R. Co. v. State (44 
 
 Md. 283) 664, 665, 667 
 
 Gumming V. Roebuck (1 H'.lt, 172) 9-12 
 
 Cummings v. Collins (61 Mo. S.'O). 6ii3 
 
 Cumming v. Forester (1 M. & S. 497).. . 756 
 
 Cummings v. Gann (52 Penn. St. 4'^4).. 674 
 
 V. Harsabraugh (14 La. Ann. 711).. 721 
 
 «. Powell (8 Tex. 80) 55 
 
 V. Sargent (9 Mete. 172) 396 
 
 Cummins V. M -Liiin (2 Ark. 412) 531 
 
 V. McLain (2 Pike, 402) 515 
 
 V. Heald (24 Kan. 600) 515 
 
 Cumpston v. Lambert (18 Ohio, 81) 654 
 
 Cunningham v. Bucklia (8 Cow. 178) 
 
 580, 581 
 
 V. Cochran (18 Ala. 479) 714 
 
 V. International R. R. Co. (51 Tex. 
 
 503) 748 
 
 V. Jones (.37 Kans. 477) 878 
 
 V. Morrell (10 Johns 203) 634 
 
 V. National Bank (71 (ia 400) 35 
 
 V. Railway Co. (17 Fed. Rep. 882). . . 670 
 
 Cupples V. Whelan (61 Mo. 583) 83, 224 
 
 Curran v. Merchant's Mnfg Co. (130 
 
 Mass. 374) 687 
 
 Currier v. Railroad Co. (37 N. H. 223) 878, 874 
 
 Curry V Currv ni4 Penn St.—') 599 
 
 i;. Hale (15 W. Va. 869) 129 
 
 Curtis r. Blair (26 Miss. 309) 89 
 
 w. Gibney(59Md. 131) 102.J 
 
 V. Leavitt (15 N. Y. 190) 189 
 
 V. United States (2 Nott. & Hun. 
 
 144) 291. 546 
 
 V. WiUiamson (L. R. 10 Q B. 57) 
 
 554,699, 700 
 
 Curtsv. CJisna (7 Biss. 260) 46<* 
 
 Cushing V. Rice (46 Me. 303) 769 
 
 Cushmin v. Glover (17 111. 600) 219 
 
 V. Loker (2 Mass. 106) 148 
 
 Custer V. Tompkins County Bank (9 
 
 Penn. St. 27) 730 
 
 Chitter V. Powell f6 T. R 820) 6.35 
 
 Cuyler v. MerriflelJ (5 Hun. 559) 393 
 
 Cyphert v. McLune (22 Penn. St. 195) . . 810 
 
 D 
 
 Dagnallw. Wigley ("11 East. 43) 74."^ 
 
 Dalby v. Stearns (132 Mass. 230) 1009 
 
 Dale V. Pierce (85 Penn, St. 474) 9 
 
 «. Hamilton (5 Hare Ch. 369) 459 
 
 Dallas V. Hollingsworth (3 Ind. 587). .. 651 
 
 Dally V. Young (3111. App. 39) 741 
 
 Dal ton V. Goddard (104 Mass. 497) 1027
 
 TABLE OF OASES CITED. 
 
 u 
 
 SECTION 
 
 Daly V. Commonwealth (75 Penn. St. 
 
 831) 892 
 
 V. Butchers' & Drovers' Bank (56 
 
 Mo. 94) 514 
 
 Damon v. Granby (a Pick. 345) 77 
 
 Dana v. Turlay (33 N. W. Rep. 860) .... 330 
 Danby w. Coutts (L. R., 29 Ch. Div. 500) 
 
 2)0, 306 
 
 Dancer v. Hastings (4 Bing. 2) 758, 763 
 
 Dane v. Kirkwall (8 Car. & P. 679) 48 
 
 Danforth v Pratt (42 Me. 50) 680, 684 
 
 Danif 1 v. Adams (Arab. 495) 902 
 
 V. S wearengen (6 S. C. 297) 793, 795 
 
 Daniels v. Barney (22 Ind. 207) 5.>6 
 
 w. Newton (114 Mass 530) 624 
 
 Danley v. Crawl (28 Ark. 95) 814 
 
 D'Aqnila v. Lambert (1 Amb. 399 687 
 
 Danube & Black Sea Co. v. Xenos (13 
 
 Com. Bench, N. S. 835) 624 
 
 Darling v. Lewis (11 H^isk. 125) 269 
 
 V. Stanwood (14 Allen. 504) 195, 197 
 
 V. St. Paul (19 Minn. 389) 190 
 
 v. Yonkers (37 Ohio St. 487) 384 
 
 Darlington v. Chamberlin (20 HI. 
 
 App. 443) 1037 
 
 V. Chamberlin (120 111. 585) 1043 
 
 Darr v. Darr (59 Iowa 81) 240 
 
 Darrow v. Harlow (21 Wis. 302) 987 
 
 V. St. Gi^orge (8 Col . 592)) 204, 207 
 
 Darst V. Gale (83 111. 136) 121 
 
 Daubigny v. Duval (5 T. R. 606). ...675. 1034 
 
 Daune u. Dubois (7 Wright, 2o0) 414 
 
 Davenport v. Riley (2 Mc-Cord, 198) 554 
 
 V. Peoria, etc., Ins. Co. (17 Iowa, 
 
 276) 279 
 
 V Sleight (2 Dev & Bat. 381) 894 
 
 Daver v. Harrell (58 Ga. 572) 882 
 
 Davey w. .Tones (13 Vroom, 28 514 
 
 Davies v. Lyon (36 Mmn. 427) 367 
 
 V. Waters (9 M. & W. 611) 882 
 
 DavidsoQU Gun-^olly (1 Mich. 388) 765 
 
 17. Lanier (4 Wall.. tJ. S. 456) 394 
 
 u Porter (57 111. 300) 276 
 
 V. Stanley (2 M. & G. 721) 391 
 
 Davis «. Arledge (3 Hill. L. 170) 654 
 
 V. Ayres (9 Ala. 292) 622 
 
 r. Barger (57 Ired. 54) 480 
 
 V. Bradley (38 Vt. 118) 10.« 
 
 V. Burnett (4 Jones, L. 71) 348 
 
 V. Cadwell (2 Rob. 271) 38 
 
 V. Central Vermont R. R. (55 Vt. 
 
 84) 667 
 
 V. Detroit, &c. R. R. Co. (20 Mich. 
 
 105) 662 
 
 V. England (141 Mass. 587). 438. 441, 442 
 
 V. Garrett (6 Bing. 716) 908, 954 
 
 «. Hall (90 Mo 639) 812 
 
 t>. Hamlin (108111. 39) 458, 952 
 
 V. Ha5'den (9 Mass 54) 421 
 
 V. Henderson (25 Mi.ss. 549) 4-37, 443 
 
 V. Kobe (38 Minn. 214).. ..989, 1009, 1015 
 
 V. Knim (12 Mo. App. 279) 148 
 
 V. Lane (ION. H. 156) Ill, 
 
 126, 354, 255, 256, 257 
 
 «. Lee f20 La. Ann. 248) 819 
 
 V. Lee (26 Mass. 505) 394 
 
 V. Maxwell (12 Me^c. 286) 634, 63i 
 
 V. Pre,stou (8 Ala. 83) 622 
 
 V. Read (65 N. Y. 56;)) 190 
 
 V. Sharrow (15 B. Mon. 64) ! 845 
 
 V. Smith (43 Vt. 269) 467 878 
 
 V. Smith (48 Vt. 5!) 854, 8.58 
 
 V. Waterman (10 Vt. 526) 336, 388 
 
 V. Waters (9 M. & W. 611) 8S2 
 
 V. Wetherell (11 Allen, 19) 459 
 
 V. Whitesides (1 Dana. 177) 714 
 
 V. Windsor Savings Bank (46 Vt 
 
 ,^ . 728) !M0, 216 
 
 Davison V. Davison (13 N. J. Eq. 246) . . 600 
 
 «. Donald.son (9 Q B. Div. 623) 697 
 
 Davol V. Quimby (11 Allen, 908) 219 
 
 SECTION 
 
 Davoue v. Fanning (2 Johns. Ch. 252) 
 
 457,462,463, 469 
 
 Dawson v. Atty (7 East. 367) 714 
 
 V. Cotton (26 .\la. 501) ... 433 
 
 V. Dawson (12 Iowa, 512) 600 
 
 «. Kittle (4 Hill, 107) 486 
 
 Dawes V. Jackson (9 Mass. 490) 426 
 
 V. Lnndreaux (29 La. Ann. 363) 100 
 
 Day V. Boyd (6 Hei'ik, 458) 274 
 
 V. Crawford (13 Ga. 508) 1008 
 
 V. Holmes (103 Mass. 300) 193, 
 
 281,485, 936 
 
 V. McAllister (15 Gray, 433) 114 
 
 t>. Toledo. &c. Ry (42 Mich. 523) 667 
 
 V. Wamsley (33 Ind. 147) 721 
 
 Daylight Burner Co. v. Odlin (51 N. H. 
 
 56) 281,362 916,948,990, 1046 
 
 Dayton v. Hoogland (39 Ohio St. 671) . . 849 
 Dayton Ins. Co. v. Kelly (24 Ohio St. 
 
 315) 931 
 
 Dayton v. Wame (43 N. J. L. 659) .... 424 
 
 Dean v. Bassett (57 Cal. 640) 133 
 
 V. Swoop (2 Binn. 72) 963 
 
 Deakin v. Underwood (3;l N. W. Rep. 
 
 618) 65,70, 77, 820 
 
 Dearborn v. Dearborn (15 Mass. 316) 
 
 820, 835 
 
 DeBaun v. Atchison (14 Mo. 543) 83 
 
 DeBouchoutw. Goldsmid (5 Ves. Jua. 
 
 ^11) 355 
 
 DeBriar v. Minturn (1 Cal. 4.50). . .212, 632 
 
 DeCamp v. Stevens (4 Blackf . 24) 635 
 
 Decatur v. Paulding (14 Pet. 497) 592 
 
 Decker Sc parte (6 Cow. 60) 94 
 
 V. Fredericks (47 N. J. L. 469) 818 
 
 DeComas v Prost (3 Uoo. P. C. 158). ... 206 
 
 Decorah i>. Dunstan (3S Id . 96) 892 
 
 DeCordova v. Kuowles (37 Tex. 19) 818 
 
 Decuirv. Lejeune (15 La. Ann. 569) 114 
 
 Deering v. Tbom (29 Minn. 120) 349, 449 
 
 Deford v. State (30 M<1. 200) 5] 
 
 DeForest v. Fulton Firelns.Co. (1 Hall, 
 
 84) 1005 
 
 DeForrest v. Wright (2 Mich. 368).. 748, 747 
 
 Deford v. Keyser (30 Md. 179 666 
 
 Degg V. Midland Ry Co. (1 H. & N. 773) 669 
 DeGroot V. Van Duzer (17 Wend. 170) . . 39 
 Delhi V Adams Ins. Co. (58 Penn. St. 
 
 443) 129 
 
 Delafleld v. State (26 Wend. 192).... 291, 292 
 
 Delaney v. Levi (19 La. Ann, 251) 129 
 
 V. Rochereau (34 La. Ann. 1123) 539, 
 
 569,570. 571 
 Delaware, &c Canal Co. v. Carroll (89 
 
 P^nn. St. 374) 667 
 
 DeLazardi v. Hewitt (7 B. Mon. Ky. 697) 485 
 
 DeLeon v. Trevino (49 Tex. 88) 526 
 
 DeLouis v. Meek (2 G. Greene, 5.5). .810, 811 
 Demarest v. Barbadoes (40 N. J. L 604) 783 
 
 DeMets v. Da^ron (53 N. Y. 635) 819 
 
 Deming y. BullHtt(l Blackf.241) 421 
 
 V. Chase (48 Vt. 328) 348, 360 
 
 Den V. Zell-rs (7 N. J. L. 153) 896 
 
 Denew v. Daverell (3 Camp. 451)... 905, 975 
 
 Denison V. Seymour (9 Wend. 9) 575 
 
 Dennis V. McCatcg (32 III. 444) 457 
 
 Dennett V. Cutts(ll N. H. 163) 866 
 
 Denny ■». Lincoln (5 Mass. 385) 667 
 
 V. Manhattan Co. (2 Den. N.Y. 115) 539 
 
 Dent V. McGrath (3 Bush. 174) 914 
 
 Denton v. Ja<-kson (1U8 111. 433) 936 
 
 V. Noyes (6 Johns. 295) 810, 809 
 
 DePoret V. Gusman (30 La. Ann. 930).. 386 
 
 Deposit V. Pitts (18 Id. 475) 892 
 
 Derocher v. Continental Mills (58 M«. 
 
 217).... BO, 651 
 
 DeRouflgny v. Peale (3 Taunt. 484). ... 828 
 
 Derringer v. Meyer (42 Wis. 311) 214, 215 
 
 Desha v. Pope (6 Ala. 690) 10S5 
 
 Desha u. R'ibinson (17 Ala. 228) " 648 
 
 Deshler v. Beers (o2 Ill.s. 368). . .495, 987, 1006
 
 Hi 
 
 TABLE OF OASES CITED. 
 
 SECTION 
 
 Desmond v. Stebbins (140 Mass. 339) ... 966 
 Despatch Line v Bellamy Mnf^ Co. 
 (12 N. H. 205) 78 93, 118, 136, 137, 
 
 167, 401 
 De Stelger v. Hollington (17 Mo App. 
 
 %8T) 67,643, 972 
 
 DeTastett v. Crousillat (3 Wash. 13J) 
 
 815, 475, 484, 510, 054, 1008, 1011 
 
 Detroit v. Jackson (1 Doug. 106) 97 
 
 Detroit. &i3. R. R.Co. v. Barton (61 lad. 
 
 29 i) 741 
 
 DevaU v. Burbridgre (4 W. & S. 305) 538, 101 i 
 
 Devayn^-s v. Robinson (24 Beav. 86) 32;^ 
 
 Devenport v. Sleight (2 L. & B. 3S1). ... 94 
 Devendorf v. West Virginia, &c. Co. 
 
 (17W. Va. 135) 443 
 
 DeVignier r. Swanson (1 B. & P. 346, n) 769 
 
 Devinney v. Reynolds (1 W. & S. 328). . 428 
 
 Devlin V. Brady (32 Barb. 518) 3S 
 
 Devoss V. Gray (22 Ohio St. 169) 72, 73 
 
 DeWitt V. Cullings (32 Wis. 298) 647, 648 
 
 DeWolf V. Strader (26 111. 225) 883 
 
 DeWittu. Walton (9 N Y. 570) 432 
 
 Dexter u. Hall (15 Wall. 9) 51 
 
 Diasw. ChiLkering(64Md. 348) 1046 
 
 Dicas V. Stoc^kley (7 C. & P. 587) 865 
 
 Dicas V. Lord Brougham (6 C. & P. 249) 580 
 
 Dickw. Cooper (24 Penn. St. 217) 714 
 
 Dickv. Page(17Mo. 234) 245 
 
 Dickey w. Linscott (20 Me. 453) 640 
 
 Dickens v. Jones (6 Yerg. 483) 561 
 
 Dickerman v. Ashton (21 Minn. 538) 414, 
 
 89, 414, 937 
 
 Dickerson v. Wason (47 N. Y. 439) 519 
 
 V. Pyle (4 Phila. 259) . 844 
 
 Dickinson v. Conway (12 Allen, 491)... 129 
 
 V. Gay (7 Allen, 34) 947 
 
 Dickinson County v. Mississippi Valley 
 
 Ins. Co. (41 Iowa, 286) 9, 276 
 
 Dlckman ». Williams (50 Miss 500) .... 714 
 
 Dickson v. Caldwell (17 Mo. 595) 635 
 
 V. Screven (23 S. C. 212) 474 
 
 V. Wright (52 Miss. 6a5) 814 
 
 Diefenback v. Stark (59 Wis. 462) . .634, 637 
 
 Diehl V. Friester (37 Ohio St. 473) . .839, 862 
 
 Dieringer v. Meyer (42 Wis. 311) 214 
 
 Dietrich >\ Baltimore, &c. R. R. (58 Md. 
 
 847) 715 
 
 Dietz V. McCallum (44 How. Pr. 493) ... 871 
 
 Dillaway v. Butler (135 Mass. 479) .... 723 
 
 Dillingham v. Snow (5 Mass. 547) . .586, 588 
 
 Dillon V. Brown (11 Gray, 179) 133 
 
 Dingle v. Hare (7 C. B. N. S. 145). ..848, W7 
 Dingeldein v. Third Ave. R. R. Co. (37 
 
 N Y.577) 567 
 
 Dirks V. Richards (5 Scott's N. R. 534) . 681 
 Distilled Spirits, The (H WaU. U.S. 367) 
 
 721, 722 
 
 District Bank, In re (11 Ch. D. 772) .536, 781 
 
 Diversy v. Kellogg (44 111. 114) 224, 360 
 
 Dixon, Ex parte (4 Ch. Div. 133) 77.i 
 
 Dixon V. Evvart (3 iMeriv. 322) 265, 267 
 
 V. Stansfeld (IOC. B. 398) 679 
 
 Dobell V. Hutchinson (3 A. & E. 355) . . 12 
 
 Docker v. Somes (2 M. & K. 655) 469 
 
 Dockham v. Potter (27 La. Ann. 73) . . . 810 
 
 Dodd V. Brott (1 Minn. 270) 869, 873 
 
 V. Farlo w (11 Allen, 426) 904, 947 
 
 V. Wakeman (26 N. J. Eq. 484). 459, 469 
 
 Dodds V. Vannoy (61 Ind. 89) 533 
 
 Dodge V. Favor (15 Gray, 82) 486 
 
 V. Hopldns (14 Wis. 630) 89, 179 
 
 V. McDonnell (14 Wis. 553) 129, 287 
 
 V. Lambert (2 Bosw. 570) 151 
 
 V. Perkms (9 Pick. Mass. 898) . .530. 
 
 531, 532, 1025 
 V. TUeston (12 Pick. 833) 474, 483, 
 
 975, 1027 
 
 Dodson V. Swan(2W. Va. £11) 27 
 
 Doe u. Andrews (Cowp. 845) 882 
 
 V. Goldwin(2Q. B. 143) 167 
 
 BEOTKni 
 
 Doe V. Roberts (16 M. & W. 778) 51, 68 
 
 V. Smith (1 Jones, N. C. L. 185) 240 
 
 V. Thompson (22 N. H. 217) 76ft 
 
 V. Walters (10 B. & C. 625) 167 
 
 Doggett V. Illinois Cent. R. R. Co. (84 
 
 Iowa. 284) 658 
 
 Dolan V. Soaulau (57 Cal. 261) ... .966, 967 
 
 V. Thompson (126 Mass. 183) 1029 
 
 Donald v. Hewitt (33 Ala. 534) 676 
 
 Doonan v. Ives (73 Ga. 295) 967 
 
 V. Mitchell (26 Ga. 472) 100 
 
 Dorchester. &c. Bank v. New England 
 
 Bank) 1 Gush. 177). 186, 194, 514, 998 
 
 Dorsey v. Abrams (85 Penn. St. 299) .... 121 
 
 u Kyle (30 Md. 512) 810, 80» 
 
 V. Packwood (12 How. 126) 211 
 
 Dorrance v. Scott (3 Whart. 313) 66 
 
 Doss V. Missouri, &c. R. R. Co. (59 Mo. 
 
 27) 751 
 
 Dotterer v. Pike (60 Ga. 29) 536 
 
 Doty V. Hawkins (6 N. H. 247) 525 
 
 V. Mdler (43 Barb. 529) 967 
 
 . V. Wilder (15 111. 407) 694, 893 
 
 V. Wilson (14 Johns. 378) 654 
 
 Doubleday v. Kreas (50 N. Y. 410) . .873, 
 
 379, 380, 817 
 
 Doughaday v. Crowell (1 1 N. J. Eq. 201). 131 
 
 Dougherty v. Whitehead (31 Mo. 255) . . 601 
 Douglass V. Bernard (Anthons N. P. 
 
 278) 1002 
 
 Douglass V. Murphy (16 U. C. Q. B. 
 
 113) 510 
 
 V. Spears (2 Nott. & McCord, 207) . . 211 
 
 Douvielle v. Supervisors (40 Mich. 585) . 201 
 
 Dove V. Marten (28 Miss. 588) 151 
 
 Dover v. Harrell (58 Ga. 572) 882 
 
 v. Plemmons (10 Ired. L. 23) 636 
 
 Dowdallt). Pennsylvania, &c. II. R. Co. 
 
 (13Blatch. 403) 714 
 
 Dowell V. Burlington, &c. RyCo. (62 
 
 Iowa, 629) 656, 659 
 
 V. Williams (33 Kans. 819) 102 
 
 V. McKinzie (65 Ga. 630) 150 
 
 Dowling V. AUen (74 Mo. 13) 659, 
 
 664, 665, 668 
 
 D. Eggemann (47 Mich. 171) 862 
 
 Downer v. Collins (26 Ala. 591) 432 
 
 v. Lent (6 Cal. 94) 688 
 
 V. Morrison (2 Gratt. 237) 86 
 
 Downey v. Burke (23 Mo. 228) 638 
 
 Downing v. Herrick (47 Me. 462) K'O 
 
 Dows V. Greene (24 N. Y. 638) 995 
 
 V. Morewood (10 Barb. 183) 681 
 
 Dozierv. Freeman (47 Miss. 647). .273 
 
 276, 289 
 
 Drain v. Doggett (41 Iowa. 682 875 
 
 Drake v. Flewellan (33 Ala. 106) . . .438, 558 
 Draper v. Massachusetts Steam Heat- 
 ing Co. (5 Allen, 338) . . .432, 442, 550 
 
 V. Rice (56 Iowa, 114) 882 
 
 Dreisback v. Rollins (18 Pac. Rep. 187) 966 
 Dresden School District v. iEtna Ins. 
 
 Co. (62 Me. 3301) 948 
 
 Dresser v. Norwood (17 C. B., N. S.) 
 
 466) 721, 1048 
 
 Drew V. Nunn (4 Q. B. Div. 661) . . . .254, 255 
 
 Drexel v. RaTmond (2:5 Penn. St. 21) . . . 533 
 Drinkwater v. Goodwin (Cowi). -^51) 
 
 206, 26M. 679, 99'i, l(i32, 1039 
 Drovers' National Bank v. Anglo- 
 American, &c. Co. (117 m. 100) 
 
 513, 614 
 
 Drummond v. Drummond (2 Cal. 810). 481 
 
 V. Humphreys (39 Me. 847) 653 
 
 V. Wood (2 Cai, 310) 481, 942, 1015 
 
 Drumright v. Philpot (16 Ga. 424). . .93, 
 
 13/, 414 
 
 Drury v. Foster (2 Wall. 24) 94, 394 
 
 DuBois V. Delaware & Hudson Canal 
 
 Co. (4 Wend. 285) 702 
 
 Dubois Appeal (38 Penn. St. 231) . . .865, 862
 
 TABLE OF OASES CITED. 
 
 liii 
 
 SECmON 
 
 Dncloae v. Cnnnlngham (102 N. Y 678). 966 
 
 Ducongo V. Forgay (15 La. Ann. 37) . . . 390 
 
 Duffey ('. Duffey (44 Penn. St. 399) .... 599 
 
 Duffy V. Hobson (40 Cal. 240) 966 
 
 Dufresne v. Hutchinson (3 Taunt. 117) 476 
 
 Dugan V. Anderson (36 Mil. 567) 624 
 
 Dugdale v. Lovering (L. R. 10 0. P. 196) 917 
 
 Dusuid V. Edwards (50 Barb. 200) 536 
 
 Duke V. Harper (66 Mo. 51) 844 
 
 Dumont v. Williamson (18 Ohio St. 515) 929 
 
 Duncan v. Balce r (21 Kan. 99) 637 
 
 V. Gilbert (29 N. J. L. 521) 392 
 
 «. Hill (L.R. 8Exch. 242) 977 
 
 «. Niles (32 111. 532) 6.50 
 
 V. Spear (11 Wend. 54) 525, 765 
 
 Dundee Mort. & Trust Co. v. Hughes 
 
 (20 Fed Rep. 39) 836 
 
 Dune: V. Parker (52 X. Y. 494) . .548, 549, 550 
 
 Dunklee v. Locke (13 Mass. 525) 869 
 
 Dunlap V. Hand (26 Miss. 460) 647, 618 
 
 V. Lambert (6 01. & Fin. 600).. 755 
 
 V. Mitchell (10 Ohio, 117) 463 
 
 Dunlop V. Monroe (7 Cranch. 242).. 593, 594 
 Dunn V. Hartford, &c. R. ,B. Co. (43 
 
 Conn. 434) 148 
 
 V.Moore (16 111 151) 635 
 
 V. Sayles (1 Dav. & M. 579). 211 
 
 Dunton v. Chamberlam (1 111. App. 361) 555 
 Dunwidie v. Kerley (6 J. J. Marsh. 
 
 501) 5SS 
 
 Du Pierat v. Wolfe (29 N. Y. 436) 1052 
 
 Dupont V. Wertheman (10 Cal. 354). 129, 326 
 Du Quoin, &c. Mining Co. v. Thorwell 
 
 (3 111. App 394) 619 
 
 Durant v. Fish (40 Iowa, 559) 1015 
 
 Durgin v. Somers (117 Mass. 55) 45 
 
 Durkee v. Central Pac. R. R. Co. (69 
 
 Cal. 533) 714, 715 
 
 Durnford v. Patterson (7 Martin, La. 
 
 460) 498, 518 
 
 Dusar v. Perit (4 Binn.. Penn. 361) 481 
 
 Dusenbury v. Ellis (3 Johns. Cas. 70) . . 550 
 
 V. Seeley (87N. Y. 634) 745 
 
 Du Souchet v. Dutcher (15 North E. 
 
 Rep. 459) 775 
 
 Dutcher v. Beckwith (45 111. 460) ... .87, 337 
 
 Dutton V. Marsh (L. R. 6Q. B 361).43tj, 755 
 
 V. Warscliauer (21 Cal. 609) 95, 414 
 
 V. Willner (52 N. Y. 319) 68, 469 
 
 Duval V. Craig (2 Wheat. 45) 421, 558 
 
 Dwight V. Blackmar (2 Mich. 330). . .461-463 
 
 V. Simon (4 La. Ann. 490) 831, 833 
 
 t). Weir (6 La. Ann 706) 816 
 
 Dwyer v. American Express Co. (to 
 
 Wis. 453) 667 
 
 Dyer v. Pearson (3 B. & C. 38) 787 
 
 Dykers v. Townsend (24 N. Y, 61) . .696, 701 
 
 £! 
 
 Eaddie v. Ashbaugh (44 Iowa, 519). 148, 349 
 Eads V. Williams (4 DeGex. Mac. & 
 
 Gor. 674) 18S 
 
 Eagle Bank v. Smith (5 Conn. 71) . . .84, 86 
 Eagleston Mnfg Co v. West Mnfg Co. 
 
 (18 Blatch. 22:B) 244 
 
 Eaken v. Harrison (4 McCord. 249).... 619 
 
 Earl V. Grout (46 Vt. 113) 883 
 
 Early v. Wilkinson (9 Gratt. 68) 443 
 
 Eames v. Sweetser (101 Mass. 78) 62 
 
 Earp V. Cummins (54 Penn. St. 394) ... 966 
 
 Eason v. S. & E. T Ry Co. (65 Tex. 577) 669 
 
 Eastern Bank v. Taylor (41 Ala. 93). ... 464 
 Eastern Railroad v. Benedict (5 Gray, 
 
 561) 449,696,701, 769 
 
 East Had dam Bank v. ScovU (12 Conn 
 
 303) 514 
 
 East India Co. v. Hensley (1 Esp. 112). 181 
 
 Eastman v. Wright (6 Pick. 322) 772 
 
 Easton v. Calendar (11 Wend. 90) 588 
 
 ti. Ellis (1 Handy, 70) 240 
 
 SECTION 
 
 East River Bank v. Kennedy (9 Bosw. 
 
 513) 813 
 
 East River Gas Light (Jo. r. Donnelly 
 
 (93 N. Y. 557) 580, 588 
 
 East Tennt-ssee. &c. R. R. Co. v. Duf- 
 
 fleld (12 Lt-a, 63) . . .661, 664, 665, 670 
 
 V. Gurley (12 Lea, 46) 662 
 
 Eastwood V. Kenyon (11 Ad. & El. 438) 600 
 Eaton V. European, &c. Ry Co. (59 
 
 Me. 520) 733, 747 
 
 V. Truesdail (52 111. 307).. 1032, 1035, 1037 
 V. Welton (22 N. H. 852) 530, 6.il, 
 
 533, 102S 
 
 Eberhart v. Reister (96 Ind. 478) 5:il 
 
 Eberts > . Selover (44 Mich. 519) 130 
 
 Eby V. Schumacher (29 Penn. St. 40) . . 954 
 
 Eccles V. Stephenson (3 Bibb. 517) &J4, 836 
 
 Echols V. Cheney (28 Cal. 157) 419 
 
 Eclipse Wind Mill Co. v. Thorson (46 
 
 Iowa, 181 773 
 
 Eddy V. Badger (8 Biss. 238) 745 
 
 V. Livingston (35 Mo. 493) 497, 500 
 
 Edgerton v. Brackett (1 1 N. H. 218). ... 811 
 
 v. Thomas (9 N. Y. 40) 62 
 
 Edings V. Brown (1 Rich. 255) 557 
 
 Edwards v. Davenport (20 Fed. Rep. 
 
 756) r. 48 
 
 V. Edwards (29 La. Ann. 597) 813 
 
 V. Golding (20 Vt. 30) 769 
 
 V. Hodding (5 Taunt 815) 566 
 
 V. Levy (2 Fost. & Fin. 94) 215, 638 
 
 V. Midland Ry Co. (6 Q. B. Div. 287) 741 
 
 Egerton v. Logan (81 N. Car. 172) 533 
 
 Eggleston v. Austin (27 Kan. 245) 969 
 
 V. Board man (37 Mich. 14) fe, 175, 
 187, 606, 607, 760, 770, 814, 815, 
 
 824, 812, 849 
 
 V. Wagner (46 Mich. 610) 96 
 
 Ehle V. Judson (24 Wend. 97) 600 
 
 Eichbaum v. Irons (6 Watts & Serg. 
 
 67) 72, 73, 557 
 
 Eickman v. Troll (29 Minn. 124) . . . .808, 810 
 Eilenberger v. Protective Mut. F. Ins. 
 
 Co. (89 Penn. St. 464) 743, 931 
 
 Ela V. Smith (5 Gray, Mass. 136) 580 
 
 Elam V. Carruth (2 La. Ann. 275 130 
 
 Elbin V. Wilson (33 Md. 135) 688, 
 
 Elderton v. Emmons (6 M. Q. & S. 160) 
 
 621, 622 
 
 Eldridge v. Holway (18 111. 445) 193 
 
 V. Rowe (2 Gilm. 91) 634, 635 
 
 V. Walker (60 111. 230). ... 457,464, 791 
 
 Eliot V. Lawton (7 Allen, 274) . .854, 855, 858 
 Elkhart County Lodge v. Tracy (98 
 
 Ind. -^^8) 22, 24 
 
 Elkingtou v. HoUand (9 M. & W. 65S) 
 
 824, 825 
 Elkins V. Boston, &c. R. R. Co. (19 N. 
 
 H 337) 769 
 
 ElUott V. Bradley (23 Vt. 217) 676, 103.) 
 
 V. Cox (48 Ga. 39) 10.5 
 
 V. Pray (10 Allen, 378) 606 
 
 V. Stocks (67 Ala. 336) 93 
 
 V. Swartwout (10 Pet. 137) 519, 561, 
 
 562, 564, 565 
 
 V. Walker (1 Rawle, 126) 652 
 
 Ellis u Hamlen (3 Taunt. 51) 635 
 
 V. Turner (8 Term Rep. 531) 741 
 
 V. Wild (6 Mass. 821) 929 
 
 Ellsner u Radcliff (21 111. App. 195)... 1044 
 
 Ellsworth V. Cordrey (63 Iowa, 675) ... 468 
 
 Elmore v. Brooks (6 Heisk. 4.5) 480 
 
 Elsee V. Gatward (5 T. R. 143) 478 
 
 Elston V. Jasper (45 Tex. 409) 50 
 
 Eltinar V. Sturtevant (41 Conn. 176) 607 
 
 Elwell V. Chamberlain (31 N. Y. 611) 
 
 178, 775 
 
 ». Dodge (33 Barb. 336) 439 
 
 V. Shaw (16 Mass. 42) 419, 422 
 
 Ely V. Hanf ord (65 111. 267) 462 
 
 V. James (123 Mass. 36) 148
 
 liv 
 
 TABLE OF CASES CITED. 
 
 SECTION 
 
 Ely V. Thompson (3 A. K. Marsh. 70) . . 580 
 
 Emerson v. Ooggswell (16 Me. 77) 86 
 
 V. Providence Hat Mnfg Co. (12 
 
 Mass. 237) 91, r-b, 39:, 432. 1004 
 
 Emmens v. Eldertoa (13 Com. B. 495) 
 
 212, 622, 623 
 Emmerson v. Heelis (2 Taunt. 38, 47) 
 
 12, 893 
 
 Endsley v Strock (50 Mo. 503) 4;il 
 
 England v. Garner (90 N. C. 197) 810 
 
 Knglehart v. Peoria Plow Co. (21 Neb. 
 
 211) 393 
 
 English V. Uevarro (5 Blackf . 58S) 521 
 
 Enoch V. Wehrkanap (3 Bosw. 398).... 1033 
 
 Enos V. Tutt le (3 Conn . 250) 715 
 
 Episcopal Church v. Wiley (2 Hill, Ch. 
 
 584) 696 
 
 Episcopal Society v. Episcopal Church 
 
 (1 Pick. 372) 179 
 
 Erickson v. BeU^ Iowa, 631) 745 
 
 Erie City Iron Works v. Barber (106 
 
 Penn. St. 125) 743 
 
 Erie, &c. Co. v. St. Louis Co. (6 Mo. 
 
 App. 172) 994, 995 
 
 Ernest v. StoUer (5 Dill. 438) 1006 
 
 Esdaile v. LaNauze (1 N. & C. 394) 306 
 
 E.^hleman v. Lewis (49 Penn. St. 410) . . 4.57 
 
 Esley V. People (23 Kan. 510) 809, 8l0 
 
 Espy V. Bank of Cincinnati (18 Wall. 
 
 a. S.604) 717 
 
 Estate of A. B. (l Tucker, 247) 8 .'5 
 
 Estell V. Myers (54 Miss. 174) 619 
 
 Eureka Co. v. Bass (81 AJa. 200) . . . .660. 60t 
 
 European Bank, In re (5 Ch. Ap. 358) . . 7J3 
 European, &c. Ry Co. v. Poor (59 Me. 
 
 277) 45.1 
 
 Kyans v. Bennett (7 Wis. 404) 635 
 
 V. Chicago, &c. R. R. Co. (26 HI. 
 
 189) 164 
 
 V. Davidson (53 Md. 245) . . .734, 735, 736 
 
 V. Evans (3 Ad. & El. 132) 755 
 
 V. Feame (16 Ala. 689) 206, 2 )7 
 
 V. Foster ON. H. 374) 5?0 
 
 V. Potter (3 Gall. 12) 994, 1007 
 
 V. Root (7 N. Y. 186) 1008, 10"9 
 
 V. Watrous (2 Port. 205) 824, C28 
 
 V. Wells (22 Wend. 341) 414 
 
 V. Wills (32 Wend. 340) 141 
 
 Everett v. Coffin (6 Wend. 609) 573, 574, 681 
 
 V. Saltus (15 Wend. 474) 677, 68 1 
 
 V. United States (6 Port. 166) 167 
 
 V. Warner Bank (58 N. H. 340) 810 
 
 Everhart v. Searle (71 Penn. St. 256) 67, 
 
 643. 953, 972 
 
 Everingham v. Meighan (55 Wis. 354). 35 
 
 Evrit V. Bancroft C~i Ohio St. 173) 759 
 
 Ewan V. Lippincott (47 N . J. L. 192) .... 668 
 
 Ewing V. Medlock (5 Port. 82) 755 
 
 E wins V. Gordon (49 N. H. 444) 211 
 
 Exchange Bank v. Lewis County (28 
 
 W. Va. 37.3) 438, 444 
 
 V. Rioe (107 Mass. 37) 449, 693, 701 
 
 V. Third Nat. Bank (112 U. S. 276). 510 
 
 Eystra v. Capelle (61 Mo. 580) 63 
 
 EzeU V. Franklin (2 Sneed. 236) .... 848, 350 
 
 P. 
 
 Fabens v. Mercantile Bank (23 Pick. 
 
 330) 614 
 
 Fahnestock v. Bailey (3 Mete. 48) 1044 
 
 Fairbanks v. Snow (145 Mass. 153) 55 
 
 Fairchild v. Railroad Co. (,8 111., App. 
 
 591) 607 
 
 Fairfield v. Adams (16 Pick. 381) 755 
 
 Fairfield Savings Bank v. Chase (72 
 
 Me. 226) 721,727, 729 
 
 Fairlle v. Fenton (L. R. 5 Ex. 169).. 756, 
 
 982 983 
 
 V. Hastings (10 Ves. Jr. 125) .. . .714| 715 
 
 Fairthorne v. Blaquire (6 M. & S. 73). .. 56 
 
 BKonoif 
 
 Falk V. Moebs (127 U. S. 597) 441, 443 
 
 Falkenburg v. Clark (11 R I. 278) 957 
 
 Faloon v. IMcIntyre (118 111. 292) 599 
 
 Fanning v. Cobb (20 Mo. App. 577) 83 
 
 Farebrother v. Ansley (1 Camp. 343)... 
 
 915, 917 
 V. Simmons (5 B. & Aid. 333). . ..7.'^i6, 
 
 893 973 
 
 Fareira v. Gabell (87 Penn. St. 89) ! 974 
 
 Faries v. Ranger (35 La. Ann. 102) 1008 
 
 Farmer v. People (77 III. 332) 746 
 
 V. Robinson (2 Camp. 339) 1052 
 
 Farmers' Bank v. Butchers' Bank (16 
 
 N.Y.125) 6.84. 717 
 
 V. Colby (64 Cal. 352) 438 
 
 V. King (57 Penn. St. 202) 536, 
 
 780, 781, 789, 1044 
 
 V. Logan (74 N. Y. 568) 689 
 
 V. Mackall (3 Gill. 447) 820 
 
 V.Payne (25 Conn. 444) ... .718, 721, 
 
 729, 730 
 
 V. Sherman (6 Bosw. 181) 148 
 
 V. Sprigg (11 Md. 389) 812 
 
 'v. Vail(21 N. Y. 485) 511 
 
 Farmington Savings Bank v. Buzzell 
 
 (61 N. H. 613) i;3, 393 
 
 Farnham v. Thompson (34 Minn. 830 1 . . 
 
 321, 822 
 
 Farnsworth v. Brunquest (36 Wis. 202). 67 
 
 w. Chase (19 N. H. 534) 486 
 
 V. Garrard (1 Camp. 38) 636 
 
 V. Hemmer (1 Allen. 494) 67, 
 
 281, 643, 952, 953, 972 
 
 Farnum v. Brooks, (9 Pick., Mass. 212). 466 
 
 Farrv. John (23 Iowa, 286) 895 
 
 Farrar v. Cliauff^-tete (5 Den. 527) 674 
 
 V. Duncan (29 La. Ann. 126) 308, 811 
 
 V. Oilman (19 Me. 440) 439 
 
 V. Peterson (53 Iowa, 420) 849 
 
 Farrel Foundry v. Dart (26 Conn. 376).. 730 
 
 Farrell v. State (33 Ohio St. 456) 746 
 
 Farrer v. Lacy (25 Ch. Div. 636) 897 
 
 Farrington v. Meek (30 Mo. 578) . . . .680. 684 
 Farrow V. Commonwealth Ins. Co. (18 
 
 Pick 53) 756,931, 983 
 
 Farwell v. Boston & Worcester R. R. 
 
 (4 Mete. 49) 656 
 
 t'. Curtis (7 Biss. 162) 514 
 
 V. Howard (26 Iowa, 381) 155, 164 
 
 V. Price (30 Mo 587) 954 
 
 Fassitt V. Middleton (47 Penn. St. 214).. 819 
 
 Faulkner v. Brown 1 13 Wend. 63) 765 
 
 Faulks V. People (39 Mich. 200) 746 
 
 Faurie v. Morin (4 Martin. 39) 28 
 
 Fauslerv. Parsons (6 W. Va.. 486) 588 
 
 Fawcett V. Cash (4 B. & Ad. 904) 632 
 
 V. Fowlis(7 B. & C. 394) 580 
 
 Faxon v. Mansfield (2 Mass. 147) 636 
 
 Fay V. Burdett (81 Ind. 433) 48 
 
 V. Richmond (43 Vt. 25) 84, 348 
 
 V. Wincliester (4 Mete. 513) 320 
 
 Fearing v. Kimball (4 Allen, 12.5) 163 
 
 Feild V. Farrington (10 Wall. 141) 1009 
 
 Feise v. Wray (3 East. 93) 680, 687 
 
 Felker v. Emerson (16 Vt. 633) 62 
 
 Fellows V. Hartford. &c., Co. (38 Conn. 
 
 197) 224, 225, 228 
 
 V. Longyor(91 N. Y. 330) 745 
 
 V. Northrup (39 N. Y. 121) 380 
 
 Felt V. School District (24 Vt. 297) 496 
 
 Feltham v. England (L. R. 2 Q. B. 33).. 668 
 
 Feltusv. Swan (63 Miss. 415) 539, 570 
 
 Fenner w. Lewis (10 Johns. 38) 87 
 
 Fenno V. English (32 Ark. 170) 858 
 
 Fenton v Clark (11 Vt. 557) 631 
 
 V. Dublin Steam Packet Co. (8 Ad. 
 
 & El. 8:35) 735, 735 
 
 Fereira v. Sayres (5 W. & 8. 210) . . .240, 247 
 
 Fernald v. Ladd (4 N. H. 370) 812 
 
 Ferguson v. Crawford (70 N. Y. 258). . . 810 
 
 Ferris v. Carson Water Co. (16 Nev. 44> 667
 
 TABLE OF OASES CITED. 
 
 Iv 
 
 SECTION 
 
 Ferris v. Irving (28 Cal. 645) ... . 240, 244, 245 
 
 V. Kilmer (48 N. Y. 300) 553, 936 
 
 V. Paris (10 John. 28o) 530, 531, 10:24, 1025 
 
 Ferry v. Laible (31 N. J. Eq. 50'i) 323 
 
 Fessenden v. Forest Paper Co. 63 Me. 
 
 175) 648 
 
 Fetrow v. Wiseman (40 Ind. 155) 51, 54 
 
 Fewing-s v. Tisdale (1 Exch. 295) 622 
 
 Fick V. Runnels (48 Mich. 302) .511 
 
 Fickett V. Durham (109 Mass. 419) 4.59 
 
 Field V. Stagj? (32 Mo. 534) 94, 394 
 
 Fifth Nation il Bank v. Viilageof Hyde 
 
 Park (101 111.595) 780, 781 
 
 Fillieul V. Armstrong (7 Ad. & El. 557). 638 
 
 Filson u. Himes(5Penn. St. 4.52) ...28, 40 
 
 Finch V Mansfield (97 Mass. 89) 341 
 
 Finn i>. Western R. R. Co. (112 Mass. 
 
 524) 755, 765 
 
 Finney v. Cadwellader (55 Ga. 75) 619 
 
 Firbank v. Humphrey (18 Q. B. Div. 54) 959 
 
 Firestone v. Firestone (49 Ala. 128) 459 
 
 First National Bank v. Bank of Mon- 
 roe (33 Fed. Rep. 408) 519, 782 
 
 «. Bissell (2 McCrary,73) 460 
 
 «. Boyce (78 Ky. 42) 994 
 
 V. Christopher (40 N. J. L. 435) . . 729, 730 
 V. First National Bank of Rich- 
 mond (76 Ind. 561) 519, 783 
 
 V. Fourth National Bank (77 N. Y. 
 
 32)) 518 
 
 V. Fourth National Bank of New 
 
 York (77 N. Y. 320) 511 
 
 V. Free i671owa, 11) 87, li)8 
 
 V. Gay (63 Mo. 33) 116, 393, 4.34 
 
 V. Hall (44 N. Y. 395) 439, 7.53 
 
 V. Kimberlands (16 W Va. 555) 121 
 
 «. Leppel (9 Col. 594) 526 
 
 ». Mount Tabor (52 Vt. 87) 78 
 
 V. Nelson (38 Ga. 391) 994 
 
 V. Ocean National Bank (60 N. Y. 
 
 278) 714 
 
 V. Reno County Bank (3 Fed. Rep. 
 
 257) 519 
 
 V. Shaw (61 N. Y. 283) 9^5 
 
 First Parish v. Fiske (8 Gush. 264> 586 
 
 Fischer v. Bell (91 Ind. 213). .. .937, 968, 967 
 
 Fish r Dodge (4 Denio, 817) 539 
 
 1'. Kelly (17 C. B.. N. S. 194) ....497. 836 
 
 V. Kempton (7 M. G. & S. 687) 774 
 
 Fisher v. Campbell (9 For. 210) 86 
 
 V. Dyner (62 Ind. 348) 975 
 
 V. Krutz (9 Kans. 501) 457, 4.59 
 
 V. Lodge (50 Iowa, 459) 87 
 
 V. Marsh (6 B. & S. 411) 753, 753 
 
 V. Oskaloosa (28 Iowa, 381) 809 
 
 V. Porter (2S Fed. Rep. 162) 745 
 
 V Rieman (12 Md. 497) 939 
 
 V. Salmon (1 Cal. 413) .... 421 
 
 V. ^- argent (10 Cush. 2.50) 281, 486 
 
 Fishkill Savings Inst. v. Bostwick (19 
 
 Hun, 354) 729 
 
 Fisher v. Smith (4 App. Cas 1) 980 
 
 Fisher's Appeal(3i Penn. St. 29) 466 
 
 Fisk y. Central Pac. R. R. Co. (72 Cal. 
 
 38) 668 
 
 V. Henarie (13 Oregon, 156) 966 
 
 Fiske V. Eldridge (12 Gray, 474) . . . .43'<, 447 
 
 Fitch V. Newberry (1 Doug. 1).674, 677, 1038 
 
 V. Scott (3 Ho w. 314) 826, 824 
 
 Fitzgerald v. Fauconberge (Fitz Gib- 
 bon, 207) 731 
 
 Fitzherbert v. Mather (1 T. R. 12) . .714, 725 
 Fitxhugh V. Wiman (9 N. Y. 559).. 765, 
 
 ™ 922, 1041 
 Fitzsimmons v. Southern Express Co. 
 
 (40Ga.330).. 67, 644 
 
 Flagg V. Baldwin (38 N. J. Eq. 219) .... 33 
 
 Flanagan v. Brown (70 Cal. 254) 207 
 
 Flanigan v. Cruii (53 111. 332) 898 
 
 Fleckner v. U. S. Bank (8 Wheat, 363) 
 
 118, 167 
 
 SECTION 
 
 Fleming v. Hill (62 Ga. 751) 553 
 
 Flemyngtt. Hector (2 M. & W. 172). 72, 73 
 Fletcher v. jaoston & Maine R. R. (1 
 
 Allen, 9) 495 
 
 w. Dy.sart (9 B. Monr. 413) 129 
 
 t>. MarshalKloM. & W. 755) 977 
 
 V. Rylands (L. R. 1 Exch. 263) 747 
 
 Flexner.u. Dickerson(72 Ala. 318) 51 
 
 Fliko V. Boston, &c. R. R. Co. (53 N. Y. 
 
 549) 664, 665 
 
 Flint, &c. R. R. Co. v. Dewey (14 Mich. 
 
 477) 463 
 
 Florance v. Adams (2 Rob. 556) 461, 46i 
 
 V. Richardson (2 La. Ann, 27) 892 
 
 Flournoy v. Jeffersonville (17 Ind. 
 
 169) 592 
 
 Flower v. Downs (6 Id. 538) 171 
 
 V. Jones (7 Martin, La N. S. 143) . . 177 
 V. Pennsylvania, R. R. Co. (69 
 
 Penn. St. 210) 069 
 
 Floyd V. Barker (12 Coke, 25) 580, 581 
 
 I'. Nangle (3 Atk. 568) 831 
 
 V. Siigden (134 Mass. 563) 667, 668 
 
 Floyd Acceptances, The (7 Wall. 600). . 
 
 _ 273, 291 
 
 Flury V. Grimes (52 Ga. 343) 463 
 
 Flyunu. Salem (134 Id. 351) 607 
 
 Fogarty v. Sawyer (17 Cal. 591) 321 
 
 Fo<g V. Pew (10 Gray, Mass. 409) 714 
 
 Foley V. Cowgill (5 Blackf. 18) 743 
 
 Folger V. Pererkin (2 South Rep. 579). 63 
 
 Fol.som V. Batchelder (22 N. H. 51). ... 786 
 V. Mus^ey (8 Greenl. 4J0).4y5, 1006, 1020 
 Fonda v. Van Home (15 Wend. 631). 51, 
 
 52, 53 
 
 Foot V. Tewksbury (2 Vt. 97) 871 
 
 Forbes v. Baaden (31 N. J. Eq. 381)... 745 
 
 V. Hagman (75 Va. 168) 119 
 
 V. Halsey (26 N. Y. 53) 4.37 
 
 Forbush v. Leonard (8 Minn. 303). .869, 870 
 
 Ford V. Danks (16 La. Ann. 119). . . .215, b.38 
 
 V. Fitchburg R. R. Co. (110 Mass. 
 
 240) 059, 664, 665 
 
 V. French (72 Mo. 250) 722 
 
 V. Pa'-ker(4 0hio St. .376.) .394 
 
 V. Williams (13 N. Y. 577) 839 
 
 V. Whliams (21 How. U. S. 2S9) 
 
 696, 701 
 Fordyce v. Peper (16 Fed. Rep. 516) 
 
 1009, 1027 
 
 Fore V. Campbell (1 S. E. Rep. 180) 328 
 
 Formby V. Pryor (15 Ua. 258) .32 
 
 Forney v. Shipp (4 Joups. 527) 554 
 
 Forniquet v. Tegarden (21 Miss. 90) 654 
 
 Forrestier u. Bordman (1 Story. 43) 
 
 129. 481, 942, 1030 
 Forsee v. Alabama, &c. R. R. Co. (63 
 
 Miss 66) 751 
 
 Forshaw u. Lewis (1 Jur. 263) 882 
 
 Forster v. Fuller (6 Mass. 58) 442 
 
 V. Hayman (26 Penn. St. 266) 924 
 
 V. Mackreth (L. R. 2 Exch. 163) ... . 393 
 
 Forsyth v. Hooper (11 Alien, 419) 747 
 
 V. Day (41 Me. 332) 428, 434 
 
 v.Day(46Me. 177) 116 
 
 Forsythe v. Beveridge (52 111. 268) 869 
 
 V. Bonta (5 Bush. 547) 116 
 
 Fortw. Cokerdl Heisk. 579) 155 
 
 Fort Wayne, &c. R. R. Co. v. Gildei-- 
 
 sleeve (33 Mich. 133) 6.36, 659 
 
 Foster Ex parte (2 Slory, 144) 676, 673 
 
 V. Bates (12 M. & W. 226) 124 
 
 V. Es.sex Bank (17 Mass. 479) 497-740 
 
 V. Fuller (6 Mass. 58) 442 
 
 V. Hall (12 Pick. 89) 884, 88.3, 886 
 
 V. Jack (4 Watts, 834) 842, 8.38 
 
 V. Jones (1 S. E. Rep. 875) 63 
 
 t'. Persch (63 N. Y. 400) 558 
 
 V. Preston (8 Cow. 198) 475, 1024 
 
 V. Rockwell (104 Mass. 167).... 155, 
 
 163, 171, 315
 
 Ivi 
 
 TABLE OF CASES CITED. 
 
 SECTION 
 
 roster V. Smith (2 Cold 474) 481, 
 
 483, 76a, 7d9, 773, 885, 943, 1015 
 
 V. Waller (75 111. 464) 10)6. 1013 
 
 V. Wiley (27 Mich. 244) 811, 839 
 
 Foulksv. Falls (91Iad. 315) 816, 826 
 
 Fountain Coal Co. v. Phelps (93 Ind. 
 
 271) 468 
 
 Fourth Nat. Bank v. American Mills 
 
 Co. (29 Fed. Rep. 611) 1033 
 
 Fourth Nat. Bank v. St. Louis Co. ai 
 
 Mo. App. 333) 994, 995 
 
 Fowle V Kerchner (87 N. C. 49) 446 
 
 Fowler w. Armour (24 Ala. 194) 622 
 
 V.Atkinson (6 Minn. 573) 438, 440 
 
 V. N. Y. Gold Exchange (67 N. Y. 
 
 138) 148 
 
 V. Payne (49 Miss. 32) 648 
 
 V. Payne (52 Miss. 210) 649 
 
 V. Pickering (119 Mass. 33) 'Hi 
 
 V. Shearer (7 Mass. 14). 419, 421, 423, 461 
 
 Fox V. Byrnes (52 N. Y. 150) 967 
 
 V. Cooper (2 Q. B. 82?) 878 
 
 V. Drake (8 Cow. 191) 426 
 
 V. McGregor (11 Barb. 41) 683 
 
 V. Rouse (47 Mich. 558) 966 
 
 V. State (3 Tex. App. 329) 746 
 
 Frame v. William Penn Coal Co. (97 
 
 Penn.St.309) 774 
 
 Francis v. Cockrell (L. R. 5 Q. B. 184).. 6r,6 
 
 V. Edwards (77 N. C. 271) 100 
 
 V. Evans (33 N. W. Rep. 93) 536, 537 
 
 V. Kerker (85 111. 190) 461. 701, 952 
 
 Frandsen v. Chicago, &c. R. R. Co. (36 
 
 Iowa 372) 670 
 
 Frank v. Ingalls (4 Ohio St. 560) 3i7 
 
 V. Jenkins (22 Ohio St. 597) 151, 281 
 
 Frankfort S. T. Co. v. Churchill (6 T. B. 
 
 Mon. 427) Ifi7 
 
 Franklin v. Ezell (1 Sneed, 497) 1.51, 308 
 
 Franklin Fire Ins. Co. v. Hart (31 Md. 
 
 60) 74 
 
 Franklin Ins. Go. v. Sears (21 Fed. Rep. 
 
 290) 475 
 
 Franklin Bank v. Pennsylvania, &c. 
 
 Co. (11 Q. & J. Md. 28) ... 714 
 
 Franklin Mining Co. v. Harris (24 Mich. 
 
 115) 212, 632 
 
 Franklyn r. Lamond (4 C. B. 637) 913 
 
 Franks v. Morris (9 W. Va. 664) 468 
 
 Fraser v. Jennison (42 Mich. 206) 885 
 
 V. McPherson (3 Desau, 39.3) 363 
 
 V. United States (16 Ct. of CI. 507) . 646 
 
 V. Wyckoff (63 N. Y. 445) 612, 966 
 
 Fray v. Blackburn (3 B. & S. 576). .580, 581 
 
 Frazier V. Parks (.56 Ala. .363) 818 
 
 V. Wyckoff (63 N. Y. 445 966 
 
 Freeman v. Auld (44 N. Y. 55) 567 
 
 V. Buckingham (18 How. 182) 717 
 
 V. Otis (9 Mas'!. 272) 436 
 
 u. Rosher (13 Q. B. 780) 8.39 
 
 French v. Prif-e (24 Pick. 13) 699, 1048 
 
 V. Wade (35 Kan. 391) 100, 103 
 
 Frenke) v. Hudson (83 Ala. 158). . ..723, 739 
 
 Fresseil V. Haile (18 Mo. 18) 869 
 
 Fretwell v. Troy (18 Kans. 371) 893 
 
 Fretz V. Stover (23 Wall. 198) 269 
 
 Friend v. Hamill (34 Md. 298) 588 
 
 Frink v. Roe (70 Cal. 296) 204, 207 
 
 r.RoedlPac. Rep. 820) 331 
 
 Friswell v. King (15 Sim. 191) 862 
 
 Fritchcy v. Bosley (56 Md. 96) 830, 813 
 
 Frith V. Cortland (2 Hem. & M. 417). 
 
 536, 781 
 
 Frost V. Belmont (6 Allen, 152) 22, 730 
 
 V. Knight (L. R. 7 Ex. Ill) 624 
 
 Frothingham v. Everton (12 N. H. 239) 
 
 474, 1009 
 
 Frye v. Lockwood (4 Cow. 4.54) 561, 564 
 
 V. Saunders (21 Kans. 26) 45 
 
 Fullam V. West Brookfleld (9 Allen. 1) 
 
 419, 421, 424 
 
 SECTION 
 
 FuUer v. Brown (11 Mete. 440) 631 
 
 V. Dame (18 Pick. 472) 29 
 
 r. Ellis (39 Vt. 345) 120 
 
 V. Gould (30 Vt. 613) 580 
 
 V. Hooper (3 Gray, 334) 437, 442 
 
 V. Jewett (80 N. Y. 46) 664, 665 
 
 Fulton V. Brown (10 La. Ann. 350). .386, 816 
 
 V. Maccracken (18 Md. 538) 883 
 
 V. Whitney (5 Hun, 19) 791 
 
 Fulton Bank v. New York, &c. Canal 
 
 Co. (4 Paige, 127) 780 
 
 Fultz V. Wimer (34 Kan. 576) 966 
 
 Furnas v. Frankman (6 Neb. 429).. 185, 
 
 279 998 
 
 Furneaux v. Easterly (36 Kans. 539). .! 849 
 
 Gadd V. Houghton (1 Ex. Div.35r) 
 
 Gaffney v. Hayden (110 Mass. 137)... 59, 
 
 Gage V. Allison (1 Brev. 495) 249, 
 
 Gage V. Gage (10 Fost. 430) 
 
 Gager U.Watson (U Conn. 168) 869, 
 
 •V. Watson (6 Conn. 168) 869, 
 
 Gaillard v. Smart (6 Cow. 386) SIO, 
 
 Gaines v. McKinley (1 Ala. 446) 348, 
 
 V. Miller (111 U. S. 395) 
 
 Gaither v. Myrick (9 Md. 118) .490, 495, 
 Gailbaith v. Gaines (10 Lea, 568) 
 
 V. Elder (8 Watts, 81) 
 
 Galbreath w. Cole (61 Ala. 139) 
 
 V. Eperson (1 S. W. Rep. 157) 
 
 Galceran v. Noble (66 Ga. 367) 
 
 Gale V. Kalamazoo (23 Mich. 344) 
 
 V. Tappan (12 N. H. 145) 240, 
 
 Gallagher v. Williamson (23 Cal. 331).. 
 Gallery v. National, &c., Bank (41 Mich. 
 
 169) 
 
 Gallinger v. Lake Shore Traffic Co. (67 
 
 Wis. 529) 
 
 Galloway v Western, &c., R. R. Co. 
 
 (:)7Ga. 512) 
 
 Gallup V. Lederer (3 Thomp. & C. 710). 
 
 Gait V. Galloway (4 Pet. 331) 
 
 Galveston, &c., Ry Co. v. Drew (59 
 
 Tex. 10) 660, 
 
 Gammon v. Chandler (30 Me. 153). .871, 
 Gans V. St. Paul Ins. Co. (43 Wis. 108).. 
 Gardener v. McCutcheon (4 Beav. 534). 
 
 Gardenhire v. Smith (39 Ark. 380) 
 
 Gardiner v. Davis (3 C. & P. 49). . . .755, 
 Gardner v. Gardner (5 Cash. 48-3) 
 
 V. Ogden (22 N. Y. 337) 463, 469, 
 
 Garland Ex parte (4 Wall. 333) 
 
 V. Reynolds (20 Me 45) 
 
 V. Salem Bank (9 Mass. 408) 
 
 V. Wells (15 Neb. 298) 
 
 Garner v. Garner (1 Lea, 29) 
 
 Garnett v. Fenand (6 B. & C. 611).. 580, 
 
 Garnsey t;. Rogers (47 N. Y. 233) 
 
 Garrard v. Hadden (67 Penn. St. 82)... 
 Garrett v. Handley (4 B. & C. 666) 
 
 V. Trabue (82 Ala. 237) . . .240. 246, 
 Garretzen v. Duenckel (50 Mo. 104). 734, 
 
 735, 
 
 Garrey v. Stadler (67 Wis. 512) 
 
 Garrison v. Combs (7 J. J. Marsh. 84).. 
 Garton t>. Union City Bank (34 Mich. 
 
 279) 
 
 Garvin u. Lowry (7 D & M. 24) 
 
 Garvey v. Jarvis (46 N. Y. 310). 
 Gaston v. Drake (14 Nev. 175). ., 
 Gasway v. Atlantic, &c., R. R. 
 
 Ga. 216) 
 
 Gaty V. Foster (18 Mo. App. 639) . . . .966 
 
 Gaudy v. Humphries (35 Ala. 617) 
 
 Gaussen v. Morton (10 B. & C. 731) 
 
 Gay V. Lloyd ( 1 G. Greene, 78) 
 
 Gazette Printing Co. v. Morss (60 Ind 
 
 153) 
 
 Geiger v. BoUes (1 Thomp. & Co. 129). 
 
 , ...28 
 Co. (5J8 
 
 755 
 651 
 
 1032 
 93 
 873 
 878 
 812 
 850 
 519 
 502 
 626 
 878 
 100 
 477 
 714 
 190 
 244 
 882 
 
 729 
 
 164 
 
 671 
 949 
 246 
 
 661 
 873 
 931 
 215 
 621 
 763 
 96 
 791 
 803 
 753 
 561 
 394 
 869 
 582 
 567 
 282 
 756 
 558 
 
 736 
 601 
 432 
 
 755 
 
 819 
 
 162 
 
 80 
 
 751 
 967 
 715 
 206 
 685 
 
 622 
 806
 
 TABLE OF CASES CITED. 
 
 Ivii 
 
 SECTION 
 
 Cteneral Ins. Co. v. United States Ins. 
 
 Co. (10 Md.517) 730 
 
 Geohenu. Dailey (4 Ala. 836) 635 
 
 George v. Olagett (7 T. R. 3.55) 773, 756 
 
 V. Gobey (128 Mass. 289) 745, 746 
 
 V. McNeill (7 La. 134) 1009 
 
 Georges i>. Georges (18 Ves. 294) 862 
 
 Georgia Pac. R. R. Co. v. Probst (4 So. 
 
 Rep. 711) 396 
 
 Gerber v. Stuart (1 Mont. 172) 443 
 
 Gerhardt v. Boatmen's Saving Inst. (38 
 
 Mo. 60) 514 
 
 German Fire Ins. Co. v. Grunert (112 
 
 111. 68) 895 
 
 Gerrard v. Moody (48 Qa. 96) 554, 957 
 
 Gerrish v. Maher (70 111. 470) 378 
 
 Getchell v. Clark (5 Mass. 309) 871 
 
 Qetman v. Getman (1 Barb., Ch. 499) ... 459 
 V. Second National Bank (23 Hun, 
 
 513) 730 
 
 Gettins v. Scudder (71 111. 86) 931 
 
 GetzlafiC v. Seliger (43 Wis. 297) 883 
 
 liibson V. Erie Ry Co. (63 N. Y. 449). . .. 
 
 65«, 659 
 
 V. Goldthwaite (7 Ala. 281) 527 
 
 V. Manufacturers' Ins. Co. (144 
 
 Mass. 81) 232 
 
 V.Miller (29 Mich. 355) 786 
 
 V. Snper (6 Gray, 279) 48, 50 
 
 V. Stevens (8 How. 384) 1032 
 
 V. Winter (5 B.& A.1.96) 762, 1019 
 
 Giddings v Eastman (5 Paige, 561) 878 
 
 Gihon V. Stanton (9 N. Y. 476) 682. 1029 
 
 Gil V. Williams (13 La. Ann. 219) 22 
 
 Gilbert v. Holmes (64 111. 548) 230 
 
 V. Williams (8 Mass. 51). . . .824, 826, 832 
 
 Gilbraith v. Lineberger (69 N. C. 145). .. 86 
 
 Gilchrist v. Clarks (8 S. W. Rep. 572).., 966 
 
 Gilham v. Robinson (Ry. & M. 227).... 6 
 
 Gill V. Bicknell (2 Cush. 355) 893 
 
 V. Brown (12 Johns. 385) 559 
 
 V. Middleton (105 Mass. 477) . . . .489, 
 
 490, 498, 500 
 
 Gillaspie v. Kelley (41 Ind. 161) 394 
 
 V. Wesson (7 Port. 454) 550, 558 
 
 Glllen waters v. Miller (49 Miss. 150). . . . 
 
 457, 459 
 
 Gillett V. Corum (7 Kans. 156) 967 
 
 V.Logan Co. (67111. 256) 34 
 
 V. Missouri Valley R. R. Co. (55 Mo. 
 
 315) 741 
 
 Gilliam v. Brown (43 Miss. 641 ) 526 
 
 V. South, &c., Alabama, R. R. Co. 
 
 (70 Ala. 263) 740 
 
 Gilliland v. Gajque (6 S. C. 406)... 813, 819 
 
 Gillis V. Bailey (21 N. H. 149) 185, 993 
 
 V. Pennsylvania R. R. Co (59 Penn. 
 
 St. 129) 666 
 
 Gillshannon v. Stony Brook R. R. Co. 
 
 (10 Cush. 228) 668 
 
 Oilman V. Gard (39 Ind. 291) 607 
 
 V. Gilman (126 Mass. 26) 810 
 
 V. Hovey (26 Mo. 280) 839 
 
 Gilmore v. DriscoU (123 Mass. 208) 571 
 
 Gilpin V. Howell (5 Penn. St. 41) 769 
 
 Gilsonu. Collins (66 111. 136) 506 
 
 u. Gwinn (107 Mass. 126) 677 
 
 Girard w. Hirsch (6 La. Ann. 651) 234 
 
 V. Taggarc (5 S. & R. 19) 769, 1042 
 
 Gist V. Hanly (33 Ark. 233) 869 
 
 Given v. Leuioine (35 Mo. 110) 990, 1018 
 
 Givens v. Briscoe (3 J. J. Marsh. 529). . 813 
 
 Givhan v. Dailey (4 Ala. 336) 635 
 
 Gladstone v. King (1 M. & S. 34) 725 
 
 Gleason v. Dodd (4 Mete. 333) 810 
 
 Glen V. Hope Ins. Co. (56 N. Y. 379) ... 567 
 Glentworth v. Luther (21 Barb. 147). . .. 
 
 966, 967 
 
 Glenn ». Davidson (37 Md. 365) 969 
 
 V. Savage (13 Pac. Rep. 442) 9 
 
 Goddard v. Gardner (28 Conn. 172) 882 
 
 SEOnOM 
 
 Goddard v. Grand Trunk Ry Co. (57 Me. 
 
 202) 734, 740, 741, 761 
 
 Godefroy v. Dalton (6 Bing. 460) . . . .834, 
 
 825,827, 881 
 
 V.Jay (5 M. & P. 284) 828 
 
 Godfrey v. Furzo (3 P. Wms. 185) 1033 
 
 V. Saunders (3 Wills, 94) 77 
 
 Godman v. Meixsel (65 Ind. 32) 652 
 
 Godwin v. Frances (L. R. 5 C. P. 295). .. 92 
 
 Goell V. Morse (125 Mass. 480) 71 
 
 Goff e V. Gibson (18 Mo. App. 1) . 968 
 
 Gokey v. Knapp (44 Iowa, 32) 74B 
 
 Gold Mining t!o. v. National Bank (98 
 
 U. S. 640) 118, 165 
 
 V. Rocky Mt. Nat. Bank (2 Col. 565) 156 
 
 Golden v. Levy (1 N. C. L. 527) 1043 
 
 V. Newbrand (53 Iowa, 59) 746 
 
 Golding V. Merchant (43 Ala. 705) 279 
 
 Goldsborough v. Turner (67 N. C. 403). 376 
 Goldsmith v. Maiiheim (109 Mass. 187).. 
 
 556, 1051 
 Gonsior v. Minneapolis, &c., Ry Co. 
 
 (36 Minn. 385) 668 
 
 Gonzales V. Broad (57 Cal. 224) 967 
 
 Goodale v. Wheeler (11 N. H. 434) 324 
 
 Goodenough v. Thayer (132 Mass. 153). 448 
 
 Goodenow v. Tyler (7 Mass. 36) 281, 
 
 338, 990 
 
 Goodloe V. Godley (13 S. & M. 233) 887 
 
 Goodhttle v. Woodward (3 B. & Aid. 
 
 689) 
 
 Goodman v. Pocock (15 A. & E., N. S. 
 
 576). 621. 632, 623 
 
 V. Sayers (2 J. & W. 219) 188 
 
 V. Walker (30 Ala. 482) . 755, 824, 
 
 825, 826, 827, 829 
 
 Goodrich v. Willard (7 Gray. 183) 674 
 
 Goodridge v. Holladay (18111. App 863) 967 
 Goodspeed v. East Haddam Bank (22 
 
 Conn. 530) 741 
 
 Goodwillie v. Mc(Jarthy (45 111. 186) .... 481 
 
 Goodwin's Appeal (117 Penn. St. 514).. 883 
 
 Goodwin v. Kelly (42 Barb. 194) 61 
 
 Goomv. Aflaloi6B. &C. 117) 932 
 
 Gordon v. Bulkley (14 S. & R. 331) 93 
 
 V. Coolidge (1 Sumn. 537) 816 
 
 V. Farrar (2 Doug. 51 1) 588 
 
 V. Wright (29 La. Ann. 812) 1011 
 
 V. Zacharie (16 La. Ann. 17) 533 
 
 Gorham v. Gale (7 Cow. 739) 816. 830 
 
 V. Gross (125 Mass. 232) 747, 748 
 
 Gorman v. Scholle (13 Daly, 516) 967 
 
 Gormley v. Ohio, &c., Rv (72 Ind. 31).. 667 
 Gormly v. Vulcan Iron Works (61 Mo. 
 
 492) 664, 665, SnS 
 
 Gorum v. Carey (1 Abb. , Pr. 285) 104 1 
 
 Gossv. Broom (31 Minn. 484) 9H6 
 
 V. Stevens (32 Minn 472) 135, 167 
 
 Gosselin v. Chicago (l(i3 ill. 623) 330 
 
 Gott u. Dinsmore (111 Mass. 4.5) 714 
 
 Gould V. Hammond (1 McAll. 285) 688 
 
 V.Norfolk Lead Co.(9 Cush. 338), 102, 391 
 Gousior V. Minneapolis, &c., Ry Co. (31 
 
 N. W. Rep. 515) 663 
 
 Governor v. Daily (14 Ala. 469) 60 
 
 Gowen Marble Co. v. Tarrant (73 111. 
 
 608) 97 
 
 Gower v. Andrews (59 Cal. 119) 4.53 
 
 V. Emery (18 Me. 79) 816 
 
 Grace v. American Ins. Co. (109 U. S. 
 
 278) 931 
 
 Grady v. American Ins. Co. (60 Mo. 
 
 116) 193 
 
 Gragg V. Brown (44 Me. 157) 1037 
 
 Graham v. Ackroyd (10 Hare, 192). C82, 
 
 1014, 1029 
 V. Duckwall (8 Bush, 13) . . . .339, 756, 
 
 949, 986, 991, 994, 1039, 1042, 1043 
 
 V. Holt (3 Ired. 300) 93 
 
 V. United States Saving Inst. (46 
 
 Mo. 186;.. . 382
 
 IVlll 
 
 TABLE OF CASES CITED. 
 
 SECTION 
 
 Granger v. Batchelder (54 Vt. 248) 813 
 
 V Hathaway (ir Mich. 500).. ...... 561 
 
 Grannis v. Branden (5 Day, 260) . . . .495, 49b 
 
 Grant v. Fletcher (5 B. & C. 4^(5) . . . .... 932 
 
 V. Ludlow (8 Ohio St. 48) 497, 500 
 
 w. Norway (inc. B. 665) <17 
 
 V. Seitsinger C Penn. St. 525) 467 
 
 Graul V. Struzel .^3 Iowa, 713) 350 
 
 Graver's Appeal (50 Penn. St. 189). ... 529 
 
 Graves v. Horton (35 N. W. Rep. 568) . . 80 
 
 85, 101, 274. 312, 348 
 
 V. Lepg(2H. & N.210) 947 
 
 Grau V. McVicker (8 Biss. 13) 447 
 
 Gray r. Agnew (95 111. 315) 994 
 
 V. ConyersC^OGa. 349) 8.53 
 
 V. Emmons (7 Mich. 533) 877, 878 
 
 u Hook (4 Com. 449) 20,28, 645 
 
 V. Murray (3 Johns. Ch. 167) 194, 
 
 195, 610, 954, 1011 
 
 V. Otis (11 Vt. 628) 61, 62 
 
 w. PuUen (5 B. & S. 970) 747 
 
 V. Van Blarcom (29 N. J. Eq. 454). . 745 
 
 V. Wass (1 Me. 257) 818 
 
 Graydon v. Patterson (13 Iowa 256) ... 375 
 Grayson v. Wilkinson (5 S. & M. 268). .. 835 
 Great Western Ry v. Wheeler (20 Mich. 
 
 419) 726 
 
 Greely v. Bartlett (1 Greenl. 173) 281, 
 
 338, 485, 495, 990, 1006, 1012, 1013, 1020 
 Green v. Banta (48 N. Y. Super, 156). . . 667 
 
 V. Bartlett (14 C. B., N. S., 681) 966 
 
 V. Cape May (41 N. J. L. 45) 118 
 
 V. Clark (5 Denio, 50;^) 171 
 
 V. Gilbert (21 Wis. 395) 631, 635 
 
 V. Hulett(22 Vt. 188) 619 
 
 V. Kopke (18 C. B. 549) 448, 556 
 
 v. Lucas (31 L. T., N. S. 731) 970 
 
 u. Miller(6 Johns. .39) 77 
 
 V. Opbir, &c., Co. (4.-1 Cal. 522) 714 
 
 V. Reed (3 F. & F. 226) 970 
 
 V. Talbot (36 Iowa, 499) 581 
 
 V. Tanner (8 Mete. 411) 699 
 
 V. Winter (1 Johns. Ch. 26) 463 
 
 V. Williams (21 Kan. 64) 533 
 
 Green, Ac, Ry Co. v. Bresmer (97 
 
 Penn. St. 103) 670 
 
 Greene v. Goddard (9 Mete. 212) 653 
 
 W.Haskell (5 R L 447) 791 
 
 V.Linton (7 Port. 133) 640 
 
 V. Minneapolis Ry Co. (31 Minn. 
 
 248)...: 660. 661, 670 
 
 Greenfield Bank v. Crafts (4 Allen, 447) 161 
 V Simons (133 Mass. 415)... 463, 469, 470 
 Greenhood v. Keator (9 111. App. 183' 
 
 339. aw 
 
 Greenleaf v. Illinois Cent. R. R. Co. (29 
 
 Iowa 14) 670 
 
 V. Moody (13 Allen, 363) 481 
 
 Greenough v. Gaskell (1 M. & K. 102).. 881 
 
 Greenstine v Borchard (50 Mich. 434). 485 
 
 Greentree v. Rosenstock (fil N. Y. 583), 1024 
 Greenwald v. Marquette, &c., R. R. (49 
 
 Mich 197) 667 
 
 V. Metcalf (28 Iowa, 363) 384 
 
 Greenwood v. Burns (50 Mo. 52) — 3.54, 875 
 
 Greenwood v. Spring (54 Barb. 37.5). 67, 953 
 
 GregK V. W^lls (10 A. & E. 90) . 787 
 
 Gregorv v. Brooks (37 Conn. 365) 588 
 
 V. Stryker (2 Den. 628) 674, 684 
 
 V. Wendell (.39 Mich. 337) 35 
 
 Greve v. Coffin (14 Minu. 345) 820 
 
 Greyson v. Rucks (4 Q. B. 747) 932 
 
 Qrice v. Kenrick (L. R. 5 Q. B. 340) 759 
 
 762, 898, 1039 
 
 Grider v. Tally (77 Ala. 422) 580 
 
 588, 590, 391, 592 
 
 Griffin w. Blanchard (17 Cal. 70) 536 
 
 V. First National Bank (74 111. 259) . . 599 
 
 V. RansdeU (71 Ind. 440) 63 
 
 V. Weatherby (L. R. 3 Q. B. 753).... 567 
 
 OrlfBAh V. Johnson (2 Harr. 177) 561 
 
 Griffiths V. Dudley (9 Q. B. Div. 357).. . . 671 
 
 V. Hardenbergh (41 N. Y. 464) 654 
 
 V. London, &c.. Docks Co. (13 Q. B. 
 
 Div. 259) 659 
 
 Grignou v. Schmitz (18 Wis. 620) 810 
 
 Grigsby V. Nanfe(30 Ala. 347) 755 
 
 Grindley v. Barker ( 1 B. & P. 229) 78 
 
 Qrinnell v. Buchannan (1 Daly, 538). ... 193 
 
 V. Cook (3 Hill. 485) 674,677, 684 
 
 V. Western Union Tel. Co. (113 
 
 Mass 299). 281 
 
 Griswold V. Haven (25 N. Y.' 695) .'.'.'.113, 717 
 
 (irizzle v. Frost (3 F. & F. 622) 659 
 
 Groenvelt v. Burwell (1 Salk. 396). 580,. 585 
 Grogan v San Francisco (18 Cal. 590). . 126 
 
 V. Wade (8 stark. 413) 770 
 
 Groover v. Warfleld (50 Ga. 644). 
 
 756, 763, 1040 
 
 Gross In re (L. R. 6 Ch. App. 632) 781 
 
 Grosvenor v. Danforth (16 Mass. 74). . . 812 
 Groton v. Waldoborough (11 Me. 306). . 30 
 Grove v Dubois, (1 T. R. 112). 520, 756, 1014 
 V. Hodges (55 Penn. St. 504) ... 136, 137 
 V. Van Duyn (42 N. J. L. 654) . .580, 588 
 Grover & Baker S. M. Co. v. Polhemus 
 
 (34 Mich. 247) 84, 100, 337. 846 
 
 Grubbs v. Wiley (1 7 Miss. 29) 419 
 
 Gruby v. Smith (13 111. App 48) 878 
 
 Gruman v. Smith 81 N. Y. 25) 936 
 
 Grumley v. Webb (44 Mo. 444) 458, 461 
 
 V. Webb (48 Mo. 562) 8l8 
 
 Grand v. Van Vleck (69 111. 479) 127 
 
 Guelich V. National Bank (56 Iowa, 434), 
 
 514, 624 
 
 Guernsey v. Cook (117 Mass. 548) 447 
 
 V. Cook (120 Mass. 501) 29 
 
 Guerreiro v. Peile (3 B. & Aid. 616) 8.52, 
 
 906, 997, 998 
 Guest V. Burlington Opera House Co. 
 
 (.38 N. W Rep. 158) 699 
 
 Guilleu. Swan (19 Johns. 382) 783 
 
 Gulf ord V. Stacer (53 Ga. 6 18) 873 
 
 Gulick V. Grover (33 N. J. L. 463) 6, 
 
 105, 275, 307, 892, 400, 645 
 
 Gullett V. Lewis (3 Stew. 23) 875 
 
 Gundlachu. Fischer (59 111. 172) 200 
 
 Gunn u. Cantine (10 Johns. 387) 758 
 
 Gunnu Howell (35 .Ala. 144) E32 
 
 Gunnaidson v. Nyhus (27 Minn. 440) 892 
 
 Gunter v. Aster (4 J. B. Moore, 12) 798 
 
 V. Graniteville Mfg Co. (18 S. C. 362) 
 
 664. 665, 667, 668 
 Gustine V. Stoddard (23 Hun. 99). .. 8.56 
 Guthrie v. Armstrong (5 B. &. Aid. 628) 77 
 
 V. Imbrie (12 Oreg. 182) 436 
 
 V. Louisville, &c., R, R. Co. (11 Lea, 
 
 372 670 
 
 V. Merrill (4 Kan. 187) 646 
 
 Gutlett u Lewis (3 Stew. 2-3) 819 
 
 Guy V Oakley (13 .Tohns. 3-31) 1043 
 
 Guy on v. Lewis (7 Wend .26) 702 
 
 Gwinne v. Poole (Lutw. 290) 580 
 
 Gwyu V. Richmond & Danville R. R. 
 
 Co. (85 N. C. 429) 687 
 
 H 
 
 Haas V. Damon (9 Iowa, 589) 623 
 
 528, 530, 531, 533, 955, 1021 
 
 V. Fenlon (8 Kans. 601) 28, 29 
 
 Hack^tt V. Reynolds (114 Penn. St, 328) 782 
 
 Hacket v. Tillev (11 Mod. 93) 6.'^4 
 
 Hackleman v. Moat (4 Blackf. Ind. 164), 532 
 
 Hacock V. Fairfield (.30 Me. 229) 443 
 
 Hadden v. Clark (2 Grant. 107) 813 
 
 Hadwin v. Fisk (1 La. Ann. 43) 994 
 
 Hagan v. Providence. &c., R. R. Co. (3 
 
 R. I. 8S) 751 
 
 Hagedorn v. Oliverson (2 M. & S. 485). 756 
 
 Hager V. Catlin (18 Hun, 448) 28 
 
 w. Cochran (66 Md. 253) 809
 
 TABLE OF CASES CITED. 
 
 lix 
 
 SECTION 
 
 Haprer v. Rice (4 Colo. 90). .439, 441, 442, 443 
 Hague V. Philadelphia (48 Penn. St. 
 
 528) 118 
 
 Halght V. Holcomb (16 How. Pr. 173).. 873 
 
 V. McVeagh (69 III. 624) 63 
 
 Haile V. Pierce (82 Md. 327)441, 443, 443, 449 
 
 Hainea V. Busk (5 Taunt. 191)... 39 
 
 V. Lewis (54 la. 307) 27, 3.' 
 
 V. Pohlmann (25 N. J. Eq. 179) 373 
 
 Halden v. Crafts (4 E. D. Smith, 490). . . 533 
 
 1024, 1025 
 
 Hale V. Woods (10 N. H. 470). . .417, 421, 423 
 
 Hall V. Bank (5 Dana, 2.'i8) 394 
 
 V. Bliss (118 Mass. 554) 265 
 
 V. Grand .11 (2!) Cal. 567) 650, 558 
 
 V. l-inch(29 Wis. 278) 599 
 
 V. Hall (44 N. H. 29.3) 599 
 
 D.Harper (17111.82) 164 
 
 V. Hinks (21 Md. 406) 1034 
 
 V. Huntoon (17 Vt. 244) . . . .448, 546, 654 
 
 V Lauderdale (46 N. Y. 70), 546, 558, 559 
 
 V. Laver (1 Hare, 571) 870 
 
 V. Mar.ston (17 Mass. 574) 519 
 
 V. N. .yea (3 Bro. Ch. 483) 469 
 
 V. Smith (2 BIng. 156) 694 
 
 V. Soule (11 Mich. 496) 211 
 
 V. Storrs (7 Wis. 2.53) 195, 
 
 281, 352, 381. 475, 485, 990, 1010 
 
 Hallett V. Oakes (1 Cash. 296) 841 
 
 Hallett's Estate (13 Ch. D. 696) 781 
 
 Hailey v Troester (72 Mo. 7.3) 50 
 
 Halloway v. Lacy (4 Humph. 468). . . . 635 
 
 HallV Appeal (4 Wrisht, Penn. 409)... 469 
 
 Halsted v. Rabli (8 Porter, 63) 534 
 
 V. State (12 Vroom, 552) 748 
 
 Halverson v. Nisen (3 Saw. 562) 667 
 
 Ham V. Boody (20 N. H. 411) 161 
 
 Hamilton v. Bell (10 Exch. 545) 1044 
 
 V. Campbell (9 La. Ann. 531) 1035 
 
 V. Frothingham (59 Mich. 253) 603 
 
 V. Hooper (46 Iowa, 515) 63 
 
 V. People (29 Mich. 173) 885 
 
 V. VouLcht (34 N. J. L. 187) 892 
 
 V. Williams (26 Ala. 527) 5S0 
 
 V. Wright (37 N. Y. 502) 809, 810 
 
 Hamlin v. Sears (82 N. Y. 327). 127, 155, 162 
 
 V. Schulte (31 Minn. 48H) 966 
 
 V. Schulte (34 Minn. 534) 967 
 
 Hammatt v. Emerson (27 Me. 308) 714 
 
 Hammond u Christie (5 Robt. 160).... 526 
 
 V. Hussey (51 N. H. 40) 497 
 
 V. Hannin (21 Mich. 374)91, 141, 167, 179 
 
 V Howell (1 Mod. 184) 580 
 
 Hammonds v. Barclay (2 East. 227). 673, 1052 
 
 Hamond v. Holiday (1 C. & P. 384) 975 
 
 Hampton v Matthews (14 Penn.St. 105) 355 
 
 V. Moorhead (62 Iowa, 91) 326 
 
 Hamrick v. Oombs (14 Neb. 381) 819 
 
 Hancock v. Byrne (5 Dana, Ky. 518). . . 224 
 
 V. Fairfield (30 Me. 299) 443 
 
 r. Yunker (83 m. 208) 419 
 
 Handy v. Johnson (5 Md. 450) 715 
 
 Hanrtyside V. Cameron (21 111. 588).... 96 
 
 Haney v. Caldwell (35 Ark. 156) 212 
 
 V Manning (21 La. Ann. 166) 38 
 
 Hanford v. McNair (9 Wend. 64) . . . .83, 137 
 
 Hanger v. Fowler (20 Ark.667) 872 
 
 Haiikins v. Baker (46 N. Y. 666) 167 
 
 Hanks v. Drake (49 Barb. 186) 164, 171 
 
 Hanna v. Collins (69 Iowa, 61) 966 
 
 V. Phelps (7 Ind. 21) 680, 681 
 
 Hannan v. Moran (15 West Bep. 211) 
 
 612, 967 
 
 Hannum v. Curtis (13 Ind. 206) 531 
 
 Hanover R. Co. v. Coyle (55 Penn. St. 
 
 402) 716 
 
 Hanrathy v. Northern, &c. R. R. Co. 
 
 (46Md. 492) 656, 667 
 
 Hanson v. European, &c. R. R. Co. i62 
 
 Me. 84) 740, 742 751 
 
 V. Hoitt (14N. H. 66) 813 
 
 8ROTION 
 
 Hanson v. Roberdeau (Peake's N.P. 120) 913 
 Hapgood V. Batcheller (4 Mete. t76) 
 
 990, ia30 
 
 Harbert u Nelll (49 Tex. 143) 990 
 
 Hard v. Vermont, &c. R. R. Co. (32 Vt. 
 
 473) 668 
 
 Hardee t;. Hall (12 Bush, Ky. 327) 31 1 
 
 Hardesty v. Newby (28 Mo. 567) 383 
 
 Hardeman v. De Vaughn (49 Ga. 696). . . 1035 
 
 V. Ford (12 Ga. 205) 129 
 
 Hardin v. Ho-Yo-Po-Nubby's Lessee 
 
 (27Miss. 567) 809, 810 
 
 Hardy v. Ke eler (56 111. 152) 639 
 
 u Pitcher (57 Miss. 18) ....441, 442, 443 
 
 v. Waters (33 Me. 450) 53 
 
 Hargrave v. King (5 Ired. Eq. 4.30). .457, 4.59 
 
 Harington v. Hnjrgart (1 B. & Ad. 577). 9U7 
 
 Barker v. Dement (9 Gill. 7) . . . 100, .52,5, 705 
 Harkins v. Standard Su»ar Refinery 
 
 (122 Id. 400) '. 667 
 
 Hai-lan v. Ely (68 Cal. 522). . . .352, 381, 475 
 
 Harlow V. Sparr (15 Mo. 184). .907, 917, 919 
 
 Harman w. Brotherson (1 Den 537) 580 
 
 Harnickell v. Orndorf (35 Md. 341) 250 
 
 Harmon v. Salmon (Fall's Mnfg. C!o. 
 
 (35 Me. 447) 611 
 
 Harner v. Dipple (31 Ohio St. 72) 55 
 
 Harness v. State (57 Ind. 1) 888 
 
 Harp V. Osgood (2 Hill. 216) 755 
 
 Harper r;. Dail(52 N. C. 394) 63 
 
 V. Devene (10 La. Ann. 724) 116 
 
 V. Harvey (4 W. Va. 539) 375, 819 
 
 V. Hassard (113 Mass. 187) 632 
 
 V. Indianapolis, &c. R R. Co. (47 
 
 Mo. 567) 662. 664, 665, 667 
 
 V. Little (2 Greenl. 14) 226, 
 
 240, 244, 245, 550 
 
 r. Perry (28 Iowa, 58) 878 
 
 V. Ragan (2 Blackf. 39) 755 
 
 V.Ray (27 Miss 622) 617, 648 
 
 Harralson v. Stein (50 Ala. 347).185, 194, 998 
 
 Harrey V. Shelton (7 Beav 455) 188 
 
 Harriman v. Stowe (57 Mo. 93) 716 
 
 Harrington v. Commissioners, &c. (2 
 
 McCord, 400) 688 
 
 V. Fall River Iron Works (119 Mess 
 
 82) 640 
 
 «. Gies (45 Mich. 374) 623 
 
 V. Hogart (1 B & Ad. 677) 907 
 
 V. Victoria Graving Dock Co. (3 
 
 Q. B. Div. 549) 37, 797 
 
 Harris V. Baker (4 M. & S. 27) 594 
 
 V. Cuddy (21 La. Ann. 388) 224 
 
 Har, ow v. Farrow's Heirs (7 B. Mon. 
 
 126) : 819 
 
 Harris v. Gamble (0 Ch. Div. 748) 643 
 
 V. Miner (28 111. 135) 149 
 
 V. Nickerson (L. R. 8 Q. B. 286) 916 
 
 V. Osbourn (2 Cromp. & M. 629) . . . 
 
 834, 858 
 
 V. Roof (10 Barb. 489) 645 
 
 Harrison v. Ross (44 N, Y. Super. Ct. 
 
 230).. m 
 
 Harris v. Simmerman (81 111. 413) 149 
 
 V. i^imonson (28 Hun N. Y. 318).... 22 
 
 V. Tremenheere (15 Ves Jr. 34) 878 
 
 V. Woodruff (124 Mass 205) 39, 674 
 
 Harrison v. Collins (86 Penn. St. 153) 
 
 747, 748 
 
 ». Long (4 Desau. 110) 632 
 
 V. McHenry (9 Ga. 164) 114, 115, 462, 
 
 463, 713, 798, 953 
 
 V. Missouri Pae. Ry Co. (74 Mo. 364) 896 
 
 V. Mitchell (l-^ La. Ann. 260) 127 
 
 V. Smith (83 Mo. 210) 536 
 
 Harshaw v. We-Kt-sson (65 N. C. 688). 93, 96 
 Harshey v. Blackmarr (20 Iowa, 161) 
 
 809, 810 
 
 Hart V. Aldridge (Cowp. 54) 793 
 
 V. Bank (33 Vt. 252) 721, 722, 729 
 
 V. Dixon (5 Lea, 336) 155
 
 Ix 
 
 TABLE OF CASES CITED. 
 
 BKOTION 
 
 Hart V. Frame (6 CI. & Fin. 193) 827 
 
 V. irancis(2 Col. 719) 648 
 
 V. noffman (44 How. Pr. 168) 966 
 
 V. liudsoa {« Duer. 294) 354 
 
 V Ten Eyck (2 Johns. Ch. 62) . . .469, 529 
 
 V. VidaUeCal. 56) 849 
 
 u. Woods (7 Blackf . 568) 893 
 
 Harrerw Morris (18 Ohio St. 492) 835 
 
 Hartford Fire Ins. Co. v. Reynolds (36 
 
 Mich.50:i) 881,882, 931 
 
 V. Wilcox (.57 III. 180) 77. 251. 301 
 
 HarMey's Appeal (53 Fenn. St. 212) 204, 207 
 
 Hartshorn v. Th nnas (10 Atl. Rep. 843) 204 
 
 Harvev v. McAdams (32 Mich. 472).. 45, 70 
 
 V. N. Y. &c. R. R. (88 N. Y. 481). ... 667 
 
 V. Stevens (43 Vt. 6J5) " 893 
 
 V. Turner (4 Kawle, 22:5) .... 474, 538, 1012 
 Hass I'. Philadelphia, &c. Steamship 
 
 Co.{88Penn St. 2ii9) 747 
 
 Haskell V. Whitney (12 Mass. 47) 812 
 
 Haskinsv. Royster (70 N. C. 601) 793 
 
 Haskic v. Elliott (58 Ind. 493) 775 
 
 Hastings v. Bangor House (18 Me. 436) 
 
 148, 150 
 
 V. Halleck (13 Cal. 20.3) 825 
 
 Hatch u. Barr (1 Ohio, 180) 421 
 
 V. Coddington (95 U. S. 48) 224, 2-iO 
 
 V. Dwight (17 Mass. 289) 421 
 
 V. Smith (5 Mass. 42) 550 
 
 t). Squires (11 Mich. 185) 100 
 
 t>. Taylor (10 N. H. 538) 282 
 
 Hatcher V. Comer (73 Ga. 418) 1008, 1009 
 
 Hatcht-ttv. Molton(76 Ala. 410) 246 
 
 Hatfl -Id V. McWhorter (40 Ga. 269) .... 527 
 
 V. Reynolds (34 Barb. 612) 373 
 
 Hathaway v. Johnson (55 N. Y. 93) .... 746 
 V. Michigan Cent. R. R. Co. (51 Mich. 
 
 2.53).. 6S6, 659 
 
 Hatton V. Robinson (14 Pick. 416) 880, 
 
 882. 883, 885, 886 
 
 Hatzfleld v. Gulden (7 Watts, 152) 33 
 
 Haughton v. Matthews (3 B & P. 494). 673 
 
 V. Maurer (55 i\tich. 323) 100 
 
 Hauss V. Niblack (80 Ind. 407) 148 
 
 Hauxhurst v. Hovey (26 Vt. 544) 532 
 
 Haven v. Brown (7 Greenl. 421) 714 
 
 V. Snow (14 Pick. 28) 722 
 
 Haverhill Ins. Co. v. Newhall (1 Allen, 
 
 Mass. 130) 432, 438 
 
 Hawesv. Foster (1 M. & E. 368) 932 
 
 V. Knowles (114 Mass. 518) 751 
 
 Hawker v. Baltimore & Ohio R. R. Co. 
 
 (15 W. Va. 628) 714, 715 
 
 Hawkes v. Dunn (1 Cromp. & Jer. 519) 687 
 
 Hawkins v. Baker (46 N. Y. 666) 167 
 
 V. Chace (19 Pick. 502) 89, 92 
 
 V. Lange (22 Minn. 557) 164 
 
 Hawley r. Keeler (35 N. Y. 114) 77 
 
 Hay V. Goklsmidt (1 Taunt. 349) 306 
 
 V. Mayer (8 Watts, 20-3) 318 
 
 Hayes v. Brubaker (65 Ind. 27) 438 
 
 V. Porter (22 Mf-. 371) 590 
 
 Haydf-n v. Griilo (26 Mo. App. 2S9) 966 
 
 V. Madison (7 Greenl. 78) 636 
 
 V. S.aithviUe Mfg Co. (29 Conn. 548) 
 
 656, 659, 670 
 
 Haynie v. Johnson (71 Ind. 394) 791 
 
 V. Waring (29 Ala. 265) 497 
 
 Hays V. Houston, &c. R. R.Co. (46 Tex. 
 
 272) 751 
 
 V. Riddle (1 Sandf. 248) 678 
 
 «. Stone (7 Hill, 128) 533 
 
 V. Warren (46 Mo. 189) 1024 
 
 Hay ward v. Leonard (7 Pick. 181) f>36 
 
 V. National Ins. Co. (52 Mo. 181).... 721 
 
 Hazard v. Spears (4 Keyes. 485) 171 
 
 V . Tread well (1 Stra. 506) 87 
 
 Hazeltine u. Mider (44 Me 177) 307 
 
 Hazelton v. Batchelder (44 N. Y. 40). . . 169 
 Haze well v. Coursen (45 N. Y. Supr. Ct. 
 
 22) 387 
 
 BBOTIOM 
 
 Hazlitt V. Gill (5 Robb. 611) 856 
 
 Heald V. Kenworthy (10 Exch. 739). 697, 6'J8 
 
 Heard v. Brewer (4 Daly, 136) 67(3, 
 
 1034, 1041 
 
 V. March (12 Cash. 580) 77 
 
 V. PiUey (L. B. 4 Ch. App. 548) . .89, 459 
 
 Hearsev v. Pruyn (7 Johns. 179) 561 
 
 Heath i>. Bates (49 Conn. 343) 838 
 
 V. Crealock(L. R. 18 Eq. 215) 536 
 
 V. GosUn(80 Mo. 310) 72, 73 
 
 u Nutter (50 Me. 378) 93, 137 
 
 Hebbard v. Haughian (70 N. Y. 54). . . . 883 
 Heber v. United States Flax Mfg Co. 
 
 (13 R. I. 303) 638 
 
 Heck V. Shener (4 S. & R. 249) 648 
 
 Hedden v. Griffla (136 Mass. 229). ...571, 574 
 
 Heddens v. Younglove (46 Ind. 212) 
 
 522, 631 
 Hefferman v. Burt (7 Iowa, 320) . . . .810, 812 
 
 Heffner v. Brownell (70 Iowa, 591) 432 
 
 Hefner v. Vandolah i62 III. 483) 116 
 
 Heine v Chicago, &c., Ry. (53 Wis. 525) 667 
 Heinemann v. Heard (50 N. Y. 3.5) . .490, 495 
 
 Heister v. Slount (17 N. J. L. 433) 869 
 
 Helf rich v. Williams (84 Ind. 553) 667 
 
 Helyear v. Hawke (5 Esp. 72) 350 
 
 Hemstreet v. Burdick (90 111. 4.50)... .98, 821 
 Henchey V. Chicago (41 111.136) ...870, 871 
 Henck V. Todhunter (7 H. & J. 275) .... 808 
 Hendrick v. Whittemore (105 Mass. 28). 585 
 Henderson v. Cummings (44 111. 325) . . 
 
 130, 135 
 
 V. Ford (46 Tex. 627) 268 
 
 V. Hydraulic Works (9 Phil. 100). . . 214 
 
 V. M^yhew (2Gm. 393) 106, 696, 699 
 
 V. State (70 Ala. 23) 715 
 
 t). Stiles (14 Ga. 135) 635 
 
 V. Terry (62 Tex. 281) 881 
 
 Heney V. Sargent (.54 Cal. 396) 62 
 
 Henke v. McCord (55 Iowa, 378). .. .581, 586 
 
 Henn V. Conisbv (1 Ch. Cas. 93) 817 
 
 Henry v. Fine (23 Ark. 417) 48 
 
 V. Heeb (14 West. Rep. 84) 116 
 
 V. Raiman (25 Pa. St. .354) 878 
 
 V. Ritenour (31 Ind. 136) 49 
 
 Henshaw v. Noble (7 Ohio St. 231) 539 
 
 Henson v. Hampton (32 Mo. 408) 635 
 
 Hepburn v. Dunlop (1 Wheat. 179) 155 
 
 Herlihy v. Smith (116 Mass. 265) 738 
 
 Herman v. Martineau (1 Wis. 151). .713, 
 
 753, 798 
 Hermann v. Niagara F. Ins. Co. (100 N. 
 
 Y.411) 931 
 
 Herrick v. Gall agher (60 Barb. 566) .... 561 
 
 Herriman v. Shomon (24 Kan 387) 819 
 
 Herring v. Hottendorf (74 N. C. .588) ... 376 
 V. Skaggs (62 Ala. 180) ....348, 350, 
 
 750. 947, 992 
 Herrington v. McCollum (73 111. 476). . . 722 
 Hertzog v. Hertzog (29 Penn. St. 465).. 600 
 
 Hesiop V. Metcalfe (3 Id. 183) 867 
 
 Hewett V. Brown (21 Minn 163) 971 
 
 Hewes u. Doddridge (1 Robt. 143) 807 
 
 Hewison v. Guthrie (2 Bing., N. C. 755) 680 
 
 Hexamer v. Webb (101 N. Y. 377) 747 
 
 Hey man v. Neale (2 Camp. 337) 932 
 
 Heyn v. O'Hagen (60 Mich. 157).... 155, 
 
 157, 161 
 
 Heywood v. Tillson (75 Me. 235) 616 
 
 Heyworth v. Knight (17 C. B., N. S. 298) 932 
 Hibblewhite v. McMorine (6 M. & W. 
 
 200) 94 
 
 Hicks t'. Dorn (42 N. Y. 51) 189 
 
 V McGarry (38 Mich. 667) 567 
 
 Hicks 1'. Mintum (19 Wend. 5.50) 905 
 
 V. Whitmore (12 Wend. 548) 893 
 
 Hidden v. Jordan (21 Cal. 92) 459 
 
 U.Waldo (55 N. Y 291) 1023 
 
 Hie-n v. Mill (13 Ves. Jr. 120) 721 
 
 Hiwtandr. Kuns (3 Blackf 345) 51 
 
 Higgins V. Lodge (11 Atl. Rep. 846).... 915
 
 TABLE OF CASES CITED. 
 
 Ixi 
 
 SECTION 
 
 Biggins V. McCrea (116 U. S. 671) 1046 
 
 V.Moore (34 N. Y. 417) 218 
 
 338, 339, 486, 949, 966 
 
 V. Scott (2 B. & Ad. 413) 867, 874 
 
 t>. Senior (8 M. & W. 834) 430, 449, 
 
 ."iSS, 696, 701, 769 
 V. Watervliet Turnpike Co (46 N. 
 
 Y. 23) 734, 735, 736, 742, 751 
 
 Highgate v. Archway Co. (5 Taunt. 
 
 792) 895 
 
 Highway Commissioners v. Van Dusan 
 
 (40 Mich. 429) 118 
 
 HiU V. Brinckley (10 Ind. 102) 870 
 
 V.Day (34 N. J. Eq. l.'iO) 2.54 
 
 V. aray(l Stark. 434) 912 
 
 V. Gust (55 Ind. 45) 658, 659 
 
 V. Hill(58Ill. 239) 924 
 
 V. Hunt (9 Gray. 66) 531 
 
 V. Nation Trust Co. (108 Penn. St. 1) 717 
 
 V. Packard (5 Wend. 375) 1031 
 
 V. Southwick (9 R. I. 2!)9) 648 
 
 V. Williams (6 Jones, Eq. 242) 532 
 
 Hilliard v. Richardson (3 Gray, 349) . . . 666, 
 
 747, 748 
 
 Hills V. Bannister (8 Cow. 31) 438 
 
 V. Snells (104 Mass. 173) 760 
 
 V. Upton (24 La. Ann. 427) 390, 391 
 
 Hlllyard v. Crabtree (11 Tex. 264) 631 
 
 Hilton V. Vanderbilt (82 N. Y. 591) 1009 
 
 Hinckley v. Arey (27 Me. 362) 67, 953 
 
 Hin<ie v. Whitehouse (7 East. 558) 893 
 
 Hinds V. Henry (86 N. J. L. 328) 612, 
 
 937, 964, 966 
 
 Hinsdale v. Partridge (14 Vt. 547) 558 
 
 Hinson v. Gamble (65 Ala. 605) 8r8 
 
 Hipp V. State (5 Blackf . 149) 746 
 
 Hire v. Sedgwick (2 RoU. 109) 580 
 
 Hirschorn v. Conney (98 Mass. 149) — 994 
 Hlrshfleld v. Landman (3 B. D. Smith, 
 
 208) 386 
 
 V. Waldron (54 Mich. 649) 336, 337 
 
 Hitchcock V. Buchanan (105 tJ. S. 416) . 437 
 
 V.Watson (18 111. 289)... 457 
 
 Hitchings v. Van Brunt (38 N. Y. 335) . 843 
 Hobbit V. London, &c , Ry Co. (4 Exch. 
 
 254) 736, 747 
 
 Hobbs V. Beavers (2 Ind. 142) 896 
 
 Hobedy v. Peters (6 Jurist, Pt. 1) 878 
 
 Hobson V. Watson (34 Me. 20) . .869. 871, 873 
 
 Hochster v. De la Tour (2 E. & B. 678) . 624 
 
 Hockenburg v. Carlisle (5 W. &. S. 348) 878 
 Hoddesdon Gas Co. v. Haselwood (6 C. 
 
 B. 239) 211 
 
 Hodge V. Combs (1 Black, 192) 306, 318 
 
 Hodges V. New England Screw Co. (1 
 
 R. L321) 463 
 
 Hodgson V. Davies (2 Camp. 531) 932 
 
 V. Dexter (1 Cranch .345) 426, 559 
 
 V. Payson (3 H & J, 339) 1032 
 
 Hodkinson v. Kelly (1 Hogan, 388) 870 
 
 Hodnett V. Tatum (9 Ga. 70) 130 
 
 Hoffman v. Carow (20 Wend. 21) 915 
 
 V. Harrington (28 Mich. 106) 463 
 
 V. Livingston (46 N. Y. Super. Ct. 
 
 553) 129, 171 
 
 V. New York, &o., R. R. Co. (87 N. 
 
 Y. 25) 742 
 
 V.Noble (6 Mete. 68) 994 
 
 Hogan V. Shorb (24 Wend. 45^ 774, 1043 
 
 V. Titlow (14 Cal. 255) 635 
 
 Hogg V. Snaith (1 Taunt. 347) 882, 1004 
 
 Hoggatt V. Bigley (6 Humph. 238) 588 
 
 Holbrook v. Chamberlain (116 Mass. 
 
 161) 138, 139 
 
 V. McCarthy (61 Cal. 216) 328 
 
 V. Ober ne (56 Iowa, 324) 404 
 
 V. Wight (24 Wend. 169) 525, 
 
 681, 684, 1035, 1037, 1041 
 
 V. Zinc Co. (57 N. Y. 62.3) 788 
 
 Holcomb V. Weaver (136 Mass. 265 29 
 
 Holcraftv. MeUott(57Ind. 539) 649 
 
 SECTION 
 
 Holden v. Bank (72 N. Y. 286) 536, 729 
 
 V. Crafts (4 E. D Smith, N. "S. 490) 5.33 
 
 Holker v. Parker (7 Cranch, 436) . . .812, 816 
 
 HoUaday v. Daily (19 Wall. 606) 804 
 
 Holland V. Hatch (11 Ind. 497) 394 
 
 Hollenback v. Todd (119 111. 543) 881 
 
 Holley V. Townsend (2 Hilton, 34). ..968, 969 
 Holliday v. St. Leonard (11 C. B. N. S. 
 
 192) 594 
 
 Hollingworth v. Tooke (2 H. Bl. 501)... 1033 
 
 Hollingsworth v. Dow (19 Pick 228) 676 
 
 Hollis V. Claridge (4 Taunt. 807) 862 
 
 HoUins V. Fowler (L. R. 7 H.L. 757)961, 1050 
 
 HoUoway v. Griffith (32 Iowa, 409) 624 
 
 V. Lowe (7 Port. 4S8) 845 
 
 Holly V. Boston Gas Light Co. (8 Gray, 
 
 131) 490, 495 
 
 V. Huggeford (8 Pick. 73) 675, 678, 
 
 792, 1034, 1037, 1044, 1045 
 
 Holley V. Townsend (16 How. Pr. I;i5). . 937 
 
 Holman v. Frost (26 S. C. 290) 779, 78 J 
 
 V. Holmes (66 Barb. 222) 469 
 
 V. Johnson (1 Cowp. 341) 654 
 
 V. Kimball 22 Vt. 55.5) 884 
 
 Holmes v. Clark (6 H. & N. 348) 660, 661. 667 
 
 V. Hall (8 Mich. 66) 296 
 
 V. North- Eastern Ry Co. (L. R. 4 
 
 Ex.254) 669 
 
 V. Onion (2 C. B. N. S. 740) 735, 736 
 
 V. Peek (1 R. I. 242) 495, 496, 824 
 
 V. Stummel(24 111. 370) 635 
 
 Holroyd v. Breare (2 B. & Aid. (473). ... 580 
 
 Holt V. Cooper (41 N. H. Ill) 151 
 
 V. Green (73 Penn. St. 198) 976 
 
 Holton V. Smith (7 N. H. 446) 854, 996 
 
 Homans v. Lambard (21 Me. 308) 698 
 
 Home Life Ins. Co. v. Pierce (75 HI. 426) 279 
 
 Hone V. Henriquez (13 Wend. 240) 919 
 
 Honor v. Albrighton (03 Penn. St. 475) 670 
 
 Hood V. Adams (128 Mass. 207) 903 
 
 V. Fahnestock (8 Watts, 489) 721,722, 724 
 
 Hooe V. Oxley (1 Wash. 19) 84, 86 
 
 Hoopes V. Burnett (26 Miss. 428) 878 
 
 Hooper v. Chicago, &c. Ry Co. (27 Wis. 
 
 81) 755 
 
 V. Welch (43 Vt. 171) 862, 863, 871 
 
 Hoops V. Burnett (26 Miss. 428) 878 
 
 Hoover v. Green baum (31 N. Y. 811). . . 745 
 
 V. Wise (91 U. S. 308). . .514, 516, 519, 728 
 
 Hopkins u Logan (5 M. & W. 341) 211 
 
 V. Mehafly (11 S. & R. Penn. 126). .. 419 
 
 V. MoUinieux (4 Wend. 465) 61 
 
 V. Willard (14 Vt. 474) 816 
 
 Hopkins' Appeal (9 Atl. Rep. 867) 536 
 
 Hopping V. Quin (12 Wend. 517) 852 
 
 Horah v. Long (4 Dev. & Bat. 274) 755 
 
 Hord V. Grimes (13 B. Mon. 188; 498 
 
 Horn V. Baker (9 East. 215).. 1044 
 
 V. Western Land Ass'n (22 Minn. 
 
 233) 622 
 
 Hornby v. Lacy (6 M. & S. 166) . . . .520, 1014 
 
 Hornsby v. Fielding (10 Heisk. 367) .... 1009 
 
 Horr w. Barker (11 Cal. 393) 994 
 
 Horsey V. Chew (65 Md. 555) 813 
 
 Horsfall v. Fauntleroy (10 B. & C. 755) 698 
 
 Horton v. Champlin (12 R. I. 550) 869 
 
 V. McCarty (53 Me. 394) 893 
 
 V. McMurtry (5 H. & N. 667) 216 
 
 V. Morgan (19 N. Y. 170) W5 
 
 Hortons v. Townes (6 Leigh, 59) 898 
 
 Hoskins v. Johnson (5 Sneed, 469) 841 
 
 Hostler's Case (Mete. Yelv. 67) 680 
 
 Hotchkiu V. Kent (8 Mich. 526) 121 
 
 Hotchkiss V. Gretna Gin & Compress 
 
 Co. (36 La. Ann. 517) 210, 616 
 
 V. Thompson (1 Morris, 156) 887 
 
 Hoth V. Peters (55 Wis. 405) 667 
 
 Holtslnger v. National, &c. Bank (6 
 
 Abb. Pr. N. S. 292) 882 
 
 Houck V. Houck (99 Penn. St. 652) 699 
 
 Hough V. Doyle (4 Rawle 891) 279
 
 Ixii 
 
 ta"rt,tr; of casks cited. 
 
 SKCTION 
 
 Hough V. Railway Co. (100 U. s. l'i3) 
 
 660, 6G1. 667 
 Houghtaling v. Marvin (7 Barb. 41^) 
 
 241, 244 
 
 Houghton V. Dodgo (5 Bosw. 326) 148 
 
 V. First N.it. Bank of Elkhorn (26 
 
 Wi-*. 66.?) 439 
 
 V. Matthews (3 B. & P. 489) 520, 673, 
 
 990, 1032 
 Houlden v. Smith (14 Ad. & E. N. S. 
 
 811) 580, 585 
 
 Housatonic, &c. Bank v. Martin (1 
 
 Met'-. 294) 731 
 
 House V Housr (61 Mich. 69).. 881, 882, 883 
 Housel V Thrall (18 Neb. 484) . . .1008, 1013 
 Houseman v. Girard, &c. Building 
 
 Ass'n (81 Penn. St. 250) 719, 721, ^36 
 
 Houston v. Young (7 Ind. 200) 647, 648 
 
 Houston &c Ry Co. v. Cowser (57 Tex. 
 
 293) 751 
 
 Houston. &c. R. R. Co. v. Myers (55 
 
 Tex.llO) 667 
 
 Hover v. Barkhoof (44 N. Y. 113) 590 
 
 Hovey v. Blauchard (13 N. H. 148) 721 
 
 V. Brown (59 N. H. 522)..- 129 
 
 V. Hob^on (.53 Me. 451) 48 
 
 V. 3Iagill (2 Conn. 682) 421, 441, 443, 446 
 
 Hovey V. Pitcher (13 Mo. 191 ) 558 
 
 Howard v. Ames (3 Mete. lOS) 083 
 
 V. Daly (61 N. Y. 362) 621, 622, 624 
 
 V. Duncan (3 Lans. 175) 116 
 
 V. Grover (28 Me. 9r> 49n, 496, 498 
 
 V. Ives(l liill,26^) 511 
 
 V. Osceola (22 Wis 4o3) 871 
 
 V. Sheward (L. R. 2 C P. 148) 350 
 
 Howard College v. Pace (15 Ga. 486) ... 208 
 Howard Ins. Co. v. Halsey (8 N. Y 271) 721 
 Howe Machine Co. v. Ballweg (89 111. 
 
 318) 839 
 
 V. Clark (1.5 Kan. 492i 100, 102, 937 
 
 V. Simler (59 Ind. 3U7) 224 
 
 Howattv. Davis (5 Munf. 34) 495 
 
 Howe V Buffalo, &c. R. R. Co. (38 
 
 Barb. 124) 917 
 
 V. Buffalo, &c. R. R. Co. (37 N. Y. 
 
 2\ir) 653, 654 
 
 V. Howe- (99 Mass. 98) 50 
 
 V. Lawrence r22 N. J. L. 99) 811 
 
 t). Newmarch (12 Allen, 49) 743 
 
 V. Suth-riand (3 ' Iowa, 484) 1012 
 
 Howell y Harding (3 East. 362) 862 
 
 V. Gordon (40 Ga. 302) 269 
 
 Howlaiid V Davis (40 jlich. 545) 1009 
 
 V. Milwaukee, &c. Ry (54 Wis. 226) 6-^7 
 
 v. Woodruff (60 N.Y. 73) 9!)5 
 
 Howry v Eppinger (31 Mich. 29) 279 
 
 Hoy V. Mrrris (13 Gray, 519) 882 
 
 Hoyes v. Marsh (123 Mass. 286) 29 
 
 Hoytv. Macon (2 Col. .502) 34 
 
 V. Shipherd (70 III. 309) 9b6 
 
 V. Thompson (19 N. Y 207). 118, 121, 164 
 
 Hubbard v. Be I den (27 Vt. 645) 640 
 
 V. Elmer (7 Wend. 446) 326, 714 
 
 V. Moore (24 La. Ann. 591) 39 
 
 Hubbart v. PhiUips (13 M & W 702).. 832 
 
 Hubbert v. Borden (6 Whart. 91) 6?6 
 
 Iluber V. Zimmerman (21 Ala. 488).40.5, 950 
 Huddleston v. Lowell Machine Shop 
 
 (106 Mass. 282) 659. 670 
 
 Hudson w. Granger (5B. & Aid. 27).267, 
 
 772, 1033, 1042 
 
 V. Johnson (1 Wash. 10) 817 
 
 V. Revett (5 Bing. 368) 94, 96 
 
 Huff V. Watkins (15 S. C. 82) 793 
 
 Huffman v. Chicago, &c. R. R. Co. (78 
 
 Mo. 50) 662 
 
 Hughes V. Osborn (42 In d . 450) 810 
 
 V. Percival (9 Q. B. Div. 441) 748 
 
 V. Wamsutta Mills (11 Allen, 20n . . 6-12 
 
 •. Washington (72 111. 84) 457, 
 
 461, 4&i, 701 
 
 SECnOM 
 
 Huguley v. Morris (65 Ga. 666) 348 
 
 Hull V. Marshall County (12 la. 270) 
 
 291, 546 
 
 Hulme V.Brown (3 Heisk. 679) 648 
 
 Hulsev Young (16 Johns. 1) 756, 898 
 
 Humble v. Hunter (12 Q B. 310) 771 
 
 Hummell v. Bank of Monroe (37 N. W. 
 
 Rep. 9.54) 729 
 
 Humphrey v. Brownin? (46 111. 476)..876, 872 
 
 V. Jones (71 Mo. 62) 546 
 
 V. Havens (12 M.nn. 298) 129 
 
 V. McGill (59 Ga. 649) 924 
 
 Humphreys v. Guillow (13 N. H. 3a5)... 94 
 
 Hungerford v. Hicks C'-9 Conn. 259)... 967 
 
 V. Scott (37 Wis 341) 761 
 
 Hunt V. Crane (33 Miss. G69) 622 
 
 V. Dou^la-s (22 Vt 128) 186 
 
 V. Haskell (24 Jle. 339) 683 
 
 V. Hunt (72 N. Y. 217) 583 
 
 V. McCUinahan (1 Heisk. 503) 869 
 
 V. Otis (4 Mete. 463) 641 
 
 V. Pliiladelphia '3:. P^-nn. St. 277).. 892 
 
 v. Printup (JS Ga. 297) 8-39 
 
 V. Railroad Co. (29 La. Ann. 446) . . 717 
 
 V. Rousmanierf> (1 Pet. 1) 296 
 
 V. Rousinanier(8Wheat. 201)... 204, 
 
 205, 206, 207, 210, 242, 244. 717, 1052 
 
 V Test (8 Ala. 713) 854, 8.56 
 
 Hunter v Caldwell (10 Q. B. 69) 826 
 
 V. Giddings (97 Mass. 41).... 427, 449, 
 
 696, 701 
 
 V. Hudson River Co. (20 Barb. 493). 369 
 
 V. Jaine-^on (6 Ind. L. 252) 348 
 
 V Mathis (40 Ind. 356) .. . 588 
 
 V. MillfT(6 B. Mon. 612) 425 
 
 V. Sacramento Valley Belt Sugar 
 
 Co. (14 Cent. L. Jour. 352) .... 318 
 
 V. Waldron (7 Ala. 75J) 640 
 
 V. Wat,son (12 Cal. 377). .718, 721, 722, 
 
 &80, 882 
 Huntingdon, &c., R. R. Co. v. Decker 
 
 (84 Peim. St. 419) 662 
 
 Huntington v. Knox (7 Cush. : 71) 449, 
 
 69ii. 701. 702, 769, 772, 1042, 1043 
 Huntley v. Mathias (90 K. C. 101). . .311, 
 
 845, 413 
 
 Hurd V. Marple (2 111. App. 402) 148 
 
 V. Moring (1 C. & P. 372) 682 
 
 V. Vermont Central R. R. Co. (32 
 
 Vt. 473) 668 
 
 Hurlbert v. Brisham (56 Vt. SfiS) . ...662, 863 
 
 Hurlbut V. Marshall (62 Wis. 590) 44 
 
 Hurley w. Watson (13 West Rep .543).. 
 
 161, 273. 276, :-89, 354, 375 
 
 Hurst V Holding (3 Taunt. 32) 975 
 
 V. Sheets (21 Iowa. 501) 873 
 
 Hussey v. Sibley (66 Me. 192) 929 
 
 Huston V. Cantril (11 Lei?h. 136).. .240. 244 
 
 V. Mitchell (14 S & R. 307) 819 
 
 Huicheu V. Gibson (1 Bush. 270) 24 
 
 Hutcheson r. Eaton (13 Q. B. Div. 861). 957 
 Hutchings v. Ladd (16 Mich. 493) .130, 
 
 195, 281, 4R5 
 
 V. Miner (46 N. Y. 460) 567 
 
 V. Munger (41 N. Y. 155) 378 
 
 Hutchins v. Bracket (22 N. H. 252) 594 
 
 V. Gilham(9N. H. 360) 5:i3 
 
 V. Hebbard (-34 N. Y. 24) 204, 206 
 
 r. Olcutt (4 Vt. .549) 680 
 
 Hutchinson v. Gordon (2 Har. 179) . . . 920 
 V. Howard (15 Vt. 544). . . . 662, 864, 871 
 
 V. Railway Co. (5 Exch. 343) . . . .656, 667 
 
 V. Wetmore (2 Cal. 310) 6.^5 
 
 Hutton V. Bragg (7 Taunt, 14) 680 
 
 V. Bulloch (L. R. 9 Q. B. 572) 556 
 
 Huzzard r. Trego (35 Penn St. 9) 468 
 
 Hyams u. MiUer (71 Ga. 608) 966 
 
 I. 
 
 Illingsworth v. Slosson (19 111. App. 612) 963
 
 TABLE OF CASES CITED. 
 
 Ixiii 
 
 SECTION 
 
 Illinois Central R. R. Co. v. Cox (21 111. 
 
 20) 656, 667 
 
 V. Downey (18 111. 259) 740 
 
 V. Jewell (46 111. 99) 667 
 
 V. Middlesworth (46 III. 494) 741 
 
 V. Tronstine (64 Miss. 834) 715 
 
 nsley V. Merriam (7 Cush. 242).... 769, 
 
 773, 1039, 1042 
 Indermaur v. Dames (L. Repts. 1 C. P. 
 
 274. s. O. 2 Id. 311) 666 
 
 Indianapolis v. Indianapolis Gas Co. 
 
 (U6Ind.396) 190 
 
 Indianapolis, &e., Ry Co. v. Flanagan 
 
 (77111. 3t;5) 680 
 
 Indianapolis. &c., R. R. Co. v. Morris 
 
 (67 111. 295) 117 
 
 Indig V. National City Bank (80 N. Y. 
 
 100) 514 
 
 In^all.s V Sprague (10 Wend 673) 810 
 
 liigersoll V. Van Bokkelin (7 Cow. 670). 765 
 Ingerson v. Starkweather (Walk. Ch. 
 
 346) 463 
 
 Inglehart v. Thousand Island Hotel Co. 
 
 (7Han,547) 696 
 
 Ingraham v. Whitmore (75 111. 24) 950 
 
 Ingram u. Little (14 Ga. 173) 137 
 
 Inhabitants of Nobleboro v. Clark (68 
 
 Me. 87) 93 
 
 Inhabitants of Westfleld v. Mayo (122 
 
 Mass. 100) 507 
 
 Innerarity v. Merchants' National 
 
 Bank (139 Mass. 322) . . . .723, 729, 730 
 
 Insurance Co. v Buchanan (100 Ind. 63) 841 
 
 V. Davis (95 U. S. 42.5) 269 
 
 V. Klger (103 U. S. 352) 994 
 
 V. McCain (96 U. S. 84) 224 
 
 V. J'ahone (21 VVall. 152) 931 
 
 V. Blosley (8 Wall. 397) 715 
 
 V. Wilkinson (13 Wall. 222) 931 
 
 V. WUliams (39 Ohio St. 584) 931 
 
 International Bank v. Ferris (118 111. 
 
 465) 129, 155 
 
 Irby V. Lawshe (62 Ga. 216) 611 
 
 Ireland v. Livingstone (L. R. 6 H. L. 
 
 416) 315 
 
 Irmis V. Steamer Senator (1 Cal. 459). . 714 
 Iron Mountain Bank v. Mercantile 
 
 Bank (4 Mo. App. 505) 741 
 
 Irvine v. Watson (5 Q. B. Div. 102) . .698, 700 
 
 V. Watson (5 Q. B. Div. 414) 697 
 
 Irwin V. Levy (24 La. Ann. 302) 38 
 
 V. Williar (1 10 U. S. 499) . 35, 39, 940, 974 
 
 V. Workman (3 Watts, 357) 375 
 
 Isaacs I'. Davies (68 Ga. 169) 621 
 
 V. Third Ave. R. R. Co. (47 N. Y. 
 
 122) 737 
 
 V. Zugsmith (103 Penn. St. 77) 813 
 
 Iselin V. Griffith (62 Iowa, 668) 966 
 
 Ishv. Crane (8 Ohio St. 520)... 245 
 
 Ives V Ashley (97 Mass. 198) 791 
 
 V. Jones (3 Iredell's, L. 538) 6M 
 
 J 
 
 Jackson v. Badger (35 Minn. 52) 820 
 
 V. Baker (1 Wash. 395) 1021 
 
 V. Bartlett(8 Johns. 361) 820 
 
 V. Blodgett (16 Johns. 172) 421 
 
 t>. Clopton (66 Ala. 29) «62, 
 
 869. 870. 871, 873, 874 
 
 t>. Cummine-s (5 M. & W. 342) 674 
 
 V. French (3 Wend. 337) 882 
 
 V. Ludeling (21 Wall. U. S. 616). .. 463 
 
 V. McVey (18 Johns. 330) 882 
 
 V. Ramsey (3 Cow. 75) 750 
 
 V. Second Ave. R. R. Co. (47 N. Y. 
 
 274 734 
 
 V. Stevens (108 Mass. 94) 457, 459 
 
 V. Union Bank (6 Har. & J. 146) .... 514 
 Jackson Ins. Co. v. Partee (9 Haisk. 
 
 296) 252 
 
 V 
 
 SEOTION 
 
 Jacobs V. Pollard (10 Cush. 288) 6.54 
 
 V. Warfleld (23 La. Ann. 395). . .210, 616 
 
 Jaeger v. Kelley (52 N. Y. 274) 100 
 
 Jaffrey v. King (34 Md. 217) 215, 622 
 
 Jameison v. Calhoun (2 Speer, 19) 654 
 
 James v. Allen County (44 Ohio St. 226), 
 
 621, 622 
 
 V. Bixby (11 Mass. 34).. 558, 601, 699, 1048 
 
 w. Jellison (94 Ind. 292) 36 
 
 w. McCredie(l Bay, 294) 990 
 
 u. O'Driscoll (2 Bay, 101) 600 
 
 V. Russell (92 N. Car. 194) 88 
 
 V. Slookey (1 Wash. 330) lOJ 
 
 Janney v. Boyd (30 Minn. 319) 339 
 
 Jansen v. M. Cahill (26 Cal. 565) 96 
 
 Jaques v. Todd (3 Wend. N. Y. 83) 363 
 
 V. Weeks (7 Watts, 261) 727 
 
 Jarvis v. Rogers (15 Mass. 396) 685, 1037 
 
 V. Schaefer (11 North. E. Rep. 6.34) . 03 
 
 Jaudon v. City Bank (8 Blatchf. 430).. 780 
 
 Jayne v. Mickey (55 Penn. St. 260) 531 
 
 Jeanes v. Fridenburg (3 Pa. L. J. R. 
 
 199) 882 
 
 Jefferson County v. Slagle (66 Penn. 
 
 St. 202) 78 
 
 Jefferson Ins. Co. v. Cotheal (7 Wend. 
 
 72) 931 
 
 Jeffersonville R. R. Co. v. Rogers (38 
 
 Ind. 116) 751 
 
 Jeffrey v. Bigelow (13 Wend. 518) 287 
 
 V. Hursh (49 Mich. 31) 323 
 
 Jefts V. York (4 Cush. 372) 432. 549, 550 
 
 V. York (10 Cush. 392) 542, 545, 546 
 
 V. York (12 Cush. 196) 561 
 
 Jenkins v. Atkins (1 Humph. 294) 240, 
 
 245, 246, 545 
 
 V. Eichelberger (4 Watts, 121) .... 676 
 
 V. Eldridge (3 Story, 18:^) 457, 459 
 
 V. Gillespie (10 Sm. &. M. 31) 812 
 
 V. Hutchinson (13 Ad. & El.. N. S. 
 
 744) 549 
 
 u. Waldron (11 J hns. 114) 588 
 
 «. Walter(8 Gill. &J.218) 529 
 
 Jenner v. Joliffe (9 Johns. 381) 590 
 
 Jenney v. Delesdernier (20 Me. 183). . . . 811, 
 
 812, 816 
 
 Jennings v. Camp (13 Johns. 94). . 635, 636 
 
 V. McConnell (17 111. 148) 877 
 
 V. Lyons (29 Wis. 553) 631, 634, 640 
 
 Jennison v. Parker (7 Mich. 355) 163 
 
 Jervis v. Hoyt (5 Thomp & C. 199) .... 1015 
 
 V. Hoyt (2 Hun. 637) 481 
 
 Jessup V. Steurer (75 N. Y. 613)... .696, 957 
 
 Jesup V. City Bank (14 Wis. 331) 414 
 
 Jeter v. Haviland (24 Ga. 252) 819 
 
 Jett V. Hempstead (25 Ark. 462) 522. 
 
 530, .531, 533, 878 
 
 Jewell V. Schroeppel (4 Cow. 564) 636 
 
 V. Thompson (2 Lith 52) 635 
 
 Jewett V. Alcon (7 N. H. 233) 78 
 
 V. Carter (132 Mass. 335) 743 
 
 V. Lawrenceburgh, &c., R. R. Co. 
 
 (10 Ind. 539) 86 
 
 V. Wadleigh (32 Me. 110) 819, 820 
 
 Jhona V. People (25 Mich. 503) 97 
 
 Joel V. Morison (6 C. & P. 501) 737 
 
 Joest V. Williams (42 Md. 565) 49 
 
 Johnson V. Barber (5 Gil. 425) .573, 574, 739 
 
 V. Blasdale (1 Smedes & M. 20) 394 
 
 V. Boston Tow Boat Co. (135 Mass. 
 
 215) 657 
 
 V. Buck (35 N. J. L. 338) . . . .893, 897, 898 
 
 V. Campbell (120 Mass. 449).. ..1011, 1038 
 
 V. Catlin (27 Vt. 87) 755 
 
 V. Crais: (21 Ark. 533) 824 
 
 V. Credit Lyonnais (2 C. P. Div. 
 
 224) 786 
 
 t>. Cunningham (1 Ala. 249) ..194, 
 
 195 196 998 
 
 V. Daverne (1 9 Johns. 134) '.....' 882 
 
 V. Dodge (17 111. 433) 89, 92, 93
 
 Ixiv 
 
 TABLE OF OASES OITED. 
 
 169 
 793 
 
 219 
 550 
 
 SECTION 
 
 Johnson v. Hill (3 Stark. 172) 677 
 
 V.Hudson (11 East. 180) 756 
 
 V. Rulings C103 Penn. St. 498) 976 
 
 V. Hunt (81 Ky. 321) a 36 
 
 V. Martin (11 La. Ann. 27) 601, 1015 
 
 V. McGrnder (15 Mo. 365) 324 
 
 V. New York Cent. Transp. Co. (33 
 
 N. Y. 610) 475 
 
 ». O'Hara (5 Leigti. 456) 1021 
 
 w. Outlaw (56 Miss. 541) 878 
 
 w. Semple (31 Iowa, 49) 833 
 
 V. Smith (21 Conn. 627) 550, 558 
 
 V. Tnompson (72 Ind. 167) 607 
 
 V. Van Velsor (43 Mich. 203) 96 
 
 V. Wade (2 Baxt. Tenn. 480). . ..1003, 1009 
 
 V. Wilcox (25 Ind. 182) 240 
 
 Johnston v. Berry (3 111. App. 256). 155, 164 
 
 ». Bingham (9 W. & S. 56) 77 
 
 V. Brown (18 La. Ann. 330) 70 
 
 V. Sumner (3 H. & N. 261) 82 
 
 V. Wingate (29 Me. 404) 155, 274 
 
 Jolifle V. Madison Mat. Ian. Co. (39 Wis. 
 
 Ill) 931 
 
 Jones V. Adler (34 Md. 440) 611, 996 
 
 V. ^tna Ins. Co. (14 Conn. 501). 554, 957 
 
 V. Atkinson (68 Ala. 167) 150, 
 
 V. Blocker (43 Ga. 331) 
 
 V. Brown (54 Iowa, 74) 581, 
 
 V. Commercial Bank (78 Ky. 413).. 
 
 V. Downman (4 Ad. & El, N. S. 235). 
 
 V. Florence Mining Co. (^66 Wis. 268) 658 
 
 V. Graham, &c. Transp. Co. (51 i 
 
 Mich.539) 218 | 
 
 V. Granite Mills (126 Mass 84) 659 I 
 
 V. Gregg (17 Ind. 84) 531 
 
 V. Harris (10 Heisk. 98) 269 
 
 V. Hodgskins rei Me. 480) 226 
 
 V. Inness (32 Kan. 177) 813 
 
 V. Lake Shore, &c. Ry Co. (49 Mich. 
 
 573) 663 
 
 V. LeTombe (3 Dallas, 384) 426 
 
 V. Littledale (6 Ad. & El. 486) 913 
 
 V. Loving (55 Miss. 109) 589 
 
 w. Marks (40 111. 313) 954 
 
 V. Morgan (39 Ga. 3 10) 869, 871 
 
 V. Morrill (42 Barb. 626) 677 
 
 «. Morris (61 Ala 518) 421 
 
 «. Null (9 Neb. 254) 924 
 
 ». Perkins (5 B. Mon.222) 48 
 
 «. Ransom (3 Ind. 327) 819 
 
 v.Kead (1 La. Ann. 200) 63 
 
 V. School District (8 Kans. 362) 605 
 
 V. Scudder (2 Gin. Sup. Ct. 178) 29 
 
 V. Sinclair (2 N. H. 321) 675, 1034 
 
 V. Witter (13 Mass. 304) 772 
 
 Johns V. Trick (22 Cal. 511) 934 
 
 Joor V. Sullivan (5 La. Ann. 177) 193 
 
 Jordan V. Hanson (49 N. H. 199). . .580, 586 
 
 V. James (5 Ohio, 88) 1032, 1033, 1034 
 
 v. Jordan (65 Ga. 351) 646 
 
 W.Smith (19 Pick. 287» 892 
 
 V. Wells (3 Woods, 527) 667 
 
 Joseph V Knox (3 Camp. 320) 755, 763 
 
 Joslin v. Cowee (52 N. Y. 90) 1015 
 
 Joslin V. Cowee (56 N. Y. 626) 67, 644, 
 
 953, 
 V. Grand Rapids Ice Co. (50 Mich. 
 
 516) 735, 
 
 Josselyn v. McAllister (22 Mich. 300) 
 
 182, 571, 
 
 Joyce V. Duplessis (15 La. Ann. 242) 
 
 311, 
 
 Judah V. Dyott (3 Blackf. 324) 531, 
 
 I). Kemp (2 Johns. Cas. 411) 
 
 Judd V. Mosely (30 Iowa, 434) 457, 459 
 
 Judge V. Booge (47 Mo. 544) 924 
 
 Judson V. Sturges (5 Day, 556) 481, 674. 
 
 838, 948, 1015 
 
 Just V. Wise (42 Mich. 573) 96 
 
 Justice V. Justice (14 West Rep. 275).. 873 
 v. Lang (43 N. Y. 493) 211 
 
 972 
 736 
 
 573 
 
 533 
 681 
 
 K. 
 
 Kanada v. North (14 Mo. 615) 470 
 
 Kansas Pac. Ry Co. v. McCoy (8 Kans. _ 
 
 538) 32 
 
 V. Peavey (29 Kan. 169) 671 
 
 Kansas, &c. R. R Co. v. Pointer (9 
 
 Kan. 620) 715 
 
 Kansas Pac. Ry Co. v. Thacher (17 
 
 Kans. 92) 869 
 
 Kauflfmau v. Beasley (54 Tex. .563) 990, 1017 
 Kaulbaek v. Churchill (59 N. H. 296).. . 10.51 
 Kausal v. Minnesota Farmers' Ins. 
 
 Ass'n (31 Minn. 17) 931 
 
 Kaye V. Crawford (22 Wis. 322) 59it 
 
 w. Brett (5 Ex. 269) 6 
 
 Kean V. Davis C^^O N. J. L. 425) 555 
 
 V. Davis (21 N. J. L. 68-3) . . .441, 442, 44:^ 
 Keating v. Hyde (23 Mo. App. 555) . .30, 31 
 
 Keay v. Fenwiek (1 C. P. Div. 745) 71 
 
 Keech v. Sandford (3 Eq. Cas. Abr. 741) 469 
 
 K^-egan v. Malone (62 Iowa, 208) 599 
 
 Keeley v. Boston, &c. R. R. Co. (67 Me. 
 
 163) 714 
 
 V. Howe (73 m. 136) 739 
 
 Keenan v. South worth (110 Mass. 474) 694 
 
 Keener v. Harrod (2 Md. 63) 287, 550 
 
 Kehlor v. Kemble (26 La. Ann. 713) 155, 163 
 
 Kehrig v. Peters (41 Mich. 475) 745 
 
 Keighler v. Savage Mnfg Co. (12 Md. 
 
 383) 68, 454, 463, 1007, 1021, 1023 
 
 Keller v. Salisbury (33 N. Y. 648) 149 
 
 Keith V. Fitzhugh (15 Lea, 49) 873 
 
 V. Hirschberg Optical Co. (2 S. W, 
 
 Rep. 7?7) 850 
 
 V. Howard (24 Pick. 29.') 690 
 
 V. Wilson (6 Mo. 435) 810 
 
 Keivan v. Sanders (6 Ad. & El. 515).... 525 
 
 Keller v. Scott (2 Sneed & M. 81) 819 
 
 V. Singleton (69 Ga. 703) 699 
 
 Kelley v. Boston Lead Co. (128 Mass. 
 
 456) 687 
 
 V. Munson (7 Mass, 318). . .757, 1042, 1044 
 V. Newburyport Horse R. R. Co. 
 
 (141 Mass. 406) 128, 129, 148 
 
 V. Norcross (121 Mass. 508) . 667 
 
 u. Norris (10 Ark. 18) 814 
 
 V. Richardson (14 West. Rep. 416).. 849 
 
 V. Silver Spring Co . (13 R. I. 112) . . . 670 
 
 Kellogg V. Gilbert ( 10 Johns. 220) . . .813, 820 
 
 V. Norris (10 Ark. 18) 814 
 
 V. Payne (21 Iowa, 575) . 666, 747 
 
 V. Smith (26 N. Y. 18) 873 
 
 Kelly V. Bemis (4 Gray, 84) 585 
 
 V. Creen (63 Penn. St. 299) 924 
 
 V. Mayor (11 N. Y. 432) 748 
 
 V. Phelps (57 Wis. 425) 826, 967 
 
 V. Wright (65 Wis. 236) 813 
 
 Kelner v. Baxter (L. R. 2 C. P. 174) 124 
 
 Kelsey v. National Bank (69 Penn. St. 
 
 426) 84, 118, 155, 1.58 
 
 Kelton V. Leonard (54 Vt. 230) 287 
 
 Kemp V. Burt (4 B. & Ad. 424) 834, 825 
 
 V. Neville (10 0. B. N. S. 523) 580 
 
 Kemper v. Kemper (3 Rand. 8) 654 
 
 Kempker v. Roblyer (29 Iowa, 274) 495, 951 
 
 Kendall u. Garland (5 Cush. 79) 138 
 
 V. Mann (11 Allen, 15) 457, 459 
 
 Kennedy v. Gouveia (3 D. & R. 503)... 7.55 
 
 V. Green (3 Mvl. & Keen. 699) 723 
 
 V. McKay (14 "Vroom, 288) 743 
 
 r. Shea (110 Mass. 147) 795 
 
 V. Strong (14 Johns. 128) 994 
 
 Kenney V. Greer (13 111. 432) 585 
 
 V. Shaw (133 Mass. 501) 668 
 
 Kent V. Bomstein (12 Allen, 342) . . . .352, 
 
 384, 761, 997 
 
 V. Chapman (18 W. Va. 485) 819 
 
 V. Dawson Bank (13 Blatchf . 237) . . 614 
 V. Quicksilver Mining Co. (78 N. Y. 
 
 137) 1B7
 
 TABLE OF CASES CITED. 
 
 Ixv 
 
 658 
 967 
 
 743 
 525 
 
 702 
 
 SECTION 
 
 Kent V. Ricards (3 Md. Ch. 392) 375 
 
 Kenton Ins. Co. v. McClellan (43 Mich. 
 
 564) 56 
 
 Kentucky Bank v. Combs (7 Penn. St. 
 
 543) ...606, 849 
 
 Keown v. Vogel (25 Mo. App. 35) 755 
 
 Kerfoot v. Hyman (52 111. 512).. .68, 461, 
 
 470, 528 
 
 V. Steele (113 ni. 610) %6 
 
 Kerns v. Piper (4 Watts, 222) 391 
 
 V. Swope (2 Watts, 75) 727 
 
 Kerr v. Cotton (23 Tex. 411) 475, 1024 
 
 V. Sharp (83 111. 199) 129 
 
 Kersey v. Garton (77 Mo. 645).. 843, 847, 
 
 854, 856 
 V. Kansas City, &o., R. R. Co. 
 
 (79 Mo. 362) 662 
 
 Kershaw v. Kelsey (100 Mass. 561) 269 
 
 Ker win, Ex parte, (8 Cow. 1 18) 94 
 
 Kessee v. Mayfleld (14 La. Ann. 90) 619 
 
 Ketcham v. Thorp ^91 Ul. 611) 833 
 
 Ketc-hum v. Verd' II (4-.'Ga 534) 1.50, ~ 
 
 Key V. Parnham (6 Har. & J. 418) 
 
 Keys V. Johnson (68 Penn. St. 42). .937, 
 
 964, 
 Keyser v. Chicago & Q. T. Ry Co. (33 
 
 N. W. Rep.867) 715 
 
 Keystone Bridge Co. v. Newberry (06 
 
 Penn. St. 246) 667, 668 
 
 Kibbe v. Hamilton Ins. Co. (11 Gray, 
 
 163) 
 
 Kieran v. Sandars (6 Ad. & El. 515). . . . 
 Kiersted v. Orange, &c., R. R. Co. (69 
 
 N. Y. 343) 421. 
 
 Kiewert v. Rindskopf (46 Wis. 481) 526 
 
 KUey V. Forsee (57 Mo. 390) 84, 97 
 
 Kimball v. Billings (55 Me. 147) 573, 574 
 
 V. Perry (15 Vt. 414) 816 
 
 Kinder v. Shaw (2 Mass. 397) 994 
 
 Kingv. Batterson (13 R. I. 117) 770 
 
 W.Dixon (3 M. & S. 11) 746 
 
 V. Kelly (28 Ind. 89) 599 
 
 r. Longnor (1 Nev. & M. 578) 96 
 
 V. New York, &c., R. R. Co. (66 N. 
 
 Y.181) 666,747, 
 
 V. Sparks (1 S. E. Rep. 266) 
 
 V. State (58 Miss. 737) 
 
 V. Steiren (44 Penn. St 99) 622, 
 
 Kingsbury v. School District (12 Mete. 
 99) 
 
 Kingsley v. 'Fitts (si vV. ' 414)'.'.'.'.'.'.'.'.'.'.'. 282 
 Kingston Ex parte (L. R. 6 Ch. Aop. 
 
 632) ;.:. 781 
 
 V. Kincaid (1 Wash. 457) 512 
 
 V. Wilson (4 Wash. 310) 510 
 
 Kinlockr. Craig (3 T. R. 119) 1035 
 
 Kinney v. Matthews (69 Mo. 520) 323 
 
 V. Robinson (29 N. W. Rep. 86)..869, 870 
 
 V. Showdy (1 Hill. 544) 896 
 
 Klnsey v. Leggett (71 N. Y. 387) 1036 
 
 V. Stewart (14 Tex. 457) 862 
 
 Kinsman v. Kershaw (119 Mass. 140).... 342 
 
 Kirk V. Glover (5 Stew. & P. 340) 819 
 
 V. Hartman (63 Penn. St. 97). . . .204, 210, 
 
 616, 622 
 
 w. Hiatt (2 Ind. 322) .... 375 
 
 Klrkman v. Vanlier (7 Ala. 224) 534 
 
 Kirkpatrick v. Adams (20 Fed. Rep. 287) 487 
 
 V. Winans (1 C. E. Green, 407).. 290, 291 
 
 Kirk's Appeal (87 Penn. St. 243) 819 
 
 Kirksey v. Jones (7 Ala. 622) 751, 839 
 
 Kirtland v. Montgomery (1 Swan, 452). 496 
 
 Kisliiig V. Shaw (33 Cal. 425) 878 
 
 Kitchen v. Hartford F. Ins. Co. (57 
 
 Mich. 13.5) 981 
 
 Knapp V. Alvord (10 Paige, 205). . . .206, 
 241, 1032, 
 
 V. Simon (96 N. Y. 284) 697, 
 
 w. Smith (27 N.Y. 277) 56, 
 
 w. Wallace (41 N. Y. 477) 
 
 In re (85 N.Y. 384) 862, 
 
 748 
 893 
 746 
 623 
 
 78 
 
 1052 
 
 977 
 
 62 
 
 967 
 
 869 
 
 SKCXIOIV 
 
 KnatchbuU v. Hallett (13 Ch. D. 696) . . 
 
 5i6, 781 
 
 Kneeland v. Rogers (2 Hall, 579) 654 
 
 Knight V. Clark (43 N. J. L. 22) 426, 449 
 
 V. Ni-Non (117 Mass. 4.58) 654 
 
 Knotts V. Tarver (8 Ala. 743) 534 
 
 Knowles v. Dow (2 N. H. 387) ... 281 
 
 Knowlton v. Fitch (52 N. Y. 288) . . .936, 954 
 
 Knox V. Flack (22 Penn. St. 337) ... .51, 53 
 Knoxville Iron Co. v. Dobson (7 Lea, 
 
 .307) 665 
 
 Koch V. Branch (44 Mo. 542) 915 
 
 Kock V. Enimerling (22 How. 69).. .966, 967 
 
 Kohn V. Washer (64 Tex. 131) 339, 343 
 
 KomiTowski v. Krumdick (56 Wis. 23). 363 
 Kornemann v. Monaghan (24 Blich. 36) 
 
 100, .337, 339, 340 
 
 Krause v. Dorrance (10 Barr. 462) . .515, 533 
 
 Kreiter v. Nichols (28 Mich. 496) 745 
 
 Kriljben v. Haycraft (26 Mo. 396) 33 
 
 Krider v. We.^tern College (31 Iowa, 
 
 547) 139 
 
 Kroeger v. Pitcairn (101 Penn. St. 311) 
 
 642, 543, 544, 545, 574 
 
 Krohn v. Bantz (68 Ind. 277) 211 
 
 Kroy V. Chicago), &c. R. R. Co. (32 
 
 Iowa, 357) 659, 670 
 
 Krudter v. Ellison (47 N. Y. .36) 755 
 
 Kruger v Western F. & M. Ins. Co. 
 
 (72 Cal. 91) 931 
 
 Cruse V. Steffens (47 III. 112).. .457, 462, 463 
 
 Krutz V. Fisher (8 Kans. 90) 457. 459, 
 
 468, 533 
 
 Kupfer V. Augusta (12 Mass. 185) 77 
 
 Kusterer v. City of Beaver Dam (56 
 
 Wns.471) .844, 846, 871 
 
 Kyle, Ex parte (1 Cal. 331) 869, 870 
 
 Kymer v. Suwercropp (1 Camp. 109) . . 698 
 
 Ii 
 
 Labadie v. Hawley (61 Tex. 177). . .539, 570 
 
 Lacey . Ex parte (6 Ves. Jr. 6 26) 463 
 
 Laclede Bank v. Keeler (109 111. 385) ... 878 
 Lacy V. Dubuque Lumber Co. (43 Iowa, 
 
 510) 443 
 
 Lacy V. Osbaldiston (8 C. & P. 80) 215 
 
 Ladd V. Arkell (37 N. Y. Super. Ct. 35) 
 
 1039, 1043 
 
 V. Arkell (40 N. Y. Super. Ct. 150).. 1043 
 
 V. Hildebrant (27 Wis. 135) 161 
 
 ti. New Bedford R. R. Co. (119 
 
 Mass. 412) 670 
 
 V. Newell (34 Minn. 107) 63 
 
 La Farge v. Kneeland (7 Cow. 456) 561 
 
 Lafayette, &c. R. R. Co. v. Ehman (30 
 
 Ind 83) 714 
 
 Lafferty v. Jelley (22 Ind. 471) 469 
 
 Lafitte v. Godchauix (35 La. Ann. 1161) 155, 
 
 156, 164 
 Laflin & Rand Powder Co. v. Sins- 
 
 heimer (48 Md. 411) 439, 441 
 
 Lafond v. Deems (HI N. Y. 514) 73 
 
 La Framboise v. Grow (56 111 197) 869 
 
 Laidlert). Burlinson (2 M. & W. 602)... 634 
 
 V. Elliott (3 B. &. C. 73S-) 824 
 
 Lake v. Campbell (18 111. 109) 89 
 
 Lakeman v. Pollard (43 Me. 463) 607, 
 
 631, 638. 640 
 Lake Shore, <S:c. Ry v. Knittal (33 Ohio 
 
 St. 468) 667 
 
 V. McCormiek (74 Ind. 440) 659 
 
 Lalor V. Chicago, &c. R. R. Co. (62 111. 
 
 401) 663 
 
 Lamb v. Palk (9 C. &. P. 629) 737, 738 
 
 V. Williams (1 Salk 89) 813 
 
 Lambert v. Sandford (2 Blackf. 137) ... 813 
 
 Lambeth u Turnbull (5 Rob. 264) 1033 
 
 Lamkin v. Crawford (8 Ala. 153) 934 
 
 Lamm v. Port Deposit, &c. Assn. (49 
 
 Md. 283) 714, 744
 
 Ixvi 
 
 TABLE OF CASES CITED. 
 
 SECTION 
 
 Lament v. Washington, &o. R. R. Co. 
 
 (2 Mackey, 50-') 846, 8, 1 
 
 Lamothe v. St. Louis, &c. Co. (17 Mo. 
 
 204) 2-24 
 
 Lamoure v. Caryl (4 Denio, 370) 84'J 
 
 Lampley v. Scott C-J4 Miss. 533) 497. 502 
 
 Lancaster Nat. Bank v. Taylor (100 
 
 Mass. 18) 788 
 
 Landon v. Humphrey (9 Conn. 209). ... 495 
 
 Landisr Srott (32 Pa. St. 495) 532 
 
 Lane v. Albright (49 Ind. '^75) 9(57 
 
 V. Blacii (21 W. Va. 617).... 113. 178, 878 
 
 ti. Bryant (9 Gray, 245) 715 
 
 V. Cotton (12 Mod. 488) 539, 590, 593, 594 
 
 V. Dudley (2 Murph. 119) 3.j0 
 
 V. Hallum (38 Ark. 3S5) 869 
 
 Lang V. Waters (47 Ala. 624) 62 
 
 Langdon v. Potter (13 Mass. 319) . . .375, «19 
 
 Lauge V. Benedict (73 N. Y. 12) 58u, 
 
 583, 584, &8ti 
 
 u. Kaiser (31 Mich. 318) 600 
 
 Langley v. Stui-tevant (7 Pick. 214) .... 530 
 
 V Warner (1 Sandf. 209) 561 
 
 Lansing v. New York Cent. R R. Co. 
 (49 N. Y. 521).. 656, 659, 661, 662, 
 
 667, 668, 670 
 
 Lantry v. Parks (8 Cow. 63) 635, 636 
 
 Lanus-e v. Barker (3 Wheat. 101),. 230, 393 
 
 Lapa ugh V. W ilson (43 Hun, 619 888 
 
 Lapham v. Green (9 Vt. 407) 755 
 
 Large v. Coyle iU Atl. Rep. 343) 853 
 
 Larkin v. Buck (11 Ohio St. 561) 635 
 
 Larminie v. Carley (114 111. 196) . . . .936, 1027 
 La Salle National Bank v. Tolu Rock 
 
 & Rye Co. (14 111. App. 141). 441, 443 
 Lasure v. Graniteville Mfg Co. (18 S. C. 
 
 275) 667 
 
 Latham t). Roach (72 BL 179) 666 
 
 Lathrop v. Amherst Bank (9 Mete. 489) 845 
 
 Latterett v. Cook (1 Iowa, 1) 810 
 
 Lauenstein v. Fond du Lac (28 Wis. 
 
 836) 190 
 
 Lauer v. Brandon (43 Wis. 566) 89 
 
 Laussatt v. Lippincott (6 S. & R. 386). 195 
 Lavassar v. Washbume (50 Wis. 200) . . 6S 
 Laverty u. Snethen (68 N. Y. 522) .476, 477 
 Law V. Cross (1 Black, 533) .... 118, 155, 164 
 
 V. Grant (37 Wis. 548) 743, 775 
 
 t>. Nunn (3Ga. 90) 561 
 
 V. Stokes (3 Vroom. 249) 274, 
 
 282, 839, 340, 342 
 Lawler v. Androscoggin R. R. Co. (62 
 
 Me. 403) 656, 668 
 
 Lawrence v. Fox (20 N. Y. 268) 667 
 
 V. Gullifer (38 Me. 532) 619 
 
 V. Hand (23 Miss. 103) 775 
 
 V. McArter (10 Ohio, 37) 61, 53 
 
 V. Stonington Bank (6 (jonn. 521). .. 614 
 
 V. Taylor (5 Hill. 107) 89, 
 
 92. 141, 167, 179, 702 
 
 Lawson v. Bettison (12 Ark. 401) 819 
 
 v Dickenson (8 Mod. 306) 862 
 
 Layiboarp v. Bryant (2 Bing. N. C. 785) 211 
 Lazarus v. Commonwealth Ins. Co. (5 
 
 Pick. 76) 756.931, 983 
 
 V. Shearer (2 Ala. 718) 441, 443, 558 
 
 Lea V. Bringier (19 La. Ann. 197) . 57 
 
 Leach v. Blow (8S. & M. 221) 436 
 
 V. Hannibal, &c., R. R. Co. (86 Mo. 
 
 27) 471 
 
 Leadbitter v. Farrow (3 M. & S. 345), 
 
 430, 4.35 
 
 Leake v. Sutherland (25 Ark. 219) 469, 
 
 530, 1023 
 
 Learned v. Tillotson (97 N. Y. 1) 163 
 
 Leary v. Boston & Albany R. R. (189 
 
 Mass. 580) 663 
 
 I..eatheiberry v. Odell (7 Fed. Rep. 641) 622 
 
 Leavitt v. Fisher (4 Duer. 1) 241 
 
 Lebanon Mut. Ins. Co. v. Hoover (113 
 
 Penn. St. 591) 931 
 
 SECTION 
 
 Lebanon Savings Bank v. HoUenbeek 
 
 (^9 Minn. 322) 721 
 
 Lecatt t). Sallee (3 Port. 11.5) 878 
 
 Le Clair v. Railroad Co. (20 Minn. 9). . . 660 
 Ledyard r. Hibbard (48 Mich. 421).... 485 
 
 Lee w. Adsit (37 N. Y. 78) 510 
 
 V. Clements (48 Ga. 128) 647, 648 
 
 V. Dixon (3 F. & F. 744) 824 
 
 v. Grimes (4 Col. 18.5) 811, 812 
 
 u Lee (6 G. & J. 316) 600 
 
 V. Mattliews (10 Ala. 682) 573. 574 
 
 V. Munroe (7 Cranch, 366) 292, 714 
 
 uTiaKes(7Md. 215) 355 
 
 V. West (48 Ga. 311) 113 
 
 Leeds v. Marme Ins. Co. (6 Wheat. 565) 762 
 
 Leekins v. Nordyke (06 Iowa, 471) 67, 
 
 9-53 972 
 
 Lees V. Nutall (2 M. & K. 819) 459i 460 
 
 V. Whitcomb (3 C. & P. 289) 211 
 
 Leese v. IMartin (L. R. 17 Eq. 224) 680 
 
 Leete v. Norton (43 Conn. 219) 96(5 
 
 Leggett V. N. J. Mfg Co. (1 Saxt. Ch. 
 
 541) 167 
 
 Lehigh Valley Coal Co. v. Jones (86 
 
 Penn. St. 4.32) 667 
 
 Lehigh Coal & Nav. Co. v. Mohr (83 
 
 Penn. St. 228) 2.52 
 
 Lehman Ex parte (59 Ala. 631) 870, 
 
 871. 873, 874 
 Lehman v. Pritchett (27 Cent. L. Jour. 
 
 380) 1008, 1009 
 
 Leigh V. Macauley (1 Y. & C. Ex. 260) . 586 
 V. Mobile, &c., R. R Co. (58 Ala. 
 
 165) 681 
 
 Lelghton v. Sargent (27 N. H. 460) 490, 
 
 494. 495, 496, 824 
 
 Leinkauf v. Morris (66 Ala. 400) 751 
 
 Leland v. Douglas (1 Wend. 490) 195, 
 
 485 990 
 
 Le Neve v. Le Neve (3 Atk. 648) .' 721 
 
 Lengsfleld v. Richardson (52 Miss. 443). 881 
 
 Lenox v. Grant (8 Mo. 254) 580 
 
 Leonard In re (12 Oreg. 93) 804 
 
 Leopold v.Sa Ikey (89 111. 420) 235, 640 
 
 Le Roy V. Beard (8 How. 451) 311, 
 
 315, 322, 484 
 Lerned v. Johns. (9 Allen, 419). 449, 696, 1042 
 
 Leslie V. Fischer (62 III. 118) 809, 810 
 
 Lessee of Clarke v. Courtney (5 Pet. 
 
 350) 425 
 
 Lessee of Wright v. Deklyne (1 Pet. 
 
 204) 895 
 
 Lester v. Jewett (12 Barb. 502) 21 1 
 
 V. Kinue (37 Conn. 9) 129 
 
 Lever v. Lever (1 Hill. Ch. 62) 533 
 
 Leverick v. Meigs (1 Cow. 645). 495. 520, 1014 
 
 Levi V. Booth (58 Md. 305) 335, 354, 786 
 
 V.Brooks (121 Mass. 501) 751 
 
 Levison v. Balfour (3t Fed Rep. 382)... 1(<09 
 
 Levy ». Brown (56 Miss. 83) 811 
 
 V. Brush (8 Abb. Pr., N. S. 431).... 791 
 
 V. Loeb (85 N. Y. 865) 936 
 
 V. Lord Herbert (7 Taunt. 314) 622 
 
 «. Pope (1 M. & M. 410) 883 
 
 V. Shurman (6 Ark. 182) 585 
 
 Lewis V. Atlas Mut. L. Insur. Co. (61 
 
 Mo. 534) 211, 628 
 
 V. Bourbon (12 Kans. 186) 287 
 
 V. Brehnie (33 Md. 412) 443. 520, 1014 
 
 V. Commissioners (12 Kans. 186) 278 
 
 V. Galena, &c., R. R. (40 111. 281). .. . 1035 
 
 t>. Gamage (1 Pick. 347) 820 
 
 V. Hillman (3 H. L. Cas. 607).. . .791. 878 
 V. Ingersoll (3 Abb. App Dec. 55). 186 
 V. Kerr (17 Iowa. 73) . . . 240. 244, 245, 246 
 V. Kinealy (2 Mo. App. 33).... 862, 869 
 
 V. Lee(3B. &. C. 291) 56 
 
 V. Mason (14 W. Rep. 719) 915, 922 
 
 V. Nicholpon (18 Q. B. 503) 549 
 
 ». Peck (10 Ala. 142) 515 
 
 r. Read (13 M. & W. a34) 128, 129
 
 TABLE OF CASES CITED. 
 
 Ixvii 
 
 SECTION 
 
 Lewis V. Shreveport (108 U. S. 282) 287 
 
 u Sumner (13 Mete. 269) 811, 812 
 
 v.TiltOii(04 Iowa, 2,10) 72 
 
 V. Trickev (20 Barb. 387) 601 
 
 V. Tyler e2i Cal. 364) 674 
 
 «. Wells (50 Ala. 198) 250 
 
 Liddlev. Neeilham (39 Mich. 147) 211 
 
 Lienkauf v. Morris (66 Ala. 406) 751 
 
 Life Ins. Co. V. Masten (3 Fed. Rep. 881) 89 
 Liiieuthal v. Campbell (22 La. Anu. 600) 
 
 580, 588 
 
 Lillle V. Hoyt (5 Hill. 395) 530, 531, 833 
 
 Lilliman v. Wing (7 Hill. 159) 565 
 
 Lilly V. Waggoner (27 111. 395) 48 
 
 Lime Rock Bank v. Plimpton (17 Pick. 
 
 159) 781, 1044 
 
 Linblom v. Ramsey (75 111. 246) 714 
 
 Lincoln v. Battelle (6 Wend. 475) 728 
 
 V. Chapin (132 Mass. 470) 586 
 
 V. Emerson (108 Mass. 87) 240, 244 
 
 V. McClatchie (3tj Conn. 136) 966 
 
 Lindreth v. Litchfield (27 Fed. Rep. 894) 149 
 Lindsay v. Singer Mfg Co. (4 Mo. App. 
 
 570» .:. 749 
 
 Lindus V. Melrose (2 H. A N. 293) 436 
 
 Liness v. Hessing (44 111. 113) 28 
 
 Linyke v. Wilkinson (57 N. Y. 451) 7'Jl 
 
 Liiigwood V. Bade (2 Atk. 501) 188 
 
 Linn Boyd Tobacco Co. v. Terrill (13 
 
 Bush. 463) 893 
 
 Linton v. Smith (8 Gray, 147) 747 
 
 Liotard v. Graves (3 Caines, 226). . .481, 
 
 942, 1016 
 
 Lipe V. Ludew4ck (14 111. App. 372) 966 
 
 l.iFter r. Allen (31 Md. 543) 279 
 
 Litchfield v. kegister (9 Wall. 575) 592 
 
 Litkau. Wilcox (39 Mich. 94) 41 
 
 Little V. Dawson (4 Dall. Ill) 600 
 
 r. Fossett (34 Me. 545) 765 
 
 V. Moore (4 N. J. 74) 680 
 
 V. Newton (2 Scott N. R. 509) 188 
 
 V. Phoenix Ins. Co. (123 Mass. 380). 931 
 
 V. Rees (34 Minn. 277) . 971 
 
 Little Miami R. R. Co. v. Wetmore (19 
 
 Ohio St. 110) 741 
 
 Little Rock, &c. R. R. Co. v. Leverett 
 
 (3S. W. R-p. 58) 715 
 
 u. Eubanks (3 S. W. Rep. 808> 671 
 
 Livermore v. Aldrich (5 Cush. 431) 4.59 
 
 Livezy v. Miller (61 JId. 336) 966, 969 
 
 Livings V. Wiler (32 111. 387) 116 
 
 Livingston v. Ackeston (5 Cow. 531). . . 600 
 
 V. Cox (6 Penn. St. 360) 826, 831 
 
 Lloyd V. Brewster (4 Paige, 537) 151 
 
 V. Colston (5 Bush. 587) 643 
 
 V. Matthews (51 N. Y. 125) 967, 969 
 
 Lobdell V. Baker (1 Mete. 193) 6, 279, 
 
 714, 1046 
 
 Locke V. Alexander (2 Hawk. 155) 421 
 
 V. Lewis (124 Mass. 1) 1042, 1043 
 
 V. Stearns (1 Mete. 560) 739, 743 
 
 Lockett V. Baxter (19 Pac. Rep. 23). . . . 1009 
 
 Lockhart v. Wyatt (10 Ala. 231) . . . .378, 813 
 Lockwood V. Levick (8 C. B. N. S. 603) 
 
 598, 613 
 Logan County Bank v. Townsend (3 S. 
 
 W. Rep. 122) 149 
 
 Londegan v. Hammer (30 Iowa, 508) ... 580 
 
 Long V. Colburn (11 Mass. 97).. 432. 549, 550 
 
 V. Hartwell (5 Vroom, 116) . . .93, 95, 414 
 
 V. Pool (68 N. C. 479) 315 
 
 Longmeld v. HoUiday (6 Eng. L, & Eq. 
 
 761) 666 
 
 Longworth v. Conwell (2 Blackf. 469) . . 224 
 
 Loomis V. Barker (69 111. 360).. 784, 789, 1044 
 
 1). Simpson (13 Iowa, 532) 185, 998 
 
 Loon. The (7 Blatch. 244) 717 
 
 Loop V. Litchfield (42 N. Y. 351) . 666 
 
 Loraine v. Cartwright (3 Wash. 151) 
 
 815, 484 
 
 Lord V. Burbank (18 Me. 178) 819 
 
 SECTION 
 
 Lord V. Jones (24 Me. 439) 674 
 
 V. Oconto (47 Wis. 380) 190 
 
 Lorie v. North Chicago City Ry Co. (32 
 
 Fi-d. Rep. 270; 1.^,5 
 
 Loring v. Bi-odie (134 Mass. 453). . . .723, 786 
 
 Losee V. Clute (51 N. Y. 494) 666 
 
 Louisiana State Banu; v. Seuecal (13 
 
 La. 525) 729 
 
 Loiiisiaua Nat. Bank v. Laveille (52 Mo. 
 
 , . 380) 717 
 
 LOUIS' ille Coffin Co. v. Stokes (78 Ala. 
 
 "72) 62, 63 
 
 Louisville, &c. R. R. Co. v. Blair (4 
 
 Baxt. 407) 749 
 
 «. Collins (2 Duv. 114) 667 
 
 V. McVay (98 lad. 391) 167 
 
 V. Orr (84 Ind. 50) 659 
 
 Louk r. Woods U5 111 256) 78 
 
 Loutlier V. Carlton (2 Atk. 242) 722 
 
 Love I'. Miller (53 Ind 294> ... 612, 966, 967 
 Lovell V. Howell (L. R. 1 C. P. D. 161).. 668 
 
 V. Williams (125 Mass. 439) 86 
 
 Lovett V. Brown (40 N. H. 511) 675, 654, 865 
 
 Lovill V. Hawk (1 Id. IGl) 668 
 
 Low V. Conn. &c. R R. Co. (46 N. H. 
 
 284) 148 
 
 V. Perkins (10 Vt. 532) 77 
 
 V. Settle (22 W. Va. 387) 809, 810 
 
 Lowell u. Moise (1 Mhic. 475) 75.^ 
 
 Lowery v. Stewart (25 N. Y. 239) ! 1049 
 
 Lowry v. Erwin (6 Kob. 192) 585 
 
 V. Harris (12 Minn. 2.')5) 167, 490 
 
 Lowther v. Carlton (2 Atk. 242) 722 
 
 V. Earl of Radnor (8 East. 113). .580, 587 
 Luby V. Hudson River R. R. Co. (17 N 
 
 Y. 131) 715 
 
 Lucas V. Allen (80 Ky. 681) 34 
 
 V. Bank of D.arien (2 Stew. 321)..,. 723 
 
 V. Godwin (3 Bing. N. C. 737) 601 
 
 u Peacock (9 Bear. 177) 870 
 
 V. Pico (55 Cal. 126) 34 
 
 Lucena r. Crawford (2 B. & P. N. B 
 
 ^'30) 100.T 
 
 Ludwig V. Gillespie (105 N. Y. 6,53). 755, 757 
 Luf burrow v. Henderson (30 Ga. 482) . . 648 
 
 Lufkinv. Mayall (25 N. H. 82) 59 
 
 Luke V. Grigg (30 N. W. Rep. 170) 332 
 
 Lunibard v. Aldrich (8 N. H. .31) 318 
 
 Lumleyu Corbett (18 Cal. 494) 33.S 
 
 V. Gye (2 El. & Bl. 216) 793 
 
 Lumpkin v. Wilson (5 Heisk. 555).. 325, 
 
 326, 997 
 
 Lund i'. Seaman's Bank (37 Id. 129) 527 
 
 V. Tyngsborough (9 Cush. 36) 715 
 
 Luning v. Wise (64 Cal. 410) 393 
 
 Lupton V. White (15 Ves. Jr. 432) 469 
 
 Luske r. Hotchkiss (37 Conn. 219) 646 
 
 Luthrell v. Hazen (3 Sneed. 20).. ..7-35, 736 
 
 Lutz V. Linthicura (8 Pet. 163) 419, 421 
 
 Lycoming Fire Ins. Co. v. Jackson (S3 
 
 III. 302) .. 931 
 
 Lyell V. Sanbourne (2 Mich. 109) 84 
 
 Lyle V. Murray (4 Sandf. 590) 530, 1023 
 
 Lyman v. Norwich University (28 Vt. 
 
 560) 149 
 
 V.White River Bridgo Co. (2 Aik. 
 
 255) 44 
 
 Lynch v. Coel (12 L. T. 548) 813 
 
 V. Commonwealth (16 S. & R. .368) 
 
 81 fi, 8i0, 839 
 V. Fallon (11 R. I. 311). . . .66, 67, 643, 
 
 953, 972 
 
 V. Jennings (43 Ind. 276) 533 
 
 V. Jlercantile Trust Co. (18 Fed. 
 
 Rep. 486) 74.3, 744 
 
 Lyndeborough Glass Co. v. Massachu- 
 setts Glass Co. (Ill Mass. 315). . 
 
 118. 121 
 Lyne v. Bank of Kentucky (5 J. J. 
 
 Mar. 545) 729 
 
 Lynn v. Burgoyne (13 B. Mon. 400) 195
 
 Ixviii 
 
 TABLE OF CASES CITED. 
 
 SECTION 
 
 Lyon V. Culbertson (83 111. 33). .85, 485, 989 
 
 V. Jerome (26 Wend. 485). . ..41, 185, 189 
 
 V. Kent (45 Ala. 656) 57, 60 
 
 V. Mitchell (36 N. Y. 235).... 24, 953, 974 
 
 V. Pollock (99 U. S. 668) 92, 318 
 
 V. Simpson (12 Daly, 58) 745 
 
 V. Williams (5 Gray, 557) 448, 957 
 
 Lyons v. Miller (6 Gratt. 427) 929 
 
 M. 
 
 Maanss v. Henderson (1 East, 835) 693 
 
 Macbeath v. Haldunand (1 T. R. 172). .. 559 
 Macfarlane v. Qiannacopulo (3 Hurl. & 
 
 Nor. 859) 698 
 
 Macgnider v. Peter (4 Gill. & J. 323). . . 321 
 
 Machette v. Wanless (2 Colo. 169) 883 
 
 Mackw. Bragg(30 Vt. 571) 635 
 
 Mackay v. Bloodgood (9 Johns, 285).. . 96 
 
 Mackenzie v. Scott (6 Bro. P. C. 280). . . 620 
 Mackersy v. Ramsays (9 Clark & F. 
 
 818) 514 
 
 Mackey v. Adair (99 Penn. St. 143) 813 
 
 V. Dillenger (73 Penn . St. 85) 995 
 
 Macklot V. Davenport (17 Iowa, 379) ... 588 
 
 Maclure, Ex parte (L. R. 5 Ch. 737) .... 211 
 
 Madden v. Kempster (1 Camp. 12) 677 
 
 Maddox v. Brown (71 Me. 432) 737, 738 
 
 Maddux v. Bevan (30 Md. 485) . . 150, 164, 813 
 
 Madry v. Newman (1 C. M. & R. 402). . . 832 
 
 Magee v. Atkinson (2 M. & W. 440). 5.58, 769 
 Magill V. Hinsdale (6 Conn. 464a). . .421, 
 
 423, 446 
 
 Maguire v. Dinsmore (62 N. Y. 35) 474 
 
 t). Hughes (13 La. Ann. 281) 586 
 
 Mahood v. Tealza (26 La. Ann. 108). . . . 39 
 
 Maine Stage Co. v. Longley (14 Me. 444) 97 
 Maitland v. Martin (86 Penn. St. 120) . . . 
 
 652, 977, 1031 
 Makepeace v. Rogers (4 De Q. J. & S. 
 
 649) 528, 534 
 
 Malir. Lord (39 N. Y. 381) 740 
 
 Mallough V. Barber (4 Camp. 150) 510 
 
 Malone v. Hathaway (64 N. Y. 5).. 664, 
 
 665, 668 
 
 V. Hawley (46 Cal. 409) 659, 666 
 
 V. Morton (84 Mo. 4:^6) 576 
 
 Maltby v. Christie (1 Esp. 340) 908 
 
 Man V. Given (23 Me, 55) 98 
 
 V. Shiffner (2 East. 523) 693 
 
 Manby v. Scott (1 Mod. 125) 62 
 
 Manchester Bank v. Fellows (28 N. H. 
 
 302) 808, 810 
 
 Mandeville v. Guernsey (38 Barb. 225).. 883 
 
 V. Reynolds (68 N. Y. 528) 813, 819 
 
 V. Welch (5 Wheat. 277) 533 
 
 Mangold v. Thorpe (33 N. J. 134> 580 
 
 Manhall v. Hahn (17 N. J. L. 435)... 647, 648 
 Manhattan Life Ins. Co. v. Warrick (20 
 
 Gratt,614) 269 
 
 V. Weill (2S Gratt, 389) 931 
 
 Manley V. Headley (10 Kan. 88) 812 
 
 Mann v. Chandler (9 Mass. 335) 436 
 
 V. Forrester (4 Camp. 60) 693 
 
 V. Oriental Print Works (11 R. L 
 
 152) 667 
 
 V. Robinson (19 W. Va. 49) 824, 326 
 
 Manning v. Gasharie (27 Ind. 399).... 6, 129 
 
 V. Hallenbeck (27 Wis. 202) 677 
 
 V. Keenan (73 N. Y. 45) 784 
 
 Manning v. Young (28 N. J. Eq. 568) . . . 745 
 
 Mansell v. Clements (L. R. 9 C. P. 139). 966 
 Mansfield Coal Co. v. McEnery (91 
 
 Penn. St. 185) 670 
 
 V. Dorland (2 Cal. 507) 869, 870 
 
 V. Mansfield (6 Conn. 559) 205 
 
 V. Wilkerson (26 Iowa, 482) 833 
 
 Manufacturing Co. v. Morrissey (40 
 
 Ohio St. 148) 660, 661, 670 
 
 Maple V. Railroad Co. (40 Ohio St. 313) 
 
 699. 752 
 
 sacTio?* 
 
 Mapp V. Phillips (32 Ga. 73) 100, 123 
 
 Marbourg v. Smith (11 Kans. 554) 813 
 
 Mardis v. Shackleford (4 Ala. 493). .824, &35 
 
 Marfield v. Goodhue (3 N. Y. 6^') 1009 
 
 Marine Bank v. Wright (48 N. Y. 1) 1035 
 
 Marine Co. v. Carver (42 111. 66) 135 
 
 Marizou v. Pioche (8 Cal. 523) 306 
 
 Market Co. v. Jackson (102 Penn. St. 
 
 269) 9.37 
 
 Markey v. Adair (99 Penn. St. 143) 813 
 
 Markham v. Jaudon (41 N. Y. 256).. 936, 
 
 945, 1009 
 
 Markley v. Quay (14 Phila. 164) 448 
 
 Marland v. Stanwood (101 Mass. 470) . . . 415 
 
 Marlett v. Jackman (3 Allen, 287) 240 
 
 Marquette & Ontonagon R. R. Co. v. 
 
 Taft (28 Mich. 289) 396 
 
 Marseilles Extension Ry In re (L. R. 7 
 
 Ch. Ap. 161) 723, 730 
 
 Marr v. Given (23 Me. 55) . . .98, 295, 318, 321 
 
 Marsfield v. Goodhue (3 N. Y. 72) 1016 
 
 Marsh v. Chickering (101 N. Y. 356) .... 661 
 
 V. Fulton County (10 Wall. 676) 126 
 
 t>. Gilbert (4 Thomp. & C. 259) 234 
 
 V. Jelf (3 Fost. & F. 2.34) 902 
 
 V. South Carolina R. R. Co. (56 Ga. 
 
 274) 737 
 
 V. Whitmore (21 Wall. 178) 68, 
 
 164. 315, 461, 464, 825 
 Marshall v. Baltimore & Ohio R. R. Co. 
 
 (16 How. 314) 20,32, 645 
 
 V. Cooper (43 Md. 46) 86» 
 
 t>. Hann (17 N. J. L. 425) 647 
 
 V. Haney (4 Md. 498) 714 
 
 V. Meech (51 N. Y . 143 > 869, 871, 873 
 
 V. Parsons (9 C. & P. 656) 64« 
 
 V. Rutton(8T. R. 545) 56 
 
 V. Schricker (63 Mo. 308) 668 
 
 V. Williams (2 Biss. 255) 164 
 
 Marston v. Gould (69 N. Y. 226) 936 
 
 Martin «. Al mond (25 Mo. 313) 425 
 
 V. Clarke (8 R. L 389) 845 
 
 V. Cole (104 U. S. 30) 441 
 
 V. Flowers (8 Leigh. 158) 419 
 
 V. Harrington (57 Miss. 208) 869, 872 
 
 V. Jackson (3 Casey, 508) 721 
 
 V. Jackson (27 Penn. St 504) 723 
 
 r. Maynard (16 N. H. 166) 486 
 
 V. Moulton (8 N. H 504) 936 
 
 V. Pope (6 Ala. 533) 1029, 1033 
 
 V. Rector (101 N. Y. 77) 62 
 
 V. Schoenberger (8 W . & 8. 367) . . . . 635 
 
 V. Smith (58 N. Y. 672) 677 
 
 V. Smith (3 South Rep. 33) 441, 443 
 
 V. United States (2 T. B. Monr. 89). 375 
 
 V. Wade (37 Cal. 168) 30 
 
 Martindale V. Falkner (3 C B. 706).... 858 
 Martine v. International L. Ins. Soci- 
 ety (53 N. Y. 339) 251 
 
 Martini u. Colesd M. & S. 147) 756 
 
 Marvel v. Manouvrier (14 La. Ann. 3).. 810 
 
 Marvin v. Elwood (11 Paige, 365)... 525, 1023 
 
 V. Muller (25 Hun, 163) 667 
 
 Marye v. Strouse (5 Fed. Rep. 483) 936 
 
 Maryland Fire Ins Co. v. Dalrymple 
 
 (25 Md. 242) 936, 953 
 
 Mason r. Bauman (62 111. 76) 461, 795 
 
 u Decker (72 N. Y. 59.5) 211 
 
 V. Whitthorne (2 Cold. 242) 520 
 
 Massachusetts Life Ins. Co. v. Eshel- 
 
 man (30 Ohio St. 647) 287 
 
 Massey t>. Taylor (5 ('old. 447) 619 
 
 Massio V. Watts (10 U. S. 148) 459 
 
 Mast-rton v. Le Claire (4 Minn. 163).. . 813 
 
 Mastin v. Gray (19 Kan. 458) 810 
 
 M.itherv. Phelps (2 Root, 150) 714 
 
 Mathews v. Hamilton (23 111. 470) 120 
 
 Mathias v. Sellers (86 Penn. St. 486),680, 684 
 Mathiesson, &c. Co. v. McMahon (38 N. 
 
 J. L. 537) 254, 255. 256, 257 
 
 Matter of Goodell (39 Wis. 232) 804
 
 TABLE OF OASES CITED. 
 
 Ixix 
 
 BKOTION 
 
 Matterof H. (93 N. Y. 381) 875 
 
 Matter of Hall (50 Conn. 131) 804 
 
 Matter of Mosness (39 Wis. 509) . 803, 804, 888 
 
 Matter of O'Neill (90 N. Y. 584 ) 804 
 
 Matterson v. Blackmer (46 Mich 393).. 86 
 
 Matthews v. Alexandria (68 Mo. 115).. 190 
 
 uFuller(123 Mass. 446) 164 
 
 V. Hamilton (23 111. 470) 375 
 
 t). Jenkins (80 Va. 463) 447 
 
 V. Light (32 Me. 305). . . 457, 459, 461, 468 
 ti. Menedger (8 McLean, 145).. 1032, 1037 
 
 V. Sowle (12 Neb. 398) 319 
 
 V. Wilson (27 Mo. 155) 628 
 
 Mauney v. Ingram (78 N. C. 96) 674 
 
 Mauri v. HefEerman (13 Johns. N. Y. 
 
 58> ^68 
 
 Maury v. Ranger (38 La. Ann. 485). 556, 1051 
 
 Maus v. Worthing (3 Scam. 26) 93 
 
 Maxey v. Heckethorn (41 111. 438) 100 
 
 Maxham v. Place (46 Vt. 434) 881 
 
 Maxwell v. Bar City Bridge Co. (41 
 
 Mich. 453) 190 
 
 V. Pike (2Me.8) 590 
 
 May V. Bliss (2:i Vt. 477) 735, 786 
 
 V. Buckeye Mat. Ins. C3o. (25 Wis. 
 
 291).: 931 
 
 W.Hewitt (3 Ala. 161) 441, 443 
 
 V. Mitchell (5 Humph. Tenn. 365) . . 353 
 
 Mayard v. Briggs (26 Vt. 94) 852 
 
 May berry v. Leech (58 Ala. 339) &48 
 
 Mayerv Blease (4 S. C. 10) 813 
 
 V. McLure (36 Miss. 389) 776 
 
 May hew v. Forrester (5 Id. 615) 931 
 
 V. Graham (4 Gill. 363) 696 
 
 V. Phoenix Ins. Co. (23 Mich. 105). 743 
 
 V. Prince (11 Mass. 54) 435 
 
 Maynard v. Pease (99 Mass. 555) 1009 
 
 Mayor, &c., of Baltimore v. Eschback 
 
 (18Md. 282) 291, 292 
 
 V. Reynolds (20 Md. 1) 291 
 
 Mayor of Macon v. Huff (60 Ga. 228) . . 463 
 Mayton v. Texas & Pacific R. R. Co. 
 
 (63Tex.77) 669 
 
 McAfiferty v. Hale (24 Iowa. 356) 637 
 
 McAlexander v. Wright (3 T. B. Mon. 
 
 189) 808, 810 
 
 McAlpine v. Cassidy (17 Tex. 449) 85, 
 
 308, 311. 312, 348 
 
 McAndrews v. Burns (39 N. J. L. 117) . . 667 
 
 McArthurv. Slauson (53 Wis. 41). ... 966 
 
 McBain v. Seligman (58 Mich. 294) .... 63 
 
 McBratney v. Chandler (22 Kan. 692) . . 23 
 
 V. Railroad Co. (17 Hun, 385) 846 
 
 V. Rome, &c., R. R Co. (87 N. Y. 
 
 467) 811 
 
 McBride v. Farmers' Bank (26 N. Y. 
 
 450) 519 
 
 BlcCafferty v. Spuyten Duyvil, &c.. R. 
 
 R. Co. (61 N. Y. 178) . . . .666, 747, 748 
 
 JTcCain v. Portes (42 Ark. 402) 8B9 
 
 McCall V. Cohen (16 S. Car. 445) . . . .580, 586 
 
 McCanns. McLennan (3 Neb. 25) 811 
 
 McCants v. Bee (1 McCord. Ch. 383) .... 129 
 
 V. Wells (3 S. C. 569) 197, 1006, 1026 
 
 McCarthy v. Cavers (66 Iowa, 342) .... 966 
 
 V. Guild (12 Mete. 291) 795 
 
 V. Hampton (61 Iowa, 282) 600 
 
 V. Mayor (96 N. Y. 1) 646 
 
 V. Second Parish (71 Me. 318). . .747, 748 
 
 McCarty v. Bauer (3 Kan. 237) 590 
 
 McCarver v. Nealey (1 Q. Greene, 360). 875, 
 
 818, 819 
 
 McClain v. Davis (77 Ind. 419) 50 
 
 McClave v. Paine (49 N. Y. 561) 96ti, 
 
 967, 969 
 
 McClay v. Hedge (18 Iowa, 66) 637 
 
 McCIellan v. Parker (27 Mo. 162) 654 
 
 V. Reynolds (49 Mo. 312) Ill, 443 
 
 V. Robe (93 Ind. 298) 4;38 
 
 McClenticks v. Bryant (1 Mo. 598) 426 
 
 McClung V. Spotswood (19 Ala. 165) .... 100 
 
 BKCTION 
 
 McClure v. Briggs (58 Vt. 82) 130 
 
 V. Colclough (5 Ala. 65) 820 
 
 V. Evartson (14 Lea, 495) 152, 382 
 
 V. Herring (70 Mo. 18) 419, 423 
 
 McComb V. Railroad Co. (70 N. C. 178). 714 
 
 V. Wright (4 Johns. Ch. 667) . 89, 554, 893 
 
 McCombie v. Davies (6 East. 638) 574, 
 
 693 994 
 McConnico v. Curzen (2 Call. 358).. 990,' 10^0 
 
 McCormick v. Bush (38 Tex. 314) 186 
 
 V. Demary (10 Neb. 515) 215. 714 
 
 V. Grogan (4 E. & I. App., L. R. 97) 459 
 
 V. Keith (8 Nt^b. 143) 854, 375 
 
 V. Kelly (28 Minn. 135) 349 
 
 t>. Littler (85 III. 62) 48 
 
 t». Malin(5 Blackf. 509) 466 
 
 V. Roberts (36 Kans. 552) 100 
 
 V. Wheeler (30 111. 114) 721, 722 , 
 
 V. Wood, &c., Co. (72 Ind. 518) 375 
 
 McCosker v. Long Island R. R. (84 N. 
 
 Y. 77) 667 
 
 McCoy V. McKowan (26 Miss. 487) 287 
 
 McCracken v. San Francisco (16 Cal. 
 
 6-^3) 112. 117,126,137, 168 
 
 McCrary v. Ruddick (33 Iowa. 521). 601, 605 
 
 McCreary u Gaines (55 Tex. 485) . . 786, 994 
 
 McCreery v. Green (38 Mich. 172) 966 
 
 McCulloch V. McKee (16 Penn. St. 289). 375 
 
 McCuUough V. Flournoy (69 Ala. 189).. 872 
 
 V. Moss (5 Den. 567) 391, 398 
 
 V. Thompson (45 N. Y. 449). . . .1048, 1049 
 Mc(Jullough Iron Co. v. Carpenter (11 
 
 Atl. Rep. 176) 212 
 
 McCurdy v. Rogeis (21 Wis. 197) 545, 
 
 546,547, 550 
 
 McCutcheon v. People (69 111. 601) 746 
 
 McDaniel v. Tebbetts (60 N. H. 497) .... 588 
 McDaniels v. Flower Brook Mnfg Co. 
 
 (22Vt.274) 425 
 
 McDermid v. Cotton (2 Bl. App. 297). . . 155 
 
 McDermott v. Boston (133 Mass. 349) . . 667 
 
 V. Clary (107 Mass. 501) 810 
 
 V. Hannibal, &c. R. R. Co. (73 Mo. 
 
 516) 714, 715 
 
 McDonald v. Bennett (45 la. 456) 674 
 
 V. Bewick (51 Mich. 79) 211 
 
 V. Blark (20 Ohio, 185) 240, 244 
 
 V. Manufacturing Co. (67 Ga. 761) . . 668 
 
 V. Napier (14 Ga. 89) 561, 863, 870 
 
 V. Simpson (4 Ark. 523) 496 
 
 V. Smith (^7 Vt. 502) 878 
 
 McDonough v. O'Neil (113 Mass. 92)457, 459 
 
 McDougald V. Dawson (30 Ala. 553) .... 100 
 
 McDowell V. McKinzee (65 Ga. 630). . . . 150 
 
 V. Simpson (3 Watts. Penn. 129» 137, 144 
 McElhinney v. Kline (6 Mo. App. 94) 
 
 854, 856 
 
 McEwen v. Mazyck (3 Rich. 210) 815 
 
 McFarland v. McClees (5 Atl. Rep. 50) 
 
 496, 509 
 
 V. Crary (8 Cow. 253) 831 
 
 V. Wheeler (26 Wend. 467). . . . 676, 678 
 
 McGavock v. Woodlief (20 How. 221) . . . 966 
 
 McGee v. Lam more (50 Mo. 4~'5) 448 
 
 McGill V. Burnett (7 J. J. Marsh, 640). . . 32 
 
 JIcGlynu v. Brodie (31 Cal 376) . . . .659, 670 
 
 McGoldreck v. Willits (52 N. Y. 612) 80, 784 
 
 McGowan v. McGowan (14 Gray, 119).. 459 
 
 V. McGowan (48 Miss. 553) 463 
 
 V. St. Louis, &c. R. R. Co. (61 Mo. 
 
 528) 576 
 
 McGrafl v. Rugee (60 Wis. 406). . . .1032, 1033 
 
 McGrath v. Bell (33 N.Y. Super. Ct. 195) 639 
 
 McGregor v. Comstock (28 N. Y. 237) . . 873 
 
 V. Gardner (14 Iowa, 326) 204 
 
 McGriff V. Porter (5 Fla 373). . .240, 242, 344 
 
 McGuire v. Corwine (101 U. S. 108) .... 29 
 
 McHany v. Schenck (88 111. 357) 876 
 
 McHenry v. Duffleld (7 Blackf. 41) 550 
 
 McHugh V. Schuylkill Co. (67 Penn. St. 
 
 891) 116
 
 Ixx 
 
 TABLE OF CASES CITED. 
 
 SECTION 
 
 Mclntyre v. Carver (2 W. & S. 393) 673, 
 
 676, 684 
 
 V. Park (11 Gray, 102) 138, 139, lfi7 
 
 V. Preston (5 Gil. 48) 439 
 
 McKee v. Cheney (52 How. Pr. 144). ... 22 
 
 V. Kent (24 Miss. 131) 61 
 
 McKenzie v. British Linen Co. (6 App. 
 
 Cas.82) 116 
 
 V. Neviua (22 Me. 138) 634, 685, 693, 
 
 980, 1033 
 
 McKierman v. Patrick (4 How. 333) .... 810 
 McKindley v. Dunham (55 Wis. 515) 339, 
 
 340, 842 
 McKinley v. Chicago, &c. Ry Co. (44 
 
 Iowa, 314) 740, 741 
 
 V. Irvine (13 Ala. 681) 461 
 
 V. McGreg or (3 Whart. 369) 62 
 
 McKinster v. Bank of Utica (9 Wend. 
 
 46) 511 
 
 McLachlin v. Brett (105 N. Y. 391) 774 
 
 McLaren v. Hall (26 Iowa. 297) 56, 63 
 
 McLaughlin v. Gilmore (1 111. App. 563) 884 
 
 McLean v. Dunn (4 Bing. 722) 146. 179 
 
 V. Mining Co. (51 Cal. 255) 668 
 
 McLellan v. Longfellow (32 Me. 494) ... 884 
 
 V. Reynolds (49 Mo. 312) 441, 443 
 
 McLeod V. Evans (66 Wis. 401) 536, 537 
 
 McLeran v. McNararus (55 Cal. 508) ... 812 
 
 McLure v. Evartson (14 Lea, 495) 382 
 
 McMahan v. McMahan (13 Penn. St. 
 
 376) 167, 168 
 
 MoMahon v. McGraw (26 Wis. 614) 457, 
 
 459, 488 
 
 V. Sloan (12 Penn. St. 229) 785, 786 
 
 V. Smith (47 Conn. 221) 27 
 
 McManus v. Crickett (1 East, 106) . .740, 741 
 McMasters v. Pennsylvania R. R. Co. 
 
 (67Penn. St. 378) 281 
 
 McMechan v. Baltimore (3 Har. & J. 
 
 534) 892 
 
 McMillan v. Vanderlip (12 Johns. 165) 
 
 635, 636 
 
 McMlnn v. Richtmyer (3 Hill, 2S6) 386 
 
 McMorris v.Simpson (21 W<>nd.610), 477, 998 
 
 McMuiry v. Mobley (89 Ark. 309) 457 
 
 McMurtry v. Brown (6 Neb a6S) 93, 96 
 
 V. Frank (4 T. B. Monr, 39) 93 
 
 McNamara v. McNamara (62 Ga. 200). 87 
 
 McNaughten v. Partridge (11 Ohio 223) 93 
 
 McNaughton v. Moore (1 Hay w. 189) . . 247 
 McNeU V. The Tenth National Bank (46 
 
 N. Y. 325) 786,787, 788 
 
 McNeilly v. Continental L. Ins. Co. (66 
 
 N. Y. 23) 224 
 
 McNevins u Lowe (40 111. 210) 498, 829 
 
 Mcpherson v. Cox (86 N. Y. 472) 812 
 
 V. Cox (96 U. S. 404) 862, 845 
 
 V. NeufEtT (1 1 Rich. 267) 1037 
 
 McReady v. (luardians of the Poor (9 
 
 S. &R. 94) 78 
 
 McWilliams v. Detroit Mills Co. (31 
 
 Mich. 275) 64 
 
 McWhorter v. McMahon (10 Paige, 386) 89 
 
 McWilliams v. Jenkins (72 Ala. 480) 870, 872 
 
 Meacham v. Dudley (6 Wend. 515) 810 
 
 Mead V. Engs (5 Cow. 303) 511 
 
 V. Spalding (12 West. Rep. 405) 63 
 
 Meade v. Rutledge (1 1 Tex. 44) 622 
 
 Means V. Swormsteclt (32 Ind. 87) 436 
 
 Meany v. Head (1 Mason, 819) 675, 865 
 
 Meara's Admr. v. Holbrook(20Ohio St. 
 
 1.37) 664, 665 
 
 Mechanics' Bank v. Bank of Columbia 
 
 (5 Wheat, 326) . . 441 , 442, 4 A 449, 769 
 
 V. Merchants' Bank (6 Mete. 13)315, 512 
 V. New York, &c. R. R. Co. (13 N. 
 
 Y. 632) 284 
 
 V. Schaumburg (38 Mo. 288) 301, 308, 392 
 
 V. White Lead Co. (35 N. Y. 505). ... 439 
 Mechanics', &c. Bank v. Farmers', &c. 
 
 Bank (60 N. Y. 40) 765 
 
 SECTION 
 
 Medway Cotton Manufactory «. Adams 
 
 (10 Mass. 360) 753 
 
 Meech v Smith (7 Wend. N. Y. 315). ... 550 
 
 Meeker v. Claghorn (44 N. Y. 349). .558, 696 
 
 V. Hurd (31 Vt. 642) 651 
 
 Megary v. Funtis (5 Sandf. 376) 373 
 
 Meifrgs v. Meiggs (15 Hun, 453) 784 
 
 Meister v. Cleveland Dryer Co. (11 III. 
 
 App. 227) 155 
 
 Melledge v. Boston Iron Co. (6 Cush. 
 
 158) 158 
 
 Mellen v. Moore (68 Me. 390) 438, 442 
 
 Mellishu. Bell (15 East. 4) 756 
 
 Melville v. Lamar Ins. Co. (80 111. 446). . 376 
 V. Missouri River, &c., R. R. (4 Mc- 
 
 Crary, 194) 667 
 
 Memphis, &c., R. R. Co. v. Maples (63 
 
 Ala. 601) 714 
 
 Menkinsu Lightner (18 111. 282) 47 
 
 Menvill's Case (13 Co. 19) 750 
 
 Menzies v. Rodrigues (1 Price. Exch. 
 
 92) 854 
 
 Mercantile Ins. Co. v. Hope Ins. Co. (8 
 
 Mo. App. 408) 798 
 
 Merchants' Bank v. Central Bank (1 
 
 Ga. 418) 219. 391, 417, 445, 446 
 
 V. Stafiford Bank (44 Conn. 565) .... 511 
 
 V. State Bank (10 Wall. 604) 717 
 
 Merchants' Dispatch Transp. Co. (59 
 
 N. Y. 258) 484 
 
 Merchants, &c.. Bank v. Farmers, &c.. 
 
 Bank (60 N. Y. 43) 1036 
 
 Merchants, &c., Transp. Co. v. Leysor 
 
 (89111.43) 714 
 
 Merchants' National Bank u. Goodman 
 
 (109 Penn. St 422) 614 
 
 V. Trenholm (12 Heisk. 520) 994, 998 
 
 Mercier v. Copelan (73 Ga. 638) 130 
 
 V. Hemme(50 Cal. 606) 686 
 
 Meredith v. Crawford (34 Ind. 399) 651 
 
 Merle v. Andrews (4 Tex. 200) 633 
 
 Me rriam v. Wolcott (3 A lien, 260) 929 
 
 Merrick's Estate (5 W. &S., P. 9).. 769, 1043 
 
 Merrick's Estate (8 W. & S., P. 402). ... 249 
 
 Merrill v. Bank of Norfolk (19 Pick. 32) 539 
 
 V. Farmers, &c., Co. (24 Hun, 300). . 189 
 
 V. Kenyon (48 Conn. 314) 696, 699 
 
 t). Trust Co. (24 Hun, 300) 41 
 
 V. Wilson (6 Ind. 426) 554 
 
 Merry v. Lynch (68 Me. 94) 240, 241 
 
 Merryman v. David (31 111. 404) 461, 470 
 
 V. Euler(59Ind. 588) 878 
 
 Mervin u. Lewis (90 111. 505) 250 
 
 Metcalf V. Denson (4 J. Baxt. 565) 564 
 
 V. Williams (104 U. S. 98) . . .441, 442, 443 
 
 Methuen Co. v. Hayes (83 Me. 169) 9 
 
 Meuser v. Risdon (36 Cal. 239) 190 
 
 Meyer v. Atkins (29 La. Ann. 586) 221 
 
 V. Baldwin (52 Mass. 2H3) 129, 396 
 
 V. Barker (6 Binn. 228) 554 
 
 V. Hanchett (39 Wis. 419) . . 67, 64.3, 
 
 644 972 
 
 V. Hanchett (43 Wis, 246) ! 953 
 
 V. Hehner (96 111. 400) 224 
 
 v. King (29 La. Ann. 567) 84, 96 
 
 V. Morgan (51 Miss. 21). 149, 155, 164, 994 
 V. Virginia, &c., R. R. Co. (16 Nev. 
 
 341) 714 
 
 Michael v. Bacon (49 Mo. 474) 39 
 
 V. Jones (84 Mo. 578) 646, 558 
 
 V. Mutual Ins. Co. (10 La. Ann. 737) 233 
 
 Michel V. Kai.ser (25 La. Ann. 57) 896 
 
 Michigan Central R. R. Co. v. Carrow 
 
 (73111.348) 715 
 
 V. Coleman (28 Mich. 440) 715 
 
 V. Goiis:ar (55 111. 503) 405, 9.51 
 
 V. Smithson (45 Mich. 212) 65) 
 
 Michigan Ins. Co. v. Leavenworth (30 
 
 Vt. 11) 240,245, 246 
 
 Michoud V. Girod (4 How. 503) 4H2 
 
 Mickelberry v. Harvey (58 Ind. 523) 62
 
 TABLE OF OASES OITED. 
 
 Ixxi 
 
 SECTION 
 
 Middleton v. Fowler (1 Salk. 282) 741 
 
 Mlddleton, &c.. Road v. Watson (1 
 
 Rawle, 330) 535 
 
 Mlhill's Mfg Co. V. Camp (49 Wis. 130). 729 
 
 Milbank v. Dennistown (21 N. Y. 386).. 481 
 
 V. Dennistown (1 Bosw. 246) 1016 
 
 Milburn v. Belloni (34 Barb. 607) 348 
 
 Mildred v. Hermano (8 App. Cases, 874) 769 
 
 Miles V. Ervin (1 McCord's Ch. 524). . . . 878 
 
 V. Ogden (.54 Wis. 57;^) 149 
 
 V. O'Hara (1 Serg. & R. 32) 443 
 
 w. Richwine (2 Rawle, 199) 376 
 
 V. Thome (38 Cal. 335) 23 
 
 Millr. Hawker (L. R. 10 Ex. 92) 574 
 
 Millar v. Cuddy {43 Mich. 273) 604, 605 
 
 Millard v. Jenkins (9 Wend. 298) 580 
 
 V. Republic Bank (3 McAr. 54) 382 
 
 Miller v. Bavnard (2 Houst. 555) 895 
 
 V. Beal (2H [ad. 234) 842 
 
 «. Board (44 Cal. 166) 129, 133 
 
 V. Davidson (3 Oilman, 518) 456 
 
 V. Delamater (12 Wend. 433) 62 
 
 V. Edmouston(8 Blackf. 291) 375 
 
 V. Finley (26 Mich. 249) 49 
 
 u. Ford (4 Rich. 376) 426, 559 
 
 V. Godtlard (34 Me. 102) 634. C35 
 
 V. Hope (2 Shaw, 125) 580 
 
 V. Lane (13 111. App. 648) 819 
 
 V. Lea (35 Md. 396) 774, 1039, 1043 
 
 V. Marston (35 Me. 153) 674, 676 
 
 V. Newell (20 S. C. 122) 846 
 
 V. PlicBnix Ins. Co. (27 Iowa, 203)... 931 
 
 V. Backer (1 Bush, 135) 588 
 
 V. Schneider (19 La. Ann. 300) 994 
 
 V. Scott (21 Ark. 396) 818 
 
 V. Seare(2Bl. 1145) 580 
 
 V. Smith (112 Mass. 470) 607 
 
 V Stone Co. (1 ril. App. 103) 155 
 
 V. Watt (70 Ga. 385) 62, 558 
 
 V Wilson (24 Penn. St. 114) 830 
 
 Miller's Appeal (6 Casey, 478) 4()9 
 
 Milligan i'. I.yle (24 La. Ann. 144) 443 
 
 V. Wedge (12 Ad. & El. 737) 747 
 
 Milliken v. Coombs (1 Greenl. 343) 142 
 
 Mills V. Hunt (20 Wend. 431) 554, 913 
 
 V. Mills(40N. Y. 543) 22 
 
 V. O'Hara (1 S. & R. 32) 443 
 
 V. Williams (16 S. C. 593) 391 
 
 Miner v. Phoenix Ins. Co. (27 Wis. 693). 931 
 
 V. Tagert (3 Binn. 204) 510 
 
 Minett v. Forrester (4 Taunt, 541) 263 
 
 Minnesota Cent. R. R. Co. v. Morgan (.52 
 
 Barb. 217) 195, 281 
 
 Minnesota Linseed Oil Co. v. Mon- 
 tague (65 lowM, 67) 484 
 
 Minor v. Mechanics' Bank (1 Pet. 46). . 281 
 
 Minturn v. Main (7 N. Y. 220) 756, 898 
 
 Mirabite v. Imperial, &c. Bank (L. R. 
 
 3 Exch. Div. 164) 689 
 
 Miranda w. City Bank (6 La. 740). . .514, 518 
 
 Mish V. Wood (34 Penn. St. 451) 607 
 
 Missouri Furnace Co. v. Abend (107 
 
 111. 44) 660, 661, 670 
 
 Mitchell V. Bromberger (2 Nev. 345) . . 887 
 
 V. Crassweller (13 Com. Bench. 237) 738 
 
 V. Maupin (3 T. B. Mon. 185) ........ 320 
 
 V. Robinson (80 Ind. 281). . . .664, 665, 668 
 
 V. Sproul (5 J. J. Marsh. 264) 93 
 
 V. Zimmerman (109 Penn. St. 183) . . 895 
 
 Mitchum v. State (11 Ga 615) 715 
 
 Mitthofif V. Byrne (20 La. Ann. 363) .... 554 
 Mobile, &e. R. R. v. Ashcroft (48 Ala. 
 
 15) 714, 715 
 
 Mobile, &c. R. B. Co. v. Clanton (59 
 
 Ala. 392) 647, 648 
 
 Mobile, &c. Ry Co. v. Yeates (67 Ala. 
 
 164) 881 
 
 Mobile & Montgomery Ry Co. v. Jay 
 
 (65 Ala. 113) 1.55, 157 
 
 Mohawk Bank v. Burrows (6 Johns. 
 
 Ch.317) 873 
 
 SSOTIOlf 
 
 Mohr V. Tulip (40 Wis. 82) 50 
 
 Moinett v. Days (57 Tenn. 431) 469, 470 
 
 Moir V. Hopkins (16 lil. 313) . . . .735, 736, 739 
 
 Moley V. Brine (120 Mass. 324) 55 
 
 Mollett V. Robinson (L. R. 7 H. of L. 
 
 802) 273, 932 
 
 Molton V. Camroux (4 Exoh. 17) 48 
 
 Moneypenny v. Hartland (1 C. & P. 352) 496 
 Montague G. H. The (4 Blatch 464) ... 3.58 
 Monte AUegre, The (9 Wheat. 645) . 904, 925 
 Montieth v. Great Western Printing 
 
 Co. (16 Mo. App. 450) 915 
 
 Montgomery v. Dorion (7 N. H. 481) 423 
 
 V. United State.s (15 Wall. 395) 269 
 
 Montgomery County v. Robinson (85 
 
 111. 174) 470 
 
 Montgomery County Bank v. Albany 
 
 City Bank (7 N. Y. 459) 514, 539 
 
 Montrion v. Jeffrey (2 C. & P. 113) . .824, 825 
 Montross v. Koger Williams Ins. Co. 
 
 (49 Mich. 477) 221 
 
 Moody V. Smith C;ON. Y. 598) 89 
 
 Moon V. Guardians (3 Bing. N Gas. 
 
 814) : 195 
 
 Mooney w. E!d"r (.'O N. Y. 238) 612 
 
 t). Musser (45 Ind 115) 1009 
 
 Moore v. Appletou (26 Ala. 6:33) . . . .653, 654 
 
 r. Barnett (17 Ind. 349) 188 
 
 V. Bettis (11 Humph. 67) 714 
 
 V. Bracken (-'< Hi. 23) 878 
 
 V. Bray (10 Penn. St. 524) 881 
 
 V. Ewing (Coxe, 144) 77 
 
 V. Granby Mining Co. (80 Mo. 86) . . 702 
 
 V. Hall (48 Mich. 143) 243 887 
 
 V. Hershey (90 Pen n, St. 196) 50 
 
 V. Hillabrand (16 Abb. N. Cas. 47r) 1044 
 V. Hitchcock (4 Wend. 292).674, 680, 684 
 
 V. Lockett C~ Bibb. 67) 142, 318 
 
 V. Mandlebaum (8 Mich. 433)... 461, 466 
 V. Metropolitan National Bank (55 
 
 N. Y:41) 787 
 
 V. Moore (5 N. Y. 258) 461, 469 
 
 V. Sockett (2 Bibb. Ky.) 143 
 
 V. Stone (40 Iowa, 2.")9) 201 
 
 V. Thompson (.32 Me. 497) 414 
 
 V. Thompson (9 Phila. 164) 538, 1012 
 
 V. Turbeville (2 Bibb. 602) 743 
 
 Moors V. Kidder (106 N. Y. 32) 689 
 
 Moral School Tp. v. Harrison (74 Ind. 
 
 „ ,,, 93) 440 
 
 Mordhurst v Boies (24 Iowa, 99) 393 
 
 Blore V. Hall (48 Mich. 143) 243 
 
 Moreau v. Dumagene (20 La. Ann. 230). 646 
 Morehouse v. Northrop (33 Conn. 380) 113 
 Morford v. Ambrose (3 J. J. Marsh. 
 
 688) 635 
 
 Morgan v. Brown (12 La. Ann. 159) 858 
 
 V. Congdon (4 N. Y. 551) 674 
 
 V. Darragh (39 Tex. 171) .. 894 
 
 V. Dudley (18 B. Mon. 093) 580 
 
 V.Mason (4 E D. Smith. 6.36) 963 
 
 V. Richardson (13 Allen. 410) 612 
 
 V. Tener (83 Penn. St. 305) 518 
 
 Morier v St. Paul, &c. Ry Co. (31 
 
 Minn. 351) 737, 738 
 
 Morin v. Martz (13 Minn. 191) 211 
 
 Morris v. Cleasby (1 M. & S. 581).. .756, 757 
 
 V. Cleasby (4 M. & S. 566) 520, 1014 
 
 Morrell v. Codding C4 Allen, 403).. 43.5, 447 
 
 Morrill v. Cone (22 Hov,f. 75) 326 
 
 V. Graham (27 Tex. 646) 824, 825 
 
 V. Thun^ton (46 Vt. 732) 585 
 
 Morris v. Barnes (35 Mo. 412) 599 
 
 V Bowen (52 N. H. 416) 848 
 
 V. Carey (27 N. J 3771) 580 
 
 V. Hall(41 Ala. 511) 915 
 
 V. Watson (15 Minn, 212) 323 
 
 Morris Run Coal Co. v. Barclay Coal 
 
 Co. (68 Penn. St. 173) 85 
 
 Morrison v. Bowman (29 Cal. 337) 419 
 
 V. Currie (4 Duer, 79) 561
 
 Ixxii 
 
 TABLE OF OASES CITED. 
 
 BEOnON 
 
 Morrison v. Holt (42 N. H. 478) 62 
 
 V. McDonald (21 Me. 550) . . ..... .... 580 
 
 V. Thompson (L. B. 9 Q. B. 480).643, 972 
 V. Whiteside (17 Md 462) . . . ... . .9, 106 
 
 Morrow v. Hifrgins (29 Ala. 448) . .89, 95, 414 
 
 Morse v. Cooke (13 Price, 47 3) 871 
 
 Morton v. Cowell (65 Md 359) 212 
 
 V. Preston (18 Mich. 60) 786 
 
 V. ScuU (23 Ark. 289) 279, 287 
 
 Moseley v. Norman (74 Ala. 422) 869, 
 
 870,871,873, 874 
 
 Moses V. Bagley (55 Ga. 283) 843, 815 
 
 V. Bierling(31 N. Y. 462) 612, 967 
 
 Mosley v. Buck (3 Munf. 232) 461, 470 
 
 Moss V. Cummings (44 Mich. 359) 578 
 
 V. Livingston (4 N. Y. :i08) 439 
 
 V. Pacific R. R. Co. (49 Mo. 167) 662 
 
 V. Rossie Co. (5 Hill, N. Y. 137).. 148, 179 
 
 V. Tribe (3 Fost. & F. 297) 48 
 
 Jlostyn V. Fabrigas (1 Cowp. 172) 580 
 
 Motley V. Head (43 Vt. &iZ) 257 
 
 Mott V. Foster (45 Cal. 72) 811 
 
 V. Hicks (1 Cow. 513) . . .436, 437, 443, 550 
 
 V. Smith (16 Cal. 533) 826 
 
 Moulton V. Bowker (115 Mass. 36) 811, 
 
 812, 816 
 
 V. aage(138Mass. 390) 656 
 
 u Trask (9 Mete. 577) 640 
 
 Mound Citv Mutual L. Ins. Co. v. Huth 
 
 (49 Ala. 530) 121, 750 
 
 MountCord v. Scott (3 Mad. 40) 719, 721 
 
 Mount Olivet Cemetery v. Shubert (2 
 
 Head, 116) 281 
 
 Mowatt V. Wright (1 Wend. 855) 565 
 
 Moxon V. Bright (L. R. 4 Ch. Ap. 292) . . 534 
 
 Moye V. Coydell (69 N. C. 93) 813, 819 
 
 JIudge V. Oliver (1 Allen, 74) 760 
 
 Mudry v. Newman (1 Cromp. M. & R. 
 
 402) 882 
 
 Muir V. Newark Savings Inst. (1 Green 
 
 537) 745 
 
 Mulca'ras v. Janesvile (67 Wis. 24) 668 
 
 Muidowney v. Illinois Cent. R. R. Co. 
 
 (39 Iowa, 615) 670 
 
 MuUan v. Philadelphia Steamship Co. 
 
 (78 Penn. 25) 664, 665, 668 
 
 Mullen V. Keetzleb (7 Bush. 253) 953 
 
 Muller V. Fuchs (64 Md. 217) 913 
 
 V. Pondir (55 N. Y. 325) 684, 1037 
 
 Mulliken v. Graham (72 Penn. St. 484). . 727 
 
 Mulvehill v. Bates (31 Minn. 364) 734, 
 
 735, 736 
 Mundhenk v. Central Iowa Ry Co. (57 
 
 Iowa, 718) 714 
 
 Mundine v. Pitts (14 Ala. 84) 721 
 
 Mundorff v. Wickersham (63 Penn. St. 
 
 87) 148, 775 
 
 Munn V. Commission Co. (15 Johns. 44) 22J, 
 
 279, 287 
 Munnikuyson v. Dorsett (2 H. & G. 378) 810 
 Murdock v. Phillips Academy (12 Pick. 
 
 244) 619 
 
 Murphy v. English (64 How. Pr. 362). . . 31 
 
 V. Helmrich (66 Cal. 69) 554 
 
 V. Otteiiheimer (84 III. 39) 224 
 
 V. Southern Life Ins. Co. (59 Tenn. 
 
 440) 279 
 
 Murray v. Beard (102 N. Y. 505) 953 
 
 v. Brooks (41 Iowa, 45) 348. 349 
 
 V. Carothers (1 Mete. 71) 547 
 
 V. East India Co. (5 B. & Aid. 204), 
 
 393, 1004 
 
 V. House (11 Johns. 464) 813 
 
 V. Lylburn (2 Johns. Ch. 441) 536 
 
 V. Smith (4 Daly. 277) 349 
 
 V. Vandi^rbilt (39 Barb. 140) 526 
 
 Murray hi re (3 W. N. 190) 867 
 
 Murnick's Case (2 Bland, 461) 896 
 
 Murry r. Ocheltree (59 Iowa, 435) 35 
 
 Muscatine, &c., Co. v. Hortou (38 Iowa, 
 
 83) B88 
 
 SEonoir 
 
 Muscott V. Stubbs (24 Kans. 620) 601 
 
 Musser u. Johnson (42 Mo. 74) 441 
 
 Mussey v. Beecher (3 Gush .511) 100 
 
 Mussey v. Scott (7 Cush. 215) 425 
 
 Mustard v. Wohlford's Heirs (15 Gratt, 
 
 329) 61 
 
 Mutual Ben. L. Ins. Co. v. Brown (30 
 
 N. J. Eq. 202) 9« 
 
 u Cannon (48 Ind. 264) 714 
 
 Myer v. Hobbs (57 Ala. 175) 747 
 
 Myers v. Crockett (14 Tex. 257) 84;3 
 
 847, 854, 856, 857 
 
 V. Entriken (6 W. & S. 44) 990, 1021 
 
 V. Estell (47 Miss. 4) 647, 649 
 
 V. Gilbert (18 Ala. 467) 476 
 
 V. McHugh (16 Iowa, 335) 869 
 
 V. Walker (31 111. 354) 619 
 
 Myles V. Myles (6 Bush. 237) 495, 951 
 
 N. 
 
 Nagle V. McFeeters (97 N. Y. 196) 684 
 
 Naltner v. Dolan (108 Ind. 500) 529, 838 
 
 Narragansett. Bank v. Atlantic Co. (3 
 
 Metc282) 148 
 
 Narraguagus Land Proprietors w. 
 
 Wentworth (36 Me. 339) 886 
 
 Nash V. Drew (5 Cush. 422) 355 
 
 V. MitcheU(71 N. Y. 199) 56 
 
 V. Mosher (19 Wend. 431) 678 
 
 Nashville, &c., R. R. Co. v. Chumley (6 
 
 Heisk. 327) 648 
 
 t>. Elliott (1 Cold. 611) 718 
 
 V. Jones (9 Heisk. 27) 667 
 
 V. Starnes (9 Heisk. 24) 740, 741, 751 
 
 ' t;. Wheless (10 Lea, 741) 667 
 
 National Bank v. Graham (100 U. S. 
 
 699) 741 
 
 V. Insurance Co. (104 U. S. 54). .536, 
 
 780, 781 
 V. Merchants' Bank (91 U. S. 92). . . 
 
 315, 484 
 
 V. Norton (1 Hill, N. Y. 572) 730 
 
 National Exchange Bank v. Granite- 
 
 ville Mfg Co. (3 S. E. Rep. 411).. 995 
 National Ins. Co. v. Allen (116 Mass. 
 
 398) 449,696,701, 772 
 
 National Iron Armor Co. v. Bruner (19 
 
 N. J. Eg. 331) 273, 822 
 
 National Life Ins. Co. v. Minch (53 N. 
 
 Y. 144) 113,178, 721 
 
 V. Minch (5 Thomp. & C. 545) 775 
 
 National Mechanics' Bank v. National 
 
 Bank (.36 Md 5) 106 
 
 National Security Bank v. Cushman 
 
 (121 Mass. 49U) 730 
 
 Nauman v. Zoerhlant (21 Wis. 466).... 605 
 Nave V. Lebanon Bank (87 Ind. 204) .... 439 
 Navulshaw v. Brownrigg (2 De Gex. 
 
 M. &G. 441) 534 
 
 Nawsnm v. Thornton (6 East, 17) 994 
 
 Naylor v. Chicago, &c., Ry(53 Wis. 661) 667 
 V. Fall River Iron Works (118 Mass. 
 
 317; 638 
 
 V. T\l angles (1 Esp. 109) 674 
 
 Neal V. Patten (40 Ga. 363) 103 
 
 Neaves v. North State Mining Co. (90 
 
 N. C. 412) 449 
 
 Needles v. Howard (1 E. D. Smith, 62). 497 
 Neibles t'. iNlinneapolis, &c., R R. Co. 
 
 (33N. W. Rep. 332) 88 
 
 Neillr. Billing-=ley (49 Tex. 161) 990 
 
 Neilsonu LeeibOCal. 5.55) 966, 967 
 
 Nelson v. Aldrid re (2 Stark. 435) 901 
 
 V. Chicago, &c., R. R. Co. (2 IIL 
 
 App.l80i 1009, 10.35 
 
 V.Cook (19 111.440) 816 
 
 V. Cook (17 111. 443) 653, 654 
 
 V. Cowin? (6 Hill, 336) 348 
 
 V. Tumlin (74 Ga. 171) 100 
 
 Nesbit V. Hesler (49 Mo. 383) 967
 
 TABLE OF OASES OITED. 
 
 Ixxiii, 
 
 SECTION 
 
 Nevan v. Roup (8 Iowa, 207) 674, 676, 
 
 678. 684, 865 
 Newall V. Tomlinson (L. R. 6 C. P. 405). 583 
 
 Newberry v. Lee (3 Hill, 523) 816, 839 
 
 Newbert v. Cunningham (50 Me. 231). .. 
 
 869,871, 873 
 
 Newbold v. Wright (4 Rawle, 195) 994 
 
 Newcomb v. Brooks (16 W. Va. 71) 791 
 
 ■u. Peck (17 Vt. 30^) 810 
 
 Newell V. Borden (128 Mass. 31) 72 
 
 V. Smith (49 Vt. 2.5.5) 193 
 
 Newhall v. Dunlap (14 Me. 180) 437 
 
 V. Vargas (13 Me. 93) 687 
 
 Newhold r. Wright (4 Rawle, 195) 994 
 
 Newland, Ex parte (L. R. 4 Ch. D. 616) 862 
 
 Newland v. Woodruff (60 N. Y. 73) 1036 
 
 Newman v. Greet (5 N. E. Rep. 335). . . . 443 
 
 V. Greeff (101 N. Y. 663) 441 
 
 V. Reagan (65 Ga. 512) 215 
 
 V. Sylvester (42 Ind. 106). . .545, 546, 650 
 Newson v. Douglass (7 H. & J. 417). ... 931 
 
 w. Thornton (6 East, 17) 787, 995 
 
 Newton v. Bronson (13 N. Y. 587). 41, 89, 92 
 
 179, 189 
 
 V. Forster (12 M. & W. 772) 648 
 
 V. Newton (L. R. 6 Eq. 135) 536 
 
 t». Porter (69 N. Y. 133) 536 
 
 V. White (53 Ga. 395) 714 
 
 New England Ins. Co. v. De Wolf (8 
 
 Pick. 56) 91, 445, 446 
 
 New Jersey Steam Nav. Co. v. Mer- 
 chants' Bank (6 How. 344) 769 
 
 New Market Savings Bank v. Gillet (100 
 
 m. 254) 436 
 
 New Orleans, &c., R. R. Co. v. Burke 
 
 (53 Miss. 200) 751 
 
 V. Harrison (48 Miss. 112) 669 
 
 V. Hughes (49 Miss. 258) 662 
 
 New Orleans Ins. Co. v. Spruance (18 
 
 111. App. 576) 769 
 
 New York Cent. Ins. Co. v. National 
 Protection Ins. Co. (14 N. Y. 85) 
 
 4(33, 798 
 New York Life Ins. Co. v, McGowan 
 
 (18 Kan. 300) 287 
 
 New York L. Ins. Co. v. Statham (93 
 
 U S. 24) 269 
 
 New York Iron Mine v. Negaunee Bank 
 
 (39 Mich. 644) 391. 396, 898 
 
 New York Iron Jline v. Citizens' Bank 
 
 (44 Mich. 344) 393 
 
 New York, &c. Co. v. Harbison (16 
 
 Fed. Rep. 6S8) 546. 647, 559 
 
 New York. &g. R. R. Co. v. Ketchum 
 
 (27 Conn. 170) 74, 125 
 
 New York, &c. R. R. Co. v. Schuyler 
 
 (34N. Y. 30) 717 
 
 New Zealand Land Co. v. Ruston (6 
 
 Q. B. Div. 474) 774 
 
 Nichol t). Marty n (2 Esp. 732) 215 
 
 Nicholas v. Jones (37 N . W. Rep. 679). . 967 
 
 r. Oliver (36 N. H. 219) 439 
 
 Nicholls V. Wilson (11 M. & W. 106) .... 854 
 
 Nichols V. Coolahan (10 Mete. 449) 634 
 
 t;. Dennis (11. M. Charlt. 188) 820 
 
 V. Frothingham (45 Me. 220) 439 
 
 V. Mudgett (32 Vt. 546) 30 
 
 «. Pool (89 111. 491) 865, 869 
 
 V. Scott (12 Vt. 47) 842 
 
 V. Thomas (53 Ind. 53) 50 
 
 Nicholson V. Chapman (2 H. Black- 
 stone, 254) 600 
 
 V. Moog (65 Ala. 471) 2S7 
 
 V. Mounsey (15 Ease, 384) 594 
 
 Nlckalls V. Merry (L. R. 7 H. L. 530) ... 910 
 
 Nicoll V. Nicoll (16 Wend. 446) 873 
 
 Nightingale v. Oregon Central Ry Co. 
 
 (2 Sawyer, 338) 811 
 
 Nilpsr. Muzzy (33 Mich. 61) 841 
 
 Nisbet V. Lawson (1 Ga. 275) 632, 835 
 
 Nixon V. Bogin (26 S. C. 611) 478 
 
 SKOTIOIC 
 
 Nixon V. Brown (57 N. H. 84).. .786, 787, 788 
 
 w. Downey (49 Iowa. 166).. 554, 957, 1049 
 
 V. Pnlmer (« N. Y. 398) 393 
 
 V. Phelps (-9 Vt. 198) 852 
 
 Nixon's Appt-al (63 Penn. St. 279) 459 
 
 Noble u Cunningham (74 III. 51) 287 
 
 Nobleboro v. Clark (68 Me. 87) 435 
 
 Noblesville, &c. Co. v. Gaiise (76 Ind. 
 
 142) 734, 735, 736, 740 
 
 Noe V. Christie (51 N. Y. 270) 71 
 
 Noecker v. Peopl.- (91 111. 494) 745 
 
 Noel V. Drake (28 Kans. 26.5) 29 
 
 Nolan V. Jackson (16 111. 27.5) 876 
 
 V. Manton (46 N. J. L. 231) 667 
 
 V. Thompson (11 Daly. 314) 215 
 
 Norberg v. Heineman (59 Mich. 210). .. 809 
 
 Norcross V. Pease (5 Allen, 331) 772 
 
 Norfolk V. Worthy (1 Camp. 3.37) 769 
 
 Norman v. Peper (24 Fed. Rep. 403). .. 1027 
 
 Norris v. Cook (1 Cure. 464) 155 
 
 V. Grier (76 N. C. 410) 812 
 
 V. Hero (22 La. Ann. 60.5) 629 
 
 r. Spofford (127 Mass. 85) 800 
 
 V. Tayloe(49Ill. 17) 791 
 
 Norris' Appeal (71 Penn. St. 106) 469 
 
 North V. Metz (57 Mich. 612) 100 
 
 North Carolina btate L. Ins. Co. v. 
 
 Williams (91 N. C. 69) 616 
 
 North Missouri R. R. Co. v. Stephens 
 
 (36Mo. 150) .... 812 
 
 North River Bank of Aymar (8 Hill, 
 
 262) .307, 892, 714, 717, 721 
 
 North Whitehall v. Kellar (100 Penn 
 
 St. 105 813 
 
 Northampton Bank v. Pepoon (11 
 
 Mass. 288) 439 
 
 Northern Pacific R. R. Co. r. Kindred 
 
 (17 Fed. Rep 77) 470 
 
 Northrup v. Germania Fire Ins. Co. 
 
 (48 Wis. 420) 67 
 
 Northwestern Distilling Co. v. Brant 
 
 (69111.658) 422 
 
 Northwestern Mut. F. Ins. (io. v. 
 
 Blankenship (94 Ind. 535) .... 48, 50 
 
 Norton v. Blinn (39 Ohio St. 145) 525 
 
 Norwich University v. Denny (47 Vt. 
 
 13) 193 
 
 Norwood V. Cobb (24 Tex. 551 810 
 
 u. Harness (98 Ind 134) 529 
 
 Nowell v. Wright (3 Allen. 169) 571 
 
 Noyes V. Landon (.59 Vt. 569j 467 
 
 V. Loring (55 Me. 408) 549, 550 
 
 V. Marsh (123 Mass. 286) 29 
 
 V Smith (28 Vt. 59) 659, 667 
 
 Nugent V. Hickey (2 La. Ann. 35"^) 390 
 
 Nutzenholster 1;. State (37 Ind. 457) 531 
 
 O. 
 
 Oakes v. Moore (24 Me. 214) 673, 676, 678, 865 
 
 Oakland v. Carpentier (13 Cal. 640) 190 
 
 Oakley v. Crenshaw (4 Cow. N. Y. 250) 1030 
 
 Obert V. Hamuiel (3 Har. 74) 4(i2 
 
 Ocean Ins. Co. v. Rider (22 Pick. 210).. 869 
 O'Connell v. Baltimore, &c. R. R. (^20 
 
 Md. 212) 667 
 
 O'Conner v. Arnold (53 Ind. 20.5). ..112, 375 
 
 O'Connor v. Adams (120 Mass. 427) 6G3 
 
 V. Chicago, &e. Ry Co (27 Minn. 166) 715 
 
 V. Clopton (60 Miss. 349) 661 
 
 V. Roberts (120 Mass. 227) 668 
 
 Odiorne V. Maxcy (13 Blass. 178)... 279, 
 
 288, 392 
 
 t>. Maxcy (15 Mass. 39) 86 
 
 O'Donnell v. Leeman (43 Me. 158)... 893 
 Oelricks v. Ford (23 How. 49).. 446, 556, 
 
 755, 1051 
 
 r. Ford (21 Md. 489) 759 
 
 Oestrieh v. Gilbert (9 Hun, 244) .386, 816 820 
 
 Offut V. Ayres (7 T. B. Monr. 856) 432
 
 Ixxiv 
 
 TABLE OF OASES CITED. 
 
 SECTION 
 
 Oeden v. Devlin (45 N.Y. Super Ct. 631) 806 
 
 V. MarahaiKl (29 La. Ann. 61). . . .... 149 
 
 V. Raymond (22 Conn. 879) 448, 546, 
 
 550, o5» 
 
 Ogg V. Shuter (1 C. P. D. 47). ....... .... 689 
 
 O'Hara v Brophy (24 How. Pr. 379) 833, 8.i4 
 
 V. Carpenter (23 Mich. 410) 38 
 
 Ohio, &c. Ry Co. v. CoUarn (73 Ind. 281) 
 
 662, 667 
 
 Ohio, &c. R. R. V. Tindall (13 Ind. 336) 667 
 
 Ohlqueat v. Farwell (32 W.W. Rep. il77) 812 
 Olcott V. Tioga R. R. Co. (27 N. Y. 546) 
 
 Old Colony R. R. v. Evans (6 Gray, 81) 211 
 
 0!dham v. Sparks (28 Tex. 425) 8_>6 
 
 Oldbams v. Jones (5 B. Mon. 458) 468 
 
 Olive I'. Smith (5 Taunt, 56) . . . 1032 
 
 Oliver v. Dix (1 Dev. & Bat. Eq., N. C.) 
 
 158) 425, 558 
 
 V. Johnson (24 La. Ann. 460).... 155, 171 
 
 V. Moore (12 Heisk, 482) 1085 
 
 V. Piatt (3 How. 333) . 469 
 
 Olmstead v. Beale (19 Pick., Mass. 528) 685 
 Olmsted v. New England Mortgage Se- 
 curity Co. (11 Neb. 487) 745 
 
 Olyphant v. McNair (41 Baib. 446). .366, 415 
 
 O^'ison V. Cown (22 Wis. 329) 457, 459 
 
 Oom V. Bruce (12 East, 225) 761 
 
 Orcutt ['. Nelson (1 Gray, 636) 760 
 
 Oregon Mortsage Co. v. American 
 
 Mortgage Co. (35 Fed. Rep. 22) 200 
 
 Ormerod v. Dearman (100 Penn. St. 561) 27 
 
 w. Tate(l East, 464) 862 
 
 Ormes v. Dauchy (45 N. Y. Super Ct. 
 
 85) 89 
 
 Orr V. Lacy (4 McLean, 243) 387 
 
 «. Tanner (12 R. L 94) 845 
 
 V. Ward (73 111. 318) 211, 215 
 
 Orton V. Scofield (61 Wis. 382) 953 
 
 Osbom v.Uuited States Bank (9 Wheat, 
 
 73>!i) 809 
 
 Osborne v. Governors (2 Strange, 7281 . 600 
 
 V Knox, &c. R. R. (68 Me. 49).. ^67, 669 
 
 t>. Morgan (130 Wash. 103) 571, 572 
 
 V. Rider (62 Wis. 235) 475, 485 
 
 Oscanyon v. Arms Co. (103 U. S. 261) 22, 26 
 
 Osgood V. Nichols (5 Gray, 420) 920 
 
 Oskaloosa v. Tullis (25 Iowa, 440) 892 
 
 Oster V. Mickley (35 Minn. 245) 349 
 
 Otes V. Jones (21 Wend. 394) 600 
 
 Ottawa University v. Parkinson (W 
 
 Kans. 159) 850 
 
 V. Welsh (14 Kans. 164) 850 
 
 Ousterhout v. Day (9 Johns. 113) 838 
 
 Outon V. Rhodes (3 A. K. Marsh. 482).. 28 
 
 Owen V. Brockschmidt (54 Mo. 285) 865 
 
 V. Mason (18 How. Pr. 156) 871 
 
 Owings V. Grubbs C6 J. J. Marsh. 31) 441 443 
 
 t). Hull (9 Pet. 607) 129, 805, 989 
 
 OwBley I'. Montgomery, &c. R. R. Co. 
 
 (37Ala.5C0) 741 
 
 V. Woolhopter (14 Ga. 124) 464 
 
 P. 
 
 Paciflc Rolling MIU Co. v. Dayton (7 
 
 Sawyer, 67) 129 
 
 Pack V. Mayor (8 N. Y. 222) 747, 748 
 
 V. White (78 Ky. 243) 43o 
 
 Packard v Nye (2 Mete. 47) .... .^. ... . 755 
 Packer v. Hinckley Locomotive Works 
 
 (122 Mass. 484) 224 
 
 Packet Co. v. Clough (20 Wall, 540) 714. 715 
 Packing Co. v. Farmers' Union (55 
 
 ral. 606) 204 
 
 Padfleld v. Green (85 HI. 529) . . .876, 885, 387 
 
 Page v. Page (8 N. H. 187) 459 
 
 V. W^ells (37 Mich. 415) 495 
 
 V. Wight (14 Allen, 182) 432 
 
 Paice V. Walker (L. R. 5 Ex. 173) 566 
 
 SECTION 
 
 Paige V. Stone (10 Mete. 160) 889, 391, 
 
 699, 1048 
 
 Paine v. Tlllinghast (52 Conn. 532) 279 
 
 V. Tucker (21 Me. 138) 93, 137 
 
 Palmer v. Ashley (3 Ark. 75) 531, 824 
 
 v. Carroll (24 N. H. 314) 585 
 
 V. Cheney 1 35 Iowa, 281) 121, 279 
 
 u Hatch (46 Mo nSb} 818, 350 
 
 V. Haverhill (98 Mass. 487) 600 
 
 V. Holland (51 N. Y. 416) 517 
 
 V. Jarmain (2 M. & W 282) 476 
 
 V. Lawrence (6 Lans. 282) 580 
 
 V. Marquette Rolling MUl Co. (32 
 
 Mich 274) 212, 632 
 
 V. Oakley (2 Doug. 433) 685 
 
 V. Railroad (3 S. C. 580) 751 
 
 V. Stephens (1 Den. 471) 550 
 
 V. Williams (24 Mich. 328) 136 
 
 Palmerton v. Ilaxford (4 Den. 166) 148 
 
 Panama, &c. Telegraph Co. v. India 
 Rubbe-r. &c. Co. (L. R. 10 Ch. 
 
 App. 515) 797 
 
 Pannell v. Hurley (2 Col. 241) 781 
 
 Pappa V. Hose (L. R. 7 C. P. 32) 688 
 
 Paniell v. Rench (4 McLean, 259) 186 
 
 Parish V. Reeve (63 Wis. 3!5) 148, 155 
 
 Park V. Hamond (4 Camp, 344) 475, 510, 
 
 954, 1011 
 
 V. Hammond (6 Taunt. 495) 931 
 
 Parker v. Blighton (32 Mich. 266) 871 
 
 V. Brancker (22 Pick. 40).. .682, 683, 1009 
 
 V. Carter (4 Munf. 273) 881, 883, 885 
 
 V. Crane (6 Wend. 647) 600 
 
 V. Kett (1 Salk. 95) 413 
 
 V. Parker (33 Ala 459) 607 
 
 V. Rolls (14 C. B 691) 824, 880 
 
 v. Smith (16 East. 382) 268 
 
 V. Vose (45 Me. 54) 68, 461 
 
 t). Walker (8 S W. Rep. 391) 967 
 
 V. W^inlow (7 E. & B 942) 755 
 
 V. Yates (12 Moore. 5J0) 886 
 
 P.irkhurst v. Johnson (50 Mich. 70) 658 
 
 Parkins v. Washington Ins. Co. (4 Cow. 
 
 645) 1011 
 
 Parkinson v. Parker (48 Iowa, 667) 586 
 
 Parkist v. Alexander (1 Johns. Ch. 894), 457. 
 459, 460, 1008 
 
 Panr.inter v Kelly (18 Ala. 716) 71 
 
 Parnth-r v. Gaitskell (13 East. 437).... 880 
 
 Parsons v. Armor (3 Pet. 413) 868 
 
 V. Martin (11 Gray, 112) ... . 195, 281, 485 
 
 V. Phelan (134 Mass. 418) 459 
 
 V. Webb (8 Greenl. 38) 854 
 
 Partington v. Wamsutta Mills (110 
 
 Mass. 468) 688 
 
 Parton v. Crofts (16 C. B. N. S. 11) 932 
 
 Partridge v. White (59 Me. 564) 151 
 
 Paschall In re (10 Wall. 483) 862, 863 
 
 Pascoag Bank v. Hunt (3 Edw. Ch. 583) 536 
 
 Passano v. Acosta (4 La. 25) 478 
 
 Passenper R. R. Co. v. Young (21 Ohio. 
 
 St. 518) 734, 740, 741 
 
 Passmore v. Passmore (50 Mich. 626) 885 
 Patapsco, &c., Co. v. Morrison (2 
 
 Woods, 395) 328 
 
 Paterson v. Gandasequi (15 East. 62), 
 
 698, 699 
 
 V. Knable (35 Wis. 85) 715 
 
 V. Wallace (1 Macq. 748) 659 
 
 Patnote v. Sanders (41 Vt. 66) 625, > .35 
 
 Patrick v, Hazen (10 Vt. 18.3) 862 
 
 r. Leach (12 Fed. Rep. 661) 669 
 
 v. Littell (36 Ohio St. 79) 39 
 
 u. Putnum (27Vt. 7.59) 682 
 
 Patten V. Moor (29 N. H. 169) 88it 
 
 v. Patten (75 111.446) 63 
 
 Patterson v. Donner (48 Cal. 369) .34 
 
 V. Gandasequi (15 East. 63) 769 
 
 V. Gage (2:3 Vt. 558) 632 
 
 V. Leavitt (4 Conn. 50) 77 
 
 V. Lippincott (47 N.J. L. 457)34, 549, 650
 
 TABLE OF CASES CITED. 
 
 Ixxv 
 
 SECTION 
 
 rattersnn v. McGahey (8 Mart. 48ii). . . . I(.i32 
 V. Pittsburg, &c., R. K. Co. (70 
 
 Penn. St. 389) 660, 661, 670 
 
 Paul V. Berry CiS 111. 158) 135 
 
 r. Edwards (1 Mo. 30) 186 
 
 Paulding V. Lee <20 Ala. 768) 534 
 
 Pavy's Co. In re (1 Oh. Div. 631) 684 
 
 Paxton V. Cobb (2 La. 137) 812 
 
 Paxton Cattle Co. v. First Nat. Bank 
 
 (21 Neb. 621) 74, 125 
 
 Payne v. Newcomb (100 111. 611) 745 
 
 V. Potter (9 Iowa, 549) 353 
 
 V. Reese (100 Penn. St. 301) 650 
 
 V. Smith (12 N. H. 34) 151 
 
 V. Waterston (16 La. Ann. 239). 935, 1023 
 V. Western, &c., K. Co. (13 Lea, 507) 616 
 
 Peabocly v. Hoard (46 111. 24-2) 93, 273 
 
 Peacock v. t'ummings (46 Penn. St. 434) 63J 
 
 V. Peacock (2 Camp. 45) 60 1 
 
 Peak V. Ellicott (30 Kan. 1.58) 538, 537 
 
 Pearceu. Foot (113 111. 228) 35 
 
 V. Foster (17 Q. B. Div. 536) 215 
 
 V. Gamble (72 Ala. 841) 878 
 
 Pearson v. Darrington (32 Ala. 227). ... 852 
 
 V. Mason (120 Mass. 50 966 
 
 V. Moreland (7 S. & M. 609) 463 
 
 Pease u. Pease (35 Conn. 131) 443 
 
 V. Walsh (49 How. Pr. 269) 24 
 
 V. Warren (29 Mich. 9) 87 
 
 Peavey v. Robbins (3 Jones, L. 3.39). ... 588 
 
 Peck V. Chouteau (91 Mo. 140) 839, 855 
 
 V. Ritchey (66 Mo. 114) 100 
 
 V. Harriott (6 S. & R. 146) 324 
 
 Peckham v Lyon (4 McLean, 45) 368 
 
 Peebles v. Reading (8 S. & R. 4S4) . .457, 459 
 
 Peel V. Shepherd (58 Ga. 365) 773 
 
 Peele v. Northcote (7 Taunt. 558) 520 
 
 Pegram v. Charlotte, &c., R. R. Co. 
 
 (84 N. C. 696) 463. 953 
 
 Peine v. Weber (47 111. 45) 138 
 
 Peisch V. Dickson (1 Mason, 10) 682, 
 
 1029, 1032 
 Pelly V. Rawlins (Peak's Ad. Cas. 236). . 600 
 
 V. Wathen (7 Hare, 351) 862 
 
 Pemberton Exparte (IS Ves. Jr. 282).. 863 
 
 Pendall v. Rench (4 McLean, 259) 186 
 
 Pendexter v. Vernon (9 Humph. 84) 813 
 
 Penhallow v. Doane (3 Dall. 54) 561 
 
 Penkivil v. Connell (3 Exch. 381) 435 
 
 Peninsular Bank v. Banner (14 Mich. 
 
 208) 130 
 
 Penn v. Evans (28 La. Ann. 576). 77, 121, 165 
 
 V. Whiteheads (19 Gratt. 74) 62 
 
 Pennell «. Deffell (4 DeQ. M. & G. 572), 
 
 536, 781 
 Pennington v. Streight (54 Ind. 376) .... 592 
 
 V. Yell (11 Ark. 212) 824, 826, 835 
 
 Pennsylvania Co. v. Linch (90 111. 334) 660 
 Pennsylvania Steam NaT. Co. v. Dan- 
 
 dridge (8 G. & J. 248) 129, 149 
 
 Pennsylvania R. R. Co. v. Books (57 
 
 Penn St. 339) 715 
 
 V. Ogier (.35 Penn. St. 477) 500 
 
 V. Wachter (60 Md. 39.5) 656, 667 
 
 Penny wit v Foote (27 Ohio St. 600) .... 810 
 Penobscot Boom Co. v. Lamson (16 
 
 Me. 224) 809, 810 
 
 Pentland v. Stewart (4 D. & B. 386) .... 588 
 
 Pentz V. Stanton (10 Wend. 271) 438, 
 
 448, 1047 
 
 People V. Bank (24 Wend. 431) 291 
 
 V. Blakely (4 Park, Cr. 176) 681 
 
 V. Bond Street Savings Bank (10 
 
 Abb. N. Cas. 15) 849 
 
 V. Boring (8 Cal. 407) 98, 321 
 
 «. Bush (40 Cal. 344) 591 
 
 r. City Bank (96 N. Y. 32) 536 
 
 «. Cole (84 111 327) 833 
 
 V. Gasherie (9 Johns. 71) 532 
 
 V. Lamborn (2 111. 123) 813 
 
 V. Mahon (1 Utah, 205) 831 
 
 SECTION 
 
 People V. Mariposa Co. (39 Cal. 6S3) .... 810 
 V. Mayor, &c., of New York (11 
 
 Abb Pr.6(i) 813 
 
 V. Nichols (52 N. Y. 478) 78 
 
 V. Parks (49 Mich. 33.3) 746 
 
 V. Provines (34 Cal. 520) 691 
 
 V. Heildy (43 Barb. 539) 688 
 
 r. Roby(52 Mich. 579) 746 
 
 V. Supervisors (10 Cal. 346) 588 
 
 V. Township Board (11 Mich. 232). .. 
 
 455, 461, 462, 463 
 
 V. Van Alstioe (57 IMich. 69) 881 
 
 V. Vernon (34 Cal. 49) 715 
 
 Peoria Ins. Co. v. Hall (12 Mich. 202).. 718 
 Percival v. Hughes (9 Q. B. Div. 441). . . 748 
 
 Peries v. Aycinena (3 W. & S. 79) 248 
 
 Perin v. Parker (17 III. App. 169) 936 
 
 Perkins v. Benett (2 Root, 30) 714 
 
 V. Boothby (71 Me. 91) 391, 398 
 
 V. Evans (61 Iowa, 35) 792 
 
 V. Hadsell (50 111. 217) 211 
 
 V. Missouri, &c., R. R. C3o. (55 Mo. 
 
 201) 751 
 
 V. Smith (1 Wils. 328) 674 
 
 V. State (50 Ala. 154) 14 
 
 «. Thompson (3 N. H. 144) 463 
 
 V. Washington Ins. Co. (4 Cow. 645) 
 
 475, 510, 954 
 
 Perminter v. Kelly (18 Ala 716) 71, 182 
 
 Perrine v. Couley (12 Vroom, 322) 348 
 
 Perry v. Barnett (15 Q. B. Div. 383) 281, 485 
 
 V. Dicken(105 Penn. St. 83) 844 
 
 V. McHenry (13X11. 227) ... 459 
 
 V. Holl (2 De Gex, F. & J. 48) 306 
 
 V. Simpson Waterproof Mfg Co. (37 
 
 Conn. .520) 623 
 
 Persons w. McKibben(6 Ind.261)....169, 629 
 
 Peters v. Farnsworth (15 Vt. 155) 822 
 
 Peterson v. Mayor (17 N. Y. 449) 97, 118 
 
 V. Whitebreast (50 Iowa, 673) 668 
 
 Peto V. Hague (5 Esp. 134) 87 
 
 Pettee i>. Tennessee Mfg Co. (1 Sneed, 
 
 381) 649 
 
 Pettillo, Ex parte (80 N. C. 50) 924 
 
 Pew V. Gloucester Bank (1.30 Mass. 391) 646 
 
 Pflster V. Wade (69 Cal. 133) 813 
 
 Phelan v. Gardner (43 Cal. 306) 966, 967 
 
 Phelon V. Stiles (43 Conn. 426) 735, 736 
 
 Phelps V. Borland (30 Hun, 362).... 441, 443 
 
 V. Brewer (9 Cush. 390) 810 
 
 V. Hunt(40Conn. 97) 849 
 
 V. Jackson (31 Ark. 272) 536 
 
 V.Paris (39 Vt. 511) 647, 648 
 
 V. Sill (1 Day, 31.5) 580, 685 
 
 r. Sullivan (140 Mass. 36) 94, 394 
 
 Philadelphia, &c., R. R. Co. v. Cowell 
 
 (28 Penn. St. 329) 155 
 
 V. Derby (14 How. 468) 735, 786 
 
 V. Keenan (103 Penn. St. 121) 659 
 
 t>. Larkin (47 Md. 15.5) 751 
 
 Philhps V. Bioadley (9 Q. B. 744) 858 
 
 V. Dobbins(56Ga. 617) 813, 820 
 
 V. Germon (43 Iowa, 101) 869 
 
 ». Howell (60 Ga. 411) 208 
 
 t>. Huth(6M & W. 573) 994 
 
 V. Jones (1 Ad. & El. 333) 601 
 
 V. Moir (69 111. 155) 281, 495, 799, 
 
 989, 1006, 1015 
 
 V. Roberts (90 ni. 492) 745 
 
 V. Scott (43 Mo. 86) 1009, 1017 
 
 V. StBgg (2 Ed w. Ch. 108) SrO 
 
 Philo V. Butterfleld (3 Neb. 256) 745 
 
 Philpot r. Bingham (55 .'Via. 4.35). 51, 53, 64 
 Phipps V. Millbury Bank (8 Mete. 79) . . . 511 
 Phoenix Ins. Co v. Frissell (8 North E. 
 
 Rep 318) 475 
 
 Phoenix Mut. L. Ins. Co. v. Halloway 
 
 (.51 Conn. 311) 215 
 
 Phosphate of Lime Co. v. Qreen (L. R. 
 
 7C. P. 43) 139, 148 
 
 Phy w. Clark (85 111. 877) 1017
 
 Ixxvi 
 
 TABLE OF CASES CITED. 
 
 SBOTION 
 
 Physioc r. Shea (75 Qa. 466) 215 
 
 Piatt V. McCuUough (1 McLean, 82) ... . 93 
 
 Pickens v. Diecker (21 Ohio St. 212). . .. 734, 
 
 735, 73t) 
 
 Pickering v. Busk (15 East, 38) 281. 
 
 33S, 786, 787, 788, 894, 992, 994 
 
 V. Pickering (6 N. H. 124) 62 
 
 Pickert v. Marston (68 Wis. 465) 281, 
 
 348, 947, 992 
 
 Pickett V. Bates (3 La. Ann. 627) 817 
 
 V. Merchants' Nat. Bank (32 Ark. 
 
 346) 818 
 
 9. Pearson (17 Vt. 470) 171, 484 
 
 V. Sutter (5 Cal. 412) 49 
 
 V. Wallace (57 Cal. 555 580 
 
 Picquet v. McKay (2 Blackf . 465) 681 
 
 Piedmont, &c , L. Ins. Co. t>. Young (58 
 
 Ala. 476) 931 
 
 Pierce v. Benjamin (14 Pick. 356) 463 
 
 ». Hall (41 Barb. 142) 750 
 
 V. Johnson (34 Conn. 274) 554 
 
 V. Lawrence (16 Lea, 572).. 869, 872, 873 
 
 V. O'Keefe (11 Wis. 180) 149 
 
 V. Robie (39 Me. 205) 755 
 
 V. Strickland (2 Story, 292). 811, 812, 816 
 
 V. Thomas (4 E. D. Smith, 354) 964 
 
 V. United States (1 N. & H. 270) ... 291 
 
 t». Whitcomb (48 Vt. 127) 658, 666 
 
 Plercy v. Averill (87 Hun, 360) 590 
 
 V. Hedrick (3 W. Va. 458) 102 
 
 Pierson r. Graham (33 Eng. Com. L. 
 
 468) 574 
 
 Pierse v. Thornton (44 Ind. 235) 531 
 
 Piggott V. Addicks (3 G. Greene. 427). .. 809 
 
 V. Thompson (3 Bos. & P. 147) 755 
 
 Pike f. Balch (38 Me. 303) 893 
 
 V. Carter (3 Bing. 78) 680, 587 
 
 V. Douglass (28 Ark. 59) 150 
 
 V. Emerson (5 N. H. 393) 812, 813 
 
 p. Ongley (18Q. B. Div. 708) 9.57 
 
 Pillsbury v. Dusan (9 Ohio, 1 17) 809 
 
 Pingree v. Leyland (135 Mass. 398). .659, 670 
 
 Pinkham v. Crocker (77 Me. 563)... .990, 1013 
 
 Pinnix v. McAdoo (68 N. C. 56) 714 
 
 Pinnock v. Clough (16 Vt. 50(3) 457, 459 
 
 Piper V. Pearson (2 Gray, 120) 580, 585 
 
 Pipp V. Reynolds (20 Mich. 88) 5G7 
 
 Pitkins V. Harris (13 West. Rep. 719). . . 375 
 
 Pitsinowsky v. Beardsley (39 Iowa, 9).. 849 
 
 Pitt V. Yalden (4 Burr. 2060) 824 
 
 Pittman v. Sofley (64 III. 155) 727 
 
 Pitts ti. Mower (I8 Me. 361) .K9, 772 
 
 «. Shubert(llLa. 2SS) 165 
 
 Pittsbai^, &c., R. R. Co. v. Devinney 
 
 (17 Ohio St. 197) 667, 668 
 
 Wv Gozzam (32 Penn. St. 349). . .127, 129 
 
 r. Lewis (33 Ohio St. 196) 668 
 
 V. Ruby (38 Ind. 294) 6«2 
 
 u. Se«tmeyer (93 Penn. St. 278) 6.58 
 
 w. Wooller (12 Bush. 451) 163, 164 
 
 Pixler V. Nichols (8 Iowa, 106) 637 
 
 Placer County v. Astin (8 Ol. 303) 536 
 
 Planche v. Ciolbum C8 Bing. 1^ 797 
 
 Planters' Bank v. Cameron (3 S. & M. 
 
 609) saj 
 
 V. Homberger (4 Cold. 631) 843 
 
 «. Neely (7 How. 8(r) 463 
 
 V. Prater C64Ga. 609) 538 
 
 V. Sharp (4 S. & M. 75) 118, 167 
 
 Planters', &c. Bank v. First National 
 
 Bank (75 N. G. 584) 186, 998 
 
 Planters' Ins. Co. v. Myers (S5 Miss. 
 
 4:9) 981 
 
 V. Sorrells (ST Tenn. 362) 387, 931 
 
 Piano Mnfg. Co. v. Bozton <3* Minn. 
 
 203) 475, 521 
 
 Poe r. Davis (29 AJa. 688) 845 
 
 Polo ». Leask (8 L. T. Rep. (M6) 80 
 
 Polhlll V. Walter (3 B. & Ad. 114) 181 
 
 Pollard V. Grbbs (55 Ga. 45) . . 136, 187, 141 
 
 ». Rowland (2 Blackf. 22) 615 
 
 „ ,. SKOTIOM 
 
 Pollard V. Vinton (105 U. S. 7) 717 
 
 Pollock V. C( ihen (32 Ohio St. 514) . . 117, 168 
 
 V. Qantt (69 Ala. 373) 751, 839 
 
 Polsley V. Anderson 07 W. Va. 202) 847, 
 
 854, 856 
 
 Pomeroy v. Smith (17 Pick. 85) 765 
 
 Pool V. Chicago, &c. Ry Co. (56 W. 227) 667 
 
 V. Adkisson (1 Dana, 110) 561, 571 
 
 V. Gist (4 McCord, 259) 831 
 
 V. Rice (9 W. Va. 73) 554, 957 
 
 Poorman v. Woodward (21 How. 266) . 375 
 
 Pordage v. Cole (1 Wm. Saund. 319) .. . 211 
 
 Poree v. Bonneval (6 La. Ann. 3%) 899 
 
 Porter v. Blood (5 Pick. 54), 683 
 
 v. Haight (45 Cal. 631) 680 
 
 V. Haley (55 Miss. 66) 63 
 
 V. Hannibal, &c. R. R. Co. (71 Mo. 
 
 66) 659, 670 
 
 t>. Hanson (36 Ark. 591) 869 
 
 V. Hills (114 Mass. 106) 281 
 
 V. Lane (8 Johns. 357) 871, 873 
 
 «. Parks (49 N. Y. 564) 786 
 
 t>. Raymond (53 N. H. 519) 756 
 
 ■V. Ruckman(38N. Y. 210) 852 
 
 V. Silvers (35 Ind 295) 619 
 
 V. Woodruff (36 N. J. Eq. 174) 466 
 
 V. Wormser (94N. Y. 431) 936, 
 
 Posey w. Garth (7 Mo. 96) 635 
 
 Postin V. Rassette (5 Cal. 469) 204, 206 
 
 Potter w. Dennison (10 111. 590) K)44 
 
 V. Faulkner (1 B. &S.800) 669 
 
 V. Mayo (3 Greenl. 34) 869, 871 
 
 t>. Thompson (10 R. I. 1) ... 683 
 
 Potts V. Aechternacht (93 Penn. St. 138) 963 
 
 V. Rider (3 Ohio, 7u) 765 
 
 Pottsville Iron & Steel Co. v. Good (9 
 
 Atl. Rep. 497) 641 
 
 Potvin V. Curran (13 Neb. 302) 967 
 
 Pope V. Armstrong (5 S. & M. 214). 869, 870 
 
 V. Reals (108 Mass. 661) 966, 
 
 V. Machias, &c. Co. (52 Me. 535) 800 
 
 t>. Meadow, &c. C!o. (20 Fed. Rep. 
 
 „ , 35) r. 699 
 
 Powel V. Little O W. Black, 8) 817 
 
 Powell V. Conant (83 Mich. 396) 461 
 
 u Edmunds (12 East. 7) 895 
 
 t>, Gossom (18 B. Mon. 179) 149 
 
 V. Henry (27 Ala. 612) 375 
 
 V. Newburgh (19 Johns. 284)... 658, 1031 
 
 V. State (37 Ala. 51) 60 
 
 Powell's Admr. v. Henry (27 Ala. 613) 
 
 157, 855 
 
 Power V. First Nat. Bank (6 Mont. 251). 514 
 
 Powers V. Briggs (79 111. 493) 435, 436 
 
 438, 442 
 
 V. Cray (7 Qa. 206) 684 
 
 t». Skinner (34 Vt. 274) 2Z, 40 
 
 Pownall V. Bair (78 Penn. St. 403) 197 
 
 Pratt V. Beaupre (13 Minn. 187) 442, 449 
 
 V. Bunker (45 Me. 569) 748 
 
 r. Collins (20 Hun, 126) 773 
 
 V. Gardner (2 Cush. 63) . . . .580, 681. 583 
 
 V. Hotchki.ss (10 III. App. 603) 966 
 
 V. Topeka Bank (12 Kans. 570) 755 
 
 Prentiss v. Ledyard (28 Wis. 131) 639 
 
 Preston V. American linen do. (119 
 
 Mass. 400) 635 
 
 t>. Hill (50 Cal. 45) 813 
 
 V. Hull (23 Gratt. 600) 94, 394 
 
 V. Neate (12 Grav, 322) 674 
 
 t>. Preston (1 Doug. 293) 838, 837 
 
 B. Tiibbin (1 Vern. 287) 721 
 
 PriceD. Gover (40 Md. 112) 936 
 
 t!. Keyes (62 N. Y. 378) 469 
 
 t». Ralston (2 Dall. 60) 1044 
 
 «. Reeves (88 Cal. 457) 638 
 
 e. Seydel (46 Iowa, 696) 63, 87 
 
 V. Wisconsin Ins. Co. C43 Wis. 267). 995 
 
 Priestley v. Pemie (3 H. & C. 977) . .554, 699 
 
 V. Fowler (3 M. & W. 1)..656, 659, 687 
 
 Primm v. Stewart (7 Tex. 178) 240, 344
 
 TABLE OF CASES CITED. 
 
 Ixxvii 
 
 SECTION 
 
 Prltchard v. La Crosse, &c. R. B. Co. 
 
 (7 Wis. 232) 741 
 
 Pritchett V. Sessions (10 Rich., S. C. L. 
 
 293) 721 
 
 Proctor I). Williams(8 C. B. N. S. 38B) . . 188 
 
 Proprietors v. Bishop (2 Vt. 231) 809 
 
 Protection Life Ins. Co. v. Foote (79 
 
 111.361) 44 
 
 Proudfoot V. Monteflore (L. R. 8 Q. B. 
 
 511) 722 
 
 V. Wightman (78 111. 553) 319 
 
 Provincial Ins. Co. v. Leduc (L. R. 6 P. 
 
 C. 224) 931, 983 
 
 Provost V. Harwood (29 Vt. 219) 632 
 
 Puett V. Beard (86 Ind. 172) 873 
 
 Pugh V. Chesseldine (11 Ohio, 109) 893 
 
 V. Pugh (9 Ind. 132) 536 
 
 Pugsley V. Murray (4 E. D. Smith, 245). 67 
 
 Pullam v. State (78 Ala. 31) 61, 62 
 
 Pullman Palace Car Co. v. Reed (75 
 
 111. 125) 751 
 
 Pulsifer V. Shepard (36 III. 513 954 
 
 Pulver V. Harris (62 Barb. 500) 846, 871 
 
 Purcell V. McComber (11 Neb. 203) 634, 637 
 
 Purdy V. Huntington (42 N. Y. 339) ... 373 
 
 Purinton v. Insurance Co. (72 Me. 22) . . 435 
 
 Pursley v. Morrison (7 Ind. 356) 84. 288 
 
 Putnam v. French (53 Vt. 402) 341, 342, 362 
 
 V. Sullivan (4 Mass. 45) 394 
 
 V. Sweet (2 Pin. 802) , 804 
 
 V. Tennyson (50 Ind. 456) 869 
 
 Pydnorw. Heard (8 Tex. 98) 558 
 
 Pyle 17. Craven (4 Litt. 17) 51 
 
 Q. 
 
 Quaries v. Porter (12 Mo. 76) 813 
 
 Quarman t7. Burnett (6 M. &. W. 490) 
 
 575, 735, 736, 775 
 Quecena v. Crawford (2 B. & P., N, R. 
 
 269) 1005 
 
 Queen v. Bishop (5 Q. B. Di v. 259) 746 
 
 V. Holbrook (3 Q. B. Div. 60) 746 
 
 V. Prince (L. R. 3 Cr. Cas. 154) 746 
 
 Qulgley V. De Haas (82 Penn. St. 267) 
 
 421, 558 
 V. Mexico Southern Bank (80 Mo. 
 
 289^ ooq 
 
 Quimby v. Hazen (54 Vt.' 132) ...... .6ra, 674 
 
 Quincey v. Francis (5 Abb. N. C. 286) . . 846 
 
 Quincy Mining Co. v. Kitts(42 Mich. 34) 657 
 
 Quinn V. Davis (78 Penn. St. 15) 785 
 
 V. Dresbach (16 Pac. Rep. 762) 86 
 
 V. Power (87 N. Y. 535) 734. 735, 736 
 
 Quint V. Ophir Mining Co. (4 Nev. 305) . 847 
 
 Quitman v. Packard (22 La. Ann. 70) . . 1032 
 
 Rabone v. Williams (7 T. R. 856, note). 778 
 Ragsdale v. Meinphls, &c. R. R. (3 
 
 (Baxt. 426) 667 
 
 Rail V. Potts (8 Humph. 225) 588 
 
 Bailey v. Bagley (19 La. Ann. 172) 819 
 
 V. Porter (32 Mo. 471) 1012 
 
 Railroad Co. v. Fort (17 Wall, 553) 663, 668 
 
 Railway Co. v. Ranney (37 Ohio St. 665) 667 
 
 Railroad Com. v. Ryan (11 Kans. 602).. 29 
 
 Railroad Co. v. Slack (45 Md. 161) 622 
 
 Railway (Do. t>. Spangle (44 Ohio St. 
 
 471) 671 
 
 Raines v. Simpson (50 Tex. 49.5) 580, 581, 592 
 Baisin v. Clark (41 Md. 158) 66, 67, 281, 
 
 64.3 952 953 972 
 
 Baitt V. Mitchell (4 Camp. 146)' ....'.....' 680 
 
 Raliegh V. Atkinson (6 M. & W. 670) 205, 206 
 
 Balston v. Barclay (6 La. 653) 510 
 
 Ramey v. Holcombe (21 Ala. 567) 622 
 
 Ramsey v. Gardner (11 Johns, 439) 653, 1031 
 
 SECTION 
 
 Ramsey v. Rilev (13 Ohio, 157) 580 
 
 Rand v. Hale (3 W. Va. 49.5) 438 
 
 itandall v. Bright m (7 Wall, 535) 580 
 
 V. Kehlor (60 Me. 37) 281 , 348, 992 
 
 V. Lantenberger (13 Atl. Rep. 100). . 903 
 V. Northwestern Tel. Co. (54 Wis. 
 
 140) 714, 715 
 
 V. Smith (63 Me. 105) 281, 486 
 
 V. Trimen (16 C. B. 786) 545 
 
 V. VanVetchen (19 Johns, 60) 141, 
 
 441, 702 
 
 Randel v. Brown (2 How. 406) 677 
 
 V. Chesapeake & Del. Canal Co. (1 
 
 Hark. 234) 714 
 
 V. Yates (48 Miss. 688) 883 
 
 Randolph v. Quidnick Co. (23 Fed. Rep. 
 
 278) 883 
 
 V. Randolph (84 Tex. 181) 864 
 
 V. Ware (3 Cranch, 503) 1011 
 
 Rankin v. Riat thews (7 Ired. L. 286) 897 
 
 V. Schceffer (4 Mo. App. 108) 829 
 
 V. West (25 Mich. 195) 63 
 
 Rape t). Heaton (9 Wis. 328) 810 
 
 Rapsou V. Cubitt (9 M. & W. 709) 735, 
 
 738, 775 
 Basquin v. Knickerbocker Stage Co. 
 
 (12 Abb. Pr. 324) 871 
 
 Rauck V. Albright (36 Penn. St. 371) ... 608 
 
 Rawlings v. Kobson (70 Ga. 595) 432 
 
 Rawson v. Curtiss (19 111. 474) 86, 100 
 
 Ray V. Jeffersonville (90 Ind. 572 592 
 
 V. Haines (52 111 485) 651 
 
 V. Powers (134 Mass. 22) 72, 78 
 
 Rayan v. Chenault (75 Ky. 645) 186 
 
 Raymond v. Bolles (11 Cush. 315) 580 
 
 V. Crown, &c. Mills (2 Mete. 319) 
 
 554, 558, 699, 957, 1047, 1049 
 
 V. Leavitt (46 Mich. 447) 35 
 
 V. Squire (11 Johns. 47) 1052 
 
 Rayner v. Grote (15 M . & W. 359) ...... 760 
 
 Raynes v. Bennett (114 Mass 424) 62 
 
 Raynsf ord i;. Phelps (43 Mich. 342) .... 590 
 
 Reab v. Moor (19 Johns. 337) 634 
 
 Read v. Bostick (6 Humph. 321) 862 
 
 V. Dupper (6 T. R. 361) 868, 873 
 
 V. Dunsmore (9 C. & P. 588) 215 
 
 V. Patterson (11 Lea, 430) 835 
 
 Reason v. Wirdnam (1 Car. & P. 434) . . 600 
 
 Rechtsherd v. Bank (47 Mo. 181) 474 
 
 Redding v. South Carolina R. R. Co. (3 
 
 S.C. 1) 740, 741 
 
 Redfleld V. Tegg (38 N. Y. 212) 971 
 
 Redlich V. Doll i54 N. Y. 2.34) 282 
 
 Redmond v. Coffin (2 Dev. Eq. 437) 425 
 
 V. State (36 Ark. 58) 746 
 
 Reece v. Rierhy (4 B. & Aid. 202) 828 
 
 Reed V. Ashburnham B. R. (120 Mass. 
 
 43) 287 
 
 V. Baggott (5 111. App. 257) 359 
 
 V. Dougan (54 Ind. 307) 526 
 
 V. Norris (2 Myl. & C. 361) 467, 468 
 
 i>. Northrup (50 Mich. 442) 511 
 
 r. Petterson (91 111. 288)... 571 
 
 V. Reed (19 S. C. 548) 813 
 
 V. Van Ostrand (1 Wend. 424) 93 
 
 Reed's Ex'rs v. Reed (82 Penn. St. 420) 967 
 
 Rees V. Soruance (45 111. 308) 966 
 
 Reese v. Biddle (112 Penn. St. 72) 668 
 
 V. Medlock (27 Tex. 120) 103, 104, 
 
 129, 132, 155. 273, 308, 826 
 
 Reeves v. Capper (6 Bing. N. C. 136) . . 678 
 
 V. Kelley (30 Mich. 133) 66 
 
 V. State Bank (8 Ohio St. 465) 614 
 
 Resran v. Chenault (78 Ky. 545) 137 
 
 Reginau Abraham (2 Car. & K. 550).. 715 
 Reichwald v. Commercial Hotel Co. 
 
 (106 III. 439) 121 
 
 Reld V. Bank (70 Ala. 199) 723 
 
 V. Hibbard (6 Wis. 175) 148 
 
 V. Hood (2 N. & McCord, 168) 680 
 
 t;. Humber (.49 Ga. 207) 63»
 
 Ixxviii 
 
 TABLE OF CASES CITED. 
 
 SECTION 
 
 Eeilly V. Cavanaush (29 Ind. 435) SH 
 
 RendeU v. Harriman (75 Me. 497) 438, 
 
 441, 443 
 
 Renick v. Ludington (1*5 W. Va. 379). . . 869 
 
 Renwick f. Bancroft (56 Iowa, 527) 193 
 
 Rex V. Birdbrnoke (4 T. R. 5M5) 634 
 
 w. iJixon (4 Camp. l--i) 746 
 
 V. Di.xon (3 Burr, 1687) 883 
 
 V. Gutch (1 Moo & M. 4.37) 746 
 
 V. Tavlor (13 Price, K38) 1- 
 
 V. Walter (3 Esp. 21) 746 
 
 Reyman v. Member (71 Ind. 593) 61-2 
 
 Reynolds v Collins (78 Ala. 94> 86 
 
 V. Continental Ins. Co. (36 Mich. 
 
 131) 100, 337 
 
 V. Davison (34 Md. 662) 149 
 
 V. Dechaums(24 Tes. 174) 49 
 
 V. Ferree (86 111. 570) 129, 375 
 
 V. Fleming (.30 Kan. 106) 810 
 
 V. Howell (L. R. 8 Q B. 898) 810 
 
 V. Intrersoll (11 S. & M. 249), 718, 813, 800 
 
 V. McMillan (63 HI 46) 841 
 
 V. Rowley (3 Rob. 201) 714 
 
 v. Stansbury (20 Ohio, 344) 58.5 
 
 V. Tompkins (23 W. Va 229) 969 
 
 v.Witte (13S. Car. 5) 739, 743 
 
 Rhea v Puryear (26 Ark. 344) 457, 4i9 
 
 Rhine u Blake (5rt Tex. 240) 326, 875 
 
 Rhines v. Evans (66 Penn. St. 192) 515, 
 
 531. 533, 82»i 
 
 Rhoda «. Annis (75 Mf-. 17) . . . . 287, 743, 744 
 
 Rhode V. Louthain (8 Blackf. 41-3) 93 
 
 Rhodes v. Forwood (L. R. 1 App. Caa. 
 
 256) 211 
 
 «. Neal (64 Oa. 704) 27 
 
 V. Summerhills (4 Heisk. 204) 3S 
 
 Ricard v. Sanderson (41 N. Y. 179) 567 
 
 Rice v. Austin (17 Mass. 197) 676, 1035 
 
 V. Barnard (127 Mass. 211) 221 
 
 V. Brook (20 Fed. Rep. 611) 1003 
 
 V. Cutler (17 Wis. 3.-)l 994 
 
 V. Gove (22 I'ick. 158) 445 
 
 V. Qroffraann (56 Mo. 434) 83. 
 
 84, 338, 993 
 
 V. Isham (4 Abb. App. N. Y. 37) ... 224 
 V. Lyniborough Giass Co. (50 N. H. 
 
 195) 3,54 
 
 V. Mayo (107 Ma=s. 550) 966 
 
 V. McLarren (42 Me. 157) 142 
 
 V. Peninsular Club (.52 Mich. 87). 72, 276 
 
 V.Rice (14 B. Mon. 417) HS5 
 
 V. Tavernier (8 Minn 248) 318 
 
 V.Troup (62 Miss. 186) 819 
 
 v. Wilkins (21 Me. .5.58) 816 
 
 V. Wood (1.33 3Iass. 133) 20, 
 
 66, 67, 613, 9.53, 972 
 
 Rich V. State Natl. Bank (7 Neb. 201). . 148 
 V. State National Bank (18 Kan. 
 
 201) 117 
 
 Richards v. Jackson (31 Md. 250) 612 
 
 u Rough (53 Mich 242) 659, 670 
 
 Richardson v. Daly (4 M. & W. 384) ... 812 
 V. Easle Machine Works (78 Ind. 
 
 482) 621, 622 
 
 V. Kimball '38 Me. 463) 182 
 
 V. Mann i30 La. Ann. 1060) 936 
 
 V. St, Louis Nat. Bank (10 Mo. App. 
 
 246) 1044 
 
 V. Williamson (L. R. 6 Q. B. 276). 
 
 545 553 
 
 V. Wophler (26 Mich. 90) .' 6 H 
 
 Richie V. Bass (15 La. Ann. 668) 5.50 
 
 Richmond, &c., R. R. Co. v. Snead (19 
 
 Gratt. :i54) 441, 413 
 
 Richmond Turnpike Co. v. VanderbUt 
 
 (1 Hill, 480) 7.37 
 
 Ricks V. Yates (5 Ind. 115) 622, 629, 6.37 
 
 Rldder v. Whitlock (12 How. Pr. 208) .. . 528 
 
 Riddle ■•. Hoffman (3 Penn. 224) 515 
 
 »'. Poorman (3 Penn. 224) 515 
 
 middles u. Aikin (29 Mo. 453) 685 
 
 8KC?TI0N 
 
 Riiler v. Ocean Ins. Co. (20 Pick. 259). . 756 
 
 Ridge V. Alter (14 La. Ann. 866) 810 
 
 Ridgeway v. Hungerford Market Co. 
 
 (3 Ad. & El. 171) 215, 839 
 
 Ridgley v. Dobson (3 W. & S. 118) 72 
 
 Riehl V. Evansville Foundry Ass'n (104 
 
 Ind. 70) 536, 780, 781 
 
 Riggan v. Grain (5 S. W. Rep. 561) 142 
 
 u. Green (80 N. Car. 2.36) 48 
 
 Riggs V. Pursell (74 N. Y. 370) 924 
 
 Rigs V. Cag- (3 Hump. 350) 245, 246 
 
 Right V. Cuttrel (5 East, 419) 167 
 
 Riley V. Minor (29 Mo. 4.39) 89 
 
 V. Steamship Co. (29 La. Ann. 791). 749 
 
 V. Wheeler (44 Vt. 189).... 948 
 
 Rimmey v. Getterman i63 Md. 424) 84 
 
 Ringo V. Binns (10 Pet. 269).... 457, 468, 469 
 
 Rion V. Giliy i6 Mart. 417) 1023 
 
 Ripley v. Bull (19 Conn. 56) 843 
 
 r. Chipman (13 Vt. 268) 635 
 
 V. Gelstou (9. Johns. 201) 564 
 
 Ritch V. Smith (82 N. Y. 627) 378 
 
 RUchey v. West (33 111. 385) 829 
 
 Roach V. Coe (1 E. D. Smith, 175) 129 
 
 V. Karr (18 Kans. 539) 718 
 
 V. Turk (9 Heisk. 708) 91.5, 961, 1050 
 
 Robb V. Bank (41 Barb. 5S6) 4.39 
 
 Robbins v. Mount (4 Robt. ,5.53) 51 
 
 V. Robbins 3 Atl. Hep. 264) 528 
 
 V. Sears (23 Fed. Rep. 874) 953, 972 
 
 Robert v. Commercial Bank (13 La. 
 
 .528) 813 
 
 Robert Mary 's Case (9 Coke, 113) 793 
 
 Roberts v. Adams (8 Port. 297) 394 
 
 V. Armstrong (1 Bush. 263). 531, 5.33, 833 
 
 V. Burks (Litt. S. C. 411) 714, 715 
 
 V. Kiramons (3 South. Rep. 736). . . . 967 
 
 V. Nels' <n (22 Mo. App. 28) 813 
 
 V. Ogilby (9 Price, 269) 525 
 
 V. Pepple(85 Mich, 367) 106 
 
 Robertson v. Cloud (47 Miss. 208) 226 
 
 V. Levy (19 La Ann. 327) 307 
 
 V. Livingston (5 Cow. 473) 990, 10-30 
 
 V. R'.binson (65 Ala. 610) :^0 
 
 V. Shutt (9 Bush, 659) 869 
 
 v. Sichel (127 U. S. 507) 594 
 
 V. Terre Haute, &c., R. R, (78 Ind. 
 
 77) 667 
 
 V. Western F. & M. Ins. Co. (19 La. 
 
 227) 461, 463 
 
 Robinett's Appeal (13 Caaev, 191) 469 
 
 Robins v. Bridge (3 M. & W. 114) 838 
 
 Robinson v. Anderson (106 Ind. 152). ... 
 
 375, 790 
 
 V. Baker (5 Cush. 1.37) ,.. 677, 1036 
 
 V. Chamberlain (34 N. Y. 380) 590 
 
 V. Chemical Nat. Bank (86 N. Y. 
 
 404) 287, 882 
 
 V. Fitchburg, &c., R. R,Co. (7 Gray, 
 
 92) 714, 715 
 
 V. Garth (6 Ala. 204) 924 
 
 V, Grpen (5 Harr. 115) 88 
 
 V. Green (3 Mete. 1.59) 919 
 
 V. Life Ass. Co. (42 N. Y. 54) 269 
 
 V. .larvis (25 :*Io. App. 421) 67 
 
 V. Kanawha Valley Bank (44 Ohio 
 
 St. 441) 43-<, 441 
 
 V. L-^rrabee (6:5 Me. 116) 676, 678 
 
 V. MoUett (L. R. 7 H. of L. 802) 105, 281, 
 
 4(i5, 485, 910, 9.52 
 
 V. Jturphy (69 Ala. 543) 819 
 
 V. Rowland (26 Hnn, .501) 58S 
 
 V. RuttPr(4 Kl & B. 951) 919 
 
 V. Sanders (2 1 Miss. 391) 637 
 
 V. Walton (oS Mo. 380) 714 
 
 V. Webb (11 Bush. 464) 765, 922. 1041 
 
 V. Weeks (56 Me. 102) 51,59, 651 
 
 V. Yarrow (7 Taunt. 455) 893 
 
 Robinson's Case (131 Mass. 376). ...803, 804 
 Robinson Machine Works v. Vorse (52 
 
 Iowa,207) 486
 
 TABLE OF OASES CITED. 
 
 Ixxix 
 
 SECTION 
 
 Robson w. Kemp (4 Esp. 235) 882 
 
 V. Sanders (25 S. C. 116) 522 
 
 V. Watts (11 Tex. 764) 375 
 
 Roby V. Cossett (78 111. 638) 127, 149 
 
 Rochester w Levering (104 Ind. 562)... 466 
 Rochester City Bank v. Suydam (5 
 
 How. Pr. 254) 882. 8a3, 887 
 
 Rockford, &c. R. R. Co, v. Sage i65 111. 
 
 828) 74, 125 
 
 «. Wilcox (66 111. 417) 86, 97 
 
 Rockwell V Newton (44 Conn. 333) 967, 971 
 
 Rockwood V. Brown (1 Gray, 261) 773 
 
 Rodgers v. Bass (46 Tex. 505) 875 
 
 < . Blackwpll (49 Mich. 192) 48 
 
 V. Pike County Bank (69 Mo. 562) . . 63 
 
 Rodick V. Coburn (68 Me. 170) 354, 876 
 
 Rodriguez v. Hefferman (6 Johns. Oh. 
 
 417) 994 
 
 Roe V. Pierce (2 Camp. 96) 167 
 
 Roesner v. Hermann (10 Bisa. 486) 671 
 
 Rogers v. Buckingham (33 Conn. 81)... 745 
 
 r. Crusrer (7 Johns. 557) 77 
 
 v. Greenwood (14 Minn. 833) 812 
 
 w. Huie (1 Cal 429) 915 
 
 V. Kneeland (10 Wend. 219) 1031 
 
 V. March (33 Me. 106). . .446, 448, 556, 1051 
 
 V. McKenzie (81 N. 6. 164) 817, 818 
 
 V. Rogers (1 Hopk. 524) 457, 463 
 
 V. Weir (34 N. Y. 463) 681 
 
 V. Woodruff (23 Ohio St, 632) 281 
 
 Rohrbach v. Germanla F. Ins. Co. (62 
 
 N. Y.47) 931 
 
 Rolf e V. Delman (7 Robt. 180) 88 
 
 V. Gregory (4 DeG. J. & S. 576) 536 
 
 Rollard v. Hart (L. R 6 Ch. App. 678). 721 
 
 Roller V. Wooldridge (46 Tex. 485) 813 
 
 Rolling Stock Co. v. Railroad Co. (34 
 
 Ohio St. 396) 67, 644, 953, 972 
 
 Romaine v. Van Allen (26 N. Y. 309) .... 1009 
 
 Romberg v. Hughes (18 Neb. 579) 888 
 
 Ronald v. Mutual Reserve Asa'n (80 
 
 Fed. Rep. 228) 856 
 
 Roof V. Stafford (7 Cow. 179) 51 
 
 Rooney v. Second Ave. R. B. Co. (18 N. 
 
 Y. 868) 869, 871 
 
 Roosevelt v. Doherty (129 Mass. 3iil) 
 
 1042, 1043 
 
 Root V. French (13 Wend. 670) 787 
 
 V. Wright (21 Hun, 348) 882 
 
 Rootes V. Stone (2 Leigh, 650) 835 
 
 Rosa V. Brotherson (10 Wend. 86) 619 
 
 Rose V. Harden (35 Kan. 106) 457, 4.59 
 
 V. Laffan (2 Speers. 424) 755 
 
 V. Tmax (21 Barb. 361) 40, 645 
 
 Rosenburg v. Rosenburg (40 Hun, 100) 882 
 
 Rosenbury v. Angell (6 Mich. 608) 86 
 
 Rosquin v. Stage Co. (12 Abb. Pr, 324). 871 
 
 Ross V. Brown (74 Me. 352) 440 
 
 V.Madison (1 Ind. -.^81) 97, 98 
 
 V. Houston (25 Miss 591) 718 
 
 Rossiter v. Cooper (23 Vt. 628) 632 
 
 V. Peck (8 Gray,539) 685 
 
 V. Rossiter (8 Wend. 494) 279, 287, 806, 
 890, 891, 398, 650, 558 
 V. Trafalgar Life Ass'n (27 Beav. 
 
 377) 194 
 
 Rothwell V. Dewees (2 Black, 618) 457, 459 
 
 Rotman v. Wasson (5 Kan. 652) 89 
 
 Rounds V. Delaware, &c. R. R. Co. (64 
 
 N. Y. 120) 740, 742 
 
 V. Mansfield (38 Me 686) 590 
 
 Roundtree v. Smith (108 U. S. 269) 39 
 
 V. Denson (59 Wis. 622) 806 
 
 Bourke v. Story (4 E. D. Smith, 54). . . . 728 
 Eowe V. Rand (111 Ind. 208) 221, 247, 251, 261, 
 
 765, 757 
 
 t>. Osborne (1 Stark, 140) 933 
 
 V. Stevens (53 N. Y. 621) 67, 953, 972 
 
 V. Ware (30 Ga. 278) 93, 141 
 
 Rowell V. Kleiu (44 Ind. 290) 56, 68. 100, 714 
 V. Martindale (1 Bailey, Ch. 226) . . 634 ' 
 
 vi 
 
 SECTION 
 
 Rowell V. Slate (68 Penn. St. 198) 819 
 
 Rowning v. Goodchild (2 W. Bl. 906). . . 590 
 
 Royce V. Allen (28 Vt. 234) 554, 957 
 
 V. Johnson (7 Gray. 162) 39 
 
 Royster v. Mageveney (9 La. 148) 966 
 
 Ruckman v. Bcrgholz (38 N. J. L. 531) 
 
 68, 461, 605, 791 
 
 Rudasill v. Falls (93 N. C. 222) 130 
 
 Rudd V. Matthews (79 Ky. 479) 116 
 
 Ruffner«. Hewett (7 W. Va. 68,^).. 130, 
 
 163, 653, 977 
 
 Ruffln V. Mebane (6 Ired. Eq. 507) 364 
 
 Rugglest). Collier (43 Mo. 353) 190 
 
 V. Washington Co. (3 Mo. 496) 148 
 
 Ruiz V. Norton (4 Cal. 355) 769, 773 
 
 Rundel v. Foster (3 Tenn. Ch. 658) 882 
 
 Rundle v. Moore (3 Johns. Cas. 36). . . . 1008 
 
 Kunyanu. Nichols (11 Johns. 547). 647, 648 
 
 Rupp V. Sampson (16 Gray, 398) .... O.W, 973 
 
 Ruppe V.Edwards (52 Mich. 411) 386, 396, 400 
 
 Rusby V. Scarlett (5 Esp. 76) 274 
 
 Rush V. Cavenaugh (3 Penn St. 187). .. 851 
 
 Rushforth v. Hadfleld (7 East. 229).673, 685 
 
 Rusk V. Fenton ( 14 Bush, 490) 48 
 
 Russel V. Palmer (2 Wils. 835) 906 
 
 Russell V. Annable (109 Mass. 74) 138 
 
 V. Conway (11 Cal. 103). 869, 870 
 
 w. Orummond (6 Ind. 216) 813 
 
 V. Folsom (72 Me. 436) 439 
 
 V. Little (28 Ala. 160) 634 
 
 V. Miner (35 Hun, 114) . 892, 907, 917 
 
 V. Sweezy (22 Mich. 2:35) 718 
 
 Rust V. Eaton (24 Fed. Rep. 830). . .273, 
 
 276, 289 
 
 V. Larue (4 Lltt. 419) 845 
 
 Rutenberg v. Main (47 Cal. 213) 89, 966 
 
 Rutherford w. Mitchell (M. & Y. 261). . . 754 
 Rutland, &c. R. R. Co. v. Cole (34 Vt. 
 
 39) 755 
 
 Ryan v. Bagaley (50 Mich. 179).664, 665, 668 
 
 «. Curran (64 Ind. 845) 747 
 
 V. Dayton (25 Conn. 188) 631, 640 
 
 V. Fowler (34 N. Y. 410) 659 
 
 V. Gilmer (2 Mont. 517) 714, 715 
 
 V. McQee (2 Mack. 17) 966 
 
 w. Tudor (31 Kans. 366) 388 
 
 Ryberg v. SneU (2 Wash. 403) 1036 
 
 B. 
 
 Sadler v. Evans (4 Burr. 1984) 77» 
 
 V. Leigh (4 C.'imp 195) 756, 769, 772 
 
 V. Robinson (2 Stew. 520) 51 
 
 Sage V. Laurain (19 Mich. 137) 588 
 
 Saginaw. &c. R. R. Co. v. Chappell (66 
 
 Mich. 190) 288 
 
 Sailly V. Cleveland (10 Wend. 156) 756 
 
 Saladin v. Mitchell (45 III. 79) . .945. 949, 960 
 Salem Bank v. Gloucester Bank (17 
 
 Mass. 28) 118 
 
 Salisbury v. Brisbane (61 N. Y. 61 7). 77, 261 
 Salmon Falls Mnfg Co. v. Goddard (14 
 
 How. 446) 769 
 
 Salter v. Howard (43 Ga. 601 ) 793 
 
 Saltmarsh v. Smith (32 Ala. 404) ... .240, ai4 
 Saitusv. Everett (20 Wend. 366)... 785, 
 
 787, 1050 
 
 Sample v. Frost (10 Iowa, -66) 884 
 
 Sampson u. Shaw (101 Mass 145) 35 
 
 V Sinser Mnfg Co. (5 S. C. 465) 846 
 
 Samuelson v. Cleveland Iron Mining 
 
 Co. (49 Mich. 164) 666 
 
 San Diego v. San Diego, &c. R. R. Co. 
 
 (44 Cal. 106) 463 
 
 San Jose Gas Co. v. January (57 Cal. 
 
 614) 588 
 
 Sanborn v. Chamberlin (10 Mass. 409). 893 
 
 V. Neal (4 Minn. 126) 547 
 
 Sandford v. Hamly (23 Wend. 260). 348, 714 
 
 v. Nyman (23 Mich. 326) 718
 
 Ixxx 
 
 TABLE OF OASES CITED. 
 
 SECTION 
 
 Sandfoas v. Jones (35 Cal. 48n 457, 459 
 
 Sands V. Life Ins. Co. (50 N. Y. 626) .... 269 
 Sanford v. Norris (4 Abb. App. Deo. 
 
 144) 457, 459 
 
 V. Pollock (105 N. Y. 450) 63 
 
 V. Rawlings (43 111. 93) 963 
 
 Sanfrer V. Dun (47 Wis. 615) 516 
 
 V. Fincher (27 111. 347) 648 
 
 Sangston v. Maitland (11 Gill. & J. Md. 
 
 286) 1003 
 
 Sank V. Life Ins. Co. (.50 N. Y. 626) 269 
 
 Sargant v. Clark (108 Penn. St. 588) .... 812 
 
 Sargent v. Morris (3 Barn & Aid. 281).. 931 
 
 V. Webster (13 Mete. 497) 421 
 
 V. Blunt (16 Johns. 74) 476 
 
 Batchwell v. Williams (40 Conn. 371) 
 
 648, 649 
 Satterfleld v. Malone (35 Fed. Rep. 445) 721 
 
 «. Smith (11 Ired. 60) 8115 
 
 Satterly v. Morgan (35 La. Ann. 1168).. 667 
 
 Saulsbury v. Wimberly (60 Ga. 78) 718 
 
 Saulspaw v. Gilchrist ( i Tenn. Ch. 8). . . 917 
 
 Saunders u Bartlett(12 Heisk. 316).... 1035 
 
 V. Hatteman (2 Ired. 32) 743 
 
 Saiinderson v. Jackson (2 Bos. & Pul. 
 
 238) 211 
 
 Savacool v. Boughton (5 Wend. 172) ... 586 
 
 Savage v. Rix (9 N. H. 263) 438, 550 
 
 V. Savage (13 Oregon, 459) 470 
 
 Saveland v. Green (36 Wis. 612) 653 
 
 V. Green (40 Wis. 431) . . 155, 157, 161, 194 
 
 Savery v. Savery (8 Iowa, 217) 810 
 
 V. Sypher (6 Wall. 157) 820 
 
 Savings Bank v. Railroad Co. (20 Kans. 
 
 519) 717 
 
 V.Ward (100 U. S. 195) 829, 836 
 
 Savings Fund Society v. Savlng^s Bank 
 
 (36 Penn. St. 498) 6, 
 
 9. 84, 104, 105, 106, 287, 288, 294 
 
 Savings Inst, v Chinn (7 Bush- 539) .... 813 
 
 Savory v. Chapman (11 Ad. & El. 839). 820 
 
 Sawyer v. Corse (17 Gratt. 230) 590, 
 
 593, 594, 595 
 
 V. Cutting (23 Vt. 486) 61 
 
 V. Gerrish(70 Me. 2.i4) 674 
 
 ». Hebard (58 Vt. 37.5) 599 
 
 V. Lappan (14 N. H. 352) 533 
 
 V. Lorillard (48 Ala. 332). . . .676, 678, 1032 
 
 t>. Mayhew (51 Me. 398) 475 
 
 V. Pawner's Bank (6 Allen, 207) .... 730 
 
 t>. Tappan(14 N. H. 352) 5a3 
 
 Sax W.Drake (69 Iowa, 760) 86 
 
 Saxonia, &c., Vo. v. Cook (7 Colo. 569). 621 
 
 Sayre v. Nichols (7 Cal. 535). . . .186, 193, 437 
 
 Scaggs V. State (8 S. & M. 722) 715 
 
 Scanlan v. Keith (102 111. 634) 438, 442 
 
 Scarborough v. Reynolds (12 Ala. 252), 
 
 405, 950 
 
 Scarfe V. Morgan (4 M. & W. 283) 6?3, 
 
 674, 681 
 
 Schaefer v. Henkel (75 N. Y. 878). . .755, 757 
 
 Schaeffer v. Kirk (49 111. 251) 510, 1005 
 
 Shanck V. Northern, &c., R. B. Co. (25 
 
 Md. 462) 667, 668 
 
 Scharlock v. Oland (1 Rich. L. 907) .... 869 
 
 Schedda v Sawyer (4 McLean, 181) 528 
 
 Schell V. Stephens (50 Mo. 379). 913, 923, 1043 
 
 Schenck v. Dart (23 N. Y. 420) 463 
 
 Bchepflin v. Dessar (20 Mo. App. 669), 
 
 698, 699 
 Schlffer v Feagin (61 Ala. 835) ... . 1032, 1033 
 Schimpf V. Tennessee Mfg Co. (6 S. W. 
 
 Rep. 131.) 641 
 
 Schlntz V. AIcManamy (33 Wis. 299). . . . 394 
 
 Schlater v. Winpenny (75 Penn. St. 821) 231 
 
 Schley v. Fryer (100 N. Y. 71). 333 
 
 V. Lyon (6 Ga. 580) 765 
 
 Schlltz V. Meyer (61 Wis. 418) 809, 810 
 
 Bchmaling v. Thomlinson (6 Taunt. 
 
 147) 693,760, 998 
 
 Schmaltz v. Avery (16 Q. B. 655) 760 
 
 SKOTrON 
 
 Schmerly v. Dnoyer (53 Penn. St. 335) . . 954 
 
 Schmidt v. Sandel (30 La. Ann. 333) 398 
 
 Schnerr v. Lemp (19 Mo. 40) 6.35 
 
 Scliool Directors V. Sippy (54 111. 287) . 393 
 School District v. .^tua Ins. Co. (62 
 
 Me. 330) 353 
 
 School Town of Monticello v. Kendall 
 
 (72Ind. 208) 440 
 
 Schoole V. Noble (1 H. Bl. 23) 668 
 
 Schoregge v. Gordon (29 Minn. 367).386, 816 
 
 Schramm i>. O'Connor (98 111.539) 49 
 
 Schroeppel v. Corning (6 N. Y. 117).. . . 833 
 
 Schroyer v. Lynch (8 Watts. 4.-.3) 593, 594 
 Schuchardt v. Aliens (1 Wall. 359). .281, 
 
 348,349, 992 
 
 Schufif V. Ransom (79 Ind. 458) 50 
 
 Schutz V. Jordan (32 Fed. Rep. .^5) 148 
 
 Sch wartze v. Yearly (31 Md. 270) 966 
 
 Schwertz v. Dwyer (53 Penn. St. 335) . . 954 
 
 Scobey u. Ross (13 Ind. 117) 845 
 
 Scott V. Bush (26 Mich. 418) 211 
 
 V. Detroit, &c. Society (1 Doug. 119) 
 
 77, 78 
 
 V. Elmendorf (12 Johns. 317) ... 386, 812 
 
 V. Freeland (7 S. & M. 409) 463 
 
 u Gorton (14 La. 115) 468 
 
 v. Harmon (109 Mass. 237) 845 
 
 V. Irving (1 B. & Ad. 605). ...354, 375, 931 
 
 V. Jester (13 Ark. 438) 679, 685 
 
 V. Maier (56 Mich. 554) 600 
 
 V. Mann (38 Tenn. 157) 67, 461 
 
 V. McAlpin (N. C. Term Rep. 155)... 421 
 
 V. McGrath (7 Barb. 53) 348 
 
 t). Methodist Church (50 Mich. 528) 
 
 118, 164 
 t>. Middletown, &c. R. R, Co. (86 N. 
 
 Y. 200) 118, 129, 164 
 
 V. Porcher (3 Meriv, 652) 567 
 
 V. Rogers (31 N. Y. 676) 474, 476, 477, 954, 
 
 1008, 1052 
 
 V. Seller (5 Watts, 235) 816, 821 
 
 V. Shepherd (2 W. Blackstone, 892) 733 
 
 V. Stausfleia (L. R. 3 Ex. 220).. 580, 588 
 
 V. Surman (Willes, 400) 267, 780,781, 1044 
 
 V. Umbarger (41 Cal. 410) 586 
 
 Scribner v. CoUar (40 Mich. 375) 66, 67, 643, 
 
 953,972, 973 
 
 Scruggs V. Driver (31 Ala 274) 240 
 
 Scudder v. Anderson (54 Mich. 122) 396 
 
 Scully V. Scully (28 Iowa, 208) 699, 601 
 
 Sea V. Carpenter (16 Ohio, 412) 619 
 
 Seago V. Marten (6 Heisk. 308) , . 149 
 
 Seals V. Edmondson (73 Ala. 295> 600 
 
 St'aman v. Whitney (24 Wend. 260). . . . .567 
 
 Searing V. Butler (69 IIL 575) 160, 163, 6.52, 
 
 977, 1031 
 
 Sears w. Wills (4 Allen, 212) 678 
 
 Seaton v. Cordray (Wright, 102) 839 
 
 V. Scovill (18 Kan. 433) 511 
 
 Seaven v. Boston, &c., B. R. Co. O* 
 
 Gray, 467) 668 
 
 Seaver v. Coburn (10 Cush. 824) 438 
 
 V. Morse (20 Vt. 620) 631 
 
 Sedgwick v. Stanton (14 N. Y. 289) 23 
 
 Segar v. Edwards (11 Leigh, 213) 461 
 
 V. Parrish (20 Gratt. 672) 1027 
 
 Seichrist's Appeal (66 Penn. St 237), 
 
 457 459 
 
 Seiple V. Irwin (30 Penn. St. 513) ! 338, 
 
 339 340 949 
 
 Selling V. McKlnney (1 Leigh. 42) .'.... .' 30 
 
 Semenza v. Brinsley (18 C. B. N. S. 467) 773 
 
 Sentell v. Kennedy (29 La. Ann. 679).. 117, 
 
 397, 1025 
 
 Sergeant v. Stryker (1 Harr. 464) 567 
 
 Seton V. Sl^ide (7 Ves. 276) 902 
 
 Severy v. Nickerson (120 Mass. 306) 658 
 
 Sevier v. Holliday (2 Ark. 512) 531, 824 
 
 SewaUv. Jones (9 Pick. 412) 898 
 
 Sewanee Mining Co. v. McCall (3 Head, 
 
 619) 307, 391, 393, 398
 
 TABLE OF CASES CITED. 
 
 Ixxxl 
 
 SECTION 
 
 Sexton V. Wpaver C141 Mass. 273) 197 
 
 Seymour v. Hoadley (9 Conn. 418) 1037 
 
 V. Newton (105 Mass 27^) 687 
 
 V. Wyckoflf (ION. Y. 213) 129 
 
 Shack V. Anthony (1 M. & S. 572) 758 
 
 Shackman v. Little (87 Ind. 181) 311 
 
 Shafer v. Phoenix Ins. Co. (53 Wis. 361) 721 
 
 Shank v. Shoemaker (18 N. Y. 489) 871 
 
 Shanks v. Lancaster (5 Gratt. 110) 423, 
 
 423, 425 
 Shanny v. Androscoggin Mills (66 Me. 
 
 420) 664. 665, 667 
 
 Shannon v. Comstock (21 "Wend. 457). . 623 
 
 V. Marmaduke (14 Tex. 217) . . 461 
 
 Sharman v. Brandt (L. R. 6 Q. B. 720), 
 
 932, 983 
 
 Sharp V. Emmet (5 Whart. 288) 443 
 
 V. Goodwin (51 Gal, 219) 536 
 
 V. Jones (18 Ind. 314) 755, 768 
 
 Shattuck V. Eastman (12 Allen, 869) 432, 558 
 
 Shaver v. Ingham (58 Mich. 649) . . 215, 638 
 
 Shawr. Hudd (8 Pick. 9) 91 
 
 Shea V. Sixth Ave. R. R. Co. (62 N. Y. 
 
 180) 740 
 
 Sneehan v. Nevr York, &c., R. R. Co. 
 
 (91 N.Y.3'^2) 667 
 
 Sheets v. Selden (2 Wall. 177) 90 
 
 SheflEer v. Montgomery (65 Penn. St. 
 
 329) 1044 
 
 Sheffield v. Page (1 Sprague, 285) 623 
 
 Shelby v. Offutt (51 Miss. 128) 269, 274 
 
 Sheldon v. Atlantic F. & M. Ins. Co. 
 
 (26 N. Y. 460) 931 
 
 V. Sheldon (3 Wis. 699) 175 
 
 Sheldon Hat Blocking Co. v. Eicke- 
 meyer Hat Blocking Co. (90 N. 
 
 Y.6a7) 158 
 
 Shelhamer v. Thomas (7 S. & R. 106). . . 279 
 
 Sheltou V. Darling (2 Conn. 4:35) 439 
 
 W.Johnson (40 Iowa, 84) 601, 60.5 
 
 V. Livins (2 C. & J. 411) 895 
 
 V. Merchants' Despatch Transp.Co. 
 
 (59N. Y. 258) 315, 484 
 
 Shepherd v. Evans (9 Ind. 260) 754, 7.55 
 
 t;. Harrison (L. R. 4 Q B. 196) 689 
 
 V. Hedden(29N. J. L. 334) 966 
 
 V. Lanf ear (5 La. 336) 67 
 
 Shepler v. Scott (8.j Penn. St. 329) 976 
 
 Sheridan v. Charlick (4 Daly, 338) 738 
 
 Sherley v. Billings (8 Bush. 147) . . .740, 741 
 Sherman v. Fitch (98 Mass. 59) . . . .118, 
 
 121, 550 
 
 V. Dutch (16 111. 285) 739 
 
 V. Rochester, &c. R. R. (17 N. Y. 
 
 153) 667, 663 
 
 V. Scott C27 Hun, 334) 882 
 
 V. Transportation Co. (31 Vt. 162) . . 6-35 
 
 Sherman Bank v. Weiss (67 Tex. 331).. 782 
 
 Sherrard v. Nevins (2 Ind. 241) 810 
 
 Sherwood v. Roundtree (32 Fed. Rep. 
 
 113). 745 
 
 V. Stone (14 N. Y. 268) 520, 1014 
 
 Shields v. Blackburne (1 H. BL 158).497, 498 
 
 V. Davis (6 Taunt. 65) 756 
 
 V. Yonge (15 Ga. 319) 667 
 
 Shiff V. Lesseps (22 La. Ann. 185) 204 
 
 Shipley I'. Fifty Assouiates (106 Mass. 
 
 194) 747 
 
 Shlrland v. Monitor Iron Works (41 
 
 Wis. 162) 67 
 
 Shirley v. Shirlev (7 Blackf. 452) 211 
 
 Shirtliff V. Whilfleld (2 Brev. 71) 610 
 
 Shisler v. Vandike (92 Penn. St. 447) ... 116 
 Shoenfeld V. Fleisher (73 111. 404) . .475 
 
 510, 90^, 934, 1005, 1008, 1011 
 
 Shores v. Caswell (13 Mete. 413) ...811, 813 
 
 Short V. Millar! (68 111. 292) 201 
 
 V. Skipwith (1 Brock. 104) 478 
 
 Shotwell V. Hamlin (23 Mi.ss. 156) 651 
 
 Shuetze v. Bailey (40 Mo. 69) 93, 
 
 430, 432, 441 
 
 StCCTlON 
 
 Shuman v. Fitch ("98 Mass. 59) 118 
 
 bhutz V. Jonlan (32 Fed. Rep. 55) 150 
 
 Sibbald v. Bethlehem Iron Co. (83 N. 
 
 Y. 378). 620, 937, 9i)4, 9{;6, 907, ilHH, 978 
 
 Siebold v. Davis (67 Iowa, 561) 273 
 
 Siegel V. Gould (7 Lans. 177) 953, 973 
 
 Siemon v. Schurck (29 N. Y. 598) 536 
 
 Sievewright v. Archibald (17 Q. B. 115). 932 
 
 Siflfken v. Wray (6 East, 871) 687 
 
 Sigoumey v. Lloyd (8 B. & C. 622)..779, 782 
 
 V. Severy (4 Cush. 176) 772 
 
 Siiliman v. Fredericksburg, &c R. R. 
 
 Co. (27 Gratt. 120) 273, 288, 291 
 
 Silver v. Jordan (136 Mass. 319) 698 
 
 Silverman v. Bush (16 HI. App. 437).. .. 129 
 
 Silvis V.Ely (3 W. & S. 420) 820 
 
 Simmons v. Almy (103 Mass. 33) 869 
 
 Simon v. Brown (.38 Mich. 5.52) 86 
 
 V. Motivos (3 Burr. 1921) 893 
 
 Simonds v. Heard (23 Pick. 120) 426 
 
 Simonton v. First National Bank (24 
 
 Minn. 216).... 208 
 
 Simpson v. Carson (11 0:-egon, 361).204, 207 
 
 w. Garland (72 Me. 4U) 435 
 
 V. Lamb (84 Eng. Com. L. 603) 204 
 
 V. Lombas (14 La. Ann. 103) 8l2 
 
 V, Pinkerton (10 W. N. C. 423) 535 
 
 f. Waldby (30 N W. Rep. 199) 514 
 
 Sims V. Bond (5 B & Ad. 389) 755 
 
 V. Smith (99 Ind. 4G9) 62 
 
 V, State Ins. Co. (47 Mo. 54) 931 
 
 V. United States Trust.Co. (9 N.;E. 
 
 Rep. 60,5) 393 
 
 Simson v. Brown (68 N. Y. 358) 567 
 
 Sinclair v. Bowles (9 B. & C. 92).. . .635, 636 
 
 V. Jackson (8 Cow. 543) 550 
 
 Sines v. Superintendents of the Poor 
 
 (58Mieh.503) 212 
 
 Singer v. McCormick (4 W. & S. 26.5). . . 215 
 Singer Mnfg Co. v. Chalmers (2 Utah, 
 
 542) 899 
 
 V. Holdfodt (86 111. 455) 86 
 
 Singleton v. Mann (3 Mo . 464) 61, 62 
 
 Sioux City R. R. Co. v. First Nat. Bank 
 
 (10 Neb. 556) 717 
 
 Sioux City, &c. R. R. Co. v. Walker 
 
 (49 Iowa, 273) 503 
 
 Skelley v. Kahu (17 111. 171) 497 
 
 Skinner v. Dayton (19 Johns. 513). .138, 171 
 
 V. Gunn (9 Port, 305) 348, 850 
 
 Slark V. Highgate Archway Co. (5 
 
 Taunt. '(92) 897 
 
 Slawson v. Loring (5 Allen. 340) 437, 
 
 439 441 442 443 
 
 Sleath V. Wilson (9 C. & P. 607) ...*.....' 788 
 
 Sleeper v. Abbott (60 N H. 162) 885 
 
 Small V. Howarj (128 Mas.s. 131)... 491, 494 
 
 V. Owings (1 Bid Ch. 363) 91 
 
 Smalley v. Clark (2-i Yt. 598) 878 
 
 V. Greene (52 Iowa. 241) 814 
 
 Smart v. Guardians (36 Eng. L. & Eq. 
 
 496) 600 
 
 V. Sanders (5 C. B. 895) 206 
 
 Smedes v. Bank of Utica (20 Johns. 
 
 372) 498, 511 
 
 Smelting Co. v. Belden Co. (127 U. S. 
 
 387) 760 
 
 Smethurst v. Mitchell (1 E. & E. 622) . . 
 
 696, 700 
 
 Smiley v. Mayor (6 Heisk. 604) 97 
 
 Smilie V. Hobbs (5 Atl. Rep. 711) 349 
 
 Smith V. Alexander (31 Mo. 193).... 430, 448 
 
 u. Allen (86 Sto. 178) 92 
 
 V. Arnold (5 Mason, 414') . 893 
 
 V. Barnes (L. R. 1 Eq. 65) 536 
 
 V. Black (51 Md. 247) 808 
 
 V. Bossard (2 McCord's, Ch. 406). . . . 
 
 812 813 
 
 V. Brady (17 N. Y. 173) ] 635 
 
 V. Brotherline (62 Penn. St. 461). ... 
 
 457, 468, 878
 
 Ixxxii 
 
 TABLE or CASES CITED. 
 
 8K0TI0N 
 
 Smith V. Chicago. &c , Ry Co. (60 Iowa, 
 
 5J5) o49 
 
 V. Clews (105 N. Y. 283) S35, 786 
 
 t>. Cologan (2 T. R. 189) 169 
 
 t.. Crews (2 Mo. App. 269) 1027 
 
 W.Davis (45 N H. 566) 841, 842 
 
 V. Dicl{inson(6 Hump. 261) 93 
 
 ». Drake (23 N.J. Eq. 302) 463 
 
 V. Fairchild (7 Colo. 510) 319, 9bb 
 
 V First. Con^. M. H. (8 Pick. 178) ... 636 
 
 V. Flint, &c., Ry (46 Mich. 258) 667 
 
 V. Gibson (6 Blackf. 369) 391 
 
 «. Goode (29 Qa. 185) .;.. 874 
 
 V. Hall (19 111. App 17) 372, 380 
 
 r. Hammond (6 Sim. 10) 5^7 
 
 V Hay ward (7 Ad. & Ell. 644) . .621, 622 
 
 V. Hill 113 Ark. 173i 640 
 
 V. Johnson (71 Mo. 382) 38:1 
 
 V. Kelly (43 Mich. 390) 563 
 
 V. Kidd (68 N. Y. 130).. 129, 149, 373 
 
 379,380, 817 
 
 «.Kron(96N. C. 892) 716 
 
 V. Lamberts (7 Gratt. 138) 3'5 
 
 «. Lane (101 Ind. 449) 219 
 
 V. Lascelles (2 T. R. 187) 510, 1012 
 
 v. Long (106 111. 488) 883 
 
 V.Lyon (3 Camp 465) 762 
 
 V. McGregor (96 N. C. 101) 399 
 
 V. McN'air(19Kans 330) 929 
 
 V. Miller (43 N. Y. 172) 511 
 
 V. Mulliken (2 Minn. 319) 812, 813 
 
 V. Newburgh (77 N. Y. 130) 118 
 
 D.Oliver (31 Ala. 39) 721 
 
 V. Oxford Iron Co. (42 N. J. L. 467). 658 
 V. Peninsular Car Works (60 Mich. 
 
 501) 659 
 
 V. Perry (5 Dutcher, 74) 93, 355 
 
 V. Pluranier (5 Whart. 89) 696 
 
 V. Railroad Co. (^0 Iowa, 720) 869 
 
 V. Reynolds (8 Hun. 130) 745 
 
 «. Riced Bailey, 648) 1001 
 
 V. Sorby (3 Q. B. Diy. 546) 37, 797 
 
 V. South Rovalton Bank (32 Vt. 841) 730 
 V. St. Louis, &c., Ry Co. (69 Mo. 
 
 39) 659 
 
 V. Stephenson (45 Iowa, 645) 402 
 
 V. Sublett (28 Tex. 163) 185, 195. 998 
 
 V. Theobald (5 S. W. Rep. 394) 212 
 
 V. Townsend (109 Mass. 500). . . .643, 972 
 V. Tracy (36 N. Y. 79).. .149, 151, 178, 
 
 281, 348. 414, 746, 947, 992 
 
 V. Tramel (68 Iowa, 488) 116 
 
 V. Webster (23 Mich. 298) 734 
 
 V. White (5 Dana, 376) 252 
 
 V. Wright (1 Gaines, 43) 281 
 
 u. Young (62 111. 210) 869 
 
 Smith's Appeal (69 Penn. St. 480) 211 
 
 Smock «. Dade (5 Rand. 6.39) 375, 819 
 
 Smout V. Ibery (10 M. & W. 1)..543, 544. 549 
 Smuller v. Union Canal Co. (37 Penn. 
 
 St. 68) 535 
 
 Bmvth V. Anderson (7 Com. Bench 21) 698 
 
 "». Harvie (31 111. 62) 818, 831 
 
 V. Oliver (31 Ala. 39) 721 
 
 8my the v Parsons (14 Pac. Rep. 444) . . 485 
 Snead V. Watklns (1 C. B., N. S., 267)... 677 
 
 Snell,/)ire(5 Ch. Div. 815) 813 
 
 V. Pell8(113 lU. 145) 526 
 
 Snidar v Adams Express Co. (77 Mo. 
 
 523) 755 
 
 Snook V. Davidson (2 Camp. 218) 980 
 
 Snow V Grnce (29 Ark. 131) . . . .129, 148. 149 
 
 V. Hix (54 Vt. 478) 386 
 
 V. Housatonic R. R. Co. (8 Allen, 
 
 441) 661,667, 670 
 
 V. Warner (10 Mete. 132) 273, 276 
 
 Sn' wball. Ex parte (L. R. 7 Ch. 548). . . 266 
 
 Bnowden «. Davis (1 Taunt. 358) 564 
 
 Snyder v. Castor (4 Yeates, 353) 600 
 
 V. Reno (38 Iowa, 329) 929 
 
 V. Van Doran (46 Wis. 610) 391 
 
 Bnyder v. Wolford (V. Minn. 175K . . 1.">7, 459 
 Soames v. Spencer (1 D. & R. 32)... 145, 179 
 
 Sens V. Racine (10 Wis. 271) 77, 78 
 
 SOKgins V. Heard (31 Miss. 420) 457, 459 
 
 Solarte v. Melville (7 B. & C. 4:-!0) 745 
 
 Solly V. Rathbone (2 M. & S. uyS). .693, 998 
 
 Solomons v. Pender (3 H. & C 639) 952 
 
 Somers v. Equitable Safety Ins. Co (12 
 
 Gray, 532) 756, 
 
 Somerset v. Hart (12 Q. B Div. 360).... 
 
 Sorrell v. Brewster (1 Midi. 373) 
 
 Souch V. Strawbridge (2 M. G •& S. 80S) 
 Souhagan Bank v. Wallace (61 N. H. 
 
 24) 
 
 Soulsbv V Hodgson (3 Burr 1474) 
 
 Sou'h Burwick v Huntress '53 Me. 89) 
 Southcote V. Stanley (1 H. & N. 247). .. 
 South & North Ala R. R. Co. v. Hen- 
 
 lin (52 Ala. 60fi) 100. 
 
 Southern Express Co. v. Craft (49 Miss. 
 
 480)... 
 
 V. Palmer (48 Ga. 85). ...130, 
 
 Southgate v Atlantic & Pacific R. H. 
 
 Co (61 Mo 89) 
 Sowden v. I.laho Quartz Mining C". (55 
 
 Cal 44;jj 6.59, 
 
 Spain V. Amoti (2 Stark. ^57). .619, b35, 
 Spauldingt). Adams (32 Me. 212) 6(8 
 
 931 
 
 746 
 
 81 
 
 211 
 
 626 
 188 
 94 
 666 
 
 106 
 
 755 
 
 161 
 
 670 
 6:S6 
 
 810 
 6a5 
 616 
 
 813 
 681 
 574 
 446 
 478 
 
 V. Swift (18 Vt 214) 
 
 Spear v. Carter (1 Mii h. 19) 
 
 V. Gardner (16 La. Atm. 383) 
 
 Spears u Ledeigerber (.56 Mo 46.5)... 
 
 Sp-ncev McMillan (10 Ala. 583) 
 
 Spencer V. Blackman (9 Wend. 167) .476, 
 
 V. Field (10 Wend. 88) 430 
 
 V Towles (18 Mich. 9) 
 
 Spoffard V Hobbs (29 Me. 148) 137 
 
 Spooner v 1 hompson (48 Vt. 259) 129 
 
 Spotswood V. Barrow (5 W. H. & G. 
 
 ^ 110) 215 
 
 Sprague v. Gillette (9 Mete. 91). . . 363, 364 
 Spraights v. Hawley (39 N. Y. 441) .573, 574 
 Spring V. Anson a Clock Co. (24 Hun, 
 
 175) 682 
 
 u. Ins Co (8 Wheat. 268) 980 
 
 Sproat V. Porter (9 Mass. 300) 72 
 
 Spurr V Trimble (1 A K Marsh. 278).. 93 
 
 Squire v. Wright (1 Mo. App 172) 622 
 
 St. Albans v Bush (4 Vt. 53) 810 
 
 St. AndrewVj Lana Co. v. Mitchell (4 
 
 Fla. 192) 
 
 St. John V. Diefendorf (12 Wend. CHI) 
 
 862. 
 St. Johnsbury, &c. R R. Co. v. Hunt 
 
 (55 Vt 570) 793, 
 
 St. Joseph F. & M. Ins. Co. v. Leiand 
 
 (90 Mo 177) 
 
 St. Judes' CbU'-ch v. VanDenberg (31 
 
 Mich.28r; 600 
 
 St. Louis t>. Clemens (43 Mo. 395) 190 
 
 St. Louis Bank v. Ross (9 Mo. App. 399) 
 
 1043, 1044 
 St. Louis, &c. Co. V. Parker (59 111. 29). 84 
 St. Louis, &c. R R. Co. v. Britz (72 111. 
 
 2.56) 668 
 
 V. Dolby (19 Dl. 353) 761 
 
 St. Louis, &c. Ry v. Smith (3 S. W. Rep. 
 
 364) 
 
 St. Louis, &c Ry Co. v. Valirius (56 
 
 Ind 511) 658. 
 
 St. Peter r Denison (58 N. Y. 401) 
 
 Stackpole v. Arnold (11 Mass. 27) 
 
 Stackhouse v. O'Hara (14 Penn. St. 88) 
 Stacy V. Dane County Bank (12 Wis. 
 
 629) 
 
 Stainback v. Read (11 Gratt. 281).. 273, 
 
 306, 390, 392, 393 
 
 Stainer v. Tysen (3 Hill. 279) 393 
 
 Stalker v. McDonald (6 Hill, 93) 519 
 
 Standard Oil Co. v. Triumph Ins. Co. 
 
 (64N. Y. 85) 981 
 
 44 
 870 
 
 794 
 590 
 
 504 
 
 659 
 
 189 
 
 91 
 
 819 
 
 614
 
 TABLE OF CASES CITED. 
 
 Ixxxiii 
 
 SECTION 
 
 Stanley v Jones (7 Blng. 869) 845 
 
 Stansburg v. United States (1 Ct. of 
 
 CI. laa;) 47i 
 
 Stanton v. Bell (2 Hawks. 145) 496, 497 
 
 V. Camp (4 Barb. 274) 44B 
 
 V. Embrey (93 U. S. 548) 24, 
 
 26, 606, 607, 843, 844, 849 
 
 V. Hart (27 Mich. 539) 885 
 
 V. Ha-skin (1 McAr. 558) 844 
 
 V. McMiillen (7 111. App. 826) 654 
 
 Staples V. Bradbury (8 Greenl. 181) ... 240 
 
 V. Staples (4 Me. 532) 533 
 
 Starbuck v. Murray (5 Wend. 148) 810 
 
 Stark V. Parker (2 Pick. 267) 634, 635 
 
 Starke v. Kenan (11 Ala. 819) 812 
 
 Starks v. Sikes (8 Gray, 609) 167 
 
 Starkweather v. Benjamin (32 Mich. 
 
 306) 571, 573 
 
 Star Line v. Van Vliet (43 Mich. 364).. 311 
 
 Starr u. Hall (87 N. C. 381) 813 
 
 V. Vand.-rheydpn (9 Johns. 253.) ... 878 
 
 State V. Athertoii (16 N. H. 203) 330 
 
 w. Bank (45 Mo. 528) 291, 301 
 
 V. Bell (34 Ohio St. 194) 190 
 
 V. Cam (9 W. Va. 559) 746 
 
 t>. Carothcrs (1 G Greene, 46 1) .. . . 810 
 
 «. Commissioners (45 Ind. 501).. . 588 
 
 t>. Conkling (19 Cal. 501) 892 
 
 V Delaflr-ld (8 Paige, 527) 353 
 
 t>. Fiske (9 R. L 94) 190 
 
 V. Greensdale (.106 Ind. 364) 529 
 
 V. H irtfl-ld (24 Wis 60) 746 
 
 V. Hi Slings (10 Wis. 518) 291, 646 
 
 V. Hanser (63 Ind. 155) 190 
 
 V. Hays (52 Mo. 578) 292 
 
 V. Honin (32 Minn. 394) 715 
 
 V. Malster (57 Md. 287) 6ro 
 
 V. Matihis(l Hill, 37) 116 
 
 1>. McChesney (16 Mo. App. 259). ... 881 
 
 V. MewhertHr (46 Iowa, 88) . 881 
 
 V. Morris, &c. Ry Co. (3 Zab. 360).'. 740 
 
 «. Newton (44 la. 45) 7)6 
 
 V. Paterson (34 N. J. L. 168) 190 
 
 r. Perry (Wright, 662) 148 
 
 V Poulterer (16 Id 514) 892 
 
 V. Rucker (24 Mo. 5.57) '.12' 892 
 
 V. Sims (76 Ind. 3291) 531 
 
 V. 8mith(10R. L 258) 746 
 
 V. Smith (78 .Me. 260) 732 733 
 
 V. Smith (48 Vt. 266) 148 
 
 V. Spartansburg, &c. R. R. Co. (8 
 
 S. C. 129) 141 
 
 t>. Steamboat Co. (13 Md. 181) 746 
 
 V. Walker (SB M(i. 279) 204 
 
 r. Young (23 Minn 551) 94 
 
 State Bank v. Jolinson (1 Mill, 404) 714 
 
 States ('. Duval (Gilp. 356) " " 963 
 
 Steam Navij^ation Co. v. Wasco County 
 
 (20re. 209) ."'. 598 
 
 Steamboat v. King (16 How. 469) 498 
 
 Steamboat Co. v. Atkins (22 Penn. St. 
 
 522) 756 
 
 V. Wilkins (8 Vt. 54) '.'.'.'.'.'. 635 
 
 Steamship Co. v. Merchants' Desp 
 
 Trans. Co. (135 Mass. 421) .' 558 
 
 Stearns v. Miller (25 Vt. 20) 586 
 
 Steele »». Dunham (26 Wis. 393).. ... 580 
 
 V. Ellmaker (1 1 S. & R. 86) 862, 906 
 
 V. McElroy (1 Sneed, .341) 557 
 
 Steere V. Steere (5 Johns. Ch. 1) 459 
 
 Stehn V. Fasnaehc (20 La. Ann. 83) 558 
 
 Stein V. Kendall (1 111. App. 103) '. 129 
 
 Stenton v Jerome (54 N. Y. 480) 936 
 
 Stephens v Babcock (3 B. & Adol, 354) 197 
 
 V. Bacon (7 N. J. L. 1) 539 
 
 V. Board of Education (79 N.Y. 183) 536 
 
 «. Elwall(4M & S. 259) 182 574 
 
 V. Farrar (4 Bush. 13) 869 
 
 V. Wpston (3 B. & C. 5.38) 870 
 
 «. White (2 Wash. 203) 834 
 
 Stephenson v. Grim (100 Penn. St. 70) . 369 
 
 SECTION 
 
 Sterling, Ex parte (16 Ves. Jr. 258) 864 
 
 Stern v. State (53 Ga. 229) 746 
 
 Stetson V. Gurney (17 La. 166) 994 
 
 V. Patten (2 (ireenl. 358) . . . .93, 137, 550 
 Stevens v. Babcock (3 B & Adol. 354). . 197 
 
 v. Hill (5 Esp. 247) 567 
 
 w. Uobins (12 Mass. 182) 685, 1032 
 
 V. Walker (55 III. 868) . .495, 824, 8:-i5, 951 
 V. Wilson (6 Hill, 512 s. c. 8 Den.472) 995 
 V. Woodward (6 Q. B. Div. 318) 738, 740 
 Stevenson v. Bay City (26 Mich 44) ... . 729 
 V. Blakelock (1 M. & S. 535) 535, 680, 866 
 
 V. Mortimer (Cowp. 805) 761, 779 
 
 V. Polk (32 N. W. Kep. 340) 443 
 
 Stewart v. Brooklyn, &c. R. R. Co. (90 
 
 N.Y. 588) 740, 741 
 
 V. Cooley (23 Minn. 347) 684 
 
 V. Drake (46 N. Y 453) 936 
 
 V. Flowers (44 Miss 513) 862, 869 
 
 V. Fry (7 Taunt, 339) 567 
 
 V. Houston, &c. Ry Co. (62 Tex. 
 
 246) 844 
 
 V.Mather (32 Wis. 344) 67, 68, 461, 611, 
 
 953, 966, 967 
 
 V. Pickerina: (35 N. W. Rep. 690) 818 
 
 V. Schall (65 Md. 299) 35 
 
 r. Wood (63 Mo. 25(i) 92 
 
 V. Woodward (50 Vt. 78) 286, 854, 875, 
 1043, 1044 
 
 Stewartson v. Watts (8 Watts, 392) 714 
 
 Stickiiey v Munroe (44 Me. 195) 743 
 
 Stiles V. Donaldson (2 Yates, (105) 533 
 
 V. McClelland (6 Col. 89) 211 
 
 V. Western R, R. Co (8 Mete. 44). . . 714 
 
 Still w. Hall (20 Wend. 51) 647, 648 
 
 StUlman v. Fitzgerald (33 N. W. Rep. 
 
 564) 142, 818 
 
 Stlllwell V. Mutual Life Ins. Co. (72 N 
 
 Y. 385) 360, 950 
 
 Stlmpson V. Sprague (6 Greenl 470) 
 
 495 496 
 
 Stinchfleld v. Little (1 Greenl. 231) 419,' 421, 
 
 422,426, 435 
 
 Stivens v. Reeves (9 Pick. 198) 641 
 
 Stockbridge v. Crooker (;^4 Me. 349) ... 605 
 Stocking v. Sage (1 Conn. 522).. ..6.53, 1031 
 Stockley v. Hornidge (8 Car. & P. 16) . 839 
 Stockton V. Demuth (7 Watts. 39). . 714 
 Stoddard v. Treadwell (26 Cal. 294) 647, 648 
 Stoddard Woolen Mfg v. Huntley (8 N. 
 
 H. 441) 680, 682, 866 
 
 Stoddart v. Key (62 How. Pr. 137) 285 
 
 V. United states (4 Ct. of CI. 516). . 334 
 
 V. Warren (7 Rep. 517) 950 
 
 Stoddart's Case (4 Ct. of CI. 611) 168 
 
 Stokely v. Robinson (34 Penn. St. 315) 
 
 812, 819 
 
 Stokes V. Frazier (72 111. 428) 936 
 
 V. Trumper (2 K. & J. 232) 854 
 
 Stoll V. Sheldon (13 Neb. 207) 813 
 
 StoUenwerckv. Thacher (115 Mass. 224) 
 
 100, 942 
 
 StoUer V. Coates (88 Mo. 514) 536 
 
 Stone V. Cartwright (6 T. R. 411) 575 
 
 V. Cheshire R. R. Co. (19 N. H. 427) 748 
 
 V. Daggett (73 111 367) 461 
 
 V Graves (8 Mo. 148) 680, 581 
 
 V. Hills (45 Conn. 44) 734, 737, 738 
 
 V. Hdoker (9 Cow. 154) 654 
 
 V. State (12 Mo. 400) 899 
 
 «. Vimont (7 Mo. App. 277) 628 
 
 V. Wood (7 Cow. 452) 419, 702 
 
 Stoner v. Weiser (24 Iowa, 434) . 470 
 
 Stoney v. McNeil (Harper's L. 557) 882, 883 
 
 u. Shultz (1 Hill, Ch 465) 143 
 
 Storer V. Eaton (50 Me. 219) 610 
 
 Storey v. Ashton (L. R. 4 Q B. 479)737, 738 
 Storrs V. City of Utica (17 N. Y. 104) 
 
 728,747, '^48 
 
 Story V. Floumoy (55 Ga. 56) 680, 1037 
 
 ' Stothard w. AuU (7 Mo. 318) 365
 
 TABLE OF CASES CITED. 
 
 SECTION 
 
 Stottr. Harrison (73 Ind. 17) a30 
 
 Stoughton V. Baker (4 Mass. 582). . .185, 189 
 
 StoiiD V. Ennis <2S Kans. 706) 30 
 
 V. Smith (98 N. Y. 25) 870 
 
 Stowell v. Eldred (39 Wis. 614) 414, 702 
 
 Straclian v. Muxlow (24 Wis. 21) 225 
 
 Strahlendorf v. Rosenthal (30 Wis. 674) 658 
 Straliorn v. Union Stock Yard Co. (43 
 
 LI. 424) 1035 
 
 Strasser v. Conklin (54 Wis. 102) 149 
 
 Stratton v. Allen (1 C. E. Green, 229). .. 729 
 
 V. Huss'-y (62Me. 28(j) 869, 874 
 
 Strauss v. Meertief (64 Ala. 299). . . .622, 623 
 
 Strawn u. O'Hara (86 111. 53) 288 
 
 Street Railway Co. v. Bolton (43 Ohio 
 
 St. 224) 669 
 
 Streeterv. Streeter (43 111. 156) 649 
 
 Striiigham v. St. Nicholas Ins. Co. (4 
 
 Abb. App. Dec. 315) 80, 100 
 
 Strohecker v. Hoffman (19 Penn. St 
 
 223) 844 
 
 Stronfr v. His-h (2 Rob , La. 103) 510 
 
 V. Stewart (2 Heisk. 137). . .308. 1008, 1029 
 
 u Stewart (9 Heisk. 147) 194 
 
 Sturdevant V. Piked Ind. 277) 461 
 
 Sturdivant v. Hull (59 Me. 172) 438, 442 
 
 Sturges V. Keith (57 111. 451). 1009 
 
 V. Theological, &c.. Society (130 
 
 Mas'^. 414) 747, 748 
 
 Succession of Dowler(29 La, Ann. 437). 919 
 
 Suit V. WoodhaU (113 Mass. 391) 721 
 
 Sullivan v. India Mnfg Co. (113 Mass. 
 
 396) 659 
 
 V. Louisville Bridge Co. (9 Bush. 81) 
 
 659, 670 
 
 V. O'Keefe (53 How. Pr. 426) 846 
 
 ». Oregon, &c., Co. (12 Orgeon, 392) 
 
 714, 751 
 
 V Phoenix Ins. Co. (34 Kans. 70). . .. D31 
 Summerville v Hannibal, &c., R. R. 
 
 Co. (62 Mo. 391) 84,86, 224 
 
 Summer v. Charlotte, &c., R R. Co. (78 
 
 N. C. 289) 67 
 
 V. Reicheniker (9 Kan. 320) 619 
 
 V. Saunders (51 Mo. 89) 338 
 
 Sumwalt V. Ridgeley (20 Md. 114) 442 
 
 Supervisors v. Arrighi (54 Miss. 668) . . 
 
 113, 118 
 
 V Brodhead (44 How. Pr. 411) 8".6 
 
 V. Brush (77 1)1. 59) )<,)0 
 
 Surles V Pipkin (69 N. C. 513) 274 
 
 Sussdorff V. Schmidt (55 N. Y. 320) 906 
 
 Sutherland v. Wyer (67 Me. 64) 622 
 
 Sutton u. Clarke (6 Taunt. 34) 504 
 
 V. Cole (3 Pick. 232) 77 
 
 V. TathamdO A. & E. 27) 9S9 
 
 Suydam v. Clark (5 Sandf. 133) 932 
 
 V. Vance (2 McLean, 99) 8 ',5 
 
 Swain v. Senate (5 B & P. 99) 871 
 
 Swanv. Nesmith (7 Pick. 220) 520, li>14 
 
 V. Stedman (4 Mete. 552) 1.3S 
 
 Swannell v. Ellis (1 Bing. 347) 828 
 
 Swanton v. Mining Co. (13 Fed. Rep. 
 
 215) 846 
 
 Swanzey v. Parker (50 Penn St. 441). . . 929 
 
 Swartwout u. Evans (S7 111. 443) ...135, 164 
 
 Swartz V. Ballou (47 Iowa, 188) 94, 39 1 
 
 Swayze v. Hull (3 Halst. 54) 30, 645 
 
 Sweeney v. Berlin & Jones Envelope 
 
 "Co. (101 N. Y. 520).. 6.56, 6.^9, 660, 661 
 
 V. Central Pac. Ry Co. (57 Cal. 15).. 
 
 656, 6.-9 
 
 w. Eastern Wall. 166) 782 
 
 Sweeny v. Old C'lony &c., R. R. Co. 
 
 (10 Allen, 368) 658 
 
 Sweet V. Jacocks (6 Paige, 3.55) 4.57, 4.-.9 
 
 Sweeting v. Pearce (7 C. B.. N. S. 449).. 931 
 Sweetland v. Illinois, &c.. Telegraph 
 
 Co. (27 Iowa, 433) 714 
 
 Swenson v. Aultman (14 Kan. 273) 714 
 
 Swift V. Harriman (30 Vt. 607) 647, 648 
 
 SECTION 
 
 Swinburne v. Swinburne (28 N. Y. 568). 536 
 
 Swinfen V. Swinfen (24 Beav. 549) 813 
 
 Swires v. Brotherline (41 Penn. St. 135). 903 
 Switzer v. Skiles (3 Gilman, 529) . . . .456, 
 
 713, 798, 9.53 
 
 V. Wilvers (24 Kans. 884) 860, 786 
 
 S woboda V. Ward (40 Mich. 420).658, 659, 670 
 
 Sydnor v. Hurd (8 Tex. 98) . 558 
 
 Syedsw. Hay (4 T. R. 260) 476 
 
 Sykes v. Dixon (9 Ad. & El. 693) 211 
 
 V. Giles (5 M. & W. 645) 354, 375, 
 
 897, 900 
 
 Synn v. Burgoyne (13 B. Mon. 400) 195 
 
 Szymanski v. Plassan (20 La. Ann. 90). 177 
 
 T 
 
 Taber v. Cannon (8 Mete. 456) . .363, 370 391 
 
 V. Perrot (2 Gall. 565) 514 
 
 Tatt V. Brewster (19 Johns. 3U), 421, 424 702 
 
 V. Montague 04 Mass. 282) 636 
 
 Tagg V. Bowman (99 Penn. St. 376) 585 
 
 . V. Bowman (108 Penn. St. 273) 585 
 
 V. Tennessee National Bank (9 
 
 Heisk. 4;9) 730, 743 
 
 Taggart v. Stanberg (2 McLean 543) . . 348 
 
 Taintor v. Prendergast (3 HUl. 72) 696, 
 
 769, 773, 1047 
 
 Talbot V. Bowen (1 A. K. Marsh, 436).. 59, 89 
 
 V. McGee (47 B. Mon. 377) 813 
 
 Talcott V. Bronson (4 Paige .501) 871 
 
 V. Chew (27 Fed. Rep. 273 » . . 1027, 1028 
 
 Talmage i'. Bierhause (103 Ind. 270) 348, 349 
 
 Tallon V Mining Oj. (55 Mich. 140 212 
 
 Tally V. Reynolds (1 Ark. 99) 810 
 
 Tankersley ". Anderson (4 Desaus. 45). 
 
 813, 819 
 
 Tankersville v. Graham (8 Ala. 245) ... '56 
 
 Tannatt v. Rocky Mountal i National 
 
 Bank (1 Colo 278) 432, 442, 471 
 
 Tanner v. European Bank (L.R.I Excb. 
 
 261) 527 
 
 Tapleyv Coffin (12 Gray, 420) 843, 845 
 
 V. McGee (6 Ind. 56) 51,68 
 
 Tarbell v. Dickinson (3 Cush. 345) 838 
 
 Tasker v. Kenton Ins. Co. (59 N. H. 
 
 438) 130 
 
 V. Shepherd (6 H. & N. 575). . . .240, 247 
 
 Tate V. Evans (7 Mo. 419) 398 
 
 V. Marco (4 S. E. Rep. 71) 521 
 
 V. Tate (75 Va 522) 885 
 
 Tatterson v. Suffolk Mnfg Co. (108 
 
 Mass. 56) 212, 638 
 
 Taul V. Edmondson (37 Tex. 556) 522 
 
 Taussig V. Hart (58 N. Y. 425) 462, 
 
 9:?6, 952, 954 
 
 Taylor v. A. & M. Association (68 Ala. 
 
 229) 150 
 
 V. Bates (5 Cow. 379) 533, 833 
 
 V. Bemiss (110 U. S. 42) .. 844 
 
 V. Elacklow(3 Bing. 235) 878 
 
 V. Conner (41 Miss. 722) 135 
 
 «. D'.remus (16 N. J. 473) 580 
 
 V. Gorman (4 Ir. Eq. 5.50) 830 
 
 t). Kymer(3B & Ad. .320) 787 
 
 V. Labeau me ( 17 Mo. 338) 397 
 
 V Mer-ell (.55 111. 52) 89 
 
 V. Plumer (3 M .& S 562), 536, 780, 781, 792 
 
 V. Pope (5 Cold. 413) 1050 
 
 V. Robinson (8 Taunt. fi48) 1035 
 
 V. Robinson (14 Cal. 396). . . .137. 168, 875 
 
 V. Salmon (4 Myl. & Cr. 134) 469 
 
 r. Shelton (30 Conn. 122) 550 
 
 V. Sp ars (6 Ark. 381) 531 
 
 t). Spears (8 Ark. 4.^9) 5.33 
 
 t). Starkev (59 N. H. 142^ '552 
 
 V. Tonpkins (2 Heisk. 89) 684 
 
 V. Wilson (11 Mf tc. 44) 897 
 
 V. Young (.56 Mich. 285) ... .718 869, 878 
 
 Taymouth v. Koehler (35 Mich. 26) 97, 
 
 ■^ 112, 118
 
 TABLE OF OASES CITED. 
 
 Ixxxv 
 
 SECTION 
 
 Temple v. Pomroy (14 Gray, 128). . .363, 870 
 
 Tenney v. Bei-ger (93 N. Y. 524) 828, 854, 
 
 655, 856 
 
 Terhune v. Colton (3 Stock, Eq. 21) ... . 813 
 
 Terrell r. Bank (12 Ala. 502). . . .722, 723, 730 
 
 V. Buttfrfleld (92 Ind. 1) 531 
 
 V. The B. F. Woolsey (4 Fed. Rep. 
 
 55-,') 867 
 
 Terry v Bissell (26 Conn .23) 929 
 
 ti. Far^o (10 Johns. 114) 391 
 
 •u. HuntinKton (Hard. 4S0) 580 
 
 Terwilligeru, Beals(GLans. 403) 1023 
 
 Tf-wksbury v. Spruance (75 lU. 187), 461 462 
 
 Texada V. Beaman (6 La. 82) 883 
 
 Texas, &c. Ry Co. v. McAtee (61 Tex. 
 
 695) 659 
 
 Texas Land & Cattle Co. v. Carroll (63 
 
 Tex. 48) 448, 449 
 
 Texas Mexican Ry v. Whitmore (58 
 
 Tex.2r6) 667 
 
 Thacher v. Dinsmore (5 Mass. 299) 442 
 
 V. Hannahs (4 Robert, N. Y. 407) . . 679 
 
 V. Pray (113 Mass. 291) 149, 1044 
 
 Thallhimer v. Brinckerhoflf (4 Wend. 
 
 394) 714 
 
 Thames Iron Works v. Patent Derrick 
 
 Co.(lJ.&H.93) 867 
 
 Thatcher v. Winslow (5 Mason. 58) 7.'53 
 
 Thayer v. Daniels (113 Mass. 129) 869 
 
 V. Meeker (86 111. 470) 102 
 
 V. St. Louis, &c. R. R. Co. (22 Ind. 
 
 26) 668 
 
 V. Wadsworth (19 Pick. 349) .... 634, 635 
 
 Threfall v. Borwick (26 L. T. Rep. [N. 
 
 S.]794) 677 
 
 Third National Bank v. Harrison (10 
 
 Fed. Rep. 243) 729 
 
 V. Vicksburs Bank (61 Miss. 112). . . 514 
 
 Thomas v. Atkinson (38 Ind. 256).. .288. 697 
 
 1). Caiilkett (57 Mich. 39:3) 22, 38 
 
 V. Josliri (30 Minn. 388) 95, 414, 416 
 
 V. K.^iT (3 Bush. 619) . . .893, 912, 913, 923 
 
 V. Steele (22 Wis. 207) 803, 809, 810 
 
 V. Wells (140 Mass. 517) 86 
 
 Thomp<;on v. Bank (82 N. Y. 1) 382 
 
 V. Bank (3 Hill. S. C. Law, 77).. 511, 514 
 
 v. Barnum (49 Iowa, 392) 784, 789 
 
 v. Bell (10 Exch. 10) 84 
 
 t). Boonville (61 Mo. 282) 190 
 
 V. Boyle (85 Penn. St. 477) 849 
 
 V. Chicagro. &c. Ry Co. (14 Fed. 
 
 Rep. 564) 658 
 
 V. Chicago, &c. Ry (18 Fed. Rep. 
 
 239) 667 
 
 V. Craig (16 Abb. Pr. 33) 745 
 
 V. Davenport (9 B. & C. 78) 696, 697, 698 
 
 V. Elliott (73 DI. 221) 372, 380 
 
 f. Fargo (49 N. Y. 188) 755 
 
 V. Gardiner (1 C. P. D. 777) . . . .932, 937 
 V. Glnucesfer City Sav. Inst. (8 Atl. 
 
 Rep. 97) 536 
 
 V. Haliet (26 Me. 141) ... 470 
 
 V. Hermann (47 Wis. 602) 663 
 
 v.Kelly(101Mass.291) 756, 897, 898 
 
 V. Kilborne (28 Vt. 750) 880 
 
 V. Lyon (20 Mo. 155) 53 
 
 V. MeCii Hough (31 Mo. 224) 929 
 
 V. Perkjis (3 Mason, 232) 520, 536, 
 
 1014, 1044 
 
 V. Phoenix Ins. Co. (75 Me. 55) 743 
 
 V. Schermerhorn (6 N Y. 92> 190 
 
 V. Stewart (3 Conn. 171) 288, 532 
 
 V. Toland (48 Cal. 99) 9.36 
 
 V. Whartnn (7 Bush, 56.3) 32, 33 
 
 Thome v. Bell (Lalor's Sup. 430) 116 
 
 V. Dens (4 Johns. 84;.. .475, 478, 498, 
 
 510, 1011 
 
 Thornton v. Charles (9 M. & W. 802). . .. 932 
 
 V. Kempster (5 Taunt. 786) 932 
 
 V. Mpux (1 M. & M. 43) 932 
 
 V. Thornton (31 Gratt. 212) 534 
 
 SECT'ION 
 
 Thorp V. Bateman (37 Mich. 68) 509 
 
 V. Burling (11 J..ihns.2a5) 182, 574 
 
 u Coie (2 Cr. M. & R. 367) 188 
 
 Throop V. Bussing (11 Johns. 285) 674 
 
 Thurberu. Andenson (88 111. 167) 84, 86 
 
 Thurston v. Blanchard (22 Pick., Mass. 
 
 20) 994 
 
 V. Percival (1 Pick. 415) 845 
 
 Tlbbetts V. Knox, &c., R. R. Oo. (62 Me. 
 
 437) 748 
 
 Ticeti. Gallup (2 Hun, 446) 348, 850 
 
 Tidrick v. Rice (13 Iowa, 214) 129 
 
 Tierv. Lampson (35 Vt. 179) 84, 234 
 
 Tiernan v. (Commercial Bank (7 How. 
 
 648) 194, 514 
 
 V. Jackson (5 Pet. 580) 567 
 
 Tiffany v. Lord (40 How. Pr. 481) 818 
 
 Tiflftu V. McCormack (34 Ohio St. 638).. 748 
 
 Til.len V. Barnard (43 Mich. 376) 488 
 
 Tiller V. Spradley (39 Ga. 35) 432, 956 
 
 Tilton V. United States Life Ins. Co. (8 
 
 Da!y,84) 818 
 
 «. Wri.s;ht (74 Me. 214) 8:38 
 
 Timherman i'. Craddock (70 Mo. 638).. 966 
 
 Timothy v. Wriglit (8 Gray, 522) 33 
 
 Tinges v. Moale (25 :Md. 480) 969 
 
 Tippt-ts V. Walker (4 Mass. 595). ...421, 558 
 
 Tisdale v. Tisdale (2 Sneed. 596) 455 
 
 Titus V. Kyle (10 Ohio St. 445) 441 
 
 V. Mechanics' Nat. Bank (35 N. J. 
 
 L. 588) 514 
 
 Tobacco Co. v. Terrill (13 Bush. 413) .... 893 
 Tobin V. Portland, &c., R. R. Co. (59 
 
 Me. 183) 66«' 
 
 Todd V. Bourke (27 La. Ann. 385) 951 
 
 V. Emily (7 M. & W. 427) 78, 78. 
 
 V. Munson (53 Conn. 579) 883 
 
 Toland v. Murray (18 Johns. 24) 1039 
 
 Toledo, &c., Ry Co. v. Goddard (25 Ind. 
 
 18.5) 716 
 
 V. Prince (.50 111. 26) 181 
 
 Toledo, Wabash & West. Ry Co. v. Har- 
 mon (47 111. 298) 741 
 
 V. Rodrigues (47 111. 188) 181 
 
 Toll Bridge Co. v. Betsworth (30 Conn. 
 
 380) 730; 
 
 Tombs V. Alexander (ini Mass. 255) 618, 966 
 
 Tomlinson v Cdlet (3 Blackf . 436) .... 6 
 
 Tooke V. Hollingsworth (5 T. R. 215)... 1044 
 
 Tooker v. Sloan (30 N. J. 394) 149 
 
 Tool Co. V. Norris (2 Wall. 52). . . .22, 25, 
 
 28, 29, 645, 
 Topham v. Braddick (1 Taunt, 572) — 
 
 1023, 1025 
 
 V. Roche (2 Hill, 307) 279 
 
 Torrey v. Bank of Orleans (9 Paige, 
 
 649) 457 
 
 V. Bryant (16 Pick. 528) 530 
 
 Towle V. Hatch (43 N. H . 270) 838 
 
 V. Leavitt (23 N. H. 360). . . .273, 279, 
 
 282, 28S, 358, 362, 894, 903 
 
 V. Raymond (58 N. H 64) 674 
 
 V. Stevenson (1 Johns. Cas. 110). . . . 171 
 Town of Grafton v. Follansbee (16 N. 
 
 H.4,50) 151 
 
 Towne v. Jaquith (6 Mass. 46) 77 
 
 To wnes v. Brichett (12 Leigh. 173) 900 
 
 Townsend v. Corning (23 Wend. 435) . . . 
 
 179, 419 
 
 V. Drakeford (1 C. & K. 20) 938 
 
 V. Hubbard (4 Hill, 351) 430, 558 
 
 V. Van Tas'=;pl (8 Daly, 261) 905 
 
 Tozer v. Saturlee (3 Grant, 162) 48 
 
 Tracv v. Cloyd (10 W. Va. 19) 593, 694 
 
 V. Tallmage (14 N Y 162) 89 
 
 Trainer v. Morison (78 Me 160)... 9, 341, 342 
 
 Traub v. Milliken (57 Me. 63) 1048 
 
 Travers v. Crane (15 Cal. 12). ..240, 244, 346 
 
 Traynham v. Jackson (15 Tex. 170).... 448 
 Treadway v. Sioux City, &c., R. R. Co. 
 
 (40 Iowa, 526) 812
 
 Ixxxvi 
 
 TABLE OF OASES CITED. 
 
 8BCTIOH 
 
 Tread well v. Davis (84 Oal. 601) 765 
 
 Treasurers w.McDowell (1 Hill.184), 813, 820 
 
 Treat v. Stanton (14 Conn. 445) 756 
 
 Trenor v. Railroad Co. (,50 Cal. 222). .. . 896 
 
 Treuttel v. Brandon (8 Taunt. 100) .... 783 
 
 Trevelyan v. Charter (9 Beav. 140) 791 
 
 Tripp w. Barton (13 R. I. 130) 907 
 
 V. Bishop (56 Penn. St. 424) 211 
 
 V. Swanzey Paper Co. (13 Pick. 291) 437 
 
 Trlst V. Child (21 Wall. 441) .. .22, 28, 21, 645 
 
 Trixione v. Tagliaferro (10 MP. C.C 175) 174 
 
 Trowbridge v. Scudder (11 Cush. 88). . . 550 
 
 V. Weir (6 La. Ann. 706) 386 
 
 Trudo V. Anderson (10 Mich. 357) 121, 
 
 825, 852, 997 
 
 Trueblood v. Trueblood (8 Ind. 195). 51, 62, 58 
 
 Trueman v. Loder (11 A. & E. 589). . . 696, 
 
 709 933 998 
 
 Trumbull v. Nicholson (27 HI. 149). '. . . . .' 819 
 
 Trust V. Repoor (15 How. Pr. 570) 858 
 
 Trustee v. McCormick (41 111. 323) 135 
 
 Trustees v. Allen (14 Mass. 175) 601 
 
 Trustees. &c. v. Dupuy (31 La. Ann. 805) 623 
 Trustees of Watertown v. (Towen (5 
 
 Paige, 510) 838 
 
 Tuckeru Bass (5 Mass. 164) 421 
 
 V. Cocke (32 Miss. 184) 61 
 
 V. Harris (18 Ga. 1) 585 
 
 V. Jerris(75Me. 184) 118 
 
 V. Humphrey (4 Bing. 516) 687 
 
 V. Lawrence (56 Vt. 467) 204 
 
 V. Moreland (10 Pet. 58) 54 
 
 V. St. Louis, &c.. Ry Co. (64 Mo. 177) 396 
 
 r. Taylor (53 Ind. 93) 676, 678, 865 
 
 Tucker Mnfg Co. v. Fairbanks (98 
 
 Mass. 105) 425, 432, 433, 650 
 
 Tudor V. Whiting (13 Mass. 212) . . . .699, 1048 
 
 Tull u David (45 Mo. 446) 89:5 
 
 TuUer r. Voght (13 m. 285) 740 
 
 Tunney v. Midland Ry Co. (L. B. 1 C. 
 
 P. 296) 668 
 
 Turk V. RidRe (41 N. Y. 206) 567 
 
 Turman v. Temke (84 111. 286) 240 
 
 Turnbull v. RicHardson (14 W. Rep. 444) 849 
 
 Turner v. Jones (1 Lans. 147) 917 
 
 V Keller (66 N. Y. 66) 390 
 
 V. McOart V (22 Mich. 265) 567 
 
 V. North Beach, &c., R. R. Co. (34 
 
 Cal. 594) 751 
 
 V. Phoenix Ins. Co (55 Mich. 237) . . 115 
 
 V. Thomas (10 Mo. App. 342) 441 
 
 V. Rusk (53 Md. 65) 50 
 
 V. Trustees (6 Exch. 543) 689 
 
 V. Wilcox (54 Ga. 593) 129, 149 
 
 Turpen v. Booth (56 Cal. 65) 688 
 
 Turrill v. Crawley (13 Q. B. 197) 677 
 
 Turwin v. Gibson (3 At k. 730 1. . 86S 
 
 Tuthill V. Wheeler (6 Barb. 862) 765 
 
 V. Wilson (90 N. Y. 423) 702 
 
 Tutt V. Brown (5 Littell, 1) 769, 773 
 
 V. Hobbs (17 Mo. 486) 426 
 
 Tuttle V. Brown (4 Gray, 457) 714 
 
 Twelfth Street Market Co. v. Jackson 
 
 (102 Penn. St. 269) 964 
 
 Twiggs V. Chambers (56 Ga. 279) 869 
 
 Tyler v. Ames (6 Lans. 280) 210, 616 
 
 V. Freeman (3 Cush. 261) 898 
 
 w. Parr (52 Mo. 249) 966, 967 
 
 Tynes v. Grimstead (1 Tenn. Ch. 508). . 461 
 
 Tyree v. Parham (66 Ala. 424) 1025 
 
 Tyson v. Raihroad Co. (61 Ala. 654) 66-,>, 
 
 664, 665, 668 
 
 t>. State Bank (6 Blackf . 225) 614 
 
 Tyus V. Rust (37 Ga. 674) 527 
 
 Uhlich V. Muhlke (61 111. 499) 466 
 
 Ulen V. Kittredge (7 Mass. 232) 89 
 
 Ulrich V. Commonwealth (6 Bush. 400) 746 
 
 V. McCormick (66 Ind. 343) 234 
 
 SEOTIOW 
 
 Umback v. Lake Shore, &c. Ry Co. (83 
 
 Ind. 191) 659, 670 
 
 Underbill v. Gibson (2 N. H. 352) 756 
 
 Underwood v. Nicholls (17 C. B. 239).. 1003 
 
 Union Bank t).Campbell(4 Humph. 394) 730 
 
 V. Campbell (4 Humph. 394). . . .729, 730 
 
 V. Geary (5 Pet. 99 » 812, 816, 820 
 
 V. Goran (10 S. & M 333) 813 
 
 V. Middlebrook (33 Conn. 95) 116 
 
 V. Mott (.39 Barb. 180) 893 
 
 Union Canal v. Loyd (4 W. & S. 893) ... 731 
 Union Gold Mining Co. v. Rocky Mt. 
 
 Nat. Bank (3 Col. 248) 161 
 
 V. Rocky Mt. Nat. Bank (2 Col. 665) 129 
 Union Mining Co. v. Rocky Mt. Nat. 
 
 Bank (2 Col. 248) 776 
 
 Union Mutual Life Ins. Co. v. Master 
 
 (3 Fed, Rep 881) 121 
 
 Union Mutual Ins. Co. v. Wilkinson (13 
 
 Wall U S 222''i . .... 279 
 
 Union Nat. Bank t'.'Car (I's Fed! Rep. 438) 35 
 
 United States v. Bartlett (Dav. 13) 41 
 
 . V. Commissioner (5 Wall. 563) 693 
 
 V. Dutal (Qilp. 356) 963 
 
 V. Fillebrown (7 Pet. 28) 646 
 
 V. Guthrie (17 How. 284) 593 
 
 V. Jarvis (Dav. 374) 233, 616 
 
 V. Macdaniel (7 Pet. 1) 646 
 
 V. Villalong.! (33 Wall. 35) 1034 
 
 United States Bank v. Goddard (5 Ma- 
 son, 366) 611 
 
 United States Express Co. v. Rawson 
 
 (106 Ind. 215) 143, 167 
 
 United States Ins. Co. v. Shiver (3 Md. 
 
 Ch. 381) 730 
 
 United States L. Ins. Co. v. Advance 
 
 Co. (80 III. .549) 485. 989 
 
 United States Tel. Co. v. Qildersleve 
 
 (29 Md. 2.32) 755,756, 763 
 
 United States Trust Co. v. Wiley (41 
 
 Barb. 477) 527 
 
 University v. Lassiter (83 N. 0. 38) ... . 810 
 
 Upchurch v. Norsworthv (15 Ala. 705) . 561 
 
 Uphamv. Lefavour(ll Mete. 174).. 682, 1029 
 
 Uphoff V. Ulrich (3 111. App. 399) 966 
 
 Upton V. Archer (41 Cal. 85) 94, 894 
 
 V. Suffolk County Mills (11 C!ush. 
 
 586) 281, 348,850. 947, 998 
 
 Utioa Ins. Co. v. Toledo Ins. Co. (17 
 
 Barb. 132) 798 
 
 Utica, &c. R. R. Co. v. Brinckerhoff (21 
 
 Wend. 139) 211 
 
 Utter V. Caiapman (38 Cal. 659) ... .632, 683 
 
 V. 
 
 Vaccaro u Toof (9 Heisk. 194) 221 
 
 VaU w. Conant (15 Vt. 814) 819 
 
 V. Duraut (7 Allen, 408) 1022, 10.33 
 
 V. Meyer (71 Ind. 159) 62 
 
 V. Owen (19 Barb. 33) 588 
 
 Vaillant v. Dodemead (3 Atk. 534) 885 
 
 Valentine v. Piper (32 Pick. 85) 98, 331 
 
 V. Stewart (15 Cal. 387) 34 
 
 Valle V. Cerre (36 Mo. 575) 1035 
 
 Vanada v. Hopkins (1 J. J. Marsh. 285) 
 
 295, 308, 322, 414 
 Van Alen v. American National Bank 
 
 (52 N. Y. 1) 536, 780, 781 
 
 V. Vanderpool (6 Johns. 69) 495, 990, 1006 
 
 Van Arman v. Byington (38 III. 443) .... 601 
 
 Vance v. Erie Ky Co. (32 N. J. L 334). . 741 
 Vanderbilt v. Turnpike Co. (3 N. Y. 
 
 479) 127 839 
 
 Vanderline v. SmYth (18 Mo. App. 55)813^ 819 
 Vanderp' lel v. Kearns (3 E. D. Smith, 
 
 170) 643 
 
 Van Dusen v. Mining Co (36 Cal. 571) 100, 224 
 
 Van Duzer v. Howe (31 N. Y. 531) 282 
 
 Van Epps v. Van Epps (9 Paige, 237) 68, 457 
 
 Van Etta v. Everson (38 Wis. 33) . . .94, 894
 
 TABLE OF CASES CITED, 
 
 Jxxxvii 
 
 SECTION 
 
 Van Home v. Fonda (6 Johns. Ch. 888) 457 
 
 Van Keuren v. Corkins (4 Hiin, 129). . . 878 
 Van Staphorst v. Pearce (4 Mass. 258) 
 
 755 993 1039 
 
 Van Steenbergh v. Blg:eIow(3 Wend. 42) 588 
 Van Valkenburgh v. Lenox F. Ins. Co. 
 
 (51 N. Y.465) 981 
 
 Van Wart v. Woolley (8 B. & C. 439). .614, 618 
 
 Van Wyck v. Brasher (81 N. Y. 260) ... 49 
 
 Varley v. Garrard (2 Dowl. 490) 817 
 
 Varnum v. Martin (15 Pick. 440) 496, 496, 827 
 
 V. Meserve (8 Allen, 158) 243 
 
 Vater v. Lewis (36 Ired. 288) 4:^9 
 
 Vaughn v. Congdon (56 Vt. Ill) ... .685, 587 
 
 V. Sheridan (50 Mich. 155) 818 
 
 Vauzem v. Bostwlck (7 Atl. Rep. 698) 
 
 211, 628 
 
 Vawter v. Baker (23 Md. 63) 1051 
 
 Veazie v. Parker (72 Me. 443) 968, 967 
 
 Veile V. Blodgett (49 Vt. 270) 538 
 
 Veil V. Mitchel (4 Wash. 10$ 1044 
 
 Venables v. Smith (2Q. B. Div.279).735, 736 
 
 Vennum v. Gregory (21 Iowa, 826).. 619, 1027 
 
 Vent V. Osgood (19 Pick. 572) 59, 651 
 
 Veocelius v. Martin (18 Pac. Rep. &38). 404 
 Vermont Central R. R. Co. v. Clayes 
 
 (21 Vt 31) 756 
 
 Vertue v. Jewett (4 Camp. 81) 687 
 
 Very V. Levy (13 How. 345) 815 
 
 Vianna v. Barclay (3 Cow. 28-3) 171 
 
 Vicksburg, &c. R. R. v. O'Brien (119 
 
 U.S.99) 714 
 
 Vicksburg, &c. R. R. Co. v. Ragsdale 
 
 (54 Miss. 200) 84, 86 
 
 V. Wilklns (47 Miss. 404) 670 
 
 Victor Sewing Machine Co. v. Heller 
 
 (44 Wis. 265) 852,995,996, 997 
 
 Vlele V. Germania Ins. Co. (26 Iowa, 9). 981 
 
 Vilas V. Downer (21 Vt. 419) ... .606, 841, 849 
 Village of Cahokia v. Rautenberg (88 
 
 111.219) 440 
 
 Vincent v. Rather (81 Tex. 77)... .171, 1015 
 
 Vinton v. Baldwin (95 Ind. 483) 684 
 
 ?;. Baldwin (88 Ind. 104) 612, 970 
 
 Violett V. Powell (10 B. Hon. 847) 769 
 
 Virginia. &e. K. R. Co. v. Sayers (26 
 
 Gratt. 328) 715 
 
 Vlscher v. Yates (11 Johns. 23) 757 
 
 Volger V. Ray (131 Mass. 439) 72 
 
 Von Hurler v. Spengeman (17 N. J. Eq. 
 
 185) 457 
 
 Von Wien v. Scottish Ins. Co. (62 N. Y. 
 
 490 931 
 
 Voorhies v. Harrison (22 La. Ann. 85). 813 
 
 Vosburgh v.Huntineton (15 Abb.Pr, 254) 527 
 
 Vose V . Dolan (108 Mass. 155) 394 
 
 V. Willard (47 Ad. 820) 588 
 
 Voss V Bachop (5 Kan. 69) 533 
 
 V. Robertson (46 Ala. 483) 856, 786 
 
 Vreeland v. Vetterlein (83 N. J. L. 847) 969 
 
 Vrooman v. Turner (69 N. Y. 284) 667 
 
 ■w 
 
 Wabash, &c., Ry Co. v. Rector ^(104 
 
 111. 296) 751 
 
 Waddell v. S wann (91 N. C. 108) 631 
 
 Waddington v. Oliver (2 B. & P. N. R. 61) 635 
 
 Wade V. Hamilton (80 Ga. 450) 1035 
 
 Wadhams v. Gay (73 111. 415) 813 
 
 Wadley v. Davis (63 Barb. 500) 281 
 
 Wadsworth v. Gay (118 Mass. 44). .1007, 1023 
 
 Wagoner v. Watts (44 N. J. L. 126). .91, 95 
 
 Wainwright v Read (1 Desau. Eq. 573). 895 
 
 V. Wilkinson (62 Md. 146) 51 
 
 Wakefield v. South Boston R. E. (17 
 
 Mass.544) 714 
 
 Walcott V. Keith (22 N. H. 198) 678 
 
 Waldele v. New York Central, &c., R. 
 
 R. Co. (95 N. Y 274) 714 
 
 Walden v. Bolton (55 Mo. 405) 813 
 
 SEOTION 
 
 Waldron v. Ward (Sty. 449) 885 
 
 Walker r Bank (9 N. Y. 582) 646 
 
 V. Birch (6 T. R. 258) 10.i3 
 
 V. Carrington (74 111. 446) 68, 464 
 
 V. Clay (21 Ala. 797) 843 
 
 V. Cronin (107 Mass. 656) 793 
 
 V. Denison (86 111. 142) 204, 220 
 
 V. Derby (5 Biss. 134) 201 
 
 V. Detroit Transit Ry Co. (47 Mich. 
 
 388) 787 
 
 V. Floyd (30 Ga. 237) 874 
 
 ti. Goodman (21 Ala. 647) 820 
 
 V. Goodrich (16 111. 341) 858 
 
 V. Hallock (32 Ind, 239) 680, 588 
 
 V. Herring (21 Gratt. 678) 893 
 
 V. Osgood (98 Mass. 848) 67, 
 
 648, 952, 953, 972 
 
 V. Rostron (9 M. & W. 411) 567, 568 
 
 «. Sargeant (14 Vt. 247) 871 
 
 V. Scott (13 Ark. 644) 819 
 
 V. Skipwith (Meigs, 502) 6, 279 
 
 V. Smith (1 Wash. 152) 478 
 
 «. Stevens (79 111. 193) 515, 881 
 
 V. Swartwout (12 Johns. 444) 426, 659 
 
 V. Tirrell (101 Mass. 2.57) 612 
 
 V. Walker (5 Heisk. 425) . . . . 178, 475, 483 
 
 Wall V. Schneider (59 Wis. 8.52) 85 
 
 V. Trumbull (16 Mich. 228). .580, 582, 688 
 
 Wallace v. Bradshaw (6 Dana, 382) 1017 
 
 V. Branch Bank (1 Ala. 565).... 307, 892 
 
 «. Finberg (46 Tex. 35) 741 
 
 V. Floyd (29 Penn. St. 184) 608, 608 
 
 V. Sawyer (90 Ind. 499) 149 
 
 V. Woodgate (1 C. & P. 675) 674, 678 
 
 Wallinks r.Holliugsworth (6 Wheat.241) 179 
 
 Wallis V. Johnson School Tp. (75 Ind. 868) 440 
 
 V. Manhattan Co. (2 Hall 495). 256, 257 
 
 V. Shelly (80 Fed. Hep. 747) 619, 561 
 
 u. Warren (4 Exch. 361) 622 
 
 Walls V. BaUey (49 N. Y. 484) 281, 486 
 
 Walmseley v. Booth (2 Atk. 25). . 878 
 
 Walsh V. Pierce (12 Vt. 130) . .84, 86 
 
 V. Shumway (65 111. 471) 856, 857 
 
 V. Walley (L. R. 9 Q. B. 887). . .641 
 
 V. Whitcomb (2 Esp. 565) 206 
 
 Wal pole w. Bishop (31 Ind 166) 833 
 
 Walter v. Klock (55 Dl. 362) 459 
 
 Walther v. Wetmore (1 E. D. Smith, 7) 994 
 
 Walton V. Torrey (Har. Ch. 259) 468 
 
 Walworth Co. Bank v. Farmers' L. & 
 
 T. Co. (16 Wis. 629) 121, 149, 164 
 
 Wambole v. Foote (2 Dak. 1) 51, 268 
 
 Wanless v. McCanless (38 Iowa, 20) 485 
 
 Waples V. Hastings (8 Ham. 403) 51 
 
 Ward V. Ames (9 Johns. 138) 623 
 
 V. Bank of Kentucky!" T. B. Mon.93) 898 
 
 V. Craig (87 N. Y. 550) 841, 862, 864 
 
 V. Evans (2 Ld. Raym. 928) 876 
 
 ti. Fellei 8 (3 Mich. 281) 647, 649 
 
 V. Freeman (2 Ir. C. L Rep. 460), 580 
 
 V. Lawrence (79 111. 295) 966 
 
 V. Roy (60 N. Y. 96) 820 
 
 V. Smith (3 Sandf. Ch. 592) 463 
 
 V. Smith (7 Wall. 447) 269, 875 
 
 V. Steamboat (8 Mo. 358) 52 
 
 V. Warfleld (3 La. Ann. 471) 171 
 
 V. Williams (26 111 417), 129, 156, 160, 168 
 
 «. Wilson (3 Mich. 1) 648 
 
 V. Wood (13 Mass. 539) 756 
 
 Warden v.Eichbaum (3 Grant, Cases. 42) 149 
 
 Warder v. White (14 III. App. 50). .770, 772 
 
 Ward's, &c. Co. v. Elkins Qii Mich. 4:.9) 287 
 Ware v. Hayward Rubber Co. (8 Allen, 
 
 84) 968 
 
 V. Morgan (67 Ala. 461) 54« 
 
 Ware's Adm. v. Russell (70 Ala. 174) . . 846 
 Warfleld v. Campbell (38 Ala, 527) 839, 
 
 869, 870, 871, 878 
 
 Waring v. Richardson (11 Ired. L, 77) . . 631 
 Warlow V. Harrison (1 E. & E, 295). 91 3, 
 
 914, 916, 917
 
 btxxviii 
 
 TABLB OF 0A8B8 CITED. 
 
 ■£(7TI0N 
 
 Wornerti. Bridges (6 Ark. 885) 681 
 
 V. Comstock (55 Mich. 616) 799 
 
 V. Erie Ry Co. (39 N. Y. 468) 668 
 
 V. (iriswold (8 Wend. 665) 831 
 
 V. Martiu (11 How. 209).354, 994, 996, 998 
 
 V. Smith (8 Conn. 14) 632 
 
 Warren D. Hewitt (45 Ga. 501) 652 
 
 V. Ocean Ins. Co. (16 Me. 439) 97 
 
 Warren Bank v. Suffolk Bank (10 (Jiish. 
 
 58;i; 197, 614 
 
 Warrick v. Warrick (3 Atk. 294) . . . .721, 722 
 
 Warriner v. People (74 111. 346) 1023 
 
 Warring v. WiUiams (8 Pick. 322) 94 
 
 Washburn v. Nashville, &c. R. R Co. 
 
 (3Head.638) 44 
 
 Washington v. Johnson (7 Humph. 468) 820 
 Washington Bank v. Lewis (22 Pick. 24) 
 
 274, 729 
 
 Wasa V. M. M. Ins. Co. (61 Me. 537) 842 
 
 Wassell V. Ueardon (11 Ark. 705) 713, 
 
 798 953 
 
 Wasson v. Mitchell (18 Iowa, 153) .' 581 
 
 Water Co. v. Ware (16 Wall. 566) 747 
 
 Waterhouse v. Citizens' Bank (25 Lb^ 
 
 Ann. 77) 375 
 
 V. Dorr (4 Me. 8.33) 892 
 
 Waterman v. Clark (76 HI 423) 648 
 
 V. Gilson (5 La. Ann. 672) 601 
 
 Waterman Real Estate Exchange i>. 
 
 Stephens (15 West. Rep. 193). . . 966 
 
 Waters v. (irace (23 Ark. 118) 863 
 
 V. Moaarch, Ac. Ins. Co. (5 E. & B. 
 
 870) 1005 
 
 Waterson v. Rogers (21 Kan. 629) 148 
 
 Watkins v. Cousall (1 E. D. Smith, 65). 643 
 
 t). Vince (2 Stark. 368) 86 
 
 Watson V. Brooks (11 Ore. 271>. 966 
 
 V. Brooks (8Sawy. 316) 966, 967 
 
 V. Erb (33 Ohio St. 35) 459 
 
 V. Hopkins (27 Tex. 637) 402 
 
 t». King (4 Cowp. 272) 206 
 
 V. Lyon (7DeG. M. &G. 288).. 866 
 
 «. Muirhead (57 Penn. St. 247) . .829, 831 
 
 V. Railway Co. (58 Tex. 434). ..656, 659 
 
 «. Sherman (84 m. 263) 89, 93 
 
 «. Steever (25 Mich. 386) 600 
 
 «. Swann (11 C. B. H. S. 771) 124 
 
 V. Union Iron & Steel Co. (!£» D^ 
 
 App. 509) 469 
 
 Watt V. Watt (2 Barb. Ch. 371) 252 
 
 Watts V. Kavanagh (35 Vt. 34) 225 
 
 V. Van Ness(l Hill, 76) 38 
 
 Way V. Davidson (12 Gray, 465) 678 
 
 V. Townsend (4 Allen, 114) 680 
 
 Waynesville Nat. Bank v. Irons (8 Fed. 
 
 Rep. 1) 729 
 
 Weare v. Grove (44 N. H. 196) 550 
 
 Weaver v. Carnall (35 Ark. 198) 432 
 
 V. Devendorf (3 Den. 117).. 581, 686, 588 
 
 I'. Ogletree (39 Ga. 586) 84, 86 
 
 Webb V. Browning (14 Mo. 854). 91, 841. 842 
 
 V. Biirke (5 B. Mon. 51) 432, 441 
 
 V. Graniteville Mnfg Co. (11 8.C.396) 729 
 
 V. Paxton (.36 Minn. 532) 643, 972 
 
 V. Smith (30 Ch. Div. 192) 919 
 
 Webber v. Williams College (23 Pick. 
 
 302) 370,390, 891 
 
 Weber v. Weber (47 Mich. 569) 571, 673 
 
 Webster v. Brown (2 Rich. N. 8. 428). . . 419 
 
 V. Wade (19 Cal. 291) 622 
 
 V. Wray (17 Neh. 579) 282 
 
 Weed V. Adams (37 Conn. 3*^ 1008, 
 
 1009, 1032, 1033 
 
 V. Black (2 McAr. 268) 22 
 
 V. Boutelle (56 N. H. 570) 862, 
 
 863, 864, 868, 869, 870, 871 
 
 V. Burt (78 N. Y. 192) 621 
 
 V. Carpenter (4 Wend. 219) 179 
 
 Weeks v. Qoode (6 Com. B., N. 8. 867). . 681 
 
 V. Holmes (12 Cush. 215) 601 
 
 V. Propert (L. R. 8 C. P. 427) 645 
 
 SSOTION 
 
 Weeks V. Wayne Circuit Judges 873 
 
 Wegi^r V. Pennsylvania R. R. (56 Penn. 
 
 St. 460) 667 
 
 Weisbrod v. Chicago, <S:c., Ry Ck). (18 
 
 Wis. 35) 56, 5a 62, 63 
 
 Weise v. Milwaukee Co. Supervisors (51 
 
 Wis. 564) 212 
 
 Weise's Appeal (72 Penn. St. 351). . .273, 
 
 276, 290, 292 
 
 Weiss V. Whittemore (28 Mich. 366) .... 764 
 
 Weisse V. New Orleans (10 La. Ann. 46) 813 
 
 Weisser v. Denison (10 N. Y. 68) ... .718, 721 
 
 Weist V. Lee (3 Yeates, 47) 817 
 
 Weite V. United States (7 Ct. of O. 
 
 535) 226 
 
 Welch V. Goodwin (123 Mass. 71) 654 
 
 V. Hoover (5 Cranch. 444) 91 
 
 V. Welch (103 Mass. 562) 65 
 
 Wellborn v. Weaver (17 Ga. 267) 240 
 
 WeUford v. Chancellor (5 Gratt., Va. 
 
 39) 457, 459 
 
 Wellington v. Jackson (121 Mass. 157). 116 
 
 Wells V. Elsam (40 Mich. 218) 869, 870 
 
 V. Evans (20 Wend. 258) 93 
 
 V. Hatch (43 N. H. 246) 862, 869, 781 
 
 w. Hole (1 Doug. 238) 868, 873 
 
 V. Usher (2 Hill. Ch. 167) 421 
 
 Welsh V. Cochran (63 N.Y. 185) 386, 820, 839 
 
 Wenans v. Lindsey (1 How. 577) 819 
 
 Wen tworth v. Day (3 Mete. 352) 674 
 
 Werthelmer v. Howard (30 Mo. 420).... 680 
 
 West v.. BaU (12 Ala. 340) 819 
 
 V. Houston (3 Harr. 15) 810 
 
 West of England and South Wales 
 
 Bank, In re (32 Eng. Rep. 810) . . 781 
 West Boylston Mnfg Co. v. Searle (16 
 
 Pick. 225) 990 
 
 Western Cement Co. v. Jones (8 Mo. 
 
 App. 873) 646 
 
 Western, &c., R. R, Co. v. Bishop (60 
 
 Ga. 465) 659, 671 
 
 «. Nolan (48 N. Y. 513) 688 
 
 V. Strong (52 Ga. 461) 671 
 
 Western Screw Co. v. (jousley (72 lU. 
 
 631) 74, US 
 
 Western Transportation Co. v. Barber 
 
 (56 N. Y. 552) 625 
 
 Western Union Tel. Co. v. Railroad Co. 
 
 (1 McCrary, 418) 797 
 
 Westfleld Bank v. Cornen (37 N. Y. 820) 730 
 
 Weston V. Davis (24 Me. 374) 601 
 
 West wood V. Bell (4 Camp. 348) 693 
 
 Wetherbee v. Fitch (117 111. 67) 813 
 
 Wetmore v. Little Miami R. R. Co. (19 
 
 Ohio St. 110) 740 
 
 Weyant v .Railroad Co. (3 Duer. 360) 735, 736 
 
 Weyerhauser v. Dun (100 N. Y. 150). . . . 516 
 
 Wharton v. Hammond (20 Fla. 934).... 878 
 
 Wheat V. Dotson (12 Ark. 699) 647 
 
 Wheatcroft, In re (6 Ch. Div. 97) 862 
 
 Wheatley v. Tutt (4 Kans. 240) 46, 70 
 
 V. Williams (1 M. & W. 533) 882 
 
 Wheeler v. Guild (20 Pick. 545) 814 
 
 V. Raskins (41 Me. 432) 532 
 
 r. Kna?gs (8 Ohio, 169) 204 
 
 V. Nevins(34Me. 54) 93 
 
 V. Reed (36 111. 82) 554, 957 
 
 V. Wason Mnfg Co. (135 Mass, 294). . 663 
 
 V. Willard (44 Id. 641) 878 
 
 Wheeler & Wilson Mnfg C!o. v. Boyce 
 
 (36 Kans. 350) 741 
 
 V. Givan (65 Mo. 89) 352, 354, 356, 786, 997 
 
 Whelan v. Lynch (60 N. Y. 469) 1009 
 
 V. Reilley (61 Mo. 565) 377 
 
 Wheless v. Second Nat. Bank (1 Baxt. 
 
 469) 741 
 
 Whipple V. Barton (63 N. H. 613) 878 
 
 V. Whitman (13 R. L 512) 813 
 
 Whistler v. Forster (14 C. B. N. S. 248). 786 
 
 White u Bank (102 U. 8. 658) 441 
 
 V. Chapman (1 Stark. 113) 975
 
 TABLE OF OASES CITED. 
 
 Ixxxix 
 
 8K0TI0N 
 
 White V. Chanteau (10 Barb. 202) 1039 
 
 V. Connecticut F. Ins. Co. (120 Mass. 
 
 330) 931 
 
 r. Cuyler (6 T. E. 176) 417 
 
 «. Davidson (8 Md. 169) 77, 
 
 129, 185. 189, 886 
 
 V. DolUver (113 Mass. 400) 792, 799 
 
 «. Dwyer (31 N. J. Eq^ 394)^ 745 
 
 V. Equitable Nuptial Ben. Union (76 
 
 Ala.251) 86 
 
 t>. Fuller (67 Barb. 267) 485 
 
 V. Oaiuer (9 Moore, 41) 681 
 
 V. Graves (107 Mass. 328) 60 
 
 V.Johnson (67 Me. 287) 818, 820 
 
 V. Leighton (15 Neb. 424) 86 
 
 V. Madison (26 N. Y. 117) 549, 550 
 
 V. iMiller(71 N. Y. 118) 714, 715 
 
 V. NashvQle (2 Swan. 364) 190 
 
 V. Ooland (12 Rich. 308) 61 
 
 V. Proctor (4 Taunt. 209) 893 
 
 r. Sanders (82 Me. 1S8) 149 
 
 V. Sau-yer (16 Gray, 586) 743 
 
 V. Skinner (13 Johns. 307).. 421, 441, 5.50 
 
 V. Smith (54 N. Y. 522) 954 
 
 V. Ward (26 Ark. 445t 68, 461 
 
 V.Webb (15 Conn. 305)... 7G5 
 
 White's Case (6 Mod. 18) 803 
 
 Whitebeck v. New York, &c., R. R. Co. 
 
 (36 Barb. 644) 607 
 
 Whitecomb v. Jacob (1 Sall£. 161 .. . .780, 781 
 Whited V. Qermania F. Ins. Co. (76 N. 
 
 Y.415) 931 
 
 Whiteford v. Burekmyer (1 GilL 127). .. 714 
 
 Wliitehead v. Greetham (2 Bing. 464). . 834 
 
 V. Lord (7 Ex. 691)... 858 
 
 V. Reddick (12 Ired. L. 95) 658 
 
 V. Tuckett (15 East. 408) 6, 87, 281 
 
 V. Wells (29 Ark. 99) ... . 121, 522, 530, 533 
 Whiteley v. Pepper (2 Q. B. Div. 276), 
 
 736, 736 
 White Mountain Bank v. West (46 Me. 
 
 15) 1037 
 
 Whiteside v. United States (93 U. S. 
 
 247) 2r3, 291 
 
 Whitesides v. Hunt (97 Ind. 191) 35 
 
 Whitewell v. Warner (20 Vt. 425) 118 
 
 Whitfield V. Brand (16 M. & W. 282). ... 1044 
 
 V. Lord Le Despencer (Cowp. 754). . 593 
 
 Whiting V. Barney (30 N. Y. 330). . .882, 885 
 
 Whitley v. Murray (34 Ala. 155) 635 
 
 Whitemarsh v. Hall (3 Den. 376). ... 59, 6.51 
 
 Whitmore v. Smith (5 H. & N. 824) 188 
 
 Whitner v. Sullivan (2 S. E. Rep. 391). . 856 
 
 Whitney v. Pntch (13 Mass. 457) 51, 54 
 
 V. Esson (99 Mass. 308) 511 
 
 V. Martine (88 N. Y. 535) 490, 495 
 
 V. Merchants' Union Express Co. 
 
 (104 Mass. 152) 474 
 
 V. state Bank (7 Wis. 620) 354, 375 
 
 V. Wyman (101 U. S. 392) 443, 
 
 446, 448, 555, 5.58 
 
 Whittemore v. Hamilton (51 Conn. 153) 790 
 
 Whitten V. Jenkins (34 Ga. 305) 701 
 
 Whittey V. Murray (:i4 Ala. 155) ti35 
 
 Whittington v. Ross (8 111. App. 239). . 376 
 Whitwam v. Wisconsin, &c., R. R. (58 
 
 Wis. 408) 667 
 
 Whitwell V. Warner (20 Vt. 425) 1 18 
 
 Whitworth V. Ballard (56 Ind. 279) 221 
 
 V. Hart (22 Ala. 343) 61 
 
 Whyte V. Nashville (2 Swan. 364) 190 
 
 Wickersham v. Chicago Zinc Co. (18 
 
 Kans. 481) 723, 709 
 
 Wickware v. Bryan (11 Wend. 545) 580 
 
 Widner v. Lane (14 Mich. 124) 130 
 
 Widrig V. Taggart (51 Mich. 103) 59, 651 
 
 Wieland v. White (109 Mass. 392) 811, 
 
 812, 816, 800 
 
 Wiggett V. Fox (11 Ex. 832) 667 
 
 Wiggins V. Chicago (li8 111. 372) 892 
 
 V. Hathaway (6 Barb. 632) 593, 594 
 
 BxcrioN 
 
 Wight V. Rindskopf (43 Wis. 844) 27 
 
 Wigmore v. Jay (5 Ex. 354) 667 
 
 Wilbu r V. Ly nde (49 Cal. 290) 463 
 
 Wilburn v. Larkin (3 Blackf . 55) 405 
 
 Wilcox V. Railroad Co. (24 Minn. 269).. 274 
 
 V. Routh (9 S. & M. 476) 279 
 
 Wilder j;. Cowles (100 Mass. 487).. 957 
 
 V. Ranney (59, N. Y. 7). 77 
 
 V. Stanley (49 Vt. 105) 648 
 
 V. Weakley (34 Ind 181) 48 
 
 Wildey V. Collier (7 Md. 273) 23 
 
 WUey V. Knight (27 Ala. 336) 721 
 
 V. Logan (95 N. C. 358) 511, 531 
 
 V. Mahood (10 W. Va. 206) 875, 819 
 
 V. Moor (17 S. & R. 43S) 94 
 
 V. Pratt (23 Ind. 633) 810 
 
 Wiley's Appeal (8 W. & S. 244) 469 
 
 Wilkes V. Ellis (2 H. Bl. 555) 902 
 
 Wilkins v. Carmichael (1 Doug. 104). .. 868 
 
 V. Reed (6 Me. 220) 699 
 
 Wilkinson v. Campbell (1 Bay. 169).... 906 
 
 V. Griswold (12 S. & M 669).... 515, 831 
 
 V. Heavenrich (58 Mich. .574) 211 
 
 V. HoUoway (7 Leigh. 277) 375, 819 
 
 V. King (2 Camp. 335) 786 
 
 V. Oliveira (1 Scott 46) 34 
 
 Wilks V. Back (2 East. 140).421, 423, 42.5, 428 
 Willard v. Buckingham (36 Conn. 895). 
 
 279,281, 714 
 
 V. Goodrich (31 Vt. 597) 820 
 
 Willett V. Chambers (Cowp. 614) 77 
 
 Williams v. Anderson (9 Minn. 50) 622 
 
 V. Bailey (L. R. 1 H. L. 200) 116 
 
 V. Berbeck (Hoff. Ch. 359) 228 
 
 V. Brown (28 Ohio St. 547) 849 
 
 V. Butler (35 111. 544) 117 
 
 V. Chicago Coal Co. (60 lU. 149) 622, 603 
 
 V. Cochran (7 Rich. 45) 301 
 
 V. Crutcher (5 How. 71) 93, 94, 394 
 
 V. Evans (L. R. 1 Q. B. 352) 897, 900 
 
 V. Everett (14 East, 582) 567 
 
 V. Fitch (18 N. Y. 551) 880 
 
 V. Getty (31 Penn. St. 461) 279, 281 
 
 V. Gibbs(6N. & M. 788) 827 
 
 V. Giiman (3 Greenl. 276) 486 
 
 V. Gray (21 La. Ann. 110) 38 
 
 V. Hathaway (19 Pick. 387) 600 
 
 V. Higgins (30 Md. 404) 478 
 
 V. Ingersoll (89 N. Y. 508) 870 
 
 V. Johnston (92 N. C. 532) 354, 375 
 
 V. Littlefield (12 Wend 362) 1008 
 
 V. McGraw (52 Mich 480) 966 
 
 V. McKay (40 N. J. Eq. 189) 498 
 
 V. Merle (11 Wend. 80) 573, 574 
 
 V. Merritt (23 111. 623) 164 
 
 V. Millington (1 H. Bl. 82)... 756, 897, 909 
 
 V. Mitchell (17 Mass. 98) 279 
 
 V. Ocean Ins. Co. (2 Mete. 303). .756, 931 
 
 V. Planters' Ins. Co. (57 Miss. 759). . 741 
 
 V. Poor (3 Cranch. 251) 906 
 
 V. Keed (3 Mason, 404) 822 
 
 V. Bobbins (16 Gray, 77) 442 
 
 V. Robinson (73 Me. 186) 211 
 
 V. School District (21 Pick. 75) 78 
 
 V. Second National Bank (83 Ind, 
 
 237) 438 
 
 V. Storm (6 Cold. 203) 129, 155 
 
 V. Storrs(6 Johns. Ch. 853) 530, 532 
 
 V. Tatnall (09 111. 564) 721 
 
 V. TUt (36 N. Y. 319) 1034 
 
 V. Tracey (!)5 Penn. St. 308) 812 
 
 V. Walker (2 Sandf. Ch. 325). . . .373, 817 
 
 V. Weaver (75 N. Y. 30) 588 
 
 V. White (70 Me. 138) 955 
 
 V. Williams (55 Wis. 300) 529 
 
 V. Woods (16 Md. 220) 193 
 
 Williamson v. Berry (8 How. 495) 996 
 
 V. Brown (15 N. Y. 354) 724 
 
 V. Cambridge R. R. Co. (144 Mass. 
 
 148) 715 
 
 t;. Moriarity (19 Week. Rep. 818) .... 878
 
 xc 
 
 TABLE OF CASES CITED. 
 
 SECTION 
 
 Williams t». Taylor (5 A. & E. 175).. . . 211 
 WilHamson, Ac, Paper Co. v. Bosby- 
 
 ehell (14 Mo. App. 534) 812 
 
 Willis V. Bellamy (52 N. Y. Super. Ct. 
 
 873) 421, 430 
 
 V. Johnson School Township (75 
 
 Ind. 368) 426 
 
 V. Lyman (22 Tex. 268) 812 
 
 W.Oregon, &c., R R. (8 W. Coast 
 
 Kep. ^40, Or.) 667 
 
 V. Vallette (4 Mete. 186) 721, 722 
 
 Wills V. Barrister (36 Vt. 220) 674 
 
 WUson, In re (12 Fed. Rep. 235) 860, 
 
 862, 864, 865, 867, 868, 870 
 Wilson V. Board of Education (63 Mo. 
 
 137) 634 
 
 V. Brett (11 M. & W. 118) 496, 499 
 
 «. Dane (58 N. H. 392) 117, 602 
 
 V. Edmonds (24 N. H. 617) .240, 244 
 
 V. Greensboro (54 Vt. 533) 607 
 
 V. House (10 Bush, 406) 869 
 
 V Loring (7 Mass. 393) 924 
 
 V. Madison, &c., R. R. (18 Ind. 228). 667 
 
 t>. Marsh (34 Vt. 352) 588 
 
 V. Martin (40 N. H. 88) 674, 684 
 
 V. Mayor (1 Den. 595) 580, 590 
 
 V. McCullough (23 Penn. St. 440) . . . 
 
 729, 780 
 V. Minnesota, &c., Ins. fAssn. (36 
 
 Minn. 112) 721 
 
 V. Peverly (2 N. H. 548) 737, 738 
 
 «. Rastall (4T. R, 759) 886 
 
 V. Russ (20 Me. 421) 495, 824 
 
 t>. Smith (3 How. 763) 195 
 
 t). Stewart (5 Penn. L. J. Rep. 450). 251 
 
 V. Stratton (^7 Me. 120) 841 
 
 «. Troup (2 Cow. 195) 243 
 
 t>. Tumman (6 M & G. 242) 118 
 
 V. White (71Ga.506) 747 
 
 V. Willimantic Linen Co. (50 Conn. 
 
 433) 664, 665, 668 
 
 t». Wilson (4 Abb. App. Dec. 621). . . 469 
 
 V. Wilson (52 Iowa, 44) 699 
 
 V. Wilson (26 Penn. St. 393) 475, 483 
 
 V. Zulueta(14 Q. B. 405) 556 
 
 Wilson Sew. Mach. Co. v. Sloan (50 
 
 Iowa, 367) 714 
 
 Wilton V. Middlesex R. R. Co. (107 
 
 Mass. 108) 734, 735, 786 
 
 Wilts r. Morreli (66 Barb. 511) 474 
 
 Wiltshire v. Sims (1 Camp, 258) .... . . 948 
 
 Winans v. Allemania F. ins. Co. (88 
 
 Wis. 342) 931 
 
 Winchester v. Baltimore, &c. R. R (4 
 
 Md. 231) 729, 730 
 
 V. Heiskell (16 Lea, 556) 869. 872 
 
 V. Howard (97 Mass. 303).. 760, 769, 771 
 
 Wing V. Glick (56 Iowa, 473) 440 
 
 V. Neal (2 Atl. Rep. 881) 997 
 
 Wingate v. Mechanics' Bank (10 Penn. 
 
 St. 104) 514 
 
 V. Waite (6 M. & W. 739) 585 
 
 Winn «. Dillon (27 Miss 493) 457, 459 
 
 Winne v. Hammond (37 111. 99).... 1032, 1037 
 
 Winter v. Cloit (7 N. Y. 288) 676, 
 
 1032, 1035, 1037 
 
 V. Geroe (5 N. J. Eq. 819. 463 
 
 Wlnterbottom v. Wright (10 M. & W 
 
 109) 686 
 
 Winterset Bank w. Eyre (3 McCrary, 
 
 _ 175) 873 
 
 Wires V. Briggs (6 Vt. 101) 837, 838 
 
 Wirt V. McEnery (21 Fed. Eep. 2.33) 
 
 329 330 
 
 Wiseman v. Vandeputt (2 Vern. 203) . .' 687 
 
 Wisp V. Hazard (66 Cal. 459) 685 
 
 Witherell v. Gartham (6 T. R. 388) 78 
 
 Withington v. Herring (5 Bing. 466) ... 315 
 
 Woder v. Powell (31 Ga. 1) 812 
 
 Wolf V. Qerr (43 Iowa, 339) 637 
 
 V. Studebaker (65 Penn. St. 459) 623 
 
 Wolf V. Van Metre (27 Iowa, 848) ... 899 
 
 Wolfe V. Howes (20 N. Y. 197). .629, 631 640 
 
 V. Luyster (1 Hall, 146) 362, 906 
 
 V. Pugh (101 Ind. 29 i) ....748, 744. 1014 
 
 Wolff V. Koppel (2 Denio. 368) 520 
 
 V. Koppel (5 Hill 458) 520 
 
 Wolford V. Herrington (74 Penn. St. 
 
 311) 457 
 
 Wonder v. Baltimore, Ac. R. R. Co (32 
 
 Md. 411) 656,659, 668 
 
 Wood V. Anders (5 Bush, 601) 869 
 
 V. Auburn, &c. R R. Co. (8 N. Y. 
 
 160) 95 414 
 
 t>. Ayres (39 Mich. 345 600 
 
 V. Boylston Nat. Bank (129 Mass. 
 
 358) ,. 619 
 
 V. Brewer (78 Ala. 259) 554 
 
 t». Brewer (66 Ala. 570) 600 
 
 V. Cobb (13 Allen, 58) 747 
 
 V. Goodridge (6 Cush. 117) 96 
 
 308, 323, 417, 427 
 
 V. McCain (7 Ala. 800) 6 
 
 126, 167, 168, 807, 40« 
 
 ». McCann (6 Dana, 366) 22 
 
 V. New Bedford Coal Ck) (121 Mass. 
 
 252) 668 
 
 V. Pierson (45 Mich. 313) 674 
 
 V. Rabe (96 N. Y. 414) 457, 459 
 
 V. Verry (4 Gray, 357) 874 
 
 V. Weir (5 B. Mon. 544) 889 
 
 V. Whelen (93 111. 155) 121 
 
 Wood Mow. & Reap. Machine Co. 
 
 V. Crow (70 Iowa, 340) . . 100, 273, 849 
 
 Woodbury V. Larned (5 Minn. 33'J).129, 375 
 
 Woodfolk t>. Blount (8 Hay, 147). ... 718 
 
 Woodford v. MeClenahan (4 Gilm. 85). 348 
 
 Wooding V. Bradley (76 Va. 614) 288 
 
 Woodley v. Metropolitan Ry. Co. (2 
 
 Exch. Div. 506) 663 
 
 Woodman v. Davis (32 Kan. 344) 468 
 
 V. Joiner (10 Jur. N. S. 852) 738 
 
 Woodruff V. Dubuque, &c., R, R. Co. 
 
 (30 Fed. Rep. 91) 207, 208 
 
 V. McGehee (30 Ga. 158) 769, 773 
 
 V. Munroe (33 Md. 146) 116 
 
 u. Nashville, &c., R. R. Co. (2 Head. 
 
 87) 1036 
 
 Woods V. Russell (5 B. & Aid. 942) 634 
 
 Woodward v. Harlow (28 Vt. 338) 154 
 
 V. Suydam (11 Ohio, 360) 171 
 
 Woodward Iron Co. v. Jones (80 Ala. 
 
 123) 861 
 
 Woodworth v. Sweet (51 N. Y. 8) 66 
 
 Woody V. Old Dominion Ins. C!o. (31 
 
 Gratt. 862) 931 
 
 Wooley V. Constant (4 Johns. 54) 94 
 
 Woolsey v. Tompkins (23 Wend. 324). .. 77 
 
 Woolsey, The B. F. (4 Fed. Rep 553)... 867 
 
 Word V. Winder (16 La. Ann. Ill) 63S 
 
 Workman v. Wright (83 Ohio St. 405).. 
 
 114, 116 
 
 Worley v. Spurgeon (88 Iowa, 465) 745 
 
 Wormell v. Maine Cent. R. R. Co. (79 
 
 Me. 397) 659, 670 
 
 Worrall v. Munn (6 N. Y. 229). . . .89, 95, 
 
 141. 414, 708 
 Worsley v. Scarborough (8 Atk. 392) . . . 
 
 721 722 
 Worthington v. Cowles (112 Mass. 30) . .' 
 
 554 558 929 
 
 Worthy v. Johnson (8 Ga. 236) .'.463^ 464 
 
 Wortman v. Price (47 111. 22) 63 
 
 Wright V. Atlanta (54 Ga. 645) 892 
 
 V. Boynton (37 N. H. 9) 155, 185 
 
 v. Cabot (47 N. Y. Super. Ct. 229). .. 774 
 
 V. Cabot (b9 N. Y. 570) 339, 9.57 
 
 V. Central R. R. Co. (16 Ga. 38) 493 
 
 V. Cobleigh (21 N. H 339) 862. 870 
 
 V. Crabbs(r8Ind.487) 35, 39 
 
 V. Daily (26 Tex. 730) 875 
 
 ». Eaton (7 Wis. 595) 182
 
 TABLE OF OASES CITED. 
 
 XCI 
 
 SECTION 
 
 Wrl!?ht V. Gihon (3 C. & P. 582) 639 
 
 V. Hake (38 Mich. 525) 871 
 
 V. Herrick (128 Mass. 240) 224 
 
 V. London. Ac, K. R. Co. (1 Q. B. 
 
 Div. 252) 669 
 
 V. Mayer (6 Ves. 280) 882 
 
 V. New Yoik Cent. R. R. Co. (25 N. 
 
 Y. 565) 667 
 
 V. Parks (10 Iowa, 342) 812 
 
 V. People (61 111. 382) 1023 
 
 V. Rawson (52 Iowa, 329) 658 
 
 V. isnell (5 B. & Aid. 350) 685 
 
 V. Solomon (19 Cal. 64) 281, 994 
 
 V. Tebbetts (91 U. S. 252) 844 
 
 V. 1 erry (2 S. Rep. 6) 676 
 
 V. Treadwell (14 Tex. 255) 873 
 
 V. Walker (30 Ark. 44) 878 
 
 V. Ward (4 Russ. 215) 527 
 
 t7. Wilcox (19 Wend. 345) 740, 741 
 
 V Wright (70 N. Y. 9 >) 869 
 
 Wunderlin v. Cadogan (50 Gal. 613).... 94 
 
 Wye. fit u. Bergen (1 N. J. L 214) 818 
 
 Wyck V. Walters (81 N. Y. 352) 745 
 
 Wyckoffw. Bliss (12 Daly. 324) 966 
 
 Wyeth V. Braniff (84 N. Y. 627) 745 
 
 Wylie V. Coxe (15 How. 415) 842, 844 
 
 V. Marine Nat. Bank (61 N. Y. 415). 612. 
 
 620. 966, 967 
 
 Wyllisv. Ault (47 Iowa, 46) 745 
 
 Wyman v. Smith (2 Sandf . 331) 667 
 
 Y 
 
 Yager v. Atlantic, &c. R. B. (4 Hughes, 
 
 192) 667 
 
 Yale V Eames (1 Mete. Mass. 488) 321 
 
 Yarborough v. Bank of England (16 
 
 East, 6) 97 
 
 Yates r. Foot (12 John. 1) 757 
 
 V. Freckleton (2 Doug 623) 81 7 
 
 V. Hoppe (9 Com. B. 541) 567 
 
 V. Lansing (9 Johns. 395) 680 
 
 V.Robertson (80Va. 475) 843 
 
 V. RusseU (17 Johns. 461) 812 
 
 SKOnON 
 
 Yauger v. Skinner (14 N. J. Eq. 389). . . 48 
 
 Yeager's Appeal (100 Penn. St. 88) ... . 460 
 
 Yeamans v. James (27 Kan. 195) 878 
 
 Yeaton v. Boston, &C. R. R. Co. (135 
 
 Mas.s. 418) 656, 659 
 
 Yerbey v. Grigsby (9 Leigh, Va. 387). . . 324 
 
 Yerger v. Barz (56 Iowa, 77) 721 
 
 Yerrington v. Greene (7 R. I. 589). ..240. 626 
 Ye Seng Co. v. Corbitt (9 Fed. Rep. 
 
 423) 654 
 
 Yoakum v. Tilden (8 W. Va. 167) 81 8 
 
 Yon V. Blanchard (75 Ga. 519) 1024 
 
 Yordan V. Hess (13 Johns. 492) , 883 
 
 York Bank v. Appleton (17 Me. 55) ... 818 
 York Buildings Co. v. McKenzie (3 
 
 Paton, 378) 469 
 
 York Co, Bank v. Stein (24 Md. 446) 
 
 106, 281, 554, 957 
 
 Yorke v. Grenaugh (2 Ld. Baym. 867) . 677 
 Yorton v. Milwaukee, &c. Ry Co. (62 
 
 Wis. 367) 869 
 
 Youghioheny Iron Co. v. Smith (66 
 
 Penn. St. 440) 957 
 
 Young V. Cra« ford (23 Mo. App. 432) 818 
 
 V. Dearborn (27 N. H. 3i4) 869, 871 
 
 V. Hartford F. Ins. Co. (45 Iowa, 
 
 377) 931 
 
 V. Hughes (32 N. J. Eq. 872) 466 
 
 V. N. Y. Ac. R. R. (30 Barb. 229)... 667 
 
 V.Scott (25 La. Ann. 313) 994 
 
 w. Stevens (48 N. H. 133) 48 
 
 Youngs V. Lee (2 Kern. 551) 519 
 
 Yourt V. Hopkins (24 111. 329) 894 
 
 Z 
 
 Zelglerw. Hughes (55 lil. 288) 878 
 
 Zerrahn v. Ditson (117 Mass. 553) 598 
 
 Zinckv. Walker (2 W. Elk. 1154) 1033 
 
 Zogbaum v. Parker (55 N. Y. 120) 869 
 
 Zottman v. San Francisco (20 Cal. 96) 
 
 112, 126 
 
 Zurn V. Noedel (113 Penn. St. 336) 1027 
 
 ADDENDA. 
 
 ▲nrenlnger v. Hacnaughton (114 N. T. 
 
 535) 992 
 
 Caark v. Cummtog (77 Ga. 64) 985 
 
 Cooke V. Eshelby (12 App. Cas. 271) ... 986 
 Dale V. Donaldson Lumber (3o. (48 Ark. 
 
 138) 644 
 
 Duluth Nat. Bank t>. Fire Ins. Co. (85 
 
 Tenn. 76) 198 
 
 Emerson v. Patch (123 Mass. 541) 697 
 
 Fradley v. Hyland (37 Fed. Rep. 49) . . . 697 
 
 Gallgher v. Jones (129 U . S. 193) 1009 
 
 Gregory v. Wendell (40 Mich. 432) 938 
 
 Hegeumyer v. liarks (37 Minn. 6) 638 
 
 Jordan ▼. Westerman (62 Mich. 170). . . 883 
 
 Laing v. Butler (37 Hun. 144) 697 
 
 Leuthold v. Fairchild (85 Minn. 111).. . 671 
 
 Louisville Bank v. Gray (84 Ky. 565). . . 461 
 
 McKay v. Williams (85 N. W. Rep. 159), 467 
 
 Milliken v. Hathaway (19 N. K Rep. 16) 916 
 
 Post V. Pearson (108 U. S. 418) 448 
 
 Ross w. Griffln (53 Mich. 5) 839 
 
 Smith V. Binder (75 111.492) 662 
 
 State V. Torinus (26 Minn. 1) 179 
 
 Valette v. Tedens (122 111. 607) 458 
 
 Whitlock V. Hicks (75 Ul. 460) 448 
 
 Yazel V. Palmer (88 111. 697) 828 
 
 Number of Cases Cited, 7013.
 
 THE LAW OF AGENCY.
 
 THE LAW OF AGENCY. 
 
 BOOK I. 
 
 OF THE RELATION IN GENERAL; HOW CREATED 
 AND TERMINATED. 
 
 CHAPTER I. 
 
 DEFINITIONS AND DIVISIONS. 
 
 1. 
 
 Agency defined. 
 
 § 9. 
 
 How Question to be deter 
 
 3. 
 
 Relation to Master and Ser- 
 
 
 mined. 
 
 
 vant. 
 
 10. 
 
 Special Forms of Agency, 
 
 3. 
 
 Other Names employed. 
 
 11. 
 
 Attorneys at Law. 
 
 4. 
 
 Actual and Ostensible Agen- 
 
 12. 
 
 Auctioneers. 
 
 
 cies. 
 
 13. 
 
 Brokers. 
 
 6. 
 
 Classes of Agents. 
 
 14. 
 
 Factors and Commission Mer 
 
 6. 
 
 Uuiversal, General and Special 
 
 
 chants. 
 
 
 Agents. 
 
 15. 
 
 Officers of Ships. 
 
 7. 
 
 Uses of these Distinctions. 
 
 16. 
 
 Partners. 
 
 8. 
 
 Difficulty of Determination. 
 
 17. 
 
 Bank Officers. 
 
 § 1. Agency defined. Agency is a legal relation, founded 
 apon the express or implied contract of the parties,' or created 
 
 • "Agency is founded upon contract, 
 either express or implied, by which 
 one of the parties confides to the 
 other, the management of some busi- 
 ness to be transacted in his name or on 
 his account, and by which the other 
 assumes to do the business and to 
 render an account of it." Kent Com., 
 II., p. 784. "An agent is a person 
 iuly authorized to act on the behalf 
 
 of another, or one whose unauthorized 
 act has been duly ratified." E well's 
 Evans* Agency, 1. "An agent is one 
 who acts for and in the stead of 
 another, termed the principal, either 
 generally or in some particular busi- 
 ness or thing, and either after his 
 own discretion in full or in part, oi 
 under a specific command." Bishop, 
 Contracts, § 1027. " In the commoi.
 
 §2. 
 
 THE LAW OF AGENCY. 
 
 [Book L 
 
 by law,' bj virtue of which one party, — the agent — is em- 
 ployed and authorized to represent and act for the other, — the 
 principal — in business dealings with third persons. The dis- 
 tinguishing features of the agent are his representative character 
 and his derivative authority.' 
 
 § 2. Eelation to Master and Servant. The line of demarca- 
 tion between the relation of principal and agent, and that of 
 master and servant is exceedingly difficult to define.' This diffi- 
 culty arises largely from the fact that the two relations are essen- 
 tially similar. Indeed, there is much reason for saying that the 
 difference between them is one of degree only, and not of kind. 
 The difficulty is increased by the • fact that the same person 
 often assumes to the principal many of the characteristics of 
 both servant and agent, as well as by the fact that most of the 
 principles which govern one relation apply equally to the other. 
 
 Thejjue^istinction is to be found_m_thej iature of_ the_nnder- 
 takiQQ^ and the time~and manner of_ iis_pe rf or man ce. Agency 
 
 language of life, he, who being com- 
 petent and suijuna, to do any act for 
 his own benefit, or on his own ac- 
 count, employs another person to do 
 it, is called the principal, constituent 
 or employer, and he who is thus em- 
 ployed is called the agent, attorney, 
 proxy or delegate of the principal, 
 constitueator employer. The rela- 
 tion thus created between the parties 
 is termed an agency. Story, 
 
 Agency, § 3. " Agency is a contract 
 by which one person, with greater or 
 less discretionary powers, undertakes 
 to represent another in certain busi- 
 ness relations." Wharton, Agency, 
 § 1. " An agent is one who repre- 
 sents another, called the principal, in 
 dealing with third persons. Such 
 representation is called agency." 
 Code, Cal.,§ 2295; Dakota, Code, 
 § 1337. 
 
 ' Benjamin v. Dockham, 134 Mass. 
 418. See post, § 82. 
 
 s Ewell's Evans' Agency, 1. 
 
 8 "The word servant," says Mr. 
 Parsons, " seems to have in law two 
 
 meanings. One is that which it has 
 in common use, when it indicates a 
 person hired by another for wages, to 
 work for him as he may direct. We 
 may call such a person a servant in 
 fact; but the word is also used in 
 many cases to indicate a servant by 
 construction of law; it is sometimes 
 applied to any person employed by 
 another, and is scarcely to be dis- 
 criminated in these instances from 
 the word agent. This looseness in 
 the use of the word is the more to be 
 regretted, because it seems to have 
 given rise to some legal difficulties 
 and questions which might have been 
 avoided." I. Parsons on Contracts, 
 101. 
 
 " The word servant," says Mr. 
 Wood, " in our legal nomenclature, 
 has a broad significance, and em- 
 braces all persons of whatever rank 
 or position who are in the employ and 
 subject to the direction or control of 
 another in any department of labor 
 or business." Wood, Mast. & Serv., 
 §1.
 
 Chap. 1.] 
 
 DEFINITIONS AND DIVISIONS. 
 
 §2. 
 
 properly relates to transactions of busin ess with_thiri4ieraon8, 
 and irapHes m ore or less of d iscretion in^the agent as to the time 
 and maniier of hjs performance. Service, on the other hand, haT~ 
 reference to actions upon or about things. It deals chieflj with 
 matters j)T~mere manual "or mechanical execution, in'which "the ~ 
 servant acts undeftEe direction and control "of tSe master.'^ 
 ~It liTaylSe^saTa, perhaps, "thatTliTs distinction is not altogether 
 
 ' Mr. Wharton in his excellent 
 work illustrates the distinction thus: 
 " Agency, or mandate, as has al- 
 ready been seen, is distinguishable 
 from Locaiio conductio operarum, or 
 the relationship of master and ser- 
 vant, by the fact that the former re- 
 lates to business transactions, in 
 which there is more or less discre- 
 tion allowed to the employee, while 
 the latter relates to manual services, 
 which the employee is, as a rule, 
 obliged to perform under specific 
 orders. Thus, a publisher is the 
 mandatary or agent of the author in 
 printing a book; the compositor is 
 the locator or servant of the printer in 
 setting up the type. So a trustee man- 
 aging an estate is the mandatary or 
 agent of his principal in investing the 
 latter's funds; the trustee's clerk, who 
 keeps his account, is the trustee's 
 locator or servant. So a contractor 
 undertakes to build a house for a 
 capitalist; and he is in this the capi- 
 talist's mandatary or agent; the ma- 
 son or the bricklayer who directly 
 lets his labor to the capitalist, is the 
 latter's servant, or locator. * » » 
 I employ, for instance, an engine- 
 maker to build for me a particular 
 engine, he Laving exclusive control 
 over the use of his time when work- 
 ing for me, and pursuing his own 
 mode of working. Or I engage a 
 printer to print for me a particular 
 manuscript, he having like discretion 
 as to time and mode. Or I employ a 
 salesman, he having discretion as to 
 the parties to whom to sell. In each 
 
 of these cases the employment is 
 agency or mandate, and not that of 
 master and servant, or locatio conduc- 
 tio operarum. " Wharton on Agency, 
 §§ 19, 20. 
 
 The codes distinguish between the 
 two relations thus: "An agent is 
 one who represents another called the 
 principal in dealings with third per- 
 sons." Cal., § 2295; Dakota, § 1337. 
 
 " A servant is one who is employed 
 to render personal service to his em- 
 ployer, otherwise than in the pursuit 
 of an independent calling, and who 
 in such service remains entirely under 
 the control and direction of the lat- 
 ter, who is called his master." Cal., 
 §2009; Dakota, § 1157. 
 
 "A preliminary remark," says 
 Judge Cooley," "is essential regard- 
 ing the employment, in the law, of 
 the words master and servant. The 
 common understanding of the words 
 and the legal understanding is not 
 the same; the latter is broader and 
 comprehends some cases in which 
 the parties are master and servant 
 only in a peculiar sense, and for cer- 
 tain purposes; perhaps only for a 
 single purpose. In strictness, a ser- 
 vant is one who, for a valuable con- 
 sideration, engages in the service of 
 another, and undertakes to observe 
 his directions in some lawful business. 
 The relation is purely one of contract, 
 and the contract may contemplate or 
 stipulate for any services, and any 
 conditions of service not absolutely 
 unlawful." Cooley on Torts, 531,
 
 § 3. THE LAW OF AGENCY. [Book I. 
 
 satisfactory in actual application, inasmuch as it is difficult to 
 conceive of any form of service, except, perhaps, the very lowest, 
 in which more or less of discretion is not allowed the servant ; 
 or of any form of agenc3% except, perhaps, a few forms of inde- 
 pendent calling, in which the agent is not, or may not be, 
 subject to the specific control of the principal. In the majority 
 of cases, however, the distinction is sufficiently clear for practi- 
 cal purposes, particularly inasmuch as the same principles of law 
 will, ordinarily, be applied to either relation. 
 
 The term of employment and the manner of rendering com- 
 pensation will, in many cases, assist in the determination of the 
 question. Agents, as a rule, are employed rather as particular 
 occasions may require, than for fixed periods ; and receive their 
 compensation rather in fees and coirmiissions than in fixed wages 
 or salary. But these considerations, while of use in many cases, 
 are not in every instance conclusive, as the agent's term of 
 employment may often be a definite period, and his fees or com- 
 missions may be commuted by a stated compensation or salary. 
 Thus the general counsel of a railroad company, employed by 
 the year at a fixed salary and devoting to its business his entire 
 time, is not on that account ordinarily considered a servant ; nor 
 is the day laborer who works upon his employer's farm, usually 
 deemed to be an agent because his service is rendered at irregu- 
 lar intervals and at varying wages. 
 
 In the view that he who executes the will, and is subject to 
 the control, of another, is a servant, agency is but a higher form 
 of service;' while in the view that he who acts for and repre- 
 sents another, is an agent, service is but a lower form of agency.* 
 
 The two relations being thus so closely allied, the considera- 
 tion of one necessarily implies a more or less full development 
 of the other, and while this volume is devoted to the higher 
 form, illustrations will be freely drawn from the lower. 
 
 § 3. Other Names Employed. The names principal and 
 agent are not the only ones used to designate the parties to this 
 
 • Blackstone so treats it: " There the law considers as servants pro tern- 
 
 is yet a fourth species of servanls," pore with regard to such of their acts 
 
 says he, " if they may be so called, as affect their master's or employer's 
 
 being rather in a superior, a minis- property." 1 Com., 427. 
 
 terial, capacity; such as stewards, * Mr, Cbitty so treats it. Chitty 
 
 factors and bailiffs; whom, however, on Contracts, 209.
 
 Chap. L] DEFINITIONS AND DIVISIONS. § 6. 
 
 relation. The agent is sometimes called an attorney, proxy, 
 delegate or representative ; and the person represented, though 
 usually called the principal, is sometimes designated an em- 
 ployer, constituent or chief.* 
 
 The contract by which this relation is created, or upon which 
 it is based, is called a contract of agency ; the right of the agent 
 BO to act for and represent the principal is termed his authority 
 or power ; and this authority or power when conferred formally 
 by an instrument in writing is said to be conferred by letter of 
 attorney or, more frequently, by power of attorney.' 
 
 § 4. Actual and Ostensible Agencies. An agency is some- 
 times said to be either actual or ostensible.' An agency is actual 
 when the agent is really employed by the principal.* An agency 
 is ostensible when the principal intentionally, or by want of 
 ordinary care, causes a third person to believe another to be his 
 agent who is not really employed by him.» 
 
 § 5. Classes of Agents. Agents are divided into a variety of 
 classes based upon the extent or nature of their authority, and 
 the character and obligation of their undertakings. The most 
 common and most important of these classifications is that based 
 upon the extent of their authority into universal, general, and 
 special or particular agents.' 
 
 Other classifications, based (a) upon the nature of the agency 
 into mercantile and non-mercantile agents ; or (b) w'ith regard to 
 their obligations in selling, into del-credere agents, and agents no^ 
 del-credere; or {c) in regard to the degree of skill required of 
 them, into gratuitous and paid agents and professional and non- 
 professional agents, are sometimes made for convenience of 
 treatment.' 
 
 § 6. Universal, General and Special Agents. An universal 
 agent is one authorized to transact all of the business of his 
 principal of every kind. A general agent is an agent who is 
 empowered to transact all of the business of his principal of a 
 
 » Story. Agency, § 3. » Cal. Code, § 2300; Dak. Code, 
 
 « Evans' Agency, 3. 1343. 
 
 3 Cal. Code, § 2398; Dak. Code, « See Ewell's Evans' Agency, 2; 
 
 1340. Story on Agency, § 17; Wharton on 
 < Cal. Code, § 2299; Dak. Code, Agency, § 116. 
 
 1341. 1 Ewell's Evans' Agency, 2.
 
 § 7. THE LAW OF AGENCY. [Book 1. 
 
 particular kind or in a particular place. A special agent is one 
 authorized to act only in a specific transaction.* 
 
 A principal can have but one universal agent. He may have 
 a general agent in each line of his business, and in each of several 
 places. He may employ as many special agents as occasion may 
 require. An universal agency is of very rare occurrence,' the 
 great majority of the cases being those which involve some form 
 of general or special agency. 
 
 § 7. Uses of these Distinctions. Distinctions of this sort are 
 of use in securing a logical statement of the law, and they are 
 also of importance because of the more or less arbitrary rules 
 which have been based upon them J but unless it be held clearly 
 in mind that they are aids only, and are not conclusive, in con- 
 troversies between the principal and third persons, they will 
 often prove to be misleading rather than useful.* 
 
 § 8. Diflaculty of Determination. It is often difficult to de- 
 termine whether a given agency shall be deemed general or 
 special, and cases frequently occur, as will be seen hereafter,* 
 where the agency though special as between the principal and 
 the agent, must be regarded as general as between the principal 
 and third persons. The distinction is of chief importance in 
 determining the liability of the agent to his principal, because, 
 as will be seen,' the agent by exceeding the limits set to his 
 authority or by violating express instructions may make himself 
 liable to his principal for the loss or damage occasioned thereby. 
 
 § 9. How Determined. No abstract presumption of law is 
 
 I Savings Fund Society v. Savings (Tenn.) 502; Savage v. Rix, 9 N. H. 
 
 Bank, 36 Penn. St. 498, 78 Am. Dec. 263. 
 
 390; Lobdell t;. Baker, 1 Mete. (Mass.) « Indeed it has been doubled 
 
 193, 35 Am. Dec. 358; Wood v. Mc- whether a true universal agency 
 
 Cain, 7 Ala. 800, 42 Am. Dec, 612; could exist. Story on Agency, § 21. 
 
 Manning v. Gasharie, 27 Ind. 399; But see an instance of what was 
 
 Gilman v. Robinson, Ry. &Moo. 226; called such in Barr v. Schroeder, 32 
 
 Kaye v. Brett, 5 Ex. 269; Brady v. Cal. 609. An universal agency can 
 
 Todd, 9 C, B. (N. S.)591; Whitehead only be created by clear and unequiv- 
 
 V. Tuckett, 15 East, 400; Anderson v. ocal language and will not be inferred 
 
 Coonley, 21 Wend. (N. Y.) 279; Far- from any general expressions, how. 
 
 mers', &c. Bank v. Butchers', »&c. ever broad. Gulick «. Grover, 33 N. 
 
 Bank, 16 N. Y, 125, 69 Am. Dec. 678; J, L. 463, 97 Am. Dec. 728. 
 
 Tomlinson v. Collett, 3 Blackf, (Ind ) a See post Book II, Chap, I. 
 
 436; Walker t?. Skipwith, Meigs ♦ See post. Book II. Chap, 1. 
 
 •See post. Id.
 
 Chap. L] DEFINITIONS AND DIVISIONS. § 12. 
 
 made in reference either to the existence or to the nature or ex- 
 tent of an agency. These are facts to be proved. If the agency 
 is created by writing, the question addresses itself to the court; 
 but if it be by parol, it is for the jury to determine both its ex- 
 istence and its character and extent.* Where, however, an agency 
 is shown to exist, the presumption would be that the agent's au- 
 thority was general rather than limited.* 
 
 § 10. Special Forms of Agenoy. Certain forms of agency 
 are of such great importance and of such universal use that 
 around each of them has grown up a special body of the law 
 that requires distinctive consideration. Of this class are attor- 
 neys, auctioneers, bank officers, brokers, factors, ship masters, 
 end the like, some of which will be specially considered here- 
 after. 
 
 § 11. Attorneys at Law. As has been seen, the term attor- 
 ney is often used in the law of agency as synonymous with the 
 word agent, particularly when the authority is conferred by a 
 written instrument. An agent of this sort is often further dis- 
 tinguished as an attorney in fact. 
 
 The term has also its well understood significance of attorney 
 at law, by which is meant, in modern times, one whose profes- 
 sion it is to give advice and assistance in legal matters, and to 
 prosecute and defend in courts, the causes of those who may em- 
 ploy him for that purpose.' 
 
 § 12. Auctioneers. An auctioneer is one whose business it is 
 to sell or dispose of property, rights or privileges at public com- 
 petitive sale, to the person or persons offering or accepting the 
 terms most favorable to the owner.* He differs from a broker in 
 
 « Dickinson County v. Mississippi « Trainor v. Morison, 78 Me. 160, 57 
 
 Valley Ins. Co. 41 Iowa, 286; Savings Am. Rep. 790; Methuen Co. v. Hayes, 
 
 Fund Society v. Savings Bank, 36 83 Me. 169. 
 
 Penn. St. 498, 78 Am. Dec. 390; Mor- » Weeks on Attorneys at Law, g 31. 
 
 rison V. Whiteside, 17 Md. 452, 79 See the subject treated at length in 
 
 Am. Dec. 661 ; Beringer v. Meanor, the chapter on Attorneys at Law. 
 
 85 Penn. St. 223; Bean*. Howe, 85 < Mr. Bishop defines an auctioneer as 
 
 Penn. St. 260; Dale t». Pierce, 85 "one who dealing with assembled 
 
 Penn. St. 474. "The existence of an persons competing, sells property to 
 
 agent's authority, is purely a question those who make or accept the offers 
 
 of fact. What he may do by virtue most favorable to the owner." As 
 
 of it is a question of law." Glenn v. will be observed, the definition in the 
 
 Savage, — Ore. — , 13 Pac. Rep. 442. text is based largely upon this. Of
 
 §13. 
 
 THE LAW OF AGENCY. 
 
 Book I.] 
 
 several particulars, chief among which are that he is employed to 
 sell or dispose of, onl^', and that his sales are always public. He 
 18 primarily deemed to be the agent of the seller, but in the 
 performance of his functions he becomes the agent of the buyer 
 also, as when he accepts the buyer's bid and enters his name 
 upon the memorandum of the sale.* 
 
 § 13. Brokers. A broker is one whose occupation it is to 
 bring parties together to bargain, or to bargain for them, in 
 matters of trade, commerce or navigation.* He is essentially a 
 middle-man or go-between. He differs from an auctioneer in 
 that he has no special property in the goods which he may be 
 authorized to sell ; that he must sell tliem in the name of the 
 
 this definition Mr. Bishop says : "I 
 have not observed in the books any 
 satisfactory definition of an auction- 
 eer. Even Story puts what seems to 
 have been meant for a definition, 
 very loosely, thus : 'An auctioneer is 
 a person who is authorized to sell 
 goods or merchandise at public auc- 
 tion or sale for a recompense or (as it 
 is commonly called) a commission.* 
 Story, Agency, § 27. My definition is 
 silent as to his remuneration, or the 
 manner of it: in which respect Story's 
 is to be preferred if this is really an 
 element in the question. But though 
 ordinarily, an auctioneer, like any 
 other agent, is paid, he is not the less 
 such if he does the work gratuitously. 
 State «. Rucker, 24 Mo. 557. Nor 
 does he cease to be an auctioneer 
 though he sells his own property. 
 Bent V. Cobb, 9 Gray (Mass.) 397. 
 Therefore the definition may well be 
 silent as to the matter of agency. 
 Nor is he less an auctioneer though, 
 selling his own property, he conducts 
 the competition by some method other 
 than outcry. Rex v. Taylor, McClel. 
 863; 13 Price, 636. Story's definition 
 is defective in not comprehending 
 the auctioneer of real estate. Em- 
 merson v. Heelis, 2 Taunt. 38, 47; 
 Dobell V. Hutchinson, 3 A. & E. 355. 
 It may be a question whether mine is 
 
 not defective in not extending to such 
 a case as the letting out of the board 
 of paupers to the lowest bidder, and 
 various other cases of procuring a 
 contract other than a purchase of 
 property." Bishop on Contracts, 
 New Ed. § 1131, and note. 
 
 "An auctioneer," says Mr. Whar- 
 ton, "is a person employed to sell at 
 public sale, after public notice, prop- 
 erty to the highest bidder." Agency, 
 §638. 
 
 ' See chapter on Auctioneers,where 
 the subject is separately treated. 
 
 * " A broker is one, who, as middle- 
 man, brings persons together to bar- 
 gain or bargains for them, in the pri- 
 vate purchase or sale of property of 
 of any sort, not ordinarily in his pos- 
 session." Bishop, Contracts § 1135. 
 
 "A broker is a specialist employed 
 as a middleman to negotiate between 
 the parties, a sale or other business 
 contract." Wharton on Agency, 
 §695. 
 
 Judtre Story says that a broker "is 
 an agent employed to make bargains 
 and contracts between other persons, 
 in matters of trade, commerce or 
 navigation, for a compensation, com- 
 monly called brokerage." Agency, 
 § 28. This definition is the one given 
 by Evans' Agency, 4.
 
 Chap. I.] DEFINITIONS AND DIVISIONS. § 14. 
 
 principal, and that his sales are private and not at auction. He 
 ordinarily receives a compensation or commission, usually called 
 brokerage, but he may also serve gratuitously. He differs from 
 a factor, also, in that he does not ordinarily have the possession 
 of the property which he may be employed to sell and that his 
 contracts are always made in the name of his employer. He is 
 primarily the agent of the person who first employs him, and he 
 cannot, without the full and free consent of both, be, throughout 
 the transaction, the agent of both parties. Without such consent, 
 he can only act as the agent of the other party when the terms 
 of the contract are fully agreed upon between the principals and 
 he is instructed to close it up. 
 
 Brokers are of many kinds, according to the particular class of 
 transactions in which they engage. Thus there are money-bro- 
 kers, stock-brokers, ship-brokers, bill-brokers, insurance-brokers, 
 real estate-brokers, pawnbrokers, and general merchandise-bro- 
 kers.* 
 
 § 14. Factors or Commission Merchants. These terms, as is 
 said by a learned writer,' are nearly or quite synonymous. The 
 former is the more common in the language of the law, the latter 
 in the language of commerce. A factor is one whose business it 
 is to receive and sell goods for a commission. He differs from a 
 broker in that he is entrusted with the possession of the goods to 
 be sold and usually sells in his own name.' He is invested by 
 
 ' See this subject fully discussed in in a different situation,— he is not 
 
 the chapter on Brokers. trusted with the possession of the 
 
 "Bishop, Contracts, §1188. See goods and he ought not to sell in his 
 
 also, Perkins v. State, 50 Ala. 154. own name." And in the same case it 
 
 8 "The distinction between a broker is said by Holroyd, J., that a factor 
 
 and a factor," said Chief Justice Ab- "is a person to whom goods are sent 
 
 bott, "is not merely nominal, for or consigned, and he has not only 
 
 they differ in many important partic- possession, but in consequence of ita 
 
 ulars. A factor is a person to whom being usual to advance money upon 
 
 goods are consigned for sale by a mer- them, he has also a special property 
 
 chant residing abroad, or at a distance in them, and a general lien upon 
 
 from the place of sale, and he usually them. When, therefore, he sells in 
 
 sells in his own name without dis- his own name it is within the scope 
 
 closing that of his principal. The of his authority, and it may be right 
 
 latter, therefore, with full knowledge therefore that the principal should 
 
 of these circumstances, trusts him be bound by the consequences of 
 
 with the actual possession of the such sale— amongst which the right 
 
 goods, and gives him authority to sell of setting off a debt due from the 
 
 in his own name. But the broker is factor is one. But the case of a
 
 §15. 
 
 THE LAW OF AGENCY. [Book I. 
 
 law with a special property in the goods to be sold and a general 
 lien upon them, for his advances; and unless there be an agree- 
 ment or usage to the contrary, he may sell upon a reasonable 
 
 credit.' 
 
 Del Credere Commission. Not unfrequently, in consideration 
 of an increased commission, the factor guarantees the payment 
 of debts arising through his agency, in which case he is said to 
 sell upon a del credere commission.* 
 
 Sujyercargo. A factor is called a supercargo when author- 
 ized to sell a cargo which he accompanies on the voyage.* 
 
 § 15. Officers of Ships. Certain officers of ships, as the 
 master and the ship's husband, present well recognized forms 
 of agency, but the consideration of their rights, authority and 
 duties belongs rather to a treatise upon shipping or maritime law 
 than to one upon the subject of agency generally.* 
 
 § 16. Partners. The transaction of the business of an ordi- 
 nary partnership furnishes frequent opportunity for the applica- 
 tion of the law of agency, but this subject is also deemed to be 
 beyond the scope of the present treatise. 
 
 § 17. Bank Officers. Certain officers of banks, and particu- 
 larly the cashier, also present familiar forms of agency, which 
 will receive attention herein. 
 
 broker is different; he has not. the ployed by commercial companies or 
 
 possession of the goods and so the private merchants, to take charge of 
 
 vendee cannot be deceived by that the cargoes they export to foreign 
 
 circumstance; and besides, the em- countries, to sell them there to the 
 
 ploying of a person to sell goods as a best advantage, and to purchase 
 
 broker does not authorize him to sell proper commodities to relade the 
 
 in his own name. If, therefore, he ships on their return home. For this 
 
 sells in his own name, he acts beyond reason supercargoes generally go out 
 
 the scope of his authority and his and return home with the ships on 
 
 principal is not bound." Baring ». board of which they were embarked, 
 
 Corrie, 2 B. & Aid. 143. and therein differ from factors, who 
 
 » See the subject discussed in the reside abroad at the settlements of the 
 
 chapter on Factors. public companies for whom they 
 
 » See the question of his duties and act." 1 Beawes Lex Merc, 47 (6th 
 
 liabilities discussed in the chapter on ed.) 
 
 Factors, post. ^See Parsons on Maritime Law, 
 
 • Ewell's Evans on Agency, 3. Abbott on Shipping. 
 
 "Supercargoes are persons em- 
 
 10
 
 Chap. II.] 
 
 FOR WHAT PURPOSES CREATED. 
 
 §19. 
 
 CHAPTER II. 
 
 FOR WHAT PURPOSES AN AGENCY MAY BE CREATED. 
 
 § 18. General Rule— For any lawful 
 Purpose. 
 
 19. Dlegal and Personal Acts can- 
 
 not be delegated. 
 
 I. UNDERTAKINGS CONTRARY TO LAW 
 OR OPPOSED TO PUBLIC POLICY. 
 
 20. In General— Void. 
 
 21. The Element of Contingent 
 
 Compensation. 
 
 22. Lobbying Agents. 
 
 23. Same Subject — Legitimate Ser- 
 
 vices. 
 
 24. Procuring Contracts from Gov- 
 
 ernment and Heads of Depart- 
 ments. 
 
 25. Same Subject — Illustrations. 
 
 26. Services in prosecuting Claims. 
 
 27. Compromise of Crime. 
 
 28. Services in procuring Appoint- 
 
 ments to Office. 
 
 29. Same Rule applies to private 
 
 Offices and Employments. 
 
 § 30. Services in improperly influenc- 
 ing Elections. 
 
 Same Subject — What Services 
 legitimate. 
 
 Services in procuring Pardons. 
 
 How when Conviction illegal. 
 
 Services in procuring or sup- 
 pressing Evidence. 
 
 Unlawful Dealings in Stocks 
 and Merchandise. 
 
 Marriage Brokerage Contracts 
 void. 
 
 87. Corruption of Agents. 
 
 88. Other Cases involving same 
 
 Principles. 
 
 Agent must participate in un- 
 lawful Purpose. 
 
 Whole Contract void when en- 
 tire. 
 
 81. 
 
 32. 
 33. 
 84. 
 
 85. 
 
 86. 
 
 39. 
 
 40. 
 
 II. POWERS OP A PERSONAL NATURE. 
 
 41. Personal Duty, Trust or Confi- 
 dence cannot be delegated. 
 
 §18. General Rule — For any Lawful Purpose. It may be 
 stated as a general rule that an agency may be created for the 
 transaction of any lawful business, and that whatever a person 
 might lawfully do, if acting in his own riglit and in his own 
 behalf, he may lawfully delegate to an agent.' 
 
 8 19. Illegal and personal Acts cannot be delegated. In 
 dealing with this general rule, two principles are important to be 
 considered. One of them results as the direct and natural effect 
 
 » Story on Agency, §6; Com. Dig. 
 "Attorney," C. I. "An agent may 
 be authorized to do any acts which 
 his principal might do, except those 
 
 to which the latter is bound to give 
 his personal attention." Cal. Code, 
 §2304; Dak. Code, § 1343. 
 
 11
 
 § 20. THE LAW OF AGENCY. [Book I. 
 
 of the rule itself ; the other is an exception to it. These are, 1. 
 That autliority cannot be delegated to do an act which is illegal, 
 immoral or opposed to public policy ; and 2. That the perform- 
 ance of an act which is personal in its nature cannot de delegated. 
 
 UNDERTAKINGS CONTBAKT TO LAW, OK OPPOSED TO PUBLIC POLICY. 
 
 § 20. In general, void. The law will not sanction the crea- 
 tion, or enforce the performance, of an agency which has for its 
 object, or which naturally and directly tends to promote, the 
 commission of an act which is either illegal or immoral in itself, 
 or which is opposed to the public policy. As to the former class, 
 the rule and its application are obvious and certain. Thus no 
 one can lawfully empower another to violate the rules of law or 
 of morals, as to commit an assault upon, or to defraud a third 
 person, or to corrupt or seduce his servant. As to the latter 
 class, while the scope of the application of the rule is not eo 
 readily discerned, the rule itself is enforced with no less certainty 
 and vigor. In considering undertakings of this nature, the law 
 looks with an exceedingly jealous eye. It judges of their val- 
 idity rather by their general nature and their natural and probable 
 tendencies, than by the question whether, in any particular case, 
 wrong was actually done or intended. It seeks to prevent, not 
 only the evil itself, but the very temptation to evil. It concerns 
 itself rather with the public weal than with individual interest. 
 It refuses, ordinarily, to assist either party, but leaves them both 
 in the situation in which their own cupidity has placed them.* 
 
 > Institutes Justinian, Liber 3, Title No one can be permitted to found 
 
 19, Par. 24; Gray v. Hook, 4 N. Y. rights upon his own wrong, even 
 
 449; Marshall v. Baltimore & Ohio against another also in the wrong. A 
 
 R. R. Co., 16 How. (U. S.) 314; and promise made to one in consideration 
 
 see generally the cases cited in the of doing an unlawful act, as to com- 
 
 foUowing sections. mit an assault or to practice a fraud 
 
 " Contracts," says Devenb, J., upon a third person, is void in law, 
 
 "which are opposed to open, upright and the law will not only avoid con- 
 
 and fair dealing are opposed to pub- tracts the avowed purpose or express 
 
 lie policy. A contract by which one object of which is to do an unlawful 
 
 is placed under a direct inducement act, but those made with a view to 
 
 to violate the confidence reposed in place, or the necessary effect of which 
 
 him by another is of this character. is to place, a person under wrong in- 
 
 12
 
 Chap. II.] FOR WHAT PURPOSES CREATED. § 22. 
 
 These principles which apply here are the well established and 
 familiar ones which regulate the formation and performance of 
 contracts generally. Their application to the law of agency is 
 frequent, and some illustrations will be given in the following 
 sections. 
 
 § 21, The Element of contingent Compensation. It will be 
 noticed in many of the illustrations given that particular stress 
 is laid upon the fact that the undertaking was for a compensation 
 contingent upon success. This element is an important but not 
 a conclusive one. Where it exists, the temptation to employ im- 
 proper means is certainly increased, and of this fact the courts 
 have well taken notice. But contracts of this nature are not 
 robbed of their viciousness because the agent is certain of his 
 compensation ; nor is his undertaking any more righteous because 
 it is surely to be paid for. So, on the other hand, legitimate 
 services are not rendered unlawful because the agent is to be 
 rewarded only in case of his success. The nature of the under- 
 taking and its natural, proximate and probable results are the 
 criterion.* 
 
 § 22. Lobbying Agents. It is of the utmost importance to 
 the preservation and protection of the State that the sources of 
 its legislative enactments be kept uncontaminated by any im- 
 proper or debasing influence. Considerations of the public good, 
 motives of high policy, arguments based solely upon the true 
 interests of the people, are the only elements which can prop- 
 erly enter into the question of the right discharge of the im- 
 portant functions of the legislator. Personal solicitation, private 
 intrigue, secret persuasion, arguments based upon the legislator's 
 duty or obligations to individuals or societies or parties, to say 
 nothing of offers of personal or pecuniary profit or advancement, 
 are utterly hostile to the public good. Courts of law and equity 
 
 fluences, and offer him a temptation necessarily injurious tendency," 
 
 ■whicli may injuriously affect the Rice e. Wood, 113 Mass. 183, 18 Am. 
 
 rights of third persons. Nor is it Rep. 459. 
 
 necessary to show that injury to third The general subject of the doctrine 
 persons has actually resulted from of public policy in the law of con- 
 such a contract, for in many cases tracts is ably discussed in the excel- 
 where it had occurred it would be lent work of Mr. Greenhood. 
 impossible to be proved. The con- ' See cases cited in following sec- 
 tract is avoided on account of its tions. 
 
 13
 
 §22. 
 
 THE LAW OF AGENCY. 
 
 [Book I. 
 
 have not been slow to recognize this evil, or to declare that all 
 attempts to influence the course of legislation by secret or sinister 
 means, or even by using personal influence, solicitation or per- 
 suasion with the members of the legislative body, are inconsistent 
 with sound public policy. 
 
 Any contract, therefore, for services to be performed in pro- 
 curing or attempting to procure the passage or defeat of any 
 public or private act by the use of any improper means or the 
 exercise of undue influence, or by using personal solicitation, 
 influence or persuasion with the members is void ;' and any agree- 
 
 * Clippinger e. Hepbaugh, 5 Watts 
 & Berg. (Penn.) 315, 40 Am. Dec. 519; 
 Marshall v. Baltimore & Ohio R. R. 
 Co. 16 How. (U. S.) 314; Tool Co. v. 
 Norris, 2 Wall. (U. S.) 45; Trist p. 
 Child, 21 Wall. (U. S.) 441; Weed e. 
 Black, 2 McArthur (D. C.) 268, 29 
 Am. Rep. 618; McBratney v. Chan- 
 dler, 22 Kan, 692; Kansas Pacific Ry. 
 Co. V. McCoy, 8 Kan. 538; Harris c. 
 Simonson, 28 Hun, (N. Y.)318; Mills 
 e. Mills, 40 N. Y. 543; Frost v. Bel- 
 mont, 6 Allen, (^lass.) 152; Powers v. 
 Bkinner, 34 Vt. 274, 80 Am. Dec. 677; 
 Bryan e. Reynolds, 5 Wis. 200, 68 
 Am. Dec. 55; Elkhart County Lodge 
 V. Crary, 98 Ind. 238, 49 Am. Rep. 
 746; Oscanyan v. Arras Co. 103 U. 8. 
 261. 
 
 In Trlst V. Child, supra. Mr. Jus- 
 tice Swayne well says, "The founda- 
 tion of a republic is the virtue of its 
 citizens. They are at once sover- 
 eigns and subjects. As the founda- 
 tion is undermined, the structure is 
 weakened. When it is destroyed, the 
 fabric must fall. Such is the voice 
 of universal hi.story. The theory of 
 our government is, that all public 
 stations are trusts, and that those 
 clothed with them are to be animated 
 in the discharge of their duties solely 
 by considerations of right, justice, 
 and the public good. They are never 
 to descend to a lower plane. But 
 there is a correlative duty resting 
 
 upon the citizen. In his intercourse 
 with those in authority, whether 
 executive or legislative, touching the 
 performance of their functions, he is 
 bound to exhibit truth, frankness, and 
 integrity. Any departure from the 
 line of rectitude in such cases, is not 
 only bad in morals, but involves a 
 public wrong. No people can have 
 any higher public interest, except the 
 preservation of their liberties, than 
 integrity in the administration of 
 their government in all its depart- 
 ments. 
 
 "The agreement in the present case 
 was for the sale of the influence and 
 exertions of the lobby agent to bring 
 about the passage of a law for the 
 payment of a private claim, without 
 reference to its merits, by means 
 which, if not corrupt, were illegiti- 
 mate, and considered in connection 
 with the pecuniary interests of the 
 agent at stake, contrary to the plain- 
 est principles of public policy. No 
 one has a right, in such circum- 
 stances, to put himself in a position 
 of temptation to do what is regarded 
 as so ptrnicious in its character. The 
 law forbids the inchoate step, and 
 puts the seal of its reprobation upon 
 the undertaking. 
 
 "If any of the great corporations 
 of the country were to hire adven- 
 turers who make market of them- 
 selves in this way, to procure the 
 
 14
 
 Chap. II.] 
 
 FOK WHAT PURPOSES CKEATED. 
 
 §22. 
 
 ment for the payment of a fee for such services is likewise void,» 
 particularly where it is made contingent upon success, because in 
 such a case there would be a stronger incentive to the exercise 
 of personal and sinister means to effect the object. 
 
 And so jealously do the courts scrutinize such contracts that 
 they condemn the very appearance of evil, and it matters not 
 that in the particular case nothing improper was done or was 
 expected to be done. It is enough that the employment tends 
 directly to such results.' 
 
 passage of a general law with a view 
 to the promotion of their private 
 interests, the moral sense of every 
 right-minded man would instinctively 
 denounce the employer and employed 
 as steeped in corruption, and the em- 
 ployment as infamous. 
 
 " If the instances were numerous, 
 open, and tolerated, they would be 
 regarded as measuring the decay of 
 the public morals and the degen- 
 eracy of the times. No prophetic 
 spirit would be needed to foretell the 
 consequences near at hand. The 
 same thing in lesser legislation, if not 
 so prolific of alarming evils, is not 
 less vicious in itself, nor less to be 
 condemned. The vital principle of 
 both is the same. The evils of the 
 latter are of sufiicient magnitude to 
 invite the most serious consideration. 
 The prohibition of the law rests upon 
 a solid foundation. A private bill is 
 apt to attract little attention. It in- 
 volves no great public interest, and 
 usually fails to excite much discus- 
 sion. Not unfrequently the facts are 
 whispered to those whose duty it is 
 to investigate, vouched for by them, 
 and the passage of the measure is thus 
 secured. If the agent is truthful, 
 and conceals nothing, all is well. 
 If he uses nefarious means with 
 success, the spring-head and the 
 stream of legislation are pol- 
 luted. To legalize the traffic of 
 such service, would open a door at 
 
 which fraud and falsehood would not 
 fail to enter and make themselves felt 
 at every accessible point. It would 
 invite their presence and offer them a 
 premium. If the tempted agent be 
 corrupt himself, and disposed to cor- 
 rupt others, the transition requires 
 but a single step. He has the means 
 in his hands, with every facility and 
 a strong incentive to use them. The 
 widespread suspicion which prevails, 
 and charges openly made and hardly 
 denied, lead to the conclusion that 
 such events are not of rare occurrence. 
 Where the avarice of the agent is in- 
 flamed by the hope of a reward con- 
 tingent upon success, and to be grad- 
 uated by a percentage upon the 
 amount appropriated, the danger of 
 tampering in its worst form is greatly 
 increased. 
 
 "It is by reason of these things that 
 the law is as it is upon the subject. 
 It will not allow either party to be led 
 into temptation where the thing to be 
 guarded against is so deleterious to 
 private morals and so injurious to the 
 public welfare. In expressing these 
 views, we follow the lead of reason 
 and authority." 
 
 1 Clippinger v. Hepbaugh, 5 Watts 
 & Serg. (Penn.) 315. 40 Am. Dec. 519; 
 Wood V. McCann. 6 Dana (Ky.) 3G6; 
 Gil «. Williams, 12 La. Ann. 219, 68 
 Am. Dec. 707. 
 
 'Clippinger v. Hepbaugh, svpra; 
 Mills V. Mills, supra; McKee v. 
 
 15
 
 f| 23. THE LAW OF AGENOF. [Book I. 
 
 § 23. Same Subject— Legitimate Services. It is not to be 
 understood, however, that every contract for services to be 
 rendered in endeavoring to procure or defeat legislation is 
 unlawful. Services may be rendered, public in their nature and 
 intended to reach the understandings of the legislators rather 
 than to exercise any personal influence over thera, which are per- 
 fectly legitimate. 
 
 Thus a person may lawfully be employed to draft a petition, 
 attend the taking of testimony, collect facts, prepare arguments 
 and to submit them publicly, either before a committee of the 
 legislature or the legislature itself, if permitted to do so, 
 " because," as it is said by a learned judge, "a public discussion 
 could not tend to deceive or corrupt the legislature, while per- 
 sonal solicitation and influence might produce that result."* 
 
 § 24. Procuring Contracts from Government or Heads of 
 Departments. Employments of this nature rest upon the same 
 principles as those considered in the preceding section. It is 
 legitimate and proper to lay before the officer having the matter 
 in charge, facts, information and arguments intended for the 
 public good and calculated to enlighten the understanding and 
 secure wise and intelligent action. Parties desiring to furnish to 
 the government its necessary supplies, or to undertake the per- 
 formance of its public works, may lawfully emplo}' an agent to 
 present their bids or offers ; to call attention to their facilities for 
 the proper performance of their undertakings, and to make, in 
 
 Cheney, 53 Howard Pr. (N. T.) to improper tampering with mem- 
 
 144; Gil ». Williiims, 8Mpra; Powers*. bars, and the use of an extraneous 
 
 Skinner, supra; Atcheson v. Mallon, secret influence over an important 
 
 43 N. Y. 147; 3 Am. Rep. 678;Spence branch of the government. It may 
 
 p. Harvey, 22 Cal. 337; Thomas v. not corrupt all ; but if it corrupts, or 
 
 Caulkett, 67 Mich. 392, 58 Am. Rep. tends to corrupt some, or if it 
 
 369. deceives or tends to deceive or mis- 
 
 "It matters not," says Rogers J. lead some, that is sufllcient to stamp 
 
 in Clippinger v. Hepbaugh, supra, its cliaracter with the seal of repro- 
 
 "that nothing improper was done or bation before a judicial tribunal." 
 
 was expected to be done by the plain- ' Bryan «. Reynolds, 5 Wis. 200; 68 
 
 till. It is enough that such is the Am. Dec. 55; Trist v. Child, 21 Wall, 
 
 tendency of the contract, that it is (U. S.) 441 ; Sedgwick ». Stanton, 14 
 
 contrary to sound morality and pub- N. Y. 289; Wildey v. Collier, 7 Md. 
 
 lie policy, leading necessarily, in the 273; Miles v. Thome, 38 Cal. 335, 99 
 
 hands of designing and corrupt men, Am. Dec. 884. 
 
 16
 
 Chap. II.] 
 
 FOR WHAT PUKP08E8 CREATED. 
 
 §24. 
 
 their behalf, snch public and open arguments in favor of their 
 propositions as they may be afforded opportunity.* 
 
 »Trist V. Child, 21 Wall. (U. S.) 
 441; Stanton v. Embrey, 93 U. S. 548; 
 Lyon V. Mitchell, 36 N. Y. 235, 93 
 Am. Dec. 502; Pease v. Walsh, 49 
 How. Pr. (N. Y.) 269. 
 
 Thus in Beal v. Polhemus. — Mich. 
 —34 N. W. Rep. 532, Polhemus gave 
 Beal a note to be paid "as soon as the 
 postoffire is moved into" a building 
 which Beal was then erecting on 
 property near that belonging to Pol- 
 hemus, the latter believing that its 
 location there would enhance the 
 value of his own property. Beal was 
 an active and prominent politician, 
 but while there was some evidence 
 that he had said in relation to similar 
 contracts with other parties that he 
 could control the senators from his 
 State, there was no evidence that he 
 made any such representations to 
 Polhemus or that the using of any 
 such influence constituted any part of 
 the consideration of the contract. 
 The postofflce was duly mo\ ed into 
 the building, but Polhemus refused to 
 pay the note, alleging it to be invalid 
 as against public policy. In an action 
 to recover upon it the trial court 
 found as a fact that in securing the 
 postoflice to be placed and locxted in 
 his building, Beal used no undue in- 
 fluence upon any department or offi- 
 cers of the government, and was not 
 guilty of any corruption or corrupt 
 practice in making the contract, and 
 did no more than any honorable man 
 might do in renting his building to 
 the government for the use of a post- 
 office, and he was allowed to recover. 
 In the Supreme court, Morse, J. 
 said: "Mr. Beal had a perfect right 
 to be heard before any officer of the 
 government or any department of the 
 same, as to the merits of his building 
 as a place for the location of the post- 
 
 2 17 
 
 office. It is not shown by the find- 
 ings or the evidence in the case that 
 he used any improper means to gain 
 bis point, or even that he influenced 
 any senator or representative in con- 
 gress, or any officer of the govern- 
 ment, to interfere in his behalf. He 
 went to Washington personally, and, 
 while there, secured the location of 
 the office where he wanted it; but 
 there is not the slightest testimony 
 that he used any undue means to ac- 
 complish his end. We cannot pre- 
 sume that he used his personal power, 
 which is said to have been very great, 
 in a corrupt or unseemly manner, or 
 in violation of any public policy. 
 For aught we know, he appeared as 
 any citizen might and has a right to 
 to do, before the proper office at 
 Washington, and stated the merits of 
 his claim so convincingly and con- 
 clusively that the location desired 
 seemed to be the most proper and 
 available one. Certainly there could 
 be nothing wrong in this. It is true, 
 there is evidence in relation to some 
 of the contracts, not in suit, that 
 Beal boasted that he could control the 
 senators from his State, and that he 
 must have momy to go to Washing- 
 ton to do so; but there is no testimony 
 that either one of them lifted a hand 
 or said a word ip his behalf. And 
 there is nothing to show that in the 
 present case he made any such repre- 
 sentations to obtain the contract. The 
 defendant agreed to pay a certain 
 sum upon the accomplishment of an 
 object in which he saw a future bene- 
 fit to his property. That object was 
 obtained, and he has had the benefit 
 he desired. There is no valid reason 
 why he should not fulfill the contract 
 on his part, as Beal promptly fulfilled 
 his part of the agreement. "
 
 § 25. THE LAW OF AGENOT. [Book I. 
 
 But where the emplojment contemplates the bringing to bear 
 of improper, sinister or personal influence, or where its natural 
 and legitimate tendency is in that direction, particularly where 
 compensation is made contingent upon success, it is opposed to 
 public policy and void.' 
 
 § 25. Same Subject— Ulustrations. Thus in a leading case 
 decided by the Supreme Court of the United States, one Norria 
 had been employed by the Providence Tool Company to endeavor 
 to obtain from the War Department an order for a large number 
 of muskets, and, for his compensation, he was to receive what- 
 ever the Government should agree to pay for each musket above 
 a certain sum. Norris thereupon set himself to work, to use his 
 own language, " concentrating influence at the War Department," 
 and finally succeeded in obtaining a favorable contract. After- 
 wards a dispute arose between him and the tool company, as to 
 the amount of his commission, and he brought an action to 
 recover it. 
 
 The Supreme Court, by Mr. Justice Field, said: "The ques- 
 tion then is this : Can an agreement for compensation to procure 
 a contract from the government to furnish its supplies be enforced 
 by the courts! We have no hesitation in answering the ques- 
 tion in the negative. All contracts for supplies should be made 
 with those, and with those only, who will execute them most 
 faithfully and at the least expense to the government. Con- 
 siderations as to the most efficient and economical mode of meet- 
 ing the public wants should alone control, in this respect, the 
 action of every department of the government. No other ele- 
 ment can lawfully enter into the transaction so far as the govern- 
 ment is concerned. Such is the rule of public policy ; and what- 
 ever tends to introduce any other element into the transaction is 
 against public policy. That agreements like the one under con- 
 
 • But in a case very Bimilar to the the propriety of placing the postoffico 
 
 one last cited, the party had given his in their building and this was done, 
 
 notes in consideration that the owners The court, however, held that the 
 
 of the building "would use all proper agreement was against public policy 
 
 persuasion to secure the location of and that the notes were void. Elk- 
 
 the postofflce in their room." One of hart County Lodge v. Crary, 98 Ind. 
 
 the owners was a personal friend of 238, 49 Am. Rep. 746. See also, 
 
 the postmaster-general and repre- Spence «. Harvey, 22 Cal. 3o6, 83 
 
 sented to him that the location was a Am. Dec. 69; Hutchen v. Gibson, 1 
 
 suitable one and urged upon him Bush, (Ky.) 270. 
 
 18
 
 Oliap. II.] FOR WHAT PURPOSES CREATED. § 27. 
 
 fiideration have this tendency is manifest. They tend to intro- 
 duce personal solicitation and personal influence as elements in 
 the procurement of contracts, and thus directly lead to inefficiency 
 in the public service, and to unnecessary expenditures of the 
 public funds. ♦ » * Agreements for compensation 
 contingent upon success suggest the use of sinister and corrupt 
 means for the accomplishment of the end desired. The law 
 meets the suggestion of evil, and strikes down the contract from 
 its inception." * 
 
 § 26. Services in prosecuting Claims. Contracts for services 
 to be rendered in the prosecution of claims against governments 
 and municipal bodies stand upon the same footing. As is said 
 by a learned judge in a case involving the right of an attorney to 
 recover upon such a contract : " Professional services, to pre- 
 pare and advocate just claims for compensation, are as legitimate 
 as services rendered in court in arguing a cause to convince a 
 court or jury that the claim presented, or the defence set up 
 against a claim presented by the other party, ought to be allowed 
 or rejected. Parties in such cases require advocates, and the 
 legal profession must have a right to accept such employment, 
 and to receive compensation for their services ; nor can courts of 
 justice adjudge such contracts illegal, if they are free from any 
 taint of fraud, misrepresentation or unfairness."^ 
 
 But where the contract contemplates that the allowance of the 
 claim is to be sought by using improper means or by bringing 
 personal solicitation, influence or persuasion to bear upon the 
 officer vested with the duty of decision, the undertaking is unlaw- 
 ful and the courts will not enforce it.* 
 
 § 27. Compromise of Crime. It is a high requirement of the 
 public policy that crimes should be investigated and punished, 
 and the law frowns upon all attempts to suppress investigation or 
 to defeat the administration of justice. Any contract, therefore, 
 for services to be rendered for the purpose of stifling prosecu- 
 tions, or of obstructing, delaying or preventing the due course 
 
 > Tool Co. V. Norris, 2 Wall. (U. S.) brey, 93 V. S. 548; Burbrldgec. Fack- 
 
 45; and the same rule was laid down ler, 2 McArthur (D. C.) 407. 
 
 and applied in Oscanyan v. Arms ' Devlin ». Brady, 33 Barb. (N. Y.) 
 
 Co , 103 U. S. 2G1. 618. 
 
 'Clifford. J. in Stanton v. Em- 
 
 19
 
 § 28. THE LAW OF AGENCY. [Book I. 
 
 of public justice in its efforts to punish crime is opposed to 
 public policy and void. 
 
 Thus an agreement with an attorney, for a contingent fee, 
 to settle a criminal case so as to avoid a prosecution ; ^ an agree- 
 ment to pay one for endeavoring to induce the complainant in a 
 prosecution for felony to discontinue the proceedings ; * an under- 
 taking for compensation to endeavor to prevent the finding of an 
 indictment, and, if found, to endeavor to have the public author- 
 ities dismiss it; ' an agreement for a contingent fee to use one's 
 influence with a prosecuting attorney to induce him to bring 
 about a lighter punishment than otherwise, and to permit the 
 accused to turn State's evidence with the hope of receiving a 
 pardon therefor ; * and an agreement with an attorney to attempt 
 to induce the sheriff to refrain from arresting A, who is charged 
 with murder, the object being to give A an opportunity to 
 escape, ^ are void. 
 
 § 28. Services in procuring Appointment to Office. Contracts 
 to procure the appointment of a person to public office fall within 
 the same principles. These offices are trusts, held solely for the 
 public good, and should be conferred from considerations of the 
 ability, integrity, fidelity and fitness for the position of the 
 appointee. No other considerations can properly be regarded by 
 the appointing power. Whatever introduces other elements to 
 control this power must necessarily lower the character of the 
 appointments to the great detriment of the public good. Agree- 
 ments for compensation to procure these appointments tend 
 directly and necessarily to introduce such elements. The law, 
 therefore, from this tendency alone, adjudges these agreements 
 inconsistent with sound morals and public policy.* 
 
 ' Ormerod v. Dearmaa, 100 Penn. v. Swan, 2 W. Va. 511, 98 Am. Dec. 
 
 St. 501. 45 Am. Rep. 391. 787. 
 
 8 Rhodes v. Neal, 64 Ga. 704, 37 • Tool Co. c. Norris, 2 Wall. (U. S.) 
 
 Am Rep. 93. 45; Gray v. Hook, 4 N. Y 449; Gas- 
 
 s Barron v. Tucker, 53 Vt. 338, 38 ton p. Drake, 14 Nev. 175, 38 Am. 
 
 Am. Rep. 684. Rep, 548; Filson v. Himes, 5 Penn. 
 
 < Wight V. Rindskopf, 43 Wis. 344. St. 452; 47 Am. Dec. 423; Faurie v. 
 
 BArrington v. Sneed, 18 Tex. 135. Morin, 4 Martin (La.), 39, 6 Am. Dea 
 
 See also, Buck v. First National Bank, 701; Outon v. Rodes, 3 A. K. Marsh. 
 
 27 Mich. 293, 15 Am. Hep. 189; (Ky.) 432, 13 Am Dec. 193; Eager «. 
 
 Haines v. Lewis, 54 Iowa 301, 37 Am. Catlin, 18 Hun (N. Y.), 448; Haas v. 
 
 Rep. 202; McMahon v. Smith, 47 Fenlon, 8 Kans. 601; Liness ®. He» 
 
 Conn. 221, 36 Am. Rep. 67; Dodson ing, 44 111. 113, 93 Am. Dec. 153. 
 
 20
 
 Chap. II.] FOK WHAT PURPOSES CHEATED. § 29. 
 
 § 29. Same Rule applies to private Offices and Employments. 
 The Bame principles apply to contracts to procure private offices 
 and employments, as well as those which are public or political 
 in their nature. Open and fair presentation of an applicant's 
 qualifications for the position is legitimate, and such presentation 
 may lawfully be undertaken for a compensation, where the 
 agent's relations to the subject matter and the appointing power 
 will permit, and the fact that he comes as a hired advocate is 
 disclosed. 
 
 But where it is contemplated that the agent is to conceal his 
 agency and assume the position of a disinterested friend or ad- 
 riser ;* or where the appointment is to be sought by bringing to 
 bear personal influence or persuasion ;" or where the undertaking 
 of the commission at all is inconsistent with duties already as- 
 sumed or imposed by law, the contract is repugnant to the public 
 policy.* 
 
 Thus where A, an attorney, employed B, the agent of C, to 
 endeavor to persuade C to discharge a certain other attorney he 
 was then employing, and to employ A instead, and promised B, 
 by way of compensation, to divide with him such fees as A might 
 receive, it was held that the agreement was void.* So a contract 
 
 > See BoUman t>. Loomis, 41 Conn. disinterested good oflaces, and the 
 
 681, where A, for a fee from C. un- measure proposed, to be recom- 
 
 derlook to pose as the confidential mended by the unbiased judgment of 
 
 friend and adviser of B. and thus in- the person offering it; whereas, it is 
 
 duce him to purchase property of C. in fact an offer flowing from unavowed 
 
 "This," says Chief Justice Shaw, motivesof pecuniary interest, and the 
 
 in Fuller v. Dame, 18 Pick. (Mass.) recommendation is the result of a 
 
 473, in speaking of this rule, "ia Judgment biased by a hope of a large 
 
 founded upon the general considera- reward. If rewards might be taken 
 
 tion of fitness and expediency. Such in consideration of the exertion of 
 
 advice and solicitation, in whatever direct or indirect influence, either by 
 
 form the agency may be exerted, are the person acting under it, or by 
 
 understood to be disinterested and to others who should be influenced and 
 
 flow from a single regard to the inter- moved by him, it would destroy all 
 
 ests of the parties. They are lawful confidence, it would lead to false and 
 
 only so far as they are free and disin- unfair representations and dealings, 
 
 terested. If such advice and solicita- and be productive of infinite mia- 
 
 tion, thus understood to be pure and chief." 
 
 disinterested, may be justly offered * See note i, post. 
 
 from mercenary motives, they would » See note 4, 5 and 6, post. 
 
 produce all the consequences of abso- < Byrd v. Hughes, 84 111. 174; 25 
 
 lute misrepresentation and falsehood. Am. Rep. 442; Meguire v. Corwine, 
 
 It is understood to be the offer of 101 U. S, 108. 
 
 21
 
 § 30. THE LAW OF AGENCY. [Book I. 
 
 that in consideration of B's purchasing of A certain stock in a 
 corporation, A would procure B's appointment as treasurer' or 
 cashier ' thereof, is void. Such appointments should be made 
 because of the personal fitness of the applicant, and not because 
 the appointing power is open to personal influence or can be 
 bought for a price. So A, who has been requested to recommend 
 to C, a suitable person for employment whom he could endorse as 
 in every way responsible and reliable, cannot lawfully undertake 
 to secure the position for B in consideration of B's paying him 
 a fee.* 
 
 § 30. Services in improperly influencing Elections. Purity 
 of elections, and the free, fair and intelligent exercise of the 
 ballot, uninfluenced by other considerations than the candidate's 
 fitness and the general good of the community, are of paramount 
 public importance, and any agreement for the rendition of ser- 
 vices which have for their object, or which legitimately tend to, 
 the introduction of other elements, as the bribery of voters or 
 the bringing to bear upon them of personal influence, solicitation 
 or persuasion, is, in accordance with the principles already referred 
 to, clearly opposed to public policy and void. 
 
 Thus where one who was a candidate for the office of district 
 attorney, employed another to " use all of his influence " with 
 the voters of the county to secure the candidate's election, and 
 who promised as compensation therefor, that if he should be 
 elected, he would divide the fees of the office with the other, the 
 court said : " Such a contract cannot be upheld. Its tendency 
 was to corrupt the people upon whose integrity and intelligence 
 the safety of the state and nation depends, — to lead voters to 
 work for individual interests rather than the public welfare." * 
 
 So where one agreed to render services in procuring the elec- 
 
 ' Guernsey e. Cook, 120 Mass. 501; < Gaston «. Drake, 14 Nev. 175, 83 
 
 Noyes®. Marsh, 123 Mass. 286; Jones Am. Rep. 548; Martin d. Wade, 37 
 
 e. Scudder, 2 Gin. Sup. Ct. 178. Cal. 168; see also Swayze v. Hull, 3 
 
 2 As of a National Bank, Noel v. Halstead (N. J.),54, 14 Am. Dec. 399. 
 
 Drake, 28 Kans. 265, 42 Am. Rep. An agreement to pay another to 
 
 162; see also Railroad Co. v. Ryan, "work and canvass" voters for the 
 
 11 Kans. 602; Haast). Fenlon, 8 Kans. purpose of securing the promisor's 
 
 601 ; Tool Co. v. Norrifl, 2 Wall. (U. nomination for an office is void. 
 
 S.) 45. Keating v. Hyde, 23 Mo. App. 
 
 'Holcomb V. Weaver, 136 Mass. 555. 
 265, 17 Reporter, 401. 
 
 22
 
 Chap. II.] FOR WHAT PURPOSES CREATED. § 32. 
 
 tion of a certain candidate to the office of sheriflf upon considera- 
 tion that if successful he should be appointed deputy, the court 
 held the agreement void.' And where one for money or other 
 personal profit, agrees to use his influence in an election against 
 what he believes to be for the public good, the contract is void, 
 though as a matter of fact he uses no unlawful means.' 
 
 § 31. Same Subject — What Services legitimate. But it is 
 not unlawful for a candidate for a public office, particularly 
 where his candidacy extends over a considerable territory, to 
 employ another to make public speeches in his behalf, or to pre- 
 pare, print or distribute arguments upon the questions at issue, 
 or to use other open and honorable means to promote the success 
 of his candidacy, where the object is to convince the understand- 
 ings of the voters by public means and not to bring personal or 
 other improper influences to bear upon their weaknesses or pre- 
 judices.* 
 
 § 32. Services in procuring Pardons. The same general 
 principles which underlie the questions just discussed, govern 
 here. An agent or attorney may lawfully be employed to attend 
 an open or public hearing of the executive or board of pardons, 
 and make such legitimate arguments and present such petitions, 
 memorials, statements of fact and evidence as are appropriate to 
 bring before the pardoning power all the considerations which 
 may be properly taken into account in behalf of the convicted 
 
 ' Stout V. Ennis, 28 Kans. 706. And the choice of the voter. No public 
 
 a like ruling was made in Robertson policy forbids the making of compen- 
 
 r. Robinson, 65 Ala. 610, 39 Am. sation, under agreement or otherwise, 
 
 Rep. 17. See also Sailing «. McKin- for printing or distributing announce- 
 
 ney, 1 Leigh (Va.), 43, 19 Am. Dec. ments, or for the employment of any 
 
 722; Groton v. Waldoborough, 11 proper agency which may bring the 
 
 Mc. 306, 26 Am. Dec. 530. fact of a person's candidacy more 
 
 sNicholsp. Mudgett, 32 Vt. 546. prominently before the public eye. 
 
 »" There is a clear distinction," The information thus disseminated ia 
 
 says Lewis, P. J., in Keating©. Hyde, essential to the intelligent dcterraina- 
 
 23 Mo. App. 555, " between the pur- tion of the voter's choice. But 
 
 chase of services to be devoted only it becomes a very different thing when 
 
 to an advertising of the fact that one money is paid or promised for efforts 
 
 is or desires to be a candidate, and to control the voter's free agency in 
 
 the purchase of services to be em- selecting the object of his suffrage." 
 
 ployed in advocating his peculiar See also Murphy v. English, 64 How. 
 
 merit and eligibility so as to influence Pr. (N. T.) 362. 
 
 23
 
 §33. 
 
 THE LAW OF AGENCY. 
 
 [Book I. 
 
 person ;' bnt all employments having for their object or natural 
 tendency the nsing of any improper or sinister means, or which 
 contemplate the exercise of personal influence or solicitation, 
 especially if for a contingent fee, are looked upon by the law as 
 demoralizing in their tendency, opposed to public policy and 
 void, even though in the particular case no improper means were 
 used or contemplated." 
 
 § 33. How when Conviction illegal. But where the convic- 
 tion was unwarranted, as because the court had no jurisdiction, 
 or where there was a grave doubt as to the constitutionality of 
 the statute under which the conviction was had, no rule of public 
 
 > Chadwick «. Knox, 31 N. H. 226, 
 64 Am. Dec. 329 ; Bremsen v. Engler, 
 49 N. Y. Super. Ct. 172; Formby v. 
 Pryor, 15 Qa. 258; Bird v. Breedlove, 
 24 Qa. 6'33. "It is not at once ap- 
 parent," says Bell, J., in Chadwick 
 «. Knox, supra, "that it is not lawful 
 and proper for a party who ia suffer- 
 ing the punishment of a crime to 
 apply to the pardoning power for a 
 remission of his sentence; and as far 
 as we are aware, no censure has been 
 regarded as attaching to such an ap- 
 plication, either in law or morals. It 
 seems to us equally reasonable for any 
 other person who believes it his duty 
 to make such application in behalf of 
 another, to present the case to the 
 executive, with such petitions, me- 
 morials, statements of facts and evi- 
 dence as are suitable to satisfy the 
 pardoning power of the propriety of 
 the relief desired, and we think no 
 censure can be justly attached to any 
 person for his exertions in such a 
 case if the measures adopted are con- 
 sistent with the facts of the case, and 
 with the truth and honesty of all 
 parties concerned, while any effort to 
 obtain such pardon by falsehood and 
 misrepresentation, or by any species 
 of fraudulent contrivance, or by pros- 
 tituting the influence resulting from 
 official station, or from personal rela- 
 
 tion to the pardoning power, is en- 
 tirely forbidden by law. 
 
 A person in prison can do little to 
 aid himself in bringing his case to the 
 consideration of the executive. For 
 everything that must be done without 
 the walls of the prison, the convict is 
 compelled to rely on the assistance of 
 those who have their liberty. Such 
 assistance may be afforded from mo- 
 tives of charity and compassion, or 
 the motive may be in part kindness 
 and in part an expectation that the 
 party relieved will be ready to afford a 
 suitable compensation for the services 
 and expenses; or the party in prison 
 may employ another to do such acts 
 as may be rightfully and properly 
 done for his relief and contract to pay 
 him for his services, and to repay him 
 his expenses. Such a contract, if the 
 parties contemplate only a resort to 
 legal and proper measures, is free 
 from any just exception, and binding 
 upon the parties." 
 
 sHatzfield v. Gulden, 7 Watts 
 (Penn.),152, 32 Am. Dec. 750; Thomp- 
 son V. Wharton, 7 Bush, (Ky.), 563. 
 8 Am. Rep. 306; Haines v. Lewis, 54 
 Iowa, 301, 37 Am. Rep. 262; Kribben 
 V. Haycraft, 26 Mo. 396; McGill's 
 Admr. v. Burnett, 7 J. J. Marsh. 
 (Ky.), 640. 
 
 24
 
 Chap. II.] FOB WHAT PURPOSES OKEATED. § 34. 
 
 policy would be violated by legitimate endeavor to secure the 
 pardon or release of the accused.' 
 
 § 34. Services in procuring or suppressing Evidence. Like 
 considerations apply to undertakings to procure evidence for use 
 before legal tribunals. It is entirely lawful and proper for a 
 party to an action or controversy to employ another to ascertain 
 what documentary and other evidence, and what witnesses are 
 available ; to obtain the names of the witnesses and a memoran- 
 dum of their testimony ; to cause them to be duly subpoenaed 
 for attendance upon trial, and to take such other steps as may be 
 necessary and proper to enable the party to present all the evi- 
 dence that is pertinent to his case. This service is legitimate, 
 and tends to promote and secure the due administration of justice.* 
 
 But contracts by which the agent undertakes, or which have 
 for their object, the procuring or furnishing of evidence sufficient 
 to win the case or to establish a certain fact, or the procuring 
 of witnesses to testify in a certain manner, or to procure the pro- 
 duction of testimony which could be produced only by a viola- 
 tion of a legal duty, stand upon a different basis. The intention 
 and methods of the parties in a given case may be honorable and 
 proper, but the natural and probable result of such an undertak- 
 ing is to defeat the administration of justice and corrupt the 
 morals of the people by putting a premium upon perjury and by 
 holdinsr out a direct incentive to the subornation of witnesses. 
 It requires no extended argument to establish that such under- 
 takings are contrary to sound public policy and void.* 
 
 'Thompson v. Wharton, rupra; means employed an agent to procure 
 
 Timothy v. Wright, 8 Gray, (Mass.) testimony for that purpose, agreeing 
 
 623. to pay him $100 for the first tea 
 
 a Chandler v. Mason, 2 Vt. 193; votes which the testimony procured 
 
 Lucas V. Pico, 55 Cal. 136; Wilkinson by him proved to be illegal, $300 for 
 
 V. Oliveira, 1 Scott (Eng. C. P.) 461; the next ten votes, and so on, and an 
 
 Cobb e. Cowdery, 40 Vt. 35, 94 Am. additional sum of $1,300, to be paid 
 
 Dec. 870. when the case was decided in the 
 
 » Gillett V. Logan County, 67 111. county's favor. These agreements 
 
 256; Hoyt «. Macon, 3 Col. 503; Lucas were held to be void. "The con- 
 
 f). Allen, 80 Ky. 681; Patterson v. tracts themselves," said the court, 
 
 Donner, 48 Cal. 369. "are pernicious in their nature. They 
 
 In Gillett v. Logan County, supra, created a powerful pecuniary induce- 
 the board of supervisors of the ment on the part of the agents so em- 
 county desiring to prove a certain ployed, that testimony should be 
 election to have been carried by illegal given of certain facts, and that a 
 
 25
 
 §35. 
 
 THE LAW OF AGENOT. 
 
 [Book I. 
 
 Equally pernicious, and for similar reasons, are nndertakings 
 to suppress or destroy evidence by concealing, removing or tam- 
 pering with witnesses, or by compassing the destruction of the 
 means of proof.' 
 
 8 35. TTnlawful Dealings in Stocks or Merchandise. So a 
 contract for services to be rendered by a broker in unlawful 
 dealings in stocks or merchandise is void. What dealings are 
 lawful and what are unlawful, are questions which the courts 
 have much discussed, but which are beyond the scope of the 
 present treatise. In general terras, however, it may be said that 
 undertakings which contemplate the creation of fictitious and 
 unnatural values, or the control or monopoly of the traffic, or the 
 prevention of the free and natural competition, in the staple 
 articles of commerce, are void.* So undertakings which have for 
 their object the gambling in the values of stocks and merchandise, 
 as the purchase or sale of what are ordinarily called "futures," 
 " maro-ins " and " options," where the purpose of the parties is 
 
 peculiar result of the suit should be 
 had. A strong temptation was held 
 out to them to make use of improper 
 means to procure the needful testi- 
 mony, and to secure the desired re- 
 sult of the suit. The nature of the 
 agreement was such as to encourage 
 attempts to suborn witnesses, to 
 tamper with jurors, and to make use 
 of other base appliances in order to 
 secure the necessary results which 
 were to bring to these agents their 
 stipulated compensation. The ten- 
 dency of such arrangements must be 
 to taint with corruption the atmos- 
 phere of the courts, and to pervert 
 the course of justice. A pure admin- 
 istration of justice is of vital public 
 concern. It tends to evil conse- 
 quences that any such venal agency, 
 as is constituted by these contracts, 
 should have a part in the conduct of 
 judicial proceedings where the attain- 
 ment of right and justice is the end. 
 Should contracts of this nature 
 receive countenance, we might, 
 among the multiplying forms of 
 
 agency of the time, have to witness 
 the scandalous spectacle of a class of 
 agents holding themselves out to the 
 public as professional procurers of 
 desired testimony for litigants in 
 courts for pay, contingent upon suc- 
 cess in their suits." 
 
 1 Cobb V. Cowdery, supra; Bost- 
 ick V. McLaren, 2 Brev. (S. Car.) 
 275; Badger v. Williams, 1 D. Chip. 
 (Vt)137; HoytP. Macon, 2 Col. 502; 
 Valentine v. Stewart. 15 Cal. 387. 
 
 An agreement to pay an employee 
 his salary and expenses to keep out 
 of the reach of process issued to 
 compel him to be a witness against 
 his employer is void. Bierbauer v. 
 Wirth. 5 Fed Rep. 336, 10 Biss. 60. 
 
 2 Raymond v. Leavitt, 46 Mich. 447, 
 41 Am. Rep. 170; Sampson v. Shaw, 
 101 Mass. 145, 3 Am. Rep. 327; 
 Wright V. Crabbs, 78 Ind. 487; Craft 
 V. McConoughy, 79 111. 346; Morris 
 Run Coal Co. o. Barclay Coal Co. 6S 
 Penn St. 173; Arnot v. Coal Co. 68 
 N. Y. 553. 
 
 26
 
 Cl'iap. II.] 
 
 FOR WHAT PURPOSES CREATED. 
 
 §37. 
 
 not that there shall be an actual sale and delivery of the property, 
 but merely a settlement by the payment of the difference la 
 market prices, are opposed to public policy and void.* 
 
 § 36. Marriage Brokerage void. A marriage brokerage con- 
 tract is an agreement for the procurement of a marriage for a 
 commission or other compensation. Snch contracts are clearly 
 opposed to public policy and void, even though in the given case 
 no fraud was practiced on either party. Their tendency is to 
 bring to pass mistaken and unhappy marriages, to countervail 
 parental influences in the training and education of cliildren, and 
 to tempt the exercise of an undue and pernicious influence in 
 respect to the most sacred of human relations.' 
 
 § 37. Corruption of Agents. Contracts for services to be ren- 
 dered in attempting to corrupt, bribe or mislead the servant or 
 agent of another, as by giving him secret gratuities, fees or 
 commissions, to induce him to disregard, slight or ignore his 
 principal's interests, or to be less zealous and watchful in the 
 
 » Irwin «. Williar, 110 U. S. 499; 
 Stewart «. Schall, 65 Md. 299; 57 Am. 
 Rep. 327; Lyoa v. Culbertson, 83 111. 
 83, 25 Am. Rep. 349; Union Nat. 
 Bank v. Car. 15 Fed. Rep. 438; Cobb 
 V. Prell. 15 Fed. Rep. 77; Bigelow v. 
 Benedict, 70 N. Y. 203, 26 Am. Rep. 
 673; Gregory v. Wendell, 39 Mich. 
 337, 33 Am. Rep. 390; Whitesides v. 
 Hunt, 97 Ind. 191, 49 Am. Rep. 441; 
 Cunningham v. National Bank, 71 Ga. 
 400, 51 Am. Rep. 266; Wall?;. Schnei- 
 der, 59 Wis. 353, 48 Am. Rep. 530; 
 Flagg V. Baldwin, 38 N. J. Eq. 319, 48 
 Am. Kep. 308; Murry v. Ocheltree, 
 59 Iowa, 435; Barnard «. Backhaus, 
 53 Wis. 51)3; Everingham v. Meighan, 
 55 Wis 354; Cameron «. Durkheim, 
 55 N. Y. 42-5; Pearce v. Foot, 113 111. 
 238; 55 Am. Rep. 414; Crawford v. 
 Spencer, 93 Mo. 498; 1 Am. St. Rep. 
 745. 
 
 "The generally accepted doctrine in 
 this country," says Mr. Justice Mat- 
 thews in Irwin v. Williar, supra, ' 'is 
 * * * that a contract for the sale of 
 goods to be delivered at a future day 
 
 is valid, even though the seller has 
 not the goods, nor any other means 
 of getting them than to go into the 
 market and buy them, but such a 
 contract is only valid when the parties 
 really intend and agree that the goods 
 are to be delivered by the seller and 
 the price to be paid by the buyer; and, 
 if under guise of such a contract, the 
 real intent be really to speculate in 
 the rise and fall of prices, and the 
 goods are not to be delivered but one 
 party is to pay to the other the differ- 
 ence between the contract price and 
 the market price of the goods at the 
 date fixed for executing the contract, 
 then the whole contract constitutes 
 nothing more than a wager, and ia 
 null and void." 
 
 2 White V. Equitable Nuptial Bene- 
 fit Union, 76 Ala. 251, 52 Am. Rep, 
 335; 20 Cent. L. Jour. 288; John.«oa 
 V. Hunt, 81 Ky. 331. 17 Cent. L. 
 Jour. 468; Crawford v. Russell, 63 
 Barb. (N. Y.) 92. 
 
 See also James v. Jellison, 94 Ind. 
 293, 48 Am. Rep, 151. 
 
 27
 
 §38. 
 
 THE LAW OF AGENCY. 
 
 [Book I. 
 
 discharge of his dut}', or to assume to his principal the appear- 
 ance of a disinterestedness or candor which he does not in fact 
 feel, or to enter into the secret service of the other party, or in 
 any other manner to violate the trust and confidence reposed in 
 him, are obviously corrupt and void.^ 
 
 R 38. Other Cases involving same Principles. Other cases in- 
 volving the same principles may be cited. Thus, an employment 
 to sell tickets in a forbidden lottery;' an undertaking for a con- 
 tingent compensation to endeavor to procure the discharge of a 
 drafted man ; » an agreement for using personal influence with 
 public officers to secure the favorable allowance of an account ; * 
 an employment for a contingent' compensation of one, who 
 ostensibly acted only as a disinterested physician, to use his 
 endeavors in procuring from a railroad company as large damages 
 as possible for one who has been injured in a railroad accident ; » 
 an ao-reement to pay one for assuming to be the confidential 
 friend and adviser of another, and in that capacity to advise the 
 latter to buy a piano of the promisor ; • an undertaking to pro- 
 cure cotton for shipment in violation of the rules of war ; ' to 
 
 ' See Atlee v. Fink, 75 Mo. 100, 42 
 Am. Rep. 385, where an agreement 
 secretly made by a lumber dealer with 
 one employed to supervise the erec- 
 tion of buildings for another and to 
 pass upon accounts for materials, but 
 not to make purchases, by which the 
 lumber dealer agreed to pay him a 
 commission on sales made to the em- 
 ployer through his influence, was held 
 void as against public policy. 
 
 So where a secret gratuity is given 
 to the agent with the intention of in- 
 fluencing his mind in favor of the 
 giver of the gratuity, and the agent 
 on subsequently entering into a con- 
 tract with such giver on behalf of his 
 principal, is actually influenced by 
 the gratuity in assenting to stipula- 
 tions prejudicial to the interests of 
 his principal, although the gratuity 
 was not given directly with relation 
 to that particular contract, the trans- 
 action is fraudulent as against the 
 principal and the contract is voidable 
 
 at his option. Smith v. Sorby, 3 Q. 
 B. Div. 552, 28 Eng. Rep. 455. Even 
 though the agent was not in fact in- 
 fluenced against his principal's inter- 
 ests, the contract is corrupt. Har- 
 rington V. Victoria Graving Dock Co. 
 3 Q. B. Div 549, 28 Eng. Rep. 453. 
 See also Bellman «. Loomis, 41 Conn. 
 581; Western Union Tel. Co. v. Rail- 
 road Co. 1 McCrary (U. S, C. C), 418. 
 
 «Rolfet). Delmar, 7 Robt. (K Y.) 
 80. 
 
 3 Bowman v. Coffroth, 59 Penn. St. 
 19; O'Hara v. Carpenter, 23 Mich. 
 410. 
 
 « Devlin v. Brady, 32 Barb. (K Y.) 
 518. 
 
 » Thomas v. Caulkett, 57 Mich. 393, 
 58 Am. Rep. 369. 
 
 •Bollman®. Loomis, 41 Conn. 581. 
 
 T Irwin 17. Levy, 24 La. Ann. 303; 
 see also Williams v. Gay, 21 La. 
 Ann. 110; Haney v. Manning, 21 La. 
 Ann. 166; Rhodes v. Summerhill, 4 
 Heisk. (Tenn.) 204. 
 28
 
 Chap. II.] FOE WHAT PURPOSES CREATED. § 39. 
 
 assist in carrying on an illegal trade, as the keeping of a saloon,' 
 or billiard table,' or the running of a lottery ; • contracts for 
 services to be rendered at times forbidden by the law, as for 
 work upon Sunday,* violate the rules of public policy and are 
 void. This list might be greatly extended, but the cases given 
 are sufficient to illustrate the principles. 
 
 § 39. Agent must participate in ixnlawful Purpose. In order, 
 however, to render the undertaking in these cases void, as 
 between the principal and the agent, it is necessary that the agent 
 should have participated in the unlawful purpose of the princi- 
 pal, or that, knowing of that purpose, he has directly assisted in 
 giving it effect. But where the agent, as for example a broker, 
 is employed simply to bring parties together to contract, he is 
 not affected by the illegality of the contract which they alone 
 make, without his aid or participation, although he knew, or had 
 reason to believe, that they intended to enter into an unlawful 
 arrangement.* But if he makes or assists in making the unlaw- 
 ful contract for them, or if he brings them together for the very 
 purpose of entering into an illegal arrangement, he is particepa 
 criminis with them.* 
 
 So if the undertaking was lawful on its face, and the agent 
 was ignorant of the facts or the purpose which alone rendered it 
 unlawful, he is not affected by its illegality.' 
 
 > Bixby V. Moor, 51 N. H. 403. not suing to enforce an unlawful con- 
 
 * Badgley c. Beale, 3 Watts (Penn.), tract, has a meritorious ground for 
 
 263. the recovery of compensation for 
 
 •Davis©. Caldwell, 2 Rob. (La.) 271. services and advances. But we are 
 
 « Watts*. Van Ness, lHill(N. Y.), also of the opinion that when the 
 
 76. broker is privy to the unlawful design 
 
 sRoundtree v. Smith, 108 U. 8. of the parties, and brings them to- 
 
 269; Ormes v. Dauchy, 45 N. Y. Super, gether for the very purpose of enter- 
 
 Ct. 85; Patrick*. Littell, 86 Ohio St. ing into an illegal agreement, he is 
 
 79; DeGroot «. VanDuzer, 17 Wend, partieepa criminis, and cannot recover 
 
 (N. Y.) 170; Tracy v. Talmage, 14 for services rendered or losses in- 
 
 N. Y, 163, 67 Am. Dec. 133. curred by himself on behalf of either 
 
 « " It is certainly true," says Mat- in forwarding the transaction." 
 
 THEWS, J., in Irwin tJ.Williar, 110 U. 'Roys e. Johnson, 7 Gray (Mass.), 
 
 S. at p. 510, "that a broker might 163; Wright v. Crabbs, 78 Ind. 487; 
 
 negotiate such a contract without Haines v. Busk, 5 Taunt. (Eng. C. P.) 
 
 being privy to the illegal intent of 631. 
 
 the principal parties to it which ren- Upon the general question of parti- 
 
 ders it void, and in such a case, being cipation in unlawful purposes, see 
 
 Innocent of any violation of law, and Hubbard v. Moore, 24 La. Ann. 591, 
 
 29
 
 §iO. 
 
 THE LAW OF AGENCY. [Book L 
 
 8 40. Whole Contract void when entire. It is well settled 
 that where a contract is an entire one, and contains some ele- 
 ments which are legal and others which are illegal, it cannot be 
 BO apportioned as to select and sustain those elements only which 
 are lawful. If any part of an indivisible promise, or any part 
 of an indivisible consideration for a promise, is illegal, the whole 
 is void, and no action can be maintained upon it.^ Where, how- 
 ever, the contract is a divisible or apportionable and not an entire 
 one, and the lawful elements can be separated from the unlawful, 
 the legitimate portions may be given effect.* 
 
 II. • 
 
 POWERS OF A PERSONAL NATTJRE. 
 
 S 41. Personal Duty, Trust or Coafldence cannot be delegated. 
 This exception to the general rule, that whatever one may law- 
 fully do in his own right and in his own behalf, he may lawfully 
 delec^ate to an agent, is founded upon obvious considerations. 
 Powers which are conferred upon one in consideration of his 
 personal qualities or characteristics, or as the result of special 
 trust and confidence reposed in him, should clearly be executed 
 by him in person.' So an authority which is conferred, or a 
 duty which is created by statute, may, by the express terras or 
 necessary efiEect of the act, be required to be performed by the 
 person only who is named.* So, too, a man who is enabled to do 
 a thing by special custom cannot do it by an agent if he is not 
 warranted by the custom in so doing.' 
 
 13 Am. Rep. 128; Mahood v. Tealza. (N. Y.) 485. 87 Am^Dec. SJl; New- 
 
 26 La. Ann. 108. 21 Am. Rep. 546; ton v. Bronson. 13 N. Y. 587, 6- Am. 
 
 Michael V. Bacon, 49 Mo. 474, 8 Am. Dec. 89; Merrill t,. Trust Co. 24 Hun 
 
 Rep 138; HarrU .. Woodruff. 124 (K Y.), 300; Litkar. Wilcox. 89 Mich. 
 
 Mass. 205, 26 Am. Rep. 658. 9^ , ♦v, v „ 
 
 > Parsons on Contracts. I. 436, et * Thus where the law f or the licens- 
 
 seo • Powers v. Skinner. 34 Vt. 274, ing of vessels required that the oath 
 
 80 Am Dec 677; Filson v. Himes, 5 of ownership should be taken by the 
 
 Penn St A52 47 Am. Dec. 422; Rose owner, an oath by the master, acting 
 
 .. Truax, 21 Barb. (N. Y.) 361. as agent for the owner is not suffi- 
 
 . Bishop on Contracts. § 487; Par- cient. United States t,. Bartlett, Dar. 
 
 sons on Contracts. I, 486-488. (U. S. D. C.) 9. 
 •See Lyon «. Jerome, 26 Wend. »9 Co. 70, i. 
 
 30
 
 Chap. II.] FOR WHAT PUBP08B8 ORKATBD. § 41. 
 
 The principle involved is the same that controls the delegation 
 of authority by an agent to a sub-agent, and as that subject will 
 be considered in its proper place/ no extended discussion will b« 
 given to this title here. 
 
 > See po$t, chap, yi 
 81
 
 §42. 
 
 THE LAW OF AGKNOY. 
 
 [Book I. 
 
 CHAPTER III. 
 
 WHO MAY BE PRINCIPAL OR AGENT ; AND HEREIN OF JOINT 
 PRINCIPALS AND AGENTS. 
 
 § 42. Purpose of Chapter. 
 
 I. Who mat be Principals. 
 
 43. The general Rule— Every Per- 
 
 son competent to act in his 
 own Right. 
 
 44. Same Subject— Corporations. 
 
 45. Same Subject— Partnerships. 
 48. Incompetency — In general. 
 
 a. Persons Naturally Incompetent. 
 
 47. Persons of unsound Mind. 
 
 48. Exceptions— Innocent Party — 
 
 Sane Interval. 
 
 49. Drunken Persons as Principals. 
 
 50. Same Subject— Ratification or 
 
 Disaffirmance. 
 
 6. Persons Legally Incompetent. 
 
 51. Infants as Principals. 
 
 53. Same Subject— Ratification by. 
 
 53. Further of this Rule. 
 
 54. Same Subject — Dissent —Ex- 
 
 ceptions. 
 65. In Reason how. 
 
 56. Married Women as Principals. 
 
 H. Who may be Agent. 
 a. Competency in General. 
 
 57. General Rule— Any competent 
 
 Person. 
 
 58. Less Degree of Competency 
 
 required in Agent than in 
 Principal. 
 
 59. Infants as Agents. 
 
 60. Slaves as Agents. 
 
 § 61. Married Women — As Agents 
 for third Persons. 
 
 62. Same Subject— Wife as Agent 
 
 for her Husband. 
 
 63. Husband as Agent for his Wife. 
 
 64. Corporations as Agents. 
 
 65. Partnerships as Agents. 
 
 b. Disqualification from Adverse 
 Interest. 
 
 66. One cannot be Agent if Duty 
 
 and Interest conflict. 
 
 67. One cannot be Agent of both 
 
 Parties — When. 
 
 68. Cannot be Party and Agent for 
 
 opposite Party. 
 
 III. Joint Principals. 
 
 69 
 
 When Power of Appointment 
 
 is joint. 
 Partners. 
 Joint Tenants and Tenants in 
 
 Common. 
 Associations, Clubs, Societies 
 
 and Committees. 
 Same Subject — Illustrations. 
 
 74. Same Subject— The Rule stated. 
 
 75. Inchoate Corporations. 
 
 70. 
 7L 
 
 72. 
 
 73. 
 
 IV. Joint Agents. 
 
 76. Authority to Several. 
 
 77. Private Agency must be exe- 
 
 cuted by all. 
 
 78. Public Trust or Agency may be 
 
 executed by a Majority. 
 
 § 42. Purpose of CHiapter. It is proposed in this chapter to 
 determine who are competent to enter into the relation of prin- 
 
 82
 
 Chap, III.] WHO MAT BE PRINCIPAL OE AGENT. § 44 
 
 cipal and agent, and to consider briefly the special rules which 
 apply to those cases in which more than one person undertakes 
 to act in either capacity. 
 
 WHO MAT BE PEIN0IPAL8. 
 
 § 43. The general Rule— Every Person competent to act in his 
 own Right. It may be stated as the general rule that by the 
 common law every person who is competent to act in his own 
 right and in his own behalf may act by an agent.' 
 
 The relation, as has been seen, is created primarily for the 
 purpose of investing the agent with authority to act for and 
 represent the principal in the transaction of business. For the 
 time and to the extent limited, the agent is to be the alter ego 
 of the principal; his act is, in law, to be the act of the principal, 
 and the capacity and character in which the agent is to act are 
 those of the principal. It follows, then, as a necessary conclu- 
 sion, that the same kind and degree of competency which would 
 be requisite were the principal present and acting in his own 
 person, are necessary when he is present and acts in the person 
 of his agent. 
 
 The relation, too, between the parties, is, as has been seen, so 
 far as it is voluntary, a contractual one, being based upon the 
 express or implied contract existing between the principal and 
 the agent. To enter into this relation, therefore, requires on 
 the part of the principal, capacity to contract, and this capacity 
 must be, at least, as great as that which would be requisite in 
 contracts generally. 
 
 The converse of these principles, as it finds expression in the 
 general rule already given, also follows as a necessary sequence, 
 that he who has this capacity and who is thus competent to act 
 in person in a given case, may, unless restrained by some statu- 
 tory prohibition, act in that case through the agent of his choice. 
 
 § 44. Same Subject— Corporations. Authority to appoint the 
 necessary and proper agents for the transaction of the corporate 
 
 * C!oombe'8 Case, 9 Co. Rep. 76; "Any person, having capacity to con- 
 
 Com. Dig. " Attorney," c. I. tract, may appoint an agent." Cal. 
 
 In the language of the codes of Code, § 3296; Dak. Code, § 1338; Ga. 
 
 California, Dakota and Georgia, Code, § 2181. 
 
 3 33
 
 § 45. THE LAW OF AGENCY. Book I. 
 
 business is usually conferred upon corporations in express terms, 
 but in the absence of such express authority, the power to ap- 
 point will be implied. This power is a necessary incident to the 
 power to carry on the business for which the corporation was 
 created, inasmuch as it is only through the employment of agents' 
 that the executive functions of the corporation can be exercised.' 
 
 § 45. Same Subject— Partnerships. The same general prin- 
 ciple applies to partnerships. It is, of course, competent for the 
 partners to provide in their partnership articles, what agents slial) 
 be employed and in what manner. So all of the partners acting 
 together may undoubtedly appoint agents for a purpose or in a 
 manner other than that originally contemplated or prescribed. 
 And in the absence of restrictions in the articles, each partner 
 also has implied power to employ for the firm such servants and 
 agents as are necessary and proper for the transaction of the 
 partnership business.* 
 
 The appointment of an agent for such purposes by one of the 
 partners does not fall within the limits of the maxim, Delegatus 
 non potest delegare, for while each partner is the agent of all of 
 the other partners for the transaction of the partnership business, 
 he is also one of the principals in the transaction. 
 
 § 46. Incompetency— In general. Incompetency to enter into 
 this relation may arise either from some defect in the mental 
 equipment of the party or from the operation of law. The 
 
 ' Protection Life Ins. Co. v. Foote, its creation. It must act in this mode 
 
 79 111. 361; Hurlbut v. Marshall, 63 or not at all." 
 
 Wis. 590 ; St. Andrews Land Co. v. Extended citation of the cases upon 
 
 Mitchell, 4 Fla. 192, 54 Am. Dec. this point belongs rather to works on 
 
 340; Lyman v. White River Bridge Corporations. See Morawetz on Cor- 
 
 Co., 2 Aik. (Vt.) 255, 16 Am. Dec. porations, I, § 503; Ang. & Ames on 
 
 705; Washburn v. Nashville, &c., R. Corporations, § 284. 
 
 R. Co., 3 Head (Tenn.), 638, 75 Am. « Beckham v. Drake, 9 M. & W. 79; 
 
 Dec, 784. Banner Tobacco Co. v. Jenison, 48 
 
 As is said in Washburn v. Nash- Mich. 459; Harvey v. Mc Adams, 33 
 
 fille, &c., R. R. Co. supra, "The Mich. 472; Wheatley t>. Tutt, 4 Kans. 
 
 corporation of necessity acts through 240; Charles v. Eshleman, 5 Col. 
 
 the instrumentality of its officers and 107; Frye v, Saunders, 21 Kans, 26, 
 
 agents. If not prohibited by the 30 Am. Rep. 421; Coons v. Renick, 
 
 charter, it may delegate its authority 11 Tex. 134, 60 Am. Dec. 230; Carley 
 
 to its oflacers and agents so far as may v. Jenkins, 46 Vt. 721; Durgin v. 
 
 be necessary to effect the purposes of Somers, 117 Mass, 55; Burgan «. 
 
 Lyell, 2 Mich. 102. 
 
 34
 
 Chap. III.] WHO MAY BE PRINCIPAL OB AGENT. § 48. 
 
 former type may be chronic or temporary, curable or incurable, 
 and may arise from a variety of causes. This form of incompe- 
 tency is sometimes termed natural, while that arising from the 
 operation of the law is termed legal incompetency. 
 
 Of the first kind are the defects of idiots, lunatics and drunken 
 persons ; while aliens, infants and married women afford illustra- 
 tions of the latter.* 
 
 The effect of some of these forms of incompetency, so far as 
 they are applicable to the law of agency, will be noticed here. 
 
 a. Persons Naturally Incompetent. 
 
 § 47. Persons of unsoimd. Mind. It is the general rule that 
 idiots, lunatics and other persons of unsound mind, cannot ap- 
 point an agent.' Within the operation of this rule are to be 
 included those persons whose mental powers have been per- 
 manently impaired by drunkenness or other cause attributable to 
 their own acts, as well as those whose incapacity arises from the 
 act of God.* 
 
 § 48. Exceptions— Innocent Party — Sane Interval. An in- 
 competent person may, however, by the decree of the proper 
 court, come to sustain, to a limited extent, the relation of a prin- 
 cipal, as by the appointment of a guardian or committee whose 
 authorized acts bind his estate.* 
 
 The general rule must, also, be subject to the qualification 
 quite generally applied to other contracts with persons of this 
 class, that where the unsoundness of mind is unknown to the 
 other party, who has acted in good faith and taken no advantage 
 of it, the contract will not be set aside, where it has been executed 
 in whole or in part and the parties cannot be altogether restored 
 
 to their original situation.* 
 
 « Ewell's Evans on Agency, 13. 153; Moss v. Tribe, 3 Fost. «& F. 297; 
 
 « Story on Agency, § 6. Young v. Stevens, 48 N. H. lo3, 3 
 
 •Bliss ?», Railroad Co.. 24 Vt. 424; Am. Rep. 202, 97 Am. Dec. 592; 
 
 Menkins «. Lightner, 18 III. 282; Behrens v. McKenzle, 23 Iowa, 333, 
 
 Bush u Breinig, 113 Penn. St. 310, 92 Am. Dec. 428; McCormick o. LiL- 
 
 67 Am. Rep. 469. tier, 85 111. G3, 28 Am. Rep. 610; 
 
 <See Anderson 0. Estate, 42 Vt, 350, Fay v. Burditt, 81 Ind. 433, 42 Am. 
 
 1 Am. Rep. 334. Rep. 142; Rusk v. Fenton, 14 Bush. 
 
 •Molton V. Camroux, 4 Exch. 17; (Ky.) 490, 29 Am. Rep. 413; Wilder 
 Beavan ». McDonnell, 9 Exch. 309; v. Weakley, 34 Ind. 181; Northwest- 
 Campbell D. Hooper, 3 Smale «& G. em Mut. F. Ins. Co. «. Blankenship, 
 
 35
 
 §^^9. 
 
 THE LAW OF AGENCY. 
 
 [Book I. 
 
 So the contract of an insane person made durino^ a sane inter- 
 val is binding upon him/ and this principle applies as well to 
 contracts of agency as to others. 
 
 8 49. Drunken Persons as Principals. The fact of being a 
 drunkard, or mere drunkenness at the time, does not of itself in- 
 capacitate.* There must be drunkenness, or the impairment of 
 intellect as the result of drunkenness, to such an extent, that the 
 person is incapable of comprehending the nature and effect of 
 his act* 
 
 Soher Interval. The contract of an habitual drunkard, how- 
 ever, is binding, if made during a sober interval.* His contracts 
 of agency, of course, stand upon the same ground. 
 
 8 50. Same Subject— Ratifloation or Disafarmance. A con- 
 tract made by a party during a period of incompetence may be 
 ratified or disaffirmed by him after his competency is restored. • 
 And this may be done by the incompetent's guardian or commit- 
 tee also,* or by his personal representative after the incompetent's 
 
 94Ind, 535; Riggan e. Green, 80 N. 
 Car. 236; Copenrath v. Kienby, 83 
 Ind. 18; Seals v. See, 10 Penn. St. 56, 
 49 Am. Dec. 573; Yauger v. Skinner, 
 14 N. J. Eq. 389; Cribben v. Max- 
 well, 34 Kans. 8, 55 Am. Rep. 233. 
 
 But see Hovey v. Hobson, 53 Me. 
 461, 89 Am. Dec. 705; Gibson v. 
 Soper, 6 Gray (Mass.), 279, 66 
 Am. Dec. 414; Bond v. Bond, 
 7 Allen (Mass.), 1; Chew v. Bank, 14 
 Md. 818; Rogers v. Blackwell, 49 
 Mich. 192; Edwards v. Davenport, 20 
 Fed. Rep. 756; Heary v. Fine, 23 Ark. 
 417. 
 
 * Tozer r. Saturlee, 3 Grant (Penn.), 
 162; Lilly v. Waggoner, 27 111. 395; 
 Beckwith o. Butler, 1 Wash. (Va.) 
 224; Jones ». Perkins, 5 B. Monr, 
 (Ky.) 233; In re Qangwere, 14 Penn. 
 St. 417, 53 Am. Dec. 554. 
 
 • Pickett c. Sutter, 5 Cal. 412; 
 Henry v. Ritenour, 31 Ind. 136; Caulk- 
 ins V. Fry, 35 Conn. 170; Reynolds v. 
 Dechaums, 24 Tex. 174; Cavender e. 
 Waddingham, 5 Mo. App. 457; Joest 
 «. Williams, 42 Md. 565, 13 Am. Rep. 
 
 877; Miller v. Finley, 26 Mich. 249, 
 12 Am. Rep. 306. 
 
 'Bates V. Ball, 72 111. 108; Van 
 Wyck V. Brasher, 81 N. Y. 200; 
 Schramm uO'Connor,98 111. 539;Bush 
 e. Breinig, 113 Penn. St. 310, 57 Am. 
 Rep. 469. 
 
 « Riteer's Appeal, 59 Penn. St. 9. 
 
 •Gibson V. Soper, 6 Gray (Mass.), 
 279, 66 Am. Dec. 414; Bush v. Brei- 
 nig. 113 Penn. St. 310, 57 Am. Kep. 
 469; AUis v Billings, 6 Mete. (Mass.) 
 415, 89 Am. Dec. 744; Arnold t>. 
 Richmond Iron Works, 1 Gray(lVIas8.), 
 434; Carrier v. Sears, 4 Allen (Mass.), 
 837; Howe v. Howe, 99 Mass. 98; 
 White V. Graves, 107 Mass. 328, 
 Blakeley v. Biakeley, 33 N. J. Eq. 
 508; Nichol v. Thomas, 53 Ind. 53; 
 Mohr V. Tulip, 40 Wis. 82; Elsion e. 
 Jasper, 45 Tex. 409; Turner t). Rusk, 
 53 Md. 65; North we.steru Mut. F Ina. 
 Co. «. Blankenship, 94 Ind. 535; Car- 
 penter V. Rodgers, 61 Mich. 384, 1 
 Am. St. Rep. 595 
 
 •McClain v. Davis, 77 Ind. 419; 
 Campbell v. Kuhn, 45 Mich. 513; 
 
 36
 
 Chap, III.] WHO MAY BE PRINCIPAL OE AGENT. § 51. 
 
 death.' Upon this question, the rules governing contracts gener- 
 ally apply/ 
 
 h. Persons Legally hiGompetent, 
 
 § 51. Infants as Principals. It has been regarded as the 
 settled doctrine of the law that an infant cannot empower an 
 agent or attorney to act for him.' Indeed, the rule deduced 
 from the authorities has been said to be that the only act which 
 an infant is under a legal incapacity to perform is the appoint- 
 ment of an attorney, or, in fact, an agent of any kind.* The 
 reason upon which this rule depends, has been well stated by the 
 learned editors of the American Leading Cases, as follows : " The 
 constituting of an attorney by one whose acts are in their nature 
 voidable, is repugnant and impossible, for it is imparting a right 
 which the principal does not possess, — that of doing valid acts. 
 If the acts when done by the attorney remain voidable at the 
 option of the infant, the power of attorney is not operative ac- 
 cording to its terms; if they are binding upon the infant, then 
 he has done through the agency of another what he could not 
 have done directly — binding acts. The fundamental principle of 
 law in regard to infants requires that the infant should have the 
 power of affirming such acts done by the attorney as he chooses, 
 and avoiding others, at his option ; but this involves an immedi- 
 ate contradiction, for to possess the right of availing himself of 
 any of the acts, he must ratify the power of attorney, and if he 
 
 Halley ». Troester, 72 Mo. 73; Moore Me. 103; Philpot c. Bingham, 55 Ala. 
 
 «. Hershey. 90 Penn. St. 196. 435; Wambole v. Foote, 2 Dak. 1; 
 
 ' Campbell «. Kuhn, mpra: Schuff Fetrow «. Wiseman, 40 Ind. 155; 
 
 V. Rausom, 79 Ind. 458. Waples v. Hastings, 3 Harr. (Del) 
 
 •See Bishop on Contracts, § 974. 403; Roof v. Stafford. 7 Cow. (N. Y.) 
 
 •Armitage tJ. Widoe, 36 Mich, 124; 179; Tapley ®. McGee. 6 Ind. 5G; 
 
 Whitney v. Dutch, 14 Mass. 457, 7 Flexner v. Dickerson, 72 Ala. 318; 
 
 Am. Dec. 229; Lawrence©. McArter, Carnahan v. Alderdice, 4 Harr. (Del.) 
 
 10 Ohio, 37; Fonda v. VanHorne, 15 99; Pyle v. Cravens, 4 Litt. (Ky.) 17; 
 
 Wend. (N. Y.) 631. 30 Am. Dec. 77; Doe v. Roberts, 16 M. & W. 778; Bool 
 
 Trueblood v. Trueblood, 8 Ind. 195, v. Mix, 17 Wend. (N. Y.) 120; Hiest- 
 
 65 Am. Dec. 756; Cole v. Pennoyer, and v. Kuns, 8 Blackf. (Ind.) 345; 
 
 14111. 158; Robbinsc. Mount, 4 Robt. Wainwright e. Wilkinson, 62 Md. 
 
 CN. Y.) 553: Mustard ». Wohlford'a 146; Deford v. State, 30 Md. 200; 
 
 Heirs, 15 Gratt. (Va.) 829, 70 Am. Knox v. Flack, 22 Penn. St. 337; 
 
 Dec. 209; Dexter v. Hall, 15 Wall. Sadler ». Robinson, 2 Stew. (Ala.) 520. 
 
 (U. S.) 9; Bennett e. Davis, 6 Cow. « See note to Tucker ». Moreland, 1 
 
 (N. Y.) 393; Robinson «. Weeks, 56 Am. Lead. Cases, 224. 5th Ed. 28(1 
 
 37
 
 § 52. THE LAW OF AGENCY. [Book L 
 
 ratifies the power, all that was done under it is confirmed. If he 
 affirms part of a transaction, he at once confirms the power, and 
 thereby, against his intention, affirms the whole transaction. 
 Such personal and discretionary legal capacity as an infant is 
 (rested with is, therefore, in its nature, incapable of delegation ; 
 and the rule that an infant cannot make an attorney is, perhaps, 
 not an arbitrary or accidental exception to a principle, but a 
 direct, logical necessity of that principle. But if the considera- 
 tions suggested as the foundation of this rnle be not satisfactory, 
 the rate itself is established by a conclusive weight of authority."* 
 
 § 52. Same Subject— Ratification by. And upon the prin- 
 ciple that one cannot subsequently affirm what he could not 
 previously have authorized, it has likewise been held that an 
 infant cannot ratify and confirm what one, as an agent, has 
 assumed to do in his name.* 
 
 § 53. Further of this Rule. This rule, as has been seen, as 
 well as the rule governing the contracts of infants generally, 
 finds its reason in the law's desire to guard and protect the inter- 
 ests of the infant. Like other rules, its rigor should be abated 
 when the necessity for it no longer exists. 
 
 It is difficult to harmonize all of the cases upon this subject, 
 but an examination of the facts of some of the leading ones will 
 disclose the occasions upon which it was invoked, and throw 
 light upon the limits of its application. 
 
 Thus it is held that an infant's power of attorney to sell his 
 lands ;^ his warrant of attorney to confess judgment against him ;* 
 his assent to the act of another in assuming as the infant's agent 
 to sell his property ; " or to bind him to a purchase of real 
 estate;* his authority to another to represent him in court; ^ and 
 any letter of attorney not conveying a present interest,' are void. 
 
 So, too, the rule has been declared without limitation in many 
 
 '/d. 247, 5th Ed, 305. 65 Am. Dec. 756; Thompson ». Lyon. 
 
 « Armitage v. Widoe, 36 Mich. 124; 20 Mo. 155. 61 Am. Dec. 599. 
 
 Fonda v. Vaa Home, 15 Wend. (N. ^ Bennett v. Davis, 6 Cow. (N. T.) 
 
 Y.) 631, 30 Am. Dec. 77; Trueblood 393; Knox v. Flack, 22 Penn. St 337. 
 
 V. Trueblood, 8 Ind. 195, 65 Am. Dec. « Fonda e. Van Home, 15 Wend. 
 
 756; Doe v. Roberts, 16 M. & W. 778. (N. Y.) 631, 30 Am. Dec. 77. 
 
 But see Ward v. Steamboat, 8 Mo. 'Armitage u. Widoe, 36 Mich. 124. 
 
 358. TTapley v. McGee, 6 Ind. 56. 
 
 sPhilpot V. Bingbam, 55 Ala. 435; 8 Lawrence©. McArter, 10 Ohio,37 
 Trueblood v. Trueblood, 8 Ind. 195; 
 
 38
 
 Chap. III.] WHO MAT BE PKINOIPAL OR AGENT. § 55. 
 
 cases where it was not necessary to the decision of the case,* 
 being used merely by way of illustration or asserted in order to 
 round out some general proposition in reference to the powers of 
 infants. 
 
 § 54. Same Subject— Dissent, Exceptions. This unqualified 
 statement of the rule, however, has not been without dissent in 
 modern times, and judges have in several cases yielded to i^ 
 only upon the ground that it was long established.' 
 
 So it has been held that, notwithstanding the rule, an infant 
 might appoint an agent to do an act unquestionably to his advan- 
 tage,^ — as to receive seizin of an estate conveyed to him, — and 
 this exception is, in reason, undoubtedly well founded.* 
 
 So a qualified form of agency may be established by the 
 appointment by a competent court of a guardian for the infant's 
 estate. And upon the doctrine of an agency, implied or created 
 by law, an infant husband may be bound for necessaries purchased 
 by his wife.* 
 
 § 55. In Reason how. The tendency of modern cases, al- 
 though they are by no means harmonious, has been to regard all 
 contracts made by an infant, with the exception of his appoint- 
 ment of an agent, in a more liberal spirit, and to treat them as 
 voidable merely, or if void at all, as void only in those cases 
 where they cannot by any possibility be to his advantage.* 
 
 Why this exception of the appointment of an agent should 
 
 ' Of this class are Cole v. Pennoyer; » Cantine v. Phillips, 5 Harr. (Del.) 
 
 Robbins ». Mount; Dexter v. Hall; 428. 
 
 Robinson v. Weeks; Fetrow v. Wise- 'In 1 Am. Lead. Cases, cited above, 
 
 man; Flexner v. Dickerson ; Mua- the learned editors say: "The numer- 
 
 tard V. Wohlford's Heirs; Roof v. ous decisions which have been had in 
 
 Stafford; Fonda «. Van Home; Bool this country justify the settlement of 
 
 V. Mix; Heistand «, Kuns; Harner the following definite rule as one that 
 
 V. Dipple; and others cited in § 51, is subject to no exceptions. The 
 
 supra. only contract binding on an infant is 
 
 2 See Philpot v. Bingham, 55 Ala. the implied contract for necessaries. 
 435; Fetrow «. Wiseman, 40 Ind. 155; The only act which he is under a 
 Hardy «, Waters, 38 Me. 450. legal disability to perform is the ap- 
 
 3 Whitney v. Dutch, 14 Mass, 457; pointment of an attorney. All other 
 7 Am. Dec. 229; Tucker v. Moreland, acts and contracts, executed or exe- 
 10 Pet. (U, S.) 58. cutory, are voidable or confirmable 
 
 * Patterson e. Lippincott, 47 N. J. by him at his election." See also 
 L. 457, 54 Am. Rep. 178. Bishop on Contracts, Ed. 1887, §917- 
 
 935. 
 39
 
 § 56. THE LAW OF AGENCY. [Book 1. 
 
 exist is not made clear by the authorities, nor is any sufficient 
 reason apparent.' Indeed no satisfactory reason is perceived why 
 the rule might not well be that, within the limits within which 
 he may bind himself by his contracts, he may also bind himself 
 by the intervention of an agent appointed by him for that purpose. 
 Notwithstanding this, however, the rule of disability, is, as has 
 been seen, firmly established in our law. 
 
 § 56. Married Women as Principals. As at the common 
 law, a married woman was incapable of entering into contracts, 
 she could not act by agent;* but under the modern statutes 
 removing her disabilities, at least so far as her sole property is 
 concerned, she may undoubtedly appoint an agent to represent 
 her in dealing with those matters in reference to which she is 
 herself competent to act." In this respect, her competency is co- 
 extensive with her right to act as feme sole. Her capacity to 
 contract, however, is purely statutory, and she cannot confer 
 upon her agent any greater powers than she might herself exer- 
 cise in the premises. Her agent, therefore, can bind her only 
 while acting within the limits fixed to her capacity.* 
 
 The appointment of an agent by a married woman may be 
 made in the same manner as by any other principal, and when 
 appointed the same legal consequences and effects result from the 
 
 •Harnere, Dipple, 31 Ohio St. 73, 103 Mass. 563; Moley «. Brine, 130 
 
 27 Am. Rep. 496; Patterson p. Lippia- Mass. 334. 
 
 cott, 47 N. J. L. 457, 54 Am. Rep. « Weisbrod «. Chicago, &c. Ry. 
 
 178; Cummings «. Powell. 8 Tex. 80. Co. 18 Wis. 35, 86 Am. Dec, 743; 
 
 See Bishop on Contracts, New Ed. Dorrance ». Scott, 3 Whart. (Penn.) 
 
 §930, where the learned author says: 313, 31 Am. Dec. 509; Caldwell c. 
 
 •'In reason, we shall find it difficult ■Waters,18Penn.St.79,55Am.Dec.503; 
 
 to see why an infant, a person of im- Marshall ». Rutton,8T. R. 545; Lewis 
 
 perfect capacity, can not as validly act e. Lee, 3 B. & C. 291; Fairthorne e. 
 
 through another whose capacity has Blaquire, 6M & S. 73; Story on Agen- 
 
 become perfected by age, and there- cy, §6; Schouler, Dom. Rel. §53. 
 fore presumably furnishing a sort of " Weisbrod v. Chicago. &c. Ry. Co. 
 
 protection, as by his sole and un- «Mpra; McLaren*. Hall, 26 Iowa. 397; 
 
 guarded self," and he refers to Whit- Knapp v. Smith, 27 N. Y. 277; Wood- 
 
 ney v. Dutch, and Bool c. Mix, cited, worth v. Sweet, 51 N. Y. 8: Rowell v. 
 
 $upra. See also remarks of Holmes, Klein, 44 Ind. 290. See cases cited 
 
 J. in Fairbanks t. Snow, 145 Mass. in § 63, post. 
 
 153, 1 Am. St. Rep. 446, citing Whit- < Kenton Insurance Co. v. McClel- 
 
 ney». Dutch, ««pra; Welch©. Welch, Ian, 43 Mich. 564; Nash v. Mitchell, 
 
 71 N. Y. 199. 27 Am. Rep. 38. 
 
 40
 
 Chap. III.] WHO MAY BE PKINCIPAL OB AGENT. § 58. 
 
 relation which would flow from the appointment bj any other 
 principal of like capacity.* 
 
 n. 
 
 "WHO MAT BE AGENTS. 
 
 a. Competency in General. 
 
 § 57. General Rule— Any compotont Person. Any person 
 who has sufficient capacity to act for himself is also competent 
 to act as the agent of another.* But, subject to limitations here- 
 after to be stated, the rule may be given a broader scope, for it 
 is certain that many persons who have not the capacity in law to 
 act in their own right and in their own behalf, may act as agents 
 for another, and in the language of a recent case, it may be said, 
 that any person may be an agent, except a lunatic, imbecile or 
 child of tender years.' Hence monks, infants, feme coverts, 
 persons attainted, outlawed or excommunicated, slaves or villeins, 
 and aliens, have been held competent to act as agents.* 
 
 § 58. Less Degree of Competency required in Agent than in 
 Principal. It will be seen from this statement of the rule that a 
 less degree of competency is required in an agent than in the 
 principal. The reason for this, in certain cases, is apparent. 
 Many persons are, in fact, competent to execute what they would 
 be incompetent to conceive or direct; and, in law, a person may 
 be the donee of a power which he had not the legal capacity to 
 create.* 
 
 The degree of competency required depends, of course, upon 
 the nature of the duty to be performed. Thus the performance 
 may demand the exercise of powers ranging in degree from the 
 purely mechanical, up through the ministerial, to those involving 
 the highest degree of judgment, wisdom and experience. A 
 child may carry a message or deliver a deed as safely and cer- 
 tainly, perhaps, as a person of mature years, for the execution of 
 
 • See cases cited in § 63, post. * Ewell's Evans' Agency, 17; Whar- 
 
 « Lea r. Bringier, 19 La. Ann. 197; ton, Agency, §14, and see cases cited 
 
 Wharton, Agency, § 13. in sections following. 
 
 » Lyon V. Kent, 45 A.la. 656. "Any »See Weisbrod v. Chicago, &c. Ry. 
 
 person may be an agent. " Cal. Code Co. 18 Wis. 35, 86 Am. Dec. 743; 
 
 §2296; Dak. Code, §1338. Bac. Abr. 'Authority," B. 
 
 41
 
 ' I 59. THE LAW OF AGENCY. [Book I. 
 
 this duty requires only the simplest mechanical powers ; but the 
 transaction of important affairs of business, involving the exer- 
 cise of judgment or discretion, cannot be entrusted to children. 
 Agency, as has been seen, properly implies the exercise, on the 
 part of the agent, of more or less discretion and judgment, and 
 no one, who does not possess these faculties, can fulfill the higher 
 functions of an agent. 
 
 It is obvious, therefore, that while a person not competent to 
 act as principal may, in many cases, assume the duties of an 
 agent, the relation is one sub modo only, partaking more largely 
 of the nature of service than of agency. 
 
 At first view, the question of tlie agent's competency may, 
 perhaps, appear to be of interest chiefly to the principal, — that 
 if the principal is satisfied with the agent's ability, no one else 
 has occasion to complain. But a moment's consideration will 
 demonstrate that this is not always so. For although the princi- 
 pal who has seen fit to employ an agent known by him to be in- 
 competent, ought not to be heard to complain that he has received 
 incompetent service, third persons who may suffer from the same 
 cause, may well hold the principal to account. And where the 
 law imposes upon any person, the performance of a duty to indi- 
 viduals or the public, he must see to it that it is performed, and 
 he cannot escape responsibility by delegating it to an agent.' 
 
 § 59. Infants as Agents. It has been seen that an infant can- 
 not appoint an agent ; an infant, however, above the age of seven 
 years may be an agent, in the absence of statutory prohibitions." 
 
 This rule must be qualified by the considerations contained in 
 the preceding section. The duty to be undertaken must, at least 
 so far as the rights of third persons are involved, be one in keep- 
 ing with the age, capacity and experience of the infant. 
 
 It is evident, also, that the relation between a principal and his 
 infant agent is not a perfect one, for though the infant may bind 
 his principal by his acts, and though the principal is bound by his 
 contracts with the infant, the infant himself is incapable of being 
 bound to the principal by the express or implied contractual ob- 
 ligations which an adult agent would assume under like circura- 
 
 iBeeposi!, § 747. (Ky.) 436, 10 Am. Dec. 747; Ewell's 
 
 « Talbot V. Bowen, 1 A. K. Marsh. Evans' Agency, 17. 
 
 42
 
 Ohap. III.] WHO MAT BE PRINCIPAL OR AGENT. § 61. 
 
 stances.' Neither does such a relation afford to third persons 
 who may deal with the infant agent, that protection which would 
 be insured to them if the agent were sui juris ; for it would not 
 be contended, for example, that, in the absence of fraud, the in- 
 fant would be bound by an implied warranty of authority, or that, 
 failing to bind his principal, he bound himself. 
 
 § 60. Slaves as Agents. So during the existence of slavery, 
 it was held that a slave might act as agent.' 
 
 § 61. Married Women— As Agents for third Persons. Not- 
 withstanding her incapacity to appoint an agent, a married woman 
 might, at common law, be the agent of third persons,' even in 
 their dealings with her husband.* Her capacity in this respect, 
 however, like that of other persons not competent to contract 
 generally, was necessarily a limited one, as the married woman 
 was incapable of assuming the reciprocal liabilities and obligations 
 which the perfect relation imposes upon the agent,' and as her 
 duties to her husband and her family rendered her assumption of 
 many undertakings impossible. 
 
 The effect of the modern statutes has been to enlarge this lim- 
 ited capacity according as they have enlarged her capacity to 
 deal as a feme sole, and where the removal of her disabilities is 
 complete, or where with the consent of her husband or of the 
 law, she is competent to carry on business as a feme sole^ her 
 capacity to bind herself to the same extent by all of the obliga- 
 tions of an agent would seem to be a necessary consequence.* 
 
 * See Derocher v. Continental Mills, worth v. Hart, 22 Ala. 343; Goodwin 
 58 Me. 217, 4 Am. Rep. 286; Gaffney «. Kelly, 43 Barb. (N. Y.> 194; Gray v. 
 V. Hayden, 110 Mass. 137, 14 Am. Otis, 11 Vt. 628; Sawyer t). Cutting, 
 Rep. 580; Widrig?). Taggart, 51 Mich. 23 Vt. 486; White v. Oeland, 12 Rich. 
 103; Whitemarsh v. Hall, 8 Den. (N. (S. C.) 308. 
 
 Y.) 376; Vent v. Osgood, 19 Pick. < Story on Agency, §7. 
 
 (Mass.) 572; Lufkin v. Mayall, 25 N. »See Tucker v. Cocke, 32 Miss. 184; 
 
 H. 82; Robinson v. Weeks 56 Me. Carleton v. Haywood, 49 N. H. 314. 
 
 102. • See cases cited in note 2 to § 63, 
 
 'Governor ®. Daily, 14 Ala. 469; post. Many interesting questions 
 
 Powell V. State, 27 Ala. 51; Lyon v. arise in connection with this subject, 
 
 Kent, 45 Ala. 656; Chastain v. Bow- which are not yet determined, as for 
 
 man, 1 Hill. (S. C.) 270. example: How far is a married 
 
 * Hopkins v. Mollinieux, 4 Wend. woman acting as agent for her has- 
 (N. Y.) 465; Singleton ». Mann, 3 Mo. band or for a third person, bound by 
 464; Butler v. Price, 110 Mass. 97; an implied or express warranty of her 
 McKee «. Kent, 24 Miss. 131; Whit- authority? What if she exceeds her 
 
 43
 
 §62. 
 
 THE LAW OF AGENCY. 
 
 [Book I. 
 
 § 62. Same Subject— Wife as Agent for her Husband. Both 
 at the common law and under the modern statutes, the wife may 
 be the agent of her husband. This agency may be of two kinds : 
 1. That which the law creates as the result of the marriage re- 
 lation, by virtue of which the wife is authorized to pledge her 
 husband's credit for the purpose of obtaining those necessaries 
 which the husband himself has neglected or refused to furnish ; 
 and, 2. That which arises from the autliority of the husband, ex- 
 pressly or impliedly conferred as in other cases. 
 
 The wife has, by virtue of the marriage relation alone, no 
 authority to bind her husband by contracts of a general nature, 
 and her authority of the kind first mentioned is limited in its 
 nature and extent by the legal requirements fixed for its creation, 
 of the existence of which those persons who assume to deal with 
 her must take notice at their peril.' The full consideration of 
 
 authority? What if she conceals her 
 principal? What, if intending to 
 bind her principal, she so executes a 
 •written contract, as, in form, to bind 
 herself. How far may she assume 
 responsibility as an agent to third per- 
 sons without her husband's consent? 
 Upon this point, see Pullman v. State, 
 78 Ala. 81. 
 
 ' Clark t>. Cox, 33 Mich. 204; Eames 
 ©. Sweetser, 101 Mass. 78; Raynes v. 
 Bennett, 114 Mass. 424; Manby «. 
 Scott, 1 Mod. 125; Morrison v. Holt, 
 42 N. H. 478, 80 Am. Dec. 120; Ben- 
 jamin V. Benjamin, 15 Conn. 347, 39 
 Am. Dec. 884. 
 
 "A wife, as such," says Stores, J. 
 in the case last cited, "has no orig- 
 inal or inherent power to make any 
 contract, which is obligatory on her 
 husband. No such right arises from 
 the marital relation between them. 
 If, therefore, she possesses a power 
 in any case, to bind him, by her con- 
 tracts made on his behalf, it must be 
 by virtue of an authority derived 
 from him, and founded on his assent 
 — although such assent may be pre- 
 cedent or subsequent, and express or 
 implied; and this is the light in which 
 
 such contracts are universally viewed. 
 When such authority is conferred, tho 
 relation between them and the conse- 
 quences of that relation, are analo- 
 gous to those in the ordinary case of 
 principal and agent. And that she 
 has the capacity to be constituted, by 
 the husband, his agent, and to act as 
 such, equally with any other person, 
 there is no doubt. In Pitz. N. B. 
 120, G, the law is thus laid down: 
 *A man shall be charged in debt for 
 the contract of his bailiff or servant, 
 where he giveth authority unto the 
 bailiff or servant to buy or sell for 
 him : and so the contract of the wife, 
 if he give such authority to his wife, 
 otherwise not.' In Manby v. Scott, 1 
 Mod, 125, it is said, by Mr. .Justice 
 Hyde, that *& feme covert cd^vmoi bind 
 or charge her husband, by any con- 
 tract made by her without the author- 
 ity or assent of her husband, preced- 
 ent or subsequent, express or im- 
 plied.' 
 
 "The law on this subject is stated 
 with great clearness and precision, by 
 Selwyn, in his Nisi Prius, page 288, 
 where he treats of the liability of the 
 husband as to contracts made by the 
 
 44
 
 Chap. III.] WHO MAY BE PRINCIPAL OK AGENT. 
 
 §62. 
 
 this question belongs properly to a treatise upon the marriage 
 relation.* 
 
 Agencies of the second class rest upon the same considerations 
 which control the creation and existence of the relation between 
 other persons. The wife may be either the general or the special 
 agent of her husband by virtue of his authorization, and this 
 authorization may, as in other cases, be express or implied ; 
 and may be conferred by specialty or by parol; or by preced- 
 ent or subsequent ratification.* Her authority in this case, 
 however, when implied, is to be implied from acts and conduct, 
 and not from her position as wife alone; and when based upon 
 subsequent ratification, is to be established by other evidence 
 than that alone which is incident to the relation of the parties. 
 But when the agency is found to exist, the wife may bind her 
 husband-principal to the same extent and in the same manner 
 
 •wife during coverture. After stating Women, Chap. 30; Schouler on Hus- 
 band and Wife. 
 
 « Cox V. Hoffman, 4 Dev. & Batt. 
 (N. C.) 180; McKinley ». McGregor, 
 8 Whart. (Penn.)369; Camerline. Pal- 
 mer Co., 10 Allen (Mass.), 539; Pick- 
 ering V Pickering, 6 N. H. 124; 
 Abbott V. McKinley, 2 Miles (Penn.), 
 220; Gray v. Otis, 11 Vt. 638; Miller 
 e. Delamater, 12 Wend. (N. Y.) 433; 
 Mickelberry v. Harvey, 58 Ind. 523; 
 Heny v. Sargent, 54 Cal. 396; Pull- 
 an V. State, 78 Ala. 31; Ladd v. 
 Newell, 34 Minn. 107; Harper*. Dail, 
 93 N. C. 394; Lang v. Waters, 47 Ala. 
 634; Felker v. Emerson, 16 Vt. 683; 
 42 Am. Dec. 532; Cantrell v. Col well, 
 3 Head. (Tenn.) 471; Edgerton v. 
 Thomas, 9 N. Y. 40; Knapp v. Smith, 
 27 N. Y. 277; Buckley v. Wells, 33 
 N. Y. 518; Singleton «. Mann. 3 Mo. 
 465; Weisbrod v. Chicago, &c. Ry. 
 Co. 18 Wis. 35, 86 Am. Dec. 743; 
 SimsB. Smith, 99 Ind. 469; 50 Am. 
 Rep. 99; Martin «. Rector, 101 N. Y. 77; 
 Penn v. Whiteheads. 12 Gratt. (Va.) 
 74; Miller v. Watt, 70 Ga. 385; Vail v. 
 Meyer, 71 Ind. 159; Porter v. Haley, 
 65 Miss. 66; Louisville Coffin Co.*. 
 Stokeg, 78 Ala. 872. 
 
 that the relation of husband and wife 
 . is, in respect of the wife's contracts, 
 binding the husband, analogous to 
 the relation of master and servant, he 
 says: 'Indeed, in contemplation of 
 law, the wife is the servant of the 
 husband;' and after citing the above 
 passage from Fiizherbert, he says: 
 'From this passage it appears that the 
 husband is not liable to his wife's 
 contracts, unless he has given his 
 authority or assent;' and adds, 'it is 
 incumbent, therefore, on a creditor, 
 who brings an action against a hus- 
 band upon a contract made with his 
 wife, to show, that the husband has 
 given such assent, or to lay before a 
 jury such circumstances as will 
 enable them to presume, that such 
 assent has been given; and in the 
 latter case, if such presumption is 
 not rebutted by contrary evidence, 
 the jury may find against the hus- 
 band, but not otherwise; for the wife 
 has not any power originally to 
 charge the husband.' " 
 
 'See Stewart on Husband and 
 Wife, §§ 89-98; Bishop on Married 
 
 45
 
 § 63. THE LAW OF AGENCY. [Book I. 
 
 as any other agent might bind him under the same circum- 
 stances; 
 
 How far the relation of agent of her husband may impose upon 
 the wife duties and obligations to third persons with whom she 
 deals, is a question suggested in the preceding section. How far 
 the same relation may impose upon her, contract obligations to 
 her husband is a question which belongs rather to a treatise upon 
 their mutual rights and duties than to this. 
 
 § 63. Husband as Agent for his Wife. It has been seen that 
 within the limits of her power to enter into contracts, a married 
 woman may act by agent,* and it is well settled that her husband 
 may be the agent. A husband "has, by virtue of his relation 
 alone, no implied power to act as the agent of his wife in the 
 transaction of her business.' Whatever authority he exercises 
 in that capacity must be derived from her prior appointment or 
 subsequent ratification. He may, however, be authorized in the 
 same manner and be invested with the same power and authority 
 as any other agent, and when duly authorized his acts bind her, 
 within the limits of her capacity, to the same extent as though 
 she acted in person.* 
 
 But because of the relation existing between them and of the 
 
 * Ante, §56. Mass. 5o4; Lavassar t». Washburne, 
 
 « Price V. Seydel. 46 Iowa, 696; Mc- 50 Wis. 200; Griffia v. Ransdell. 71 
 
 Laren v. Hall, 26 Iowa, 297; Ander- Ind. 440; Cubberly ». Scott, 98 111. 
 
 son V. Gregg, 44 Miss. 170; Crawford 88; Bennett v. Stout, 98 111. 47; Bax 
 
 V. Redus, 54 Miss. 700. ter ©. Maxwell (Penn.), 8 Atl. Rep. 
 
 s Rankin «. West, 25 Mich. 195; 581; Foster t». Jones (Ga.), 1 South E. 
 
 Wortman t>. Price, 47 111. 22; Haight Rep. 275. 
 
 «. McVeagh, 69 111. 624; Walker©. Authority given by a married 
 
 Carrington, 74 111. 446; Patten v. Pat- woman to her husband to sign her 
 
 ten, 75 111. 446; Austin v. Austin, 45 name as surety for his benefit does 
 
 Wis. 523: Louisville Coffin Co. «. not include authority to sign her 
 
 Stokes, 78 Ala. 372; Hamilton «. name as principal. Farmington Sav- 
 
 Hooper, 46 Iowa, 515. 26 Am. Rep. ings Bank v. Buzzell, 61 K H. 612. 
 
 161; McLaren B. Hall, 26 Iowa, 297; Nor will authority to manage her 
 
 Rowell V. Klein, 44 Ind. 290; Weis- plantation authorize him to bind her 
 
 brod V. Chicago, &c. Ry Co. 18 Wis. by negotiable paper. Folger v. 
 
 85, 86 Am. Dec. 743; McBaint). Selig- Peterkin, La. 2 South. Rep. 579. 
 
 man, 58 Mich. 294; Eystra v. Capelle, The fact of the husband's agency 
 
 61 Mo. 580; Rodgers v. Pike County for his wife can not be established by 
 
 Bank, 69 Mo. 562; Arnolds. Spurr, his declarations. Sanfordu. Pollock, 
 
 130 Mass. 347; Jones o. Read, 1 La. 105 N. Y. 450; Jarvis v. Schaefer, — 
 
 Ann. 200; Coolidge v. Smith, 129 Y. — , 11 North E. Rep. 634. 
 
 46
 
 Chap. III.] WHO MAT BE PRINCIPAL OR AGENT. § 65. 
 
 opportunities which it affords for coercion and evasion, it is held 
 that the evidence of his agency, whether it is sought to be estab- 
 lished by the wife's prior appointment or her subsequent ratifi- 
 cation, must be clear and satisfactory, and sufficiently strong to 
 explain and remove the equivocal character in which the wife is 
 placed.' 
 
 § 64. Corporations as Agents. Within the scope of its cor- 
 porate powers, unless there are express provisions in its charter 
 or constating instruments to the contrary, a corporation may act 
 as agent, either for an individual, a partnership or another cor- 
 poration.* Many of the great corporations of the country are 
 organized for this express purpose under statutes or charters 
 conferring and defining their powers and the methods of execut- 
 ing them ; but even in other cases, authority so to act might be 
 implied as auxiliary to their main purposes. 
 
 § 65. Partnerships as Agents, And the same rule applies to 
 the case of partnerships. They may be organized expressly for 
 that purpose, or they may, within the limits of their powers, 
 undertake to act as agent as an incident to their general business. 
 "Where authority is thus delegated to a firm, it is an appointment 
 
 1 Rowell V. Klein, 44 Ind. 290; Mc- ent), the wife is under the control of, 
 
 Laren «. Hall, 26 Iowa,,297; Eystra v. and subordinate to, the husband; and 
 
 Capelle, 61 Mo, 578; Mead e. Spald- neither good law nor sound reason 
 
 ing, — Mo. — , 12 West. Rep. 405. will require the wife to destroy the 
 
 In McLaren v. Hall, supra, CoiiE J. peace of her family and endanger the 
 says, at page 305; "the husband may marriage relation by open repudia- 
 act as agent for the wife. In order tion or hostile conduct toward her 
 to bind her, however, he must be husband, in order to save her prop- 
 previously authorized to act as her erty from liability for his unauthor- 
 agent, or she must subsequently with ized contracts. Of course it is neces- 
 express or implied knowledge'of his sary in every case, in order to bind 
 act, ratify it. The evidence neces- her that he should, at least, claim to 
 sary to establish a ratification by the act as her agent; and her ratification 
 wife, of a contract made by her hus- should be shown by those unmistak- 
 band as her agent, must be of a able acts or declarations which evince 
 stronger and more satisfactory char- a knowledge of the contract by which 
 acter than that required to establish a she is sought to be bound, and an in- 
 ratiflcation by the husband of the act tention to adopt or ratify it as her 
 of the wife as his agent, or than as own." See also Sanford v. Pollock, 
 between independent parties. And 105 N. Y. 450. 
 this for the reason that, (in the gen- « McWilliama «. Detroit Mills Co. 
 eral experience of the past, at least, 31 Mich. 275. 
 if not in the philosophy of the pres- 
 
 47
 
 S 66. THE LAW OF AGENCY. [Book I. 
 
 of the partnership as the agent, and not of the individnal mem- 
 bers as several and separate agents. Hence in the absence of 
 anything to show a contrary intent, either partner may execute 
 the power, and the act of one is the act of the partnership and is 
 in strict pursuance of the power.* 
 
 5. Disqualification from adverse Interest. 
 
 § QQ, One cannot ba Agent if Duty and Interest conflict. 
 A person will not be permitted to take upon himself the charac- 
 ter of an agent, where on account of his relation to others, or on 
 account of his own personal interest, he would be compelled to 
 assume incompatible and inconsistent duties and obligations. An 
 agent owes to his principal a loyal adherence to his interests, and 
 it would be a fraud upon the principal and would contravene 
 the public policy, to permit an agent, without the full knowledge 
 and consent of his principal, to enter into a relation involving 
 such a duty, when his allegiance had already been pledged to one 
 having adverse interests, or when his own personal interests 
 would be antagonistic to those of his principal." 
 
 § 67. One cannot be Agent of both Parties— When. A per- 
 son may act as agent of two or more principals in the same 
 transaction, if his duties to each are not such as to require liira 
 to do incompatible things ; • but wherever from the nature of his 
 employment, each of two principals with opposing interests is 
 entitled to the benefits of the agent's judgment, discretion or 
 personal influence, he will not be permitted to act as agent of 
 both parties, except with their full knowledge and consent.* If, 
 
 ' Deakin v. Underwood, 87 Minn. Halliday, 59 111. 176; Sheperd v. Lan- 
 
 98, 5 Am. St. Rep. 827; Eggleston c. fear, 5 La. 336, 25 Am Dec. 181; 
 
 Boardmnn, 37 Mich. 14. Nortlirup v. Gerraania Fire Ins. Co. 
 
 «See Rice v. Wood. 113 Mass. 133, 48 Wis. 420. 33 Am. Rep. 815. 
 18 Am. Rep. 459; Raising. Clark, 41 < Hinckley v. Arey, supra; Cope- 
 
 Md. 158, 20 Am. Rep. 66; Scribner B. land u. Mercantile Ins. Co. 6 Pick, 
 
 Collar, 40 Mich. 375, 29 Am. Rep. (Mass.) 197; New York Ins. Co. v. 
 
 541; Lynch v. Fallon, 11 R I. 811, 23 National Ins. Co. 14 N. Y. 85; Meyer 
 
 Am. Rep. 458; Bell t>. McConnell, 87 e Hanchett, 39 Wis. 419. S. C. 43 
 
 Ohio, St. 396, 41 Am. Rep. 528; and Wis. 246; Greenwood v. Spring, 54 
 
 see generally cases cited in following Barb. (N. Y.) 375, Sumner v. Cbar- 
 
 eections. loUe, &c. R R. Co. 78 N. C. 289; 
 
 'Hinckley e. Arey, 27 Me. 862; Shirland «. Monitor Iron Works, 41 
 
 Scottt>. Mann,36 Tex. 157; Cottom*. Wis. 162; Bray v. Morse, 41 Wia. 
 
 48
 
 Chap. III.] 
 
 JOINT PRINCIPALS. 
 
 §69. 
 
 however, having full knowledge of his relations to each, they see 
 fit mutually to confide in him, there can be no legal objection to 
 such an employment,* nor will either of the principals be per- 
 mitted afterwards to escape responsibility because of such double 
 employment." 
 
 § 68. Cannot be Party and Agent for opposite Party. For 
 the same reason, one cannot be both the party and the agent for 
 the opposite party in the same transaction. Thus, as will be 
 more fully explained hereafter, except with the full knowledge 
 and consent of his principal, an agent appointed to buy lands or 
 goods for his principal cannot buy of himself ; and an agent to 
 sell lands or goods for his principal cannot sell to himself,* nor 
 can an agent authorized to receive payment for his principal bind 
 the latter by the receipt of money due from himself.* 
 
 III. 
 
 JOINT PKINCIPAL8. 
 
 § 69. When Power of Appointment is joint. The power of 
 appointing agents may rest with a single individual or with a 
 
 843; Rice v. Wood, 113 Mass. 133, 18 
 Am. Rep. 459; Bell v. McConnell, 37 
 Ohio St. 396; 41 Am. Rep. 528; Stew- 
 art V. Mather, 32 Wis. 344; Farnsworth 
 t.Brunque8t,36 Wis. 202; Farnsworth 
 V. Hemmer, 1 Allen (Mass.), 494: 79 
 Am. Dec. 756; Walker©. Osgood, 98 
 Mass. 348, 93 Am. Dec. 168; Raisin «. 
 Clark, 41 Md. 158, 20 Am. Rep. 66; 
 Lynch v. Fallon, 11 R. I, 311, 23 Am. 
 Rep. 458 ; Pugsley v. Murray, 4 E. D. 
 Smith (N. Y.),245; Everhart*. Searle, 
 71 Penn. St. 256; Scribner «. Collar, 
 40 Mich. 375, 29 Am. Rep. 241. 
 
 ' Adams Mining Co. •. Senter, 26 
 Mich. 73; Colwell v. Keystone Iron 
 Co. 86 Mich. 53; Fitzsimmons v. 
 Southern Express Co. 40 Qa. 330, 2 
 Am. Rep 577; Rowe ». Stevens, 53 
 N. T. 621; Joslin v. Cowee, 56 N. Y. 
 826; Rolling Stock Co. v. Railroad, 34 
 Ohio St. 450; Leekins v. Nordyke, 66 
 Iowa, 471; Alexander «. Northwest- 
 
 4 49 
 
 em University, 57 Ind. 466; and cases 
 in preceding note. 
 
 * Fitzsimmons ». Southern Express 
 Co. supra; DeSteiger e. Hollington, 
 17 Mo. App 387; Robinson v. Jarvis, 
 25 Mo. App, 421, and cases in preced- 
 ing notes. 
 
 •Ames «. Port Huron Log Driving 
 Co. 11 Mich. 139; 83 Am. Dec. 731; 
 Van Epps v. Van Epps, 9 Paii^e, (N. 
 Y.) 237; Dutton v. Willner, 52 N Y. 
 319; Conkey v. Bond, 36 N. Y. 430; 
 Keighler v. Savage Mnfg. Co. 12 Md. 
 383. 71 Am Dec. 600; Ruck man v. 
 Bergholz, 37 N. J. L. 437; Bain v. 
 Brown, 56 N. Y. 285; Kerfoot v. Hy- 
 man, 52 111. 512; Parker v. Vose, 45 
 Me. 54; White v. Ward, 26 Ark. 445; 
 Stewart v. Mather, 32 Wis. 344; 
 Marsh v. Whitmore, 21 Wall. (U. S.) 
 178. 
 
 * See post § 876.
 
 § 70. THE LAW OF AGENCY. [Book I. 
 
 number of individuals. It rests with a single individual in those 
 cases in which he is the only person authorized to make the ap- 
 pointment, and also in those cases in which he, in common with 
 others or as the representative of others, has the power to make 
 it. It rests with a number of individuals in those cases where 
 the conjoint action of all is necessary in dealing with the subject 
 matter.' The general rule that whatever one may lawfully do 
 when acting in his own right and in his own behalf, he may law- 
 fully do by an agent, and the converse of that rule, will aid in 
 determining where the power of appointment lies. 
 
 In those cases where the interest of all is common, and each is 
 authorized to act for all, either may ordinarily appoint an agent 
 whose acts will be the acts of all ; but in those cases where the 
 interest of each is several, distinct or divided, and in those where 
 the subject matter can only be affected by the united action of 
 all, neither can bind the others by the appointment of an agent. 
 
 § 70. Partners. It is one of the fundamental principles in 
 the law of partnership, that within the scope of the partnership 
 business each partner is the agent of all the other partners for 
 the transaction of the partnership affairs, and his acts are the acts 
 of all. His appointment of an agent, therefore, within the same 
 limits, is the appointment of all, and the acts of the agent are 
 the acts of all.' 
 
 8 71. Joint Tenants and Tenants in Common. In the case 
 of co-tenants, on the other hand, there is no implied authority in 
 each to act for all, and the appointment of an agent by one will, 
 therefore, bind that one only.' All may, of course, join in the 
 appointment or subsequently assent to it, and thus make the 
 agent the agent of them all.* 
 
 § 72. Associations, Clubs, Societies and Committees. The 
 
 * Ewell's Evans' Agency, 33. ally, but of the partnership as a 
 
 *Carley v. Jenkins, 46 Vt. 721; whole. Johnston v. Brown, 18 La. 
 
 Coons «. Renick, 11 Tex. 134, 60 Am. Ann. 830; Deakin v. Underwood, 37 
 
 Dec. 230; Banner Tobacco Co. v. Jen- Minn. 98, 6 Am. St. Rep. 827. 
 
 ison, 48 Mich. 459; Harvey v. Mc- sPerminter v. Kelly, 18 Ala. 716, 
 
 Adams, 33 Mich. 472; Whealley «. 54 Am. Dec. 177; Keay v. Fen wick, 
 
 Tutt, 4 Kans. 240; Charles t». Eshle- 1 C. P. Div. 745, 18 Eng. Rep. 294; 
 
 man, 5 Col. 107; Beckham v. Drake, Corlies v. Cumming, 6 Cow. (N. Y.) 
 
 9 M. & W. 79. See ante, § 45. 181 ; Noe v. Christie, 51 N. Y. 270; 
 
 The agent of a partnership is not Story on Agency, § 39. 
 
 the agent of the partners individu- ♦ Keay v. Fenwick, supra. 
 
 50
 
 Chap. III.] 
 
 JOINT PRINCIPALS. 
 
 §72. 
 
 question frequently arises whether the members of voluntary 
 unincorporated associations, clubs, societies and committees are 
 jointly liable as principals upon contracts purporting to be made 
 in their behalf in carrying out the enterprises which they un- 
 dertake. Two classes of cases arise in connection with such 
 contracts. One of these is where it is sought to charge the 
 entire membership as principals in dealings had with a smaller 
 number alleged to have been the agents of all. The other is 
 where it is attempted to hold this smaller number — the alleged 
 agents in the former class — directly responsible as principals. It 
 is with the former class only that it is here proposed to deal, the 
 latter being reserved for subsequent consideration.* 
 
 And in the first place it may be observed that it is now quite 
 generally settled that such organizations are not partnerships » 
 and that the members are not liable as partners,' but that their 
 liability is to be determined upon the rules of principal and 
 agent,* The principle which applies here is the familiar one that 
 
 ' For casea of the other class, see 
 post, % 557. 
 
 sAsh V. Guie, 97 Penn. St. 493, 89 
 Am. Rep. 818; Burt v. Lathrop, 52 
 Mich. 106; Flemyng v. Hector, 2 M. 
 & W. 172; Caldicott v. Griffiths, 8 
 Exch. 898; 22 Eng. L. & Eq. 527; 
 Todd V. Emly. 7 M. & W. 427, s. c. 8 
 M. & W. 505; Lafoad v. Deems, 81 
 N. Y. 514; Waller v. Thomas, 42 
 How. Pr. (N. Y.) 344. 
 
 » Lewis c. Tilton, 64 Iowa, 220, 52 
 Am. Rep. 436, and cases cited in fore- 
 going note. 
 
 * Flemyng v. Hector, supra; Todd 
 t». Emly, supra, and cases cited in fol- 
 lowing note. 
 
 In Flemyng v. Hector, Lord Abin- 
 0KR, C. B., says: "I had thought, 
 but without much consideration, at 
 the Assizes, that this sort of institu- 
 tions were of such a nature as to come 
 under the same view as a partnership, 
 and that the same incidents might be 
 extended to them; that where there 
 were a body of gentlemen forming a 
 club, and meeting together for one 
 common object, what one did in re- 
 
 51 
 
 spect of the society bound the others, 
 if he had been requested and had 
 consented to act for them. Several 
 cases have been cited in the course of 
 the argument, which do not apply, 
 with the exception of one of them, 
 to societies of this nature. Trading 
 associations stand on a very different 
 footing. Where persons engage in a 
 community of profit and loss as part- 
 ners, one partner has the right of 
 property for the whole; so, any of 
 the partners has a right, in any ordin- 
 ary transactions, unless the contrary 
 be clearly shown, to bind the partner- 
 ship by a credit; — he might accept a 
 bill of exchange in the name of the 
 firm, and as between the firm and 
 strangers the partnership would be 
 bound, although there might be an 
 understanding in the firm that he was 
 not to accept. It appears to me that 
 this case must stand upon the ground 
 which the defendant put it, as a case 
 between principal and agent and I am 
 the more inclined to look at it in that 
 light, by an observation made * * * in 
 the course of the axgument yesterday.
 
 § 72. THE LAW OF AGENCY. [Book I. 
 
 no person can be charged upon a contract alleged to have been 
 made upon his responsibility, unless it can be shown that to the 
 making of that contract upon his responsibility, he has given his 
 express or implied assent,' 
 
 This assent may be expressed in a variety of ways, and at one 
 of several times. It may have been given in advance by con- 
 senting to be bound by all contracts of a certain kind that may 
 be made in the future ; it may be given contemporaneously with 
 the making of the contract; and it may also be inferred from a 
 subsequent ratification. 
 
 Thns where it is a part of the scheme or purpose of the organ- 
 ization as provided by its articles of association, charter, constitu- 
 tion or by-laws, that certain contracts or obligations in behalf and 
 upon the credit of the organization, may be entered into, either 
 upon the vote of a majority or at the discretion of a committee 
 or officer, or upon any other lawful contingency or event, every 
 person who becomes a member, by so doing impliedly consents, 
 in advance, to be bound by any contract or obligation of the 
 kind contemplated, entered into under the circumstances pre- 
 scribed." 
 
 Where, however, there is no such undertaking to abide by the 
 action of the majority, or to be bound by contracts entered into 
 by the committee or officers, those only who authorize the mak- 
 ing of the contract will be bound. Hence if there be a division 
 
 on the subject of bills of exchange. I the club, which is to be found in its 
 
 apprehend that one of the members own rules." 
 
 of this club could not bind another ' Devoss v. Gray, 22 Ohio St. 169; 
 
 by accepting a bill of exchange, act- Newell v. Borden, 128 Mass. 31 ; Vol- 
 
 ing as a committee man, even where ger v. Ray, 131 Mass. 439; Ash ». 
 
 there might be an apparent necessity Guie, $upra; Ray v. Powers. 134 
 
 to accept, as in the case of a purchase Mass. 22; Ridgely v. Dobson, 3 Watts 
 
 of a pipe of wine: the party might & S. (Penn.) 118; Lewis e. Tilton, 
 
 draw a bill, but I do not think he supra; Heath v. Goslin, 80 Mo. 310, 
 
 could accept the bill to bind the mem- 50 Am. Rep. 505; Burt v. Lathrop, 
 
 hers of the club. It is, therefore, a 52 Mich 106; Rice v. Peninsular 
 
 question here how far the committee, Club, 52 Mich, 87; Flemyng v. Hec- 
 
 who are to conduct the affairs of this tor, 2 M. & W, 172; Sproat v. Porter, 
 
 club as agents, are authorized to enter 9 Mass. 300. 
 
 into such contracts as that upon 'Todd v. Emly, 7 M. & W. 427; 
 
 which the plaintiffs now seek to bind Cockerell v. Aucompte, 2 Com. B. 
 
 the members of the club at large; and (N. S.) 440; Flemyng v. Hector, 2 M. 
 
 that depends on the constitution of & W, 172; Devoss v. Gray, supra. 
 
 52
 
 Chap. III.] JOINT PKINCIPAL8. § 73. 
 
 of opinion and the contract is authorized by a majority only, the 
 majority only can be held responsible." 
 
 But though a member at the time dissents, yet if he subse- 
 quently concurs or acquiesces in the making of the contract, he 
 will be bound in the same manner as though his assent had been 
 previously given.* 
 
 § 73. Same Subject— Illustrations. In a leading case upon 
 this subject, it was sought to hold certain members of an unin- 
 corporated club liable for work done and goods supplied to the 
 club upon the order of a standing committee appointed by the 
 club. It appeared that the club, which was one organized for 
 the purpose of furnishing refreshments and entertainment to its 
 members, had adopted certain rules by which each member was 
 to pay admission and annual fees, and was also to pay daily for 
 his accommodations at the club. A committee was appointed to 
 manage the affairs of the club, but it appeared that the rules of 
 the club gave the committee no authority to pledge the personal 
 credit of the members. The plaintiffs attempted to hold the 
 defendants personally responsible by virtue of their membership 
 only, and offered no evidence that they had ever expressly or 
 impliedly assented to the making of the particular contract sued 
 upon. But the court held that in the absence of such evidence, 
 the defendants were not liable and that mere membership in the 
 club was not sufficient.' So, where an action was brought to 
 
 * Todd t». Emly, supra. given authority to the committee to 
 
 • Heath r. Qo8lin,«Mpra; Eichbaum discharge the contract out of the 
 «. Irons, 6 Watts & S. (Penn.) 67, 40 funds in their hands: but it is con- 
 Am. Dec. 540. tended on the part of the committee 
 
 apiemyng v. Hector, 2 M, & W. that they had a right to pledge the 
 
 171; and this case was followed in the personal credit of the members, and 
 
 similar case of Todd v. Emly, 7 M. & therefore to make these defendants 
 
 W. 427, s. c. 8 Id. 505. liable. I think they have not. When 
 
 In Flemyng v. Hector, Alderson, I come to look at the rules of the 
 
 B., said: "This question turns sim- club, which are to be the guide by 
 
 ply on the authority which the parties which we are to act, and which con- 
 
 who made the contract had to pledge Btitute the only authority the commit- 
 
 the credit of the defendants to the tee had, I do not find anything to 
 
 plaintiffs. Taking it that the com- lead me to the conclusion that the 
 
 mittee have made the contract, and authority of the committee extended 
 
 that they are by the rules of the to tho right of pledging the personal 
 
 society authorized to manage the liability of any of the members of it; 
 
 affairs of the club, it may follow on the contrary, I find the members 
 
 from that that the defendants have of the club carefully provided a fund, 
 
 53
 
 § 73. THE LAW OF AGENCY. [Book L 
 
 charge certain members of an unincorporated religious society 
 for services performed in building a church edifice, it was held 
 that even if it were to be assumed that the defendants were 
 members because it was alleged that they were deacons of the 
 church, still their liability as principals would not follow, because 
 a member of an unincorporated religious society cannot be held 
 personally responsible for the debts of the society unless it be 
 shown that in some way he had sanctioned or acquiesced in their 
 creation.' 
 
 So at a meeting of a voluntary unincorporated association 
 organized for the purpose of encouraging the breeding and exhi- 
 bition of fowls, a premium list for an exhibition to be given was 
 adopted. An action in equity was afterwards brought to compel 
 the defendants, as members, to contribute their proportion of the 
 expenses incurred in holding the exhibition and paying the 
 premiums. But the court held that mere membership would 
 not bind a member for any further payment than the initiation 
 fee and annual assessment, and that only such members as par- 
 ticipated in the vote to hold the exhibition and award the prem- 
 iums or as assented to be bound by such vote, would be bound 
 thereby. It therefore became a question of fact whether any 
 or all of the defendants so participated or assented. In deter- 
 mining the question of such participation or assent, the testimony 
 of those present was admissible and the formal record of the 
 meeting was not the only means of proof, unless made so by 
 some rule or regulation of the association.* 
 
 This assent need not always be declared in express terms. It 
 may be, and often is, in this, as in other cases, inferred from the 
 conduct of the parties. Thus a school-board had for years em- 
 ployed and paid the plaintiff as a teacher. The president of the 
 board employed her for another year and she performed the 
 service, but not being paid in full, she brought suit against the 
 
 which was to be collected before they pledge the credit of individual mem- 
 became members of the club, and bers; and if they do deal on credit, it 
 having collected that fund and pro- is their own affair, done on the faith 
 vided it, the committee are to manage of the money in their hands, which 
 it. Then what is it the committee would enable them to pay their ac- 
 are to manage? Why, the fund so counts." 
 
 provided, and to manage the club ' DeVoas v. Gray, 22 Ohio St. 189. 
 
 upon those terms. If that be so, the * Ray v. Powers, 134 Mass. 22. 
 committee are not authorized to 
 
 54:
 
 Chap, III.] JOINT PKINCIPALS. § 74. 
 
 board for the balance. Some of the defendants objected that 
 they had never authorized the president to make the contract, 
 but the court said : " There is ample (evidence) in the case to 
 submit to the jury from which the knowledge and co-operation 
 of all of the defendants may be justly inferred. They were the 
 acting board intrusted with the management of the school. They 
 had for years been employing and paying this woman. They 
 knew that she was continuing to teach and being paid out of the 
 funds. They had not withdrawn from their self-imposed office 
 as a managing board." ' 
 
 So certain members of a committee were held personally liable 
 for a public dinner ordered by the committee, upon the ground 
 that, though they opposed the resolution while it was under 
 consideration, they had at last submitted to the majority and 
 made the resolution their own.* 
 
 § 74. Same Subject— The Rule stated. It is believed that 
 Ihe following rule embraces the authorities upon this subject : 
 
 1. That mere membership in such an association, society, club 
 or committee does not make the member personally liable upon 
 contracts purporting to be made on its behalf, unless there is 
 something in the charter, by-laws or articles of association auth- 
 orizing the pledging of the credit of the association, to which 
 he is presumed to hare assented by becoming a member, and 
 then only in those cases where the contract is within the limits 
 there prescribed. 
 
 2. That except in the case last mentioned, the member can 
 only be made liable upon proof of his express or implied assent 
 
 * Heath v. Goslin, 80 Mo. 310, 50 meeting was dissolved and the order 
 
 Am. Rep. 505. given." It is evident, however, that 
 
 sEichbaum v. Irons, 6 Watts & S. the Chief Justice did not mean to be 
 
 (Penn.) 67. 40 Am. Dec. 540. In this understood as holding that liability 
 
 case, Chief Justice Gibson said: attached to the mere fact of member- 
 
 " Every member present assents be- ship or that the defendants could be 
 
 forehand to whatever the majority bound without their assent, but that 
 
 may do, and becomes a party to acts the assent of the defendants was to 
 
 done, it may be, directly against his be inferred from their conduct. In 
 
 will. If he would escape responsi- another part of the opinion he says: 
 
 bility for them, he ought to protest " Did the defendants then concur in 
 
 ftnd throw up his membership on the the order given for the dinner in ques- 
 
 ■pot. and there was no evidence that tion? If they did not, the plaintiff 
 
 any of the defendants did so. On the cannot recover." , 
 
 contrary they all remained till the 
 
 55
 
 § 75. THE LAW OF AGKNCY. [Book I. 
 
 to the contract ; but this may be shown either by his previous 
 consent or his subsequent adoption or by his acquiescence in an 
 established course of dealing. 
 
 § 75. Inchoate Corporations. A corporation is not respon- 
 sible for acts performed or contracts entered into before its 
 organization by its promoters or other persons assuming to bind 
 it in advance.* Having as yet no corporate existence it is, of 
 course, incapable of entering into contracts, or appointing officers 
 or agents. When its organization is effected, however, it may 
 expressly or impliedly assume the responsibility of such acts 
 or contracts, if within its corporate powers, and thus make them 
 the valid obligations of the corporation. Such an assumption 
 may, as in other cases, be implied where the corporation, with 
 knowledge of the facts, appropriates to itself the benefits and 
 advantages derived from the act or contract of the promoters, 
 for " it cannot take the benefit of the contract, without perform- 
 ing that part of it which the projectors undertook that it should 
 perform." * 
 
 IV. 
 
 JOINT AGENTS. 
 
 § 76. Authority to Several. The authority that may be dele- 
 gated to a single agent may, generally, be likewise delegated to 
 two or more. Most of the rules applicable to a single agent, 
 apply equally when the agency is joint. A distinction, however, 
 is to be made in the manner of the execution of a joint agency 
 based upon the question whether the agency be of a public or a 
 private nature. 
 
 S 77. Private Agency must be executed by all. Where au- 
 thority is conferred upon two or more agents to represent their 
 principal in the transaction of business of a private nature, it 
 
 * Morawetz on Corporations, § 547; Franklin Fire Ins. Co. v. Hart, 31 Md. 
 
 Paxton Cattle Co. «. First Nat. Bank, 60; Western Screw Co. v. Cousley, 72 
 
 21 Neb. 631, 59 Am. Rep. 852; Bell's 111. 531. 
 
 Gap R. R. Co. V. Christy, 79 Penn. • Bell's Gap R. R. Co. v. Christy, 
 
 St. 54, 21 Am. Rep. 39; Rockford, $upra; Rockford, &c., R. R. Co. e. 
 
 Ac, R. R. Co. V. Sage, 65 111. 328, 16 Sage, supra; Western Screw Co. e. 
 
 Am. Rep. 587; New York, &c., R. Cousley, tupra. See 16 Am. L. Rev. 
 
 R. Co. e. Ketchum, 27 Conn. 170; 857 and 671. See post, % 125. 
 
 56
 
 Chap. 111.] 
 
 JOINT AGENTS. 
 
 §77. 
 
 may well b6 presumed that it was so conferred upon them all 
 from considerations of a personal nature and in order to derive 
 the benefit of their combined experience, discretion or ability.* 
 It is, therefore, the rule that sucli an agency will be presumed 
 to be joint, and it can be performed by them only jointly when 
 no intent appears that it may be otherwise executed." If, how- 
 ever, it is shown, by the instrument conferring the power or 
 otherwise, that it was the intention that a part might execute it, 
 such execution will be suflicient.' So where the agency is joint 
 or several, it must be executed by all or one, and not by an inter- 
 mediate number, unless such an intention clearly appears.* 
 
 * Commonwealth v. Commissioners, 
 9 Watts (Penn.) 470. 
 
 a Cedar Rapids, «&c. R. R. Co. t>. 
 Stewart. 25 Iowa, 115; Kupfer v. Au 
 Gusta, 12 Mass. 185; Caldwell*. Har- 
 rison, 11 Ala. 755; Soens®. Racine, 10 
 Wis. 271; White v. Davidson, 
 8 Md. 169; 63 Am. Dec. 699; 
 Rogers «. Cruger, 7 Johns. (N. 
 Y.) 557; Damon v. Qranby, 2 Pick. 
 (Mass.) 345; Sutton v. Cole, 3 Id. 232; 
 Woolsey v. Tompkins. 23 Wend. (N. 
 Y.) 324; Hartford F. Ins. Co. v. Wil- 
 cox, 57111. 180; Scott v. Detroit, &c. 
 Society, 1 Doug. (Mich.) 119; Low v. 
 Perkins, 10 Vt. 532, 33 Am. Dec. 217; 
 Towne v. Jaquith, 6 Mass. 46; Heard 
 •. March, 12 Cush. (Mass.) 580; Haw- 
 ley «. Keeler, 53 N. Y. 114; Johnston 
 •. Bingham, 9 W. & 8. (Penn.) 56. 
 
 As in the case of arbitrators : Moore 
 •. Ewing. Coxe (N. J.) 144, 1 Am. 
 Dec. 195; Blin «. Hay, 2 Tyler (Vt.), 
 804, 4 Am. Dec. 738; Green v. Miller, 
 8 Johns. (N. Y.) 39. 5 Am. Dec. 184; 
 Patterson v. Leavitt, 4 Conn. 50, 10 
 Am. Dec. 98; Wilder v. Ranney, 95 
 N. Y. 7; Brennan c.Willson, 71 N. Y. 
 502; Penn v. Evans, 28 La. Ann. 576. 
 
 " It is well settled," says Andrews 
 J. in Hawley v. Keeler, supra, "as a 
 general doctrine in the law of agency, 
 that when an authority to act in a 
 matter of a private nature is con- 
 ferred by the principal upon more 
 
 than one person, all must act in the 
 execution of the power. This is the 
 construction which the law puts upon 
 the power, following the supposed 
 intention of the parties, and there 
 must, ordinarily be a joint execution 
 of the agency. The authority may 
 be conferred in such terms as to au- 
 thorize a several execution, or an exe- 
 cution by a majority or other num- 
 ber; and in the absence of express 
 words it may have been exercised un- 
 der such circumstances as will justify 
 the inference that the principal 
 intended that less thao the whole 
 number might act; in which case ho 
 would be bound to those who had 
 acted upon such inference. The gen- 
 eral rule that a joint execution must 
 be had of an authority given to 
 several, has been made to yield for 
 the benefit of trade and to meet sup- 
 posed necessities, in contracts made 
 by one of several joint owners of 
 ships, and in case of sales made by 
 one of two factors, of goods con- 
 signed to them for sale." 
 
 •Cedar Rapids, »fcc. R. R. Co. v. 
 Stewart, 25 Iowa, 115; Hawley v. 
 Keeler, 53 N. Y. 114. When usnga 
 will justify, see Godfrey v. Saunders, 
 3 Wils. 94; Willet «. Chambers, 
 Cowp. 814. 
 
 * Guthrie v. Armstrong, 5 B. & Aid. 
 628. 
 
 67
 
 § 78. TUE LAW OF AGENCY. [Book i. 
 
 Where, however, the authority is conferred upon a partnership, 
 it may be executed by one of the partners.' 
 
 Where the agency is clearly joint, the death or disability of one 
 of the agents terminates the agency unless it be coupled with an 
 interest in the survivors.* 
 
 § 78. Public Trust or Agency may be executed by a Majority. 
 Wliere, however, the trust or agency is created by law, or is 
 public in its nature, the rule is otherwise, and while all of the 
 trustees or agents must be present to deliberate, or must be duly 
 notified and have an opportunity to be present, yet a majority of 
 them, if present, may act.' 
 
 The rule which applies to these cases was well stated by Chief 
 Justice Shaw, as follows: "Where a body or board of officers 
 is constituted by law to perform a trust for the public, or to 
 execute a power or perform a duty prescribed by law, it is not 
 necessary that all should concur in the act done. The act of the 
 majority is the act of the body. And where all have due notice 
 of the time and place of meeting in the manner prescribed by 
 law, if so prescribed ; or by the rules and regulations of the body 
 itself, if there be any ; otherwise, if reasonable notice is given, 
 and no practice or unfair means are used to prevent all from at- 
 tending and participating in the proceeding, it is no objection 
 that all the members do not attend, if there be a quorum." * 
 
 > Deakin v. Underwood, 87 Minn. Tabor, 52 Vt. 87. 36 Am. Rep. 734; 
 
 98, 5 Am. St. Rep. 827. Withnell r. Gartham, 6 T. R. 388; 
 
 « Salisbury «. Brisbane, 61 N. Y. Grind ley v. Barker, 1 B. & P. 229; 
 
 617; Boone v. Clark, 3 Cranch (U. S. Kingsbury*. School District.l2 Mete. 
 
 C. C), 390; Hartford F. Ins. Co. «. (Mass.) 99; Cooley v. O'Connor, 12 
 
 Wilcox, 57 111. 180. Wall. (U. S.) 391; Baltimore Tura- 
 
 •McCready v. Guardians of the pike. Case of, 5 Binn. (Penn.) 481; 
 
 Poor, 9 Serg. & R. (Penn.) 94, 11 Am. Louk v. Woods, 15 111, 256; Jefferson 
 
 Dec. 667; Scott u Detroit. «&c. Soci- County c. Slagle, 66 Penn. St. 202; 
 
 ety, 1 Doug. (Mich.) 119; Jewett v. Austin v. Helms, 65 N. C 560; Peo- 
 
 Alton, 7 N. H. 253; Caldwell v. Har- plec. Nichols, 52 N. Y. 478, 11 Am. 
 
 rison, 11 Ala. 755; Soens v. Racine, 10 Rep. 734; Williams v. School District, 
 
 "Wis. 271; Despatch Line v. Bellamy 21 Pick. (Mass.) 75, 32 Am. Dec. 243. 
 
 Mnfg. Co. 12 K H. 205. 37 Am Dec. ^In Williams v. School District, 
 
 203; First National Bank v. Mount supra. 
 
 58
 
 Chap. IV.] 
 
 APPOINTMENT OF AGENTS. 
 
 §79. 
 
 CHAPTEK lY. 
 
 OF THE APPOINTMENT OF AGENTS AND THE EVIDENCE 
 
 THEREOF. 
 
 §79. Purpose of Chapter. 
 
 1. How Agents mat be appointed. 
 
 80. Only by the Will of the Princi- 
 
 pal. 
 
 81. How Principal's Will may be 
 
 expressed. 
 
 82. Authority by Law and of Neces- 
 
 sity. 
 
 83. Authority by Implication — Pre- 
 
 sumption — Estoppel. 
 84 Same Subject— The Rule stated. 
 
 85. Same Subject — Limitations of 
 
 this Rule. 
 
 86. Same Subject— What sufficient 
 
 — Instances. 
 
 87. Same Subject— What not suffi- 
 
 cient — Instances. 
 
 88. Authority by express, unwrit- 
 
 ten Appointment. 
 
 89. By Parol — To sell or lease 
 
 Lands. 
 
 90. By Parol — To demand and col- 
 
 lect Rents. 
 
 91. By Parol — To execute written 
 
 Instruments not under Seal. 
 
 92. What Writing sufficient when 
 
 Writing required. 
 
 93. Authority to execute sealed In- 
 
 struments must be under Seal. 
 
 Same Subject— Authority to fill 
 
 Blanks in Deeds. 
 95. Same Subject — How when Seal 
 
 superfluous. 
 How in Principal's Presence 
 
 and by his Direction. 
 Appointment by Corporations. 
 Same Subject — To execute 
 
 Deed of corporate Realty. 
 
 §94 
 
 96. 
 
 97. 
 
 9«. 
 
 II. Evidence of Appointment. 
 
 99. Purpose of the Subdivision. 
 
 100. Agent's Authority cannot be 
 
 established by his own State- 
 ments or Admissions. 
 
 101. Agent's Authority cannot be 
 
 proved by general Reputation. 
 
 102. Agent must be called as a Wit- 
 
 ness. 
 
 103. Written Authority must be pro- 
 
 duced — When. 
 
 104. Construction of Writing for 
 
 Court. 
 
 105. Effect of undisputed Facts to 
 
 be determined by Court. 
 
 106. In other Cases. Question is for 
 
 the Jury. 
 
 107. Authority by Ratification. 
 
 108. Acceptance of Agency by 
 
 Agent. 
 
 § 79. Purpose of Chapter. It is the purpose of this chapter 
 to consider the different methods by wliich an agent may be ap- 
 pointed, and to determine what shall be the evidence of such 
 appointment. 
 
 59
 
 § 80. THE LAW OF AGENCY. [Book I. 
 
 I. 
 
 HOW AGENT MAY BE APPOnfTKD. 
 
 § 80. Only by the Will of the Principal. It has been said to 
 be the general rule of the law that no one can become the agent 
 of another except by the will of the principal.* But this rule is 
 subject to the exception of those cases where an agency may be 
 created by law, even against the will of the principal, — an excep- 
 tion which will be hereafter noticed." 
 
 § 81. How Principal's Will may be expressed. This will of 
 the principal may be expressed in a great variety of ways ; in- 
 deed, its form of expression is as various as the methods of enter- 
 ing into contracts generally. Thus an agent may, in a given 
 ease, be appointed by a written instrument or by word of mouth. 
 His appointment may be implied from the conduct of the parties, 
 or his previously unauthorized acts may be adopted and ratified 
 by the principal. The written authority may be under seal or 
 otherwise. There will be found cases where the authority must 
 be in writing, and others where the writing must be under seal. 
 
 § 82. Authority by Law; An agency may be created by law. 
 Thus it is said by a learned judge : " In those cases where the 
 law authorizes a wife to pledge her husband's credit even against 
 his will, it creates a compulsory agency, and her request is hia 
 request." * 
 
 Authority of Necessity. So it has been said, " if the husband 
 turns his wife away, it is not unreasonable to say that she has an 
 authority of necessity." * Of this nature has sometimes been said 
 to be the authority of a ship's master to contract for necessary 
 repairs. 
 
 8 83. Authority by Implication— Presumption— Estoppel. A 
 large portion of the transactions of the modern business world is 
 carried on by simple and informal means. A word or look or 
 gesture often suffices to give assent to great undertakings or to 
 set in motion the complicated machinery of commerce.* Little, 
 
 •Evans on Agency, Ewell's Ed. 16; ^Poat, §82. 
 Pole ». Leask, 28 Beav 562; String- » Holmes, J. in Benjamin e. Dock- 
 ham V. St. Nicholas Ins. Co.4 Abb. ham. 134 Mass. 418. 
 App. Dec. (N. Y.)315; McGoldrickc. « Pollock, C. B. in Johnston*. 
 Willits, 52 N. Y. 612; Graves v. Hor- Sumner. 3 Hurl. & Nor. 261. 
 ton, — Minn. — , 35 N. W. Rep. 668. • A forcible illustration of this may 
 
 60
 
 Chap. IV.] APPOINTMENT OF AGENTS. § 81. 
 
 often, is said or written, bnt that little carries with it a train of 
 legal consequences no less certain and definite than if the whole 
 were included in the spoken or written words. This being so 
 good faith is strenuously insisted upon, and one who by his con- 
 duct has led an innocent party to rely upon the appearance of 
 another's authority to act for him, will not be heard to deny the 
 agency to that party's prejudice.' Hence it is that in many cases 
 the existence of an agency is implied or presumed from the 
 words or conduct of the parties, and this, too, although the crea- 
 tion of an agency was not within their immediate contemplation. 
 
 § 84. Same Subjoot— The Bulo stated. It may therefore be 
 stated as a general rule that whenever a person has held out 
 another as his agent authorized to act for him in a given capacity ; 
 or has knowingly and without dissent permitted such other to act 
 as his agent in such capacity; or where his habits and course of 
 dealing have been such as to reasonably warrant the presumption 
 that such other was his agent, authorized to act in that capacity ; 
 whether it be in a single transaction or in a series of transactions, 
 his authority to such other to act for him in that capacity will be 
 conclusively presumed, so far as it may be necessary to protect the 
 rights of third persons who have relied thereon in good faith 
 and in the exercise of reasonable prudence, and he will not bo 
 permitted to deny that such other was his agent, authorized to do 
 the act that he assumed to do, provided that such act is within 
 the real or apparent scope of the presumed authority.* 
 
 be seen upon any Board of Trade, liable for the assumed act of another 
 where according to local usage or as his agent on the principle of estop- 
 fixed rule, a nod or the holding up of pel by suffering that other to repre. 
 one or more fingers, serves to give sent himself as his agent with power 
 assent to the making of a sale and to make the particular contract." 
 the specifying of the quantity. So Fanning v. Cobb, 20 Mo. App. 577; 
 the nod of a purchaser at an auction DeBaun v. Atchison, 14 Mo, 543; 
 is sutBcient to effect a purchase and Rice v. Qroffman, 56 Mo. 434; Cup- 
 to authoriza the entering of his name pies v. Whelan, 61 Mo. 583. 
 upon the memorandum of the sale. sPursley v. Morrison, 7 Ind 356, 
 *" The general rule," says Judge 63 Am Dec. 424; Hooe v. Oxley. 1 
 Thompson, " undoubtedly is that the Wash. (Va) 19, 1 Am. Dec. 425; 
 liability of a principal for the con- Eagle Bank v. Smith, 5 Conn. 71, 13 
 tracts of liis a^^eat is predicated either Am. Dec. 37, Lyell v. Sanbourn, 2 
 upon a previous authorization or a Mich. lO'J; Thompson v. Bell, 10 
 subsequent ratificatiim. But there Exch. 10; Commonwealth «. Holmes, 
 are cases where a person will become 119 Mass. 195; Croy «. Busenbark, 72 
 
 61
 
 § 85. TUE LAW OF AGENCY. [Book 1. 
 
 S 85. Same Subject— limitations of this Rule. But it is not 
 to be inferred, however, that authority is, in any case, to be im- 
 plied without reason, or presumed without cause. The implica- 
 tion must be based upon facts, and cannot arise from any mere 
 argument as to the convenience, utility or propriety of its exist- 
 ence.* So, too, the facts from which it is sought to be implied 
 are to be given their natural, legal and legitimate effect, and this 
 effect is not to be expanded or diminished in order to establish 
 or overthrow the agency. And again, when implied, the agency 
 is to be limited in its scope and operation to the reasonable and 
 necessary requirements of the case which called it into being. 
 If implied from the ratification or adoption of acts of a certain 
 kind, its scope is to be limited to the performance of acts of that 
 kind, and it can not be construed as warranting the performance 
 of acts of a different kind.' 
 
 8 86. Same Subject— What suflQ.cient— Instances. Illustrations 
 of this rule are numerous. Thus where one stands by and permits 
 another, in his presence, to make a contract for him as his agent, 
 without disclosing the want of authority, he will be estopped 
 from denying the authority ;* and one who knows that another is 
 collecting money on his account and does not object, but allows 
 hira to keep it as a loan, makes him his agent to collect it.* So 
 where it was shown that a son had for years been signing his 
 
 Ind. 48: Meyer v. King, 29 La. Ann. Vt. 130; Chicago, &c. Ry. Co. •. 
 
 567; Thurberc. Anderson, 88 111. 167; James, 23 Wis. 194; Rice v. Groff- 
 
 Faye. Richmond, 43 Vt. 25; Weaver tJ. mann, 56 Mo. 434; Columbia Bridge 
 
 Ogletree, 89 Qa. 586; Rimmey v. Get- Co. v. Geisse, 38 N. J. L. ;19; Bron- 
 
 terman, 63 Md. 424; Sorrellc. Brews- son v. Chappell, 12 Wall. (U. S.) 681; 
 
 ter, 1 Mich. 373; Grover & Baker Tier*. Lampson, 35 Vt. 179, 82 Am. 
 
 Sew. Mach. Co. v. Polhemus, 34 Dec. 634. 
 
 Mich. 247; Connecticut Mut. L. Ins. i See Bickford v. Menier, 107 N. Y. 
 
 Co. V. Pulte, 45 Mich. 113; Brockel- 490, 26 Cent. L. Jour, 236. 
 
 bank v. Sugrue. 5 C. «&. P. 21; Sav- 2 gee Graves v. Horton, Minn. 35 
 
 ings Fund Society v. Savings Bank, N. W. Rep. 568; McAlpin v. Cassidy, 
 
 36 Penn. St. 498, 78 Am. Dec. 390; 17 Tex. 449, post §| 274, 313. 
 
 Farmers' Bank v. Butchers' Bank, 16 'James v. Russell, 93 N. Car. 194. 
 
 N. Y. 145; Kiley v. Forsee, 57 Mo. < Simon c. Brown, 38 Mich. 653. 
 
 390; Kelsey v. National Bank, 69 One who knowingly permits another 
 
 Penn. St. 426; St. Louis, &c. Co. v. to make collections for him is bound 
 
 Parker, 59 111. 23; Vicksburg, &c. R. by payments made to such other. 
 
 R Co. «. Ragsdale, 54 Miss. 200: Sax v. Drake, 69 Iowa, 760; Quinn «. 
 
 Summerville v. Hannibal, &c. R. R. Dresbach, 16 Pac. Rep. 763. 
 Co. 62 Mo. 391; Walsh «. Pierce, 12 
 
 62
 
 Chap. lY.] APPOINTMENT OF AGENTS. § 86. 
 
 father's name to his own notes to the knowledge of the father 
 who took no steps to prevent it, and gave no notice that it was 
 unanthorized, the son's authority to so bind the father was pre- 
 sumed ;' BO where a son had been, to his father's knowledge, in 
 the habit of attending the father's store and there selling goods, 
 taking orders, receiving payment for goods sold and ordering 
 goods from wholesale houses, the authority of the son to bind the 
 father by a purchase of goods was inferred, although the son 
 appropriated the goods so purchased to his own use ;» so where a 
 son, acting for his father in procuring a mortgage, took upon 
 himself with his father's consent the whole negotiation, examined 
 the title, attended to the execution of the papers, received the 
 money from his father and delivered it to the mortgagor, and in 
 short did every thing there was for an agent to do in the matter, 
 and as much as any agent could have done in a similar negotia- 
 tion, he was conclusively presumed to have been the agent of 
 his father in the transaction.' 
 
 Again where one charged as defendants' agent was shown to 
 have been for years a clerk in their store, and in many instances 
 AS their agent to have done business with the plaintiffs, it was 
 held that there was sufficient proof of a general agency ; * and 
 where one sent another who desired to purchase lands of him, to 
 his father to make a bargain, with the statement that whatever 
 bargain they might make he would agree to, it was held that this 
 authorized the person thus sent to regard the father as the son's 
 agent, and bound the son by his father's statements.* 
 
 So in an action to charge a married woman for goods sold and 
 delivered to her husband as her agent, it was held competent to 
 
 » Weaver v. Ogletree, 39 Ga. 586. » Matterson v. Blackmer, <Q Mich. 
 
 "If in consequence of a notorious 393. 
 
 agency, the agent is in the habit of * Eagle Bank v. Smith, 6 Conn. , 71, 
 
 drawing bills, and the principal in the 13 Am. Dec. 37. 
 
 habit of paying them, this is such an « Reeves «. Kelley, 30 Mich. 13a. 
 
 affirmance of his power to draw that So if one party refers another to a 
 
 a purchaser of his bills has a right to third person for information, as au- 
 
 expect payment of them by the prin- thorized to answer for him, he will be 
 
 cipal, and if refused he may coerce boundby the statements of the person 
 
 it." Hooe V. Oxley, 1 Wash. (Va.) 19, so referred to. Rosenbury v. Afigell, 
 
 1 Am. Dec. 425. 6 Mich. 508; Beebe «. Knapp, 28 
 
 •Thurbert), Anderson, 88 111. 167. Mich. 53; Beebe v. Young, 14 Mich, 
 
 See also Watkins v. Vince, 3 Stark. 136. 
 8G8. 
 
 63
 
 C 85, THE LAW OF AGENCY. [Book I. 
 
 show that she had paid for similar goods bought by her husband 
 dnrin<y the same period within which the goods in question were 
 bouo-ht • ' and evidence that a husband who had the management 
 of certain land belonging to his wife, ordered material for build- 
 ing a house thereon, and that the wife knew that the house was 
 being built, and occupied it when finished, was held to warrant a 
 finding that the husband acted as her agent.' 
 
 So where a person openly and notoriously exercises the func- 
 tions of a particular agency of a corporation, he will be presumed 
 to have suflicient authority from the corporation to so act;' and 
 where a manufacturing company knowingly permitted a person 
 to sell goods in a store-house with their name over the door, 
 though in a town distant from their place of business, and there 
 to sell goods of their manufacture and to buy country produce as 
 their agent, they were charged as his principals in the purchase 
 of such produce.* So placing a man in general charge of a retail 
 store is such a holding out of him as general agent as to bind the 
 principal for goods purchased for sale in the store by the agent, 
 although he had agreed with the principal not to buy any goods 
 without the latter's consent.* And where it appears that the 
 alleged agent has repeatedly performed acts, like the one in 
 question, which the principal has ratified and adopted, his 
 authority for the performance of the disputed act may be in- 
 ferred.* 
 
 ' Lovell V. Williams, 125 Mass. 439. assumed principal, the fact of agency 
 
 •Arnold e. Spurr, 130 Mass. 347. may be presumed." Neibles «. Min- 
 
 And see Thomas t). Wells, 140 Mass. neapolis, Ac, R. R. Co., — Minn. 
 
 517. 33 N. W. Rep. 332. See also 
 
 •Singer Mnf'g Co. t>. Holdfodt, 86 Rockford, &c., R. R. Co. t>. Wilcox, 
 
 II!. 455. 66 111. 417; Reynolds «. Collin.'* 78 
 
 Where it appeared that a person Ala. 94; Summerville v. Hiuini''al, 
 
 had acted for two or three years as &c., R R. Co., 62 Mo. 391; Vi( ks- 
 
 the agent of corporation in settling its burg, &c., R. R. Co. v. Ragsdale. 54 
 
 obligations, it was held that this was Miss. 200. 
 
 Bufflcicnl prima facie to establish his * Gilbraith v. Lineberger, 69 N. 
 
 agency. " From the natural improb- Car, 145. But this authnrity does 
 
 ability," said Dickinson, J., "that not extend to borrowing money or 
 
 one should voluntarily, without au- buying goods for himself. Id. 
 
 thority, assume to act for another, 'White v. Leighlon. 15 Neb. 424. 
 
 settling his obligations for a consid- • Jewett v. Lawrenceburgh, &c., 
 
 erable period of time, and from the R. R. Co., 10 Ind. 539; Fisher «. 
 
 fact that such conduct would nat- Campbell, 9 Por. (Ala.) 210; Robin- 
 
 nrally come to the knowledge of the son v. Green, 5 Harr. (Del.) 115; 
 
 64
 
 Chap. IV.] APPOINTMENT OF AGENTS. § 87. 
 
 § 87. Same Subject— What not sufficient— Instances. But the 
 authority of the husband to act as the agent of the wife cannot 
 be inferred from the marital relation alone.* The mere making 
 a note payable at a certain bank will not make the bank the 
 agent of the payee to receive payment unless the officers are dis- 
 posed to accept the agency;* nor will the delivery of a subscrip- 
 tion list to a person of itself confer authority on such person to 
 collect the money and discharge the subscribers ; * nor is author- 
 ity to collect a debt to be implied merely from the possession by 
 the party claiming the authority, of a copy of the account.* 
 
 So an agency will not be presumed from a previous employ- 
 ment in a similar matter where it does not appear that the former 
 employment was with the principal's knowledge, although he 
 may have accepted the advantages resulting from such previons 
 employment.' 
 
 And if a debtor employs an agent to carry money to his cred- 
 itor, the creditor by accepting the money, does not so make the 
 messenger his agent that if at any future time the messenger 
 should appropriate money so sent, the loss would be that of the 
 creditor and not of the debtor ; • and if a debtor leaves with A 
 money to pay a note, informing the creditor of that fact, and the 
 creditor thereupon writes to A to bring or send the money to 
 him, this does not make A the agent of the creditor so as to 
 impose upon the latter the loss of the money while in A's pos- 
 session.' 
 
 Nor will the fact that one as a father or friend merely gives 
 information or advice in reference to a land trade, make such 
 father or friend the agent of the person to whom such advice or 
 information is given.' 
 
 Rawson «. Curtiss, 19 111. 456; Em- »Cobb«. Hall, 49 Iowa, 866. And 
 
 erson v. Coggswell, 16 Me. 77; Odi- see Abrahams v. Weiller, 87 111. 179. 
 
 orne v. Maxcy, 15 Mass. 39; Walsh «. 'Fisher v. Lodge. 50 Iowa, 459. 
 
 Pierce, 12 Vt. 130; Downer v. Morri- 'First National Bank o. Free, 67 
 
 son, 2 Gratt. (Va.) 237. Iowa, 11. 
 
 » Price V. Seydel, 46 Iowa, 696; An- "McNamara v, McNamara, 62 Qa. 
 
 dersoa v. Gregg, 44 Miss. 170; Craw- 200. 
 
 ford V. Redus, 54 Miss. 700. See also upon this general subject, 
 
 •Pease v. Warren, 29 Mich. 9. Whitehead v. Tuckett, 15 East, 400; 
 
 «Antram». Thorndell, 74Penn. St. Hazard v. Tread well, 1 Stra. 506; 
 
 442. Burt v. Palmer, 5 Esp. 145; Peto «. 
 
 *Dutcher «. Beckwith, 45 111. 460, Hague, /d. 134; Anderson©. Sander- 
 
 92 Am. Dec. 232. son, 2 Stark. 204; Clifford v. Burton, 
 5 65
 
 ft 88. THE LAW OF AGENCY. [Book I. 
 
 8 88. Authority by express, unwritten Appointment. It has 
 been seen in the preceding sections how an authority may arise 
 from implication, presumption or estoppel. Authority may also 
 be conferred by express words spoken with that intent. 
 
 And it is the general rule of law that, with the exception of 
 those cases in which the authority is required to be in writing 
 and in which it must be under seal, — exceptions hereafter to be 
 noticed, — authority for the doing of any act lawful to be done 
 may be created by parol.* 
 
 § 89. By Parol— To sell or lease Lands. Thus, except in 
 those States* where the statutes expressly require the authority to 
 be in writing, an agent may be authorized by parol to make a 
 valid contract for the sale' or the leasing* of his principal's lands. 
 But it has been said that parol authority to thus charge a princi- 
 pal's realty ought to be express and clearly established.* 
 
 § 90. By Parol— To demand and collect Rents. So parol au- 
 thority is sufficient to authorize a person to act as agent for a 
 lessor in the collection of rent or in demanding its payment.* 
 
 § 91. By Parol— To execute written Instruments not under 
 Seal. And so, except in those cases in which the authority is by 
 some statute required to be in writing, and except where the 
 
 1 Bing. 199; Fenner v. Lewis, 10 638; Johnson v. Dodge. 17 111. 433; 
 
 Johns. (N. Y.)38; Bryan v. Jackson, Hawkins t». Ctiace, 19 Pick. (Mass.) 
 
 4 Conn. 291. 502; Talbot v. Bowen, 1 A. K. Marsh. 
 
 ' Story on Agency, § 47; Ewell's (Ky.) 436, 10 Am. Dec. 747; Ulen o. 
 
 Evans' Agency, 24. Kittredge, 7 Mass. 233; Heard o. 
 
 a As in Alabama, Arkansas, Cali- PiUey, 4 Ch. App. Cases, 548; Tay- 
 
 fornia, Colorado, Dlinois, Michigan, lor v. Merrill, 55 111. 52; Rutenberg 
 
 Missouri, Nebraska, New Hampshire, v. Main, 47 C*l. 213; Moody v. Smith, 
 
 New Jersey, Ohio, and Pennsylvania. 70 N. Y. 598; Riley v. Minor, 29 Mo. 
 
 3 Lawrence v. Taylor, 5 Hill (N.Y.) 439; Rottman ». Wasson, 5 Kan. 552. 
 
 107; Champlin v. Parish, 11 Paige < Lake c. Campbell, 18111. 106; Mc- 
 
 (N. Y.) 40.1; McWhortert). McMahan, Comb v. Wright, 4 Johns. Ch. (N.Y.) 
 
 10 Paige (N. Y) 386; Newton «. 667. 
 
 Bronson, 13 N. Y. 587. 67 Am. Dec. » Lauer v. Brandow. 43 Wis. 556; 
 89; WorralltJ. Munn, 5N. Y. 229, 55 Challoner e. Bouck, 56 Wis. 652; 
 Am. Dec. 330; Curtis v. Blair, 26 Union Mutual Life Ins. Co. «. Mas- 
 Miss. 309, 59 Am. Dec. 257; Morrow ten, 3 Fed. Rep. 881; Bosseau «. 
 V. Higgins, 29 Ala. 448; Dodge r. Hop- O'Brien, 4 Biss. (U. 8. C. a) 305, 1 
 kins, 14 Wis. 630; Watson v. Sher- Myers Fed. Dec. § 58. 
 man, 84 111. 263; Brown «. Eaton, 21 •Sheets «. Selden, 2 Wall. (U. 8.) 
 Minn. 409; Dickerman v. Ashton, Id. 177. 
 
 66
 
 Chap, ly.] 
 
 APPOINTMENT OF AGENTS. 
 
 §93. 
 
 instrument to be executed is to be under seal, authority may be 
 conferred by parol to execute bills, notes and all other contracts 
 in writing.' 
 
 § 92. What Writing sufaoient when Writing required. 
 But even in those cases in which the authority is, by the statute, 
 required to be conferred by writing, it need not, except when 
 the instrument to be executed is under seal, be by a formal or a 
 sealed writing. It may be conferred by letter' or telegram." 
 
 § 93. Authority to execute sealed Instruments must be under 
 Seal; Where, however, an instrument under seal is to be exe- 
 cuted the rule is well settled that the authority must be conferred 
 by an instrument of equal dignity and solemnity, and it must 
 therefore be under seal.* But while this rule is firmly established. 
 
 » Stackpole v. Arnold, 11 Mass. 27, 
 6 Am. Dec. 150; Emerson v. Provi- 
 dence Hat Mnf g. Co. 12 Mass. 237, 7 
 Am. Dec. 66; New England Marine 
 Ins. Co. V. DeWolf, 8 Pick. (Mass.) 
 56; Shaw ». Hudd, 8 Pick. (Mass.) 9; 
 Small «. O wings, 1 Md. Ch. 363; 
 Welch ». Hoover, 5 Cranch, (U. S. C. 
 C.) 444; Webb v. Browning, 14 Mo. 
 354; Wagoner v. Watts, 44 N. J. L. 
 136; Hammond «. Hannin, 21 Mich. 
 374. 
 
 » Thus where the owner of land in 
 Kansas City wrote from Chicago, 
 where he resided, to his agent in Kan- 
 sas City, " I leave the sale of the lots 
 pretty much with you; if the party, 
 or any one is willing to pay sixty 
 dollars a foot, one-third cash, and the 
 balance in one and two years, interest 
 seven per cent, per annum, and pay 
 commission of sale, I think I am 
 willing to have you make out a deed, 
 and I will perfect it, hold till then " — 
 it was held that this authorized the 
 agent to make a contract binding 
 upon the owner for a present sale of 
 the lots. Smith v. Allen, 86 Mo. 178. 
 citing Stewart «. Wood, 63 Mo. 256; 
 Lyoni). Pollock, 99 U. S. 668; John- 
 son B. Dodge, 17 111. 441; Lawrence 
 •. Taylor, 5 Hill (N. T.) 107; Hawk- 
 
 ins v. Chace, 19 Pick. (Mass.) 502. 
 In Lyon v. Pollock, cited by the 
 court, A wrote to C at San Antonio, 
 Texas. " I wish you to manage my 
 property as you would your own. If 
 a good opportunity offers to sell 
 everything I have, I would be glad 
 to sell. It may be parties will come 
 into San Antonio who will be glad to 
 purchase my gas stock and real 
 estate." It was held that C was 
 thereby authorized to contract for the 
 sale of the real estate but not to con- 
 vey it. See also Brown v. Eaton, 21 
 Minn. 409; Newton v, Bronson, 13 
 N. Y. 587, 67 Am. Dec. 89. See also 
 post, § 318. 
 
 • Godwin «. Francis, L. R. 5 C. P. 
 295. 
 
 < Elliott V. Stocks, 67 Ala. 336; 
 Watson V. Sherman, 84111. 263; John- 
 son V. Dodge, 17 111. 433; Peabody v. 
 Hoard, 46 111. 242; Harshaw v. Mc- 
 Kesson, 65 N. C. 688; Rowei?. Ware, 
 80 Ga. 278; Maus v. Worthing, 3 
 Scam. (111.) 26; Rhode v. Louthain, 
 8 Blackf. (Ind.) 413; Reed v. Virn- 
 Oslrand, 1 Wend. (N. Y.) 424, 19 Am. 
 Dec. 529; Blood©. Goodrich, 9 Wend. 
 (N. Y.) 68, 24 Am. Dec. 121; Wells 
 V. Evans, 20 Wend. (N. Y.) 251; 
 Despatch Line v. Bellamy Mnf'g Co„ 
 
 67
 
 §94. 
 
 THB LAW OF AGENCY. 
 
 [Book L 
 
 it is highly technical in its nature and confessedly stands npon 
 very narrow ground. The whole theory of the solemnity of a 
 seal is totally unsuited to the business methods of the present 
 day and the constant tendency of courts and legislatures is to 
 ignore the distinctions formerly founded upon its use.' 
 
 § 94. Same Subject— Authority to fill Blanks in Deeds. Fol- 
 lowing the rule laid down in the preceding section, and as a 
 necessary consequence of it, it is held in many cases that author- 
 ity to till blanks in deeds can be conferred only by an instrument 
 under seal' This rule, however, like the other, has met with 
 
 12 N. H. 205, 37 Am. Dec. 203; Heath 
 e. Nutter, 50 Me. 378; Hanford v. 
 McNMir, 9 Wend (N. Y.) 54; Cooper 
 V. Rankin, 5 Binn. (Penn.) 613; Gor- 
 don V. Bulkeley, 14Serg & R. (Penn.) 
 831; Stetson v Pat' en, 2 Gieenl (Me.) 
 358, 11 Am. Dec. Ill; Drumright «. 
 Philpot, 16 Ga. 424, 60 Am. Dec. 738; 
 Graham d. Holt, 3 Iredell's (N. Car.) 
 Law 300, 40 Am. Dec. 408; Pain'^ v. 
 Tucker 21 Me. 138, 38 Am. Dec. 255; 
 Williams v. Crutcher, 5 How. (Miss.) 
 71; 35 Am. Dec. 422; Wheeler v. 
 Nevins, 34 Me. 54; Bakers. Freeman, 
 35 Me. 485; Shuetze «. Bailey, 40 
 Mo. 69; Smith v. Perry, 5 Dutcher 
 (N. J.) 74; Gage v. Gage, 10Fo8t.(N. 
 H.)420; Spurr v. Trimble, 1 A. K. 
 Marsh. (Ky.) 278; McMurtry « Brown, 
 6 Neb. 368; Adams v. Power, 52 Miss. 
 828; McNaughten v. Partridge, 11 
 Ohio 223; Smith «. Dickinson, 6 
 Hump. (Tenn.) 261; Mitchell v. 
 Sproul. 5 J. J. MHrsh. (Ky.) 264; Mc- 
 Murtry «. Frank, 4 T. B. Monr. (Ky.) 
 39; Long©, Hart well, 5 Vroom (N. 
 J.) 116; Piatt v. McCuUough, 1 Mc- 
 Lean (U. 8. C. C.) 69. 
 
 » " In modern times," says Champ- 
 LiN, J., in Barton v. Gray, 57 Mich, 
 p. 634, "the attaching of a seal to a 
 sigualure is not regarded with that 
 reverence which was formerly the 
 case, and when the Legislature en- 
 acted that a seal or wafer was unnec- 
 essary, but that a scroll or other 
 
 device should be sufficient, the solem- 
 nity attending the execution of such 
 contract vanished; and when the 
 Legislature fun iier provided that no 
 instrument should be held invalid for 
 want of a seal, and it became under 
 the statute mere prima facie evidence 
 of consideration, the affixing of seals, 
 except to instruments required by 
 law to be under seal, became of no 
 practical importance. 
 
 « Williams v. Crutcher, 6 How. 
 (Miss.) 71, 35 Am. Dec. 422; Daven- 
 port V. Sleight, 2 Dev. & Bat. (N. C.) 
 L. 381, 31 Am. Dec. 420; Burns •. 
 Lynde, 6 Allen (Mass.), 305; Preston 
 t). Hull, 33 Gratt. (Va.) 600, 14 Am. 
 Rep. 153; Wunderlin v. Cadogan, 50 
 Cal. 613; Adamson v. Hartman, 40 
 Ark. 58; Upton v. Archer, 41 Cal. 85, 
 10 Am. Rep. 266; Hibblewhite e. Mc- 
 Morine, 6 M. & W. 200. 
 
 The reasons upon which this rule is 
 based are well stated by Staples, J., 
 in Preston v. Hull, supra, as follows : 
 *' A bond is a deed whereby the 
 obligor promises to pay a certain sum 
 of money to another at a day ap- 
 pointed. 2 Black. Com. 34(3. Ad 
 obligor and obligee are essential to 
 the existence and constitution of such 
 an instrument. It is not indispensable 
 that the party to whom the promise 
 is made should be mentioned ea 
 nomine, that his name of baptism and 
 surname shall be given, but he must 
 
 68
 
 Chap. ly.] 
 
 APPOINTMENT OF AGENTS. 
 
 §94. 
 
 much disapproval in modern times, and thono^h it may still be 
 Haid to be the general rule there has been manifested in the more 
 
 be in some unmistakable manner des- 
 ignated in the instrument. A writ- 
 ing, thougli executed witli all the 
 solemnities of a deed, without such 
 obligee, is a mere nullity. It imposes 
 no liability upon the party issuing it. 
 It confers no rights upon him who 
 receives or holds it. It is not simply 
 an imperfect deed; it is no deed at 
 all. It only becomes a deed when 
 the name of an obligee is inserted, 
 and delivery made by the obligor or 
 by some one legally authorized by 
 him. If the blank is filled by an 
 agent, then the agent as certainly 
 makes a deed as though the entire 
 obligation had been written, signed, 
 sealed and delivered by him. His 
 act binds a princpal not before 
 bound It creates a contract having 
 no previous existence. It is true the 
 act in question is merely the insertion 
 of a name. Still its effect is to impart 
 vitality to a piece of waste paper. It 
 calls new rights and obligations into 
 existence. It is followed by all the 
 consequences resulting from the exe- 
 cution of the most solemn instru- 
 ments. 
 
 " The argument sometimes ad- 
 vanced, that there can be no danger 
 or difficulty in conferring the power 
 by parol, when nothing remains to be 
 done but the insertion of a name to 
 render the instrument complete, does 
 not meet the real issue. The ques- 
 tion is not one of trust and con- 
 fidence reposed, but of power con- 
 ferred. In the numerous and diver- 
 sified transactions of mankind, agen- 
 cies of the gravest character are often 
 created by parol. A partner may 
 bind his copartner to any amount, 
 for any matter within the scope of 
 the partnership, by a note executed 
 in the partnership name. The au- 
 
 thority of an agent to sell the land of 
 his principal may be conferred with- 
 out writing, and the latter may thus 
 be bound irrevocably for his entire 
 estate. In the execution and indorsa- 
 tion of negotiable paper, powers 
 may be and are often conferred by 
 parol upon agents, involving liabili- 
 ties to the amount of millions. The 
 law recognizes such agencies as es.sen- 
 tial to the commerce of the world. 
 Why may not the agent, in all these 
 cases, impose the same liabilities by 
 deed, in the name of his principal ? 
 If he may sell the land, fix the price, 
 and agree upon all the terms of the 
 contract, why may he not perform 
 the more formal act of executing the 
 conveyance ? The answer is, the 
 authority of the agent must be com- 
 mensurate with the act he performs. 
 The stream can never be higher than 
 its source. If the act of the agent 
 is the execution and delivery of a 
 deed, his authority must be by deed. 
 It does not matter how much of the 
 instrument may have been written by 
 the principal, if it is a mere nullity 
 when it leaves his hands, and only 
 becomes operative by act of the agent; 
 upon every principle of sound legal 
 reasoning the result must inevitably 
 be the same. Whenever the agent 
 undertakes to bind his principal by 
 an act, his authority, in point of dig- 
 nity, must be coequal with the act. 
 The question is not, therefore, whether 
 it is expedient that a mere parol agent 
 shall have power to fill the blanks 
 with the name of an obligee; but 
 whether it can be done and sustained 
 without violating the well-established 
 principles of law. 
 
 " A little reflection will show that 
 these principles are not without sub- 
 stantial reasons to support them. At 
 
 69
 
 §94. 
 
 THE LAW OF AGENCY. 
 
 [Book 1. 
 
 recent cases a strong disposition to disregard it as based upon 
 what has now become a meaningless technicality.* To the extent 
 
 common law a sealed instrument im- 
 posed peculiar liabilities. It was not 
 affected by any statutes of limitations. 
 It operated as an estoppel. The 
 obligee was not permitted to aver 
 any want of consideration to avoid 
 it; nor could he defeat an action at 
 law therein by showing any failure of 
 title, or breach of contract, or mis- 
 take, or fraud in the procurement of 
 the bond. It is true that some of 
 these obstacles have been removed by 
 statute, and parties may now defend 
 themselves in the common law courts 
 upon grounds purely equitable; but 
 both in Virginia and in England 
 sealed instruments confer rights and 
 impose obligations, which can never 
 grow out of the execution of any 
 mere parol contracts. It is reason- 
 able and just, therefore, that a party 
 setting up a deed, and seeking to 
 enforce it, shall be prepared to show, 
 if necessary, that it is the act of the 
 grantor himself, or of some one em- 
 powered by an instrument of equal 
 dignity with the deed." 
 
 *Thus it is held "that parol au- 
 thority is sufficient to authorize the 
 filling of a blank in a sealed instru- 
 ment and that such authority may be 
 given in any way by which it might 
 be given in case of an unsealed instru- 
 ment." State u Young, 23 Minn. 551; 
 Drury v. Foster, 2 Wall. (U. S.) 24. 
 See also South Berwick ©.Huntress, 53 
 Me. 89, 87 Am. Dec. 635, Wiley t). 
 Moor, 17 S. & R. (Penn.) 438, 17 
 Am. Dec. 696; Commercial Bank v. 
 Kortright, 22 Wend. (N. Y.) 348, 84 
 Am. Dec. 317; Wooley v. Constant, 
 4 Johns. (N. Y.)54. 4 Am. Dec. 246; 
 Ex parte Decker, 6 Cow. (N. Y.) 60; 
 Ex parte Kerwin. 8 Id. 118; Humph- 
 reys V. Guillow, 13 N. H. 885, 38 Am. 
 Dec. 499. 
 
 In South Berwick «. Huntress, 
 tupra, Kent, J., says : " The exam- 
 ination of various cases in this coun- 
 try and in England shows that whilst 
 in some of them the strict rule has 
 been recognized, yet there are none 
 that deny the proposition that in some 
 cases blanks may be filled in sealed 
 instruments by a third person who is 
 not authorized by power under seal. 
 The only distinction taken between 
 parol contracts and those under seal 
 is a purely technical one, viz., that 
 an authority to make a deed or exe- 
 cute a sealed instrument for another 
 must be of as high a character as the 
 instrument, t. e., be under seal. It 
 is an unquestioned doctrine of the 
 common law that a person not auth- 
 orized by power under seal cannot 
 execute a sealed instrument for an- 
 other, or change a parol contract into 
 a specialty. Now, if it is the absence 
 of the seal on the authority that pre- 
 vents the validity of the execution, it 
 would seem that nothing could supply 
 it, not even consent by parol. And 
 yet, as before stated, all the cases seem 
 to recognize the validity of such fill- 
 ing up, if done in the presence of the 
 grantor or obligor. A distinction is 
 taken between express consent in- 
 ferred from the act being done in the 
 presence of the grantor, and consent 
 given before or after, or implied con- 
 sent. Warring v. Williams, 8 Pick. 
 322; S. C.Id. 325; Hudson z). Revett, 5 
 Bing. 368. 15 Eng. Com. L. 467. 
 
 " In these cases it is assumed that 
 the act is done by the assent and 
 authority of the grantor because he is 
 present when it is done by another. 
 And yet, if the authority must be 
 under seal, where is the evidence of 
 it 1 The whole evidence is parol; the 
 fact of the presence and assent is 
 
 70
 
 Chap. IV.'] 
 
 APPOINTMENT OF AGENTS. 
 
 §95. 
 
 that statutory enactments have dispensed with the necessity of a 
 seal or have robbed it of its former significance, the rule itself 
 must be regarded as without foundation. 
 
 But although the rule might otherwise prevail, the prLncipal 
 may by his conduct estop himself from relying upon it. Thus 
 where a grantor signs and seals a deed, leaving unfilled blanks, 
 and gives it to an agent with authority to fill the blanks and 
 deliver it, and the agent fills the blanks as authorized and 
 delivers it to an innocent grantee for value and without knowl- 
 edge, the grantor will be estopped from asserting as against such 
 grantee, that the agent's authority was insuflicient.* 
 
 § 95. Same Subject— How when Seal superfluous. But if a 
 seal was not essential to the validity of the instrument executed 
 by the agent, its presence will ordinarily be treated as a mere 
 redundancy, and if the agent's authority to execute it, or to fill 
 blanks in it, if it were without seal, was ample, the seal will be 
 disregarded, and the instrument will stand as a simple contract.' 
 
 proved by parol. The act derives its 
 eflScacy only from authority depend- 
 ent on other sources than a seal. It 
 is consent that gives it vitality, and 
 that consent, it is proved by parol, 
 was given by parol. Why may not 
 consent be established by proof that 
 the authority was directly given be- 
 fore the act was done, and when the 
 paper was not before him? There is 
 no clearer parol authority in one case 
 than in the other. It is, after all. a 
 mere question of assent. Now, con- 
 sent may be implied as well as ex- 
 pressed, and when fairly and legally 
 inferred, it is actual and effective 
 consent as much so as when direct 
 authority is shown by parol. It would 
 seem to follow that the rule requiring 
 authority under seal should either be 
 strictly enforced in all cases of bonds 
 or deeds, so that no interlineations or 
 insertions can be legally made with- 
 out such power, or the rule should be 
 that such filling up may be made 
 when authority or consent is clearly 
 established by parol. And this on 
 
 the ground that, if necessary, the act 
 may be considered as having been 
 done, in substance, by the grantor 
 himself. When the instrument is a 
 sealed instrument when signed by the 
 party, the filling in of the blanks 
 afterwards by another is not, strictly 
 speaking, the execution of a sealed 
 instrument. That has already been 
 done by the party himself. The third 
 party does not make it a specialty by 
 his act. It was one before. The 
 filling up merely perfects an imper- 
 fect sealed deed or bond." 
 
 •Swartz V. Ballou, 47 Iowa, 188, 
 
 29 Am. Rep. 470; Phelps c. Sullivan, 
 140 Mass. 36, 54 Am. Rep. 442; Field 
 V. Stagg. 52 Mo. 534. 14 Am. Rep. 
 435; Van Etta v. Evenson, 28 Wis. 33, 
 9 Am. Rep. 486. 
 
 * Wagoner v. Watts, 44 N. J. L. 
 126; Long v. Hartwell, 5 Vroora, (N. 
 J.) 116; Morrow v. Higgins, 29 Ala. 
 448; Dutton v. Warschauer, 21 Cal. 
 609; Worrall v. Munn, 5 N. Y. 229, 
 55 Am. Dec. 330; Thomas v. Joslin, 
 
 30 Minn. 388; Wood v. Auburn, &c., 
 
 71
 
 96 
 
 THE LAW OF AGENCY. 
 
 [Book I. 
 
 8 96. How in Principal's Presence and by his Direction. 
 What however, is done in the presence and by the express or 
 implied direction of the principal, is, in law, his act, and an 
 ao'ent may therefore be authorized by parol to bind his principal 
 even upon sealed instruments, if the instrument be executed in 
 the presence of the principal and by his direction or tacit con- 
 sent.* This rule extends also to the filling of blanks in deeds 
 and other instruments when done under like circumstances.' 
 
 fi 97. Appointment by Corporations. It was the doctrine of 
 the common law that a corporation could contract only by deed 
 under its corporate seal, and that its appointment of an agent 
 conld be made only in the same manner. This doctrine, how- 
 ever is now quite universally abandoned, both in England and 
 in this country, and, in the absence of contrary provisions in its 
 constating instruments or in the laws of the State, a corporation 
 may confer authority upon an agent for the performance of any 
 act within the scope of its corporate powers by unsealed writing 
 or by parol; and such authority may also be implied, as in other 
 cases, from the acquiescence of the corporation or from its adop- 
 tion or recognition of the act* 
 
 R. R Co.. 8 N. Y. 160; Adams «. 
 Power, 52 Miss. 828. 
 
 lEggleston v. Wagner, 46 Mich. 
 610; Just V. Wise, 42 Mich. 573; John- 
 son V. Van Velsor, 43 Mich. 208; Har- 
 Bhaw e. McKesson, 65 N. C. 688; 
 Croy V. Busenbark, 72 Ind. 48; Meyer 
 V. King, 29 La. Ann. 567; Handyside 
 V. Cameron, 21 111. 588, 74 Am. Dec. 
 119; Gardner v. Gardner, 5 Gush. 
 (Mass ) 4S3; 52 Am. Dec. 740; Ball v. 
 Dunsterville, 4 T. R. 313; King v. 
 Longnor, 1 Nev. & M. 576, S. C. 4 
 Barn. & Adol. 647; Wood v. Good- 
 ridge, 6 Gush. (Mass.) 117, 52 Am, 
 Dec. 771; Jansen v. McCahill, 22 Cal. 
 565; Mutual Ben. L. Ins. Co. v. 
 Brown, 30 N. J. Eq. 202; Mackay v. 
 Bloodgood, 9 Johns. (N. Y.)285; Mc- 
 Murtry v. Brown, 6 Neb. 368. 
 
 > Hudson V. Revett, 5 Bing. 368; 
 McMurtry «. Brown, 6 Neb. 368; 
 Harshaw «. McKesson, 65 N. C. 688; 
 
 Ball c. Dunsterville, 4 T. R. 813; 
 Mackay e. Bloodgood, 9 Johns. (N. 
 T.) 285. 
 
 3 Detroit v. Jackson, 1 Doug. 
 (Mich.) 106; Jhons v. People, 25 
 Mich. 499 ; Taymouth v. Koehler, 35 
 Mich. 26; Bank of United States v. 
 Dandridge, 12 Wheat. (U. 8.) 64; 
 Yarborough v. Bank of England, 1(5 
 East 6; Burrill v. Nahant Bank, 2 
 Mete. (Mass.) 163. 35 Am. Dec. 895; 
 Rosse. City of Madison, 1 Ind. 281. 
 48 Am. Dec. 361; Rockford, &c. R. 
 R. Co. V. Wilcox, 66 111. 417: Kiley v. 
 Forsee, 57 Mo. 390; Smiley v. Mayor, 
 6 Heisk. (Tenn.) 604; Go wen Mar- 
 ble Co. V. Tarrant, 73 111. 608; Maine 
 Stage Co. V. Longley, 14 Me. 444; 
 Peterson v. Mayor, 17 N. Y. 449; 
 Warren v. Ocean Ins. Co. 16 Me 439, 
 33 Am. Dec. 674; Southgate v. At- 
 lantic & Pacific R. R. Co. 61 Mo. 89. 
 
 72
 
 Chap. ly.] APPOINTMENT OF AGENTS. § 100 
 
 § 98. Same Subject — To execute Deed of corporate Bealty. 
 
 And it is not necessary that the authority of the agent even to 
 execute a deed of the corporate real estate should be under seal. 
 The authority to convey may be conferred by a vote of the 
 trustees or other managing officers, and authority to convey 
 carries with it authority to execute suitable and proper instru- 
 ments for that purpose, and to affix the corporate seal to an 
 instrument requiring it.* And the same rule extends to muni- 
 cipal and quasi municipal corporations." 
 
 IL 
 
 EVIDENOB OF APPOINTMENT. 
 
 § 99. Purpose of this Subdivision. Some illustrations have 
 already been given of the nature of the evidence that may be 
 competent upon the question whether an agency exists or not, 
 and many others will hereafter appear. But it is necessary to 
 consider here a few of the general rules which apply to thia 
 branch of the subject. 
 
 § 100. Agent's Authority cannot be established by his own 
 Statements or Admissions. The authority of an agent, where 
 the question of its existence is directly involved, can only be 
 established by tracing it to its source in some word or act of the 
 alleged principal. The agent certainly cannot confer authority 
 upon himself. Evidence of his own statements or admissions, 
 therefore, is not admissible against his principal for the purpose 
 
 •Burrill «. Nahant Bank, 2 Mete. town landing if he thinks it will be 
 (Mass.) 1G3, 35 Am. Dec. 395; Inhab- for the interest of the town to do so, 
 itants of Nobleboro v. Clark. 68 Me. and to settle all other matters with 
 87, 28 Am, Rep. 22; Marr v. Given, the railroad company;" and it was 
 23 Me. 55; Valentine v. Piper, 22 held that by this vote, H had author- 
 Pick. (Mass.) 85, 33 Am. Dec. 715; ity to sell the town landing and to 
 People V. Boring, 8 Cal. 407; Uems- execute a proper deed of conveyance 
 treet v. Burdick, 90 111. 450. thereof in behalf of the town. In- 
 
 « Thus it appeared by the records of habitants of Nobleboro v. Clark, 68 
 
 the meeting that the inhabitants of a Me. 87, 28 Am. Rep. 23. See also 
 
 town at a legal town meeting chose Ross v. City of Madison, 1 Ind. 281, 
 
 H "agent to settle with the railroad 48 Am. Dec. 361. 
 company and sell the balance of the 
 
 73
 
 §101. 
 
 THE LAW OF AGENOT. 
 
 [Book I. 
 
 of establishing,' enlarging* or renewing* his authority ; nor can 
 his authority be established by showing that he acted as agent or 
 that he claimed to have the powers which he assumed to exer- 
 
 cise/ 
 
 So where his authority is in writing he cannot extend its scope 
 by his own declarations,' His acts and statements cannot be 
 made use of against the principal until the fact of the agency 
 has been shown by other evidence.* 
 
 His statements and admissions would, however, in any proper 
 case be admissible against himself.' So the statements and deal- 
 ings of the principal with third persons in recognition of the 
 alleged agency are admissible against the principal.* 
 
 § 101. Agent's Authority cannot be proved by general Repu- 
 tation. The authority of a private agent to represent his prin- 
 cipal cannot be established by proof that he was generally 
 reputed to be so authorized.* 
 
 •Hatch V. Squires, 11 Mich. 185; 
 Kornemann v. Monaghan, 24 Mich. 
 36; Reynolds v. Continental Ins. Co. 
 36 Mich. 131 ; Harker v. Dement, 9 
 Gill (Md.) 7, 53 Am. Dec. 670; Maxey 
 V. Heckethorn, 44 111. 438 ; Rawson v. 
 Curtiss, 19 111. 474; Chicago, &c. R 
 R. Co. T. Fox. 41 III. 106; Carter v. 
 Burnham, 31 Ark. 212; Howe Mach- 
 ine Co. V. Clark, 15 Kan. 493; Daw- 
 son «. Landreaux, 29 La. Ann. 363; 
 Peck V. Ritchey, 66 Mo. 114; String- 
 ham V. St. Nicholas Ins. Co. 4 Abb. 
 App. Dec. 315: Stollenwerck v. 
 Thacher, 115 Mass. 234; Grover & 
 Baker S. M. Co. v. Polhemus, 34 
 Mich. 247; French v. Wade, 35 Kan. 
 391; Jaeger v. Kelley, 53 N. Y. 274; 
 Mussey v. Beecher, 3 Cush. (Mass.) 
 517; Brigham v. Peters, 1 Gray 
 (Mass.), 145; Wood Mow. & Reap. 
 Machine Co, v. Crow, 70 Iowa, 340; 
 Nelson v. Tumlin, 74 Ga. 171. 
 
 « Stollenwerck «. Thacher, 115 
 Mass. 234; Mussey v. Beecher, 3 Cush. 
 (Mass.) 511. 
 
 » Van Dusen v. Mining Co. 36 Cal. 
 571, 95 Am. Dec. 209. 
 
 ♦James v. Stookey, 1 Wash. (U. S 
 C. C.) 330; Harker v. Dement, supra; 
 Grover & Baker S. M. Co. v. Pol- 
 hemus, supra; Bacon v. Johnson, 56 
 Mich. 182; North v. Metz, 57 Mich. 
 612; Doonan v. Mitchell, 26 Ga. 472; 
 McDougald v. Dawson, 30 Ala. 553; 
 Coburn v. Paine, 36 Me. 105. 
 
 •Mapp V. Phillips, 33 Ga. 72. 
 
 •Hatch V. Squires, 11 Mich. 185; 
 McClung V. Spotswood, 19 Ala. 165; 
 South & North Ala. R. R. Co. v. 
 Henlein, 53 Ala. 606. Peck v. Ritchey, 
 66 Mo. 114; Francis v. Edwards, 77 
 N. C. 371; Galbreath v. Cole, 61 Ala. 
 139. 
 
 But if after the evidence has been 
 admitted, the agency is otherwise 
 proved, the error will be cured. Row- 
 ell V. Klein, 44 Ind. 291; McCormick 
 V. Roberts, 36 Kan. 552; 13 Pac. Rep. 
 827. 
 
 T Like other declarations or admis- 
 sions against interest, Greenleaf Ev., 
 Chaps. X. XI. 
 
 *Haughton v. Maurer, 55 Mich. 
 823. 
 
 • Blevins «. Pope, 7 Ala. 871; 
 
 74
 
 Chap. IV.] APPOINTMENT OF AGENTS. § 103. 
 
 § 102. Agent must be called as a Witness. If it is deemed 
 essential to prove the authority by the agent himself, he must bo 
 called as a witness ; his testimony as to the nature and extent of 
 his authority, where it rests in parol, being as competent as that 
 of any other witness.' The rule upon this subject has been 
 stated by a learned judge as follows: "It is competent to 
 prove a parol agency and its nature and scope by the testimony 
 of the person who claims to be the agent. It is competent to 
 prove a parol authority of any person to act for another, and 
 generally, to prove any parol authority of any kind by the testi- 
 mony of the person who claims to possess such authority. But 
 it is not competent to prove the supposed authority of an agent 
 for the purpose of binding his principal by proving what the 
 supposed agent has said at some previous time. Nor is it com- 
 petent to prove a supposed authority of any kind, as against the 
 person from whom such authority is claimed to have been re- 
 ceived, by proving the previous statements of the person who, it 
 is claimed, had attained such authority." * 
 
 § 103. Written Authority must be produced— When. Where 
 the authority is conferred by a power of attorney or other writ- 
 ten instrument, and where from the nature of the case the au- 
 thority must be in writing, the writing is, of course, the best 
 evidence of the fact, nature and extent of the agency, and where 
 these questions are directly involved, the writing, in accordance 
 with familiar rules, must be produced or its absence accounted 
 for.' 
 
 Collateral Inquiry. But where the fact of the agency is only 
 collaterally or incidentally involved, it may be proved by the 
 acts, declarations or conduct of the parties as in other cases, 
 although it was conferred by written instrument.* 
 
 Graves v. Horton, — Minn, — , 85 upon him, Dowell «. Williams, 33 
 
 N. W. Rep. 568. Kans. 319. 
 
 » Thayer e. Meeker, 88 111. 470; s Valentine J. in Howe Machine 
 
 French v. Wade, 85 Kan. 391; Piercy Co. v. Clark, 15 Kan. 492. 
 
 V. Hendrick, 2 W. Va. 458, 98 Am. »Neal «. Patten, 40 Ga. 363; Colum- 
 
 Dec, 774; Gould v. Norfolk Lead Co. bia Bridge Co. v. Geisse, 38 N. J. L. 
 
 9 Cush. (Mass.) 338, 57 Am. Dec. 50. 89; Reese v. Medlock, 27 Tex. 120, 84 
 
 The principal may show by the Am. Dec. 611. 
 
 testimony of the agent that the alleged « Columbia Bridge Co. v. Geisse, 
 
 authority had not been conferred supra. 
 
 76
 
 § lOi, THE LAW OF AGENCY. [Book I. 
 
 § 104. Construction of Writing for Court. Whether a cer- 
 tain writing creates an agency or not, and if so, what is the 
 nature and extent of the power conferred, the writing being 
 produced, are questions of law for the decision of the court.' 
 
 § 105. Effect of undisputed Pacts to be determined by Court. 
 And so where the facts are undisputed, the court must determine 
 whether they create an agency, and if so with what powers and 
 limitations, and this is equally true whether it is sought to estab- 
 lish the agency by previous authorization or by subsequent rati- 
 fication.* 
 
 § 106. In other Cases Question is for the Jury. Where, how 
 ever, the authority was not conferred by written instrument and 
 the facts are in dispute, it is for the jury to determine under 
 proper instructions from the court, not only whether an agency 
 exists, but, if so, what is its nature and extent.' 
 
 It is impossible to lay down any inflexible rule by which it can 
 be determined what evidence shall be sufficient to establish an 
 agency in any given case, but it may be said in general terms 
 that whatever evidence has a tendency to prove the agency is 
 admissible,* even though it be not full and satisfactory,' as it is 
 the province of the jury to pass upon it. So if evidence has first 
 been introduced tending to prove the agency or to make out a 
 prima facie case thereof, the admissions and declarations of the 
 alleged agent, if otherwise competent, may then be shown, and 
 the whole case be passed upon by the jury.* 
 
 § 107. Authority by Ratification. The authority of an agent 
 in a given case may also be established by proof that his per- 
 formance of the act in question has subsequently been ratified 
 and approved by the person alleged to be his principal. Some- 
 
 » Savings Fund Society v. Savings * South & North Ala. R. R, Co. «. 
 
 Bank, 3S Penn. St. 498, 78 Am. Dec. Henlein, supra. 
 
 390; Reese v. Medlock, 27 Tex. 120, » Morrison®. Whiteside, 17 Md. 453, 
 
 84 Am. Dec. 611. 79 Am. Dec. 661. 
 
 » Gulick «. Grover, 33 N. J. L. 463, • National Mechanics' Bank v. Na- 
 
 97 Am. Dec. 728; Savings Fund So- tional Bank, 36 Md. 5; York Co. Bank 
 
 cietyt). Savings Bank, supra. v. Stein, 24 Md. 447; Henderson v. 
 
 'Savings Fund Society v. Savings Mayhew, 2 Gill (Md.) 393, 41 Am, 
 
 Bank, supra; South & North Ala. R. Dec. 434; Central Penn. Tel. Co. «. 
 
 R. Co. V. Henlein, 52 Ala. 606; Rob- Thompson, 113 Penn. St. 118. 
 erts V, Pepple, 55 Mich. 367. 
 
 76
 
 Chap. I v.] APPOINTMENT OF AGENTS. § 108. 
 
 thing of the scope and application of this mode of authentica- 
 tion has been incidentally developed in the preceding pages, but 
 its full treatnaent will be reserved for the following chapter. 
 
 § 108. Acceptance of Agency by Agent. It has been seen 
 that, as a general rule, one cannot become the principal in this 
 relation against his will;' and the same general rule applies to 
 the agent. To constitute one an agent there must be consent on 
 the part of the agent, either expressed by words or inferable 
 from something done.* This consent, of course, may be inferred 
 from the acts of the agent. Thus where he is found performing 
 the agency, his acceptance of it will be presumed. 
 
 iAnte, % 108. . 'First National Bank v. Free, 67 
 
 Iowa, 11.
 
 THE LAW OF AGENCY. 
 
 [Book I. 
 
 CHAPTER Y. 
 
 OF RATIFICATION. 
 
 g 109. Purpose of Chapter. 
 L What is Meant by Ratifioa- 
 
 TION. 
 
 110. What Ratification is. 
 
 II. What Acts mat be Ratified. 
 
 111. In general. 
 
 112. The general Rule. 
 
 113. Torts may be ratified. 
 
 114. Void Acts cannot be ratified — 
 
 Voidable Acts may be. 
 
 115. Illegal Acts cannot be ratified. 
 
 116. Ratification of Forgery. 
 
 III. Who may Ratify. 
 
 117. Qeneral Rule. 
 
 118. Corporations may ratify. 
 
 119. Partners may ratify. 
 
 120. Infant cannot ratify. 
 
 121. When Agent may ratify. 
 
 122. Ratification by incompetent 
 
 Person. 
 133. Ratification by Guardian or 
 Executor. 
 
 IV. Conditions op Ratification. 
 
 124. 1. Principal must have been 
 
 identified. 
 
 125. 2. Principal must have been 
 
 in Existence. 
 l:«;8. 3. Principal must have present 
 Ability. 
 
 127. 4. Act must have been done 
 
 as Agent. 
 
 128. 5. Knowledge of material 
 
 Facts. 
 
 129. Same Subject — General Rule. 
 
 130. 6. No Ratification of Part of 
 
 Act. 
 
 § 131. 7. Rights of other Party must 
 be prejudiced. 
 
 132. Burden of Proof. 
 
 133. Relief of Principal when Facts 
 
 not fully known. 
 
 V. What amounts to a Ratifica- 
 tion. 
 
 134. Importance of Question. 
 
 135. Written — unwritten ; — Ex- 
 
 press — implied. 
 
 a. Express Eatification. 
 
 136. General Rule. 
 
 137. Deed at Common Law ratified 
 
 only by Instrument under 
 Seal. 
 
 138. Same Subject — Rule relaxed 
 
 in Partnership Cases. 
 
 139. Same Subject — Massachusetts 
 
 Rule. 
 40. Same Subject — Modern Rule 
 more liberal. 
 
 141. Unnecessary Seal may be dis- 
 
 regarded. 
 
 142. By Authority subsequently 
 
 conferred. 
 
 143. By Answer in Chancery. 
 
 144 Contract for sale or leasing of 
 Land ratified by Parol. 
 
 145. " Lawfully authorized " under 
 
 Statute of Frauds. 
 
 5. Implied Ratification. 
 
 146. In general. 
 
 147. Variety of Methods. 
 
 148. By accepting Benefits. 
 
 149. Same Subject — Instances. 
 
 150. Same Subject — Other In- 
 
 stances. 
 
 78
 
 Chap. Y.] 
 
 RATIFICATION. 
 
 §110. 
 
 % 151. By bringing Suit based on 
 Agent's Act. 
 153. Mere Delay in suing, no Rati- 
 fication. 
 
 153. Ratification by Acquiescence 
 
 — Silence. 
 
 154. Same Subject — Election. 
 
 155. Same Subject — Must elect 
 
 within a reasonable Time. 
 
 156. Same Subject — Sleeping on 
 
 Riglits. 
 
 157. Same Subject — Rules. 
 
 158. Same Rule applies to private 
 
 Corporations. 
 
 And to Municipal and Quasi 
 Municipal Corporations. 
 
 How when assumed Agent is 
 a mere Stranger. 
 
 Same Subject — True Rule. 
 163. Silence does not ratify if Stran- 
 ger acts in his own Name. 
 
 Information by Letter. 
 
 Ratification by Acquiescence 
 — Illustrations. 
 
 Rule applies only to Principals. 
 
 159. 
 
 160. 
 
 161. 
 
 163, 
 164 
 
 165. 
 VI. The Results of Ratification. 
 
 166. What for this Subdivision. 
 
 Jf. In General. 
 
 167. Equivalent to precedent Au- 
 
 thority. 
 
 § 168. Cannot affect intervening 
 Rights. 
 
 169. Ratification irrevocable, 
 
 f . As between Principal and Agent. 
 
 170. In general. 
 
 171. The general Rule. 
 
 173. Agent's Motives unimportant. 
 
 173. Efforts to avoid Loss, no Rati- 
 
 fication. 
 
 174. Ratification must be in toto. 
 
 175. Ratification of Appointment 
 
 of Subagent. 
 
 176. Ratification of Torts does not 
 
 discharge Agent's Liability 
 to third Persons. 
 
 177. Acts of Ratification liberally 
 
 construed. 
 
 S, As between Principal and the otTier 
 Party. 
 
 178. a. Other Party against Prin- 
 
 cipal. 
 
 179. b. Principal against the other 
 
 Party. 
 
 4. As between Agent and ihe otTier 
 Party. 
 
 180. In general. 
 
 181. Ratification releases Agent In 
 
 Contract. 
 
 182. Otherwise in Tort. 
 
 § 109. Purpose of Chapter. It is the purpose of this chapter 
 to discuss what is sometimes called the Doctrine of Ratification. 
 There has been seen in the preceding chapters something of its 
 place and scope, but it will be here considered more in detail. 
 For convenience of treatment the matter may be arranged under 
 the following heads : 
 
 I. What is meant by ratification ; II. What acts may be rati- 
 fied ; III. Who may ratify ; lY. Conditions of ratification ; V. 
 What amounts to ratification ; and VI. The results of ratification. 
 
 WHAT 18 MEANT BY EATIFICATION'. 
 
 § 110. What Ratification is. What is assumed to be done 
 for, or on behalf of another, without his authority, is not bind- 
 
 79
 
 § 111. THE LAW OF AGENCY. [Book I. 
 
 ing upon him. It may be that the person who so assumes to 
 represent the other is, in reality, the agent of the latter, but has 
 exceeded the limits of his authority ; or he may be a mere stran- 
 ger. In either case, however, his assumption of an authority 
 which he does not in fact possess, confers no rights against the 
 alleged principal. 
 
 But when the facts connected with the doing of the act are 
 brought to the knowledge of him on whose behalf it was so done, 
 he may decide to sanction and confirm it and adopt it as his own ; 
 or without expressly deciding about it at all, he may so conduct 
 himself that for the protection of innocent third persons or of 
 the assumed agent himself, the law will presume that he did so 
 sanction and confirm such act, and adopt it as his own. 
 
 It is this express or implied act in giving force and eSect to 
 what was before unauthorized and of no effect, that is here meant 
 by ratification. 
 
 It will be kept in mind that we are not now dealing with the 
 question of the liability of the person who has so assumed to act 
 without authority. That is reserved for subsequent treatment.* 
 
 II. 
 
 WHAT AC3T8 MAT BE RATIFIED. 
 
 § 111. In general. The power to ratify an act done for and 
 in behalf of another, necessarily presupposes in that other the 
 power to do the act himself, both in the first instance' and at the 
 time of ratification ;• it also presupposes the power in that other 
 to have authorized the doing of the act in the first instance and 
 also to authorize its doing at the time of ratification.* Hence — 
 
 § 112. The general Rule. It is, , therefore,. the, general jcule 
 that one may ratify the previous unauthorized doing by another 
 in his behalf, of any act which he might then and could still 
 lawfully do himself, and which he might then and could still 
 lawfully delegate to such other to be done.' 
 
 ^ See post, §§540-557. San Francisco, 16 Cal, 619; Bady «. 
 
 » Davis 0, Lane, 10 N. H. 156. Mayor. 16 How. (N. Y.) Pr. 482; 
 
 sCook V. TuUis, 18 Wall. (U. S.) O'Conner «. Arnold, 53 Ind. 205; Ar- 
 
 332. mitage v. Widoe, 36 Mich. 134; 
 
 * Po»t, § 126. Supervisors©. Arrighi, 54 Miss. 668; 
 
 • ZoUmant). San Francisco, 20 Cal. Taymouth «. Koehler. 35 Mich. 22; 
 96, 81 Am. Dec. 96; McCracken •. Clarke c. Lyon Co. 8 Nev. 188. 
 
 80
 
 Chap. Y,] EATEFIOATION. § 116. 
 
 § 113. Torts may be ratified. It is immaterial whether the 
 unauthorized act arises from a contract or is founded upon a tort. 
 Whoever, with knowledge of the facts, adopts as his own or know- 
 ingly appropriates the benefits of, a wrongful act which another 
 has, without authority, assumed to do in his behalf, will be 
 deemed to have assumed the responsibility of the act.* 
 
 § 114. Void Acts cannot be ratified— Voidable Acts may be. 
 An act which was absolutely void at the time it was done cannot 
 be ratified. If the principal himself could not lawfully have 
 done the act, or if it could not lawfully have been done by any- 
 one, no subsequent ratification or confirmation can give it force 
 or effect.* If, however, the act were voidable merely it can, of 
 course, be rendered valid. 
 
 § 115. Illegal Acts cannot be ratified. It is but a re- state- 
 ment of the same rules to say that an act done in violation )i 
 law or in contravention of public policy, the performance of 
 which, as has been seen, could not lawfully be delegated to an 
 agent,' cannot be lawfully ratified.* 
 
 § 116. Batification of Forgery. Whether a forgery is capable 
 of ratification is a question upon which there is a conflict of opin- 
 ion, but it is believed that this arises rather from a failure to dis- 
 criminate between the different phases of the question than from 
 any dispute over the principles involved. In every forgery there 
 are two parties interested, the State in its efforts to detect uad 
 punish it as a crime ; and the person whose responsibility lias 
 been pledged without his authority. 
 
 So far as the right of the State to pursue and punish the 
 forger as a criminal is involved, it is certain that a subsequent 
 ratification by the individual sought to be charged, will be nn- 
 
 « Wilson «. Tumman, 6 Man. & G. McAllister, 15 Gray (Mass.) 433; 
 
 242 ; Morehouse v. Northrop, 33 Conn. Workman v. Wright, 33 Ohio St. 40') ; 
 
 880, 89 Am. Dec. 211; Griswold v. 31 Am. Rep. 546; Decuir c. Lejeune, 
 
 Haven, 25 N. Y. 595, 82 Am. Dec. 15 La. Ann. 569; Harrison v. Mc- 
 
 880; Lee 7). West, 47 Ga. 311; National Henry. 9 Ga. 164. 53 Am. Dec. 435; 
 
 Life Ins. Co. «. Minch, 53 N. Y. 144; Bird v. Brown, 4 Ex. 786. 
 
 Lane v. Black, 21 W. Va. 617; Tuck- "See ante, Chap II. 
 
 er «. Jerris. 75 Me. 184. « State v. Matthis, 1 Hill (8. C.) 37; 
 
 «Armitage v. Widoe, 36 Mich. 124; Turner v. Phoenix Ins. Co. 55 Mich. 
 
 Chapman v. Lee, 47 Ala. 143; Day v. 237; Harrison v. McHenry, supra. 
 
 6 81
 
 116 
 
 THE LAW OF AGENCY. 
 
 [Book I. 
 
 availing.* Any undertaking to suppress the crime would, as has 
 been seen, be contrary to public policy and void.* 
 
 But viewed in its other aspect as a mere unauthorized writing, 
 no satisfactory reason is perceived why it may not be ratified like 
 any other unauthorized act.* No principle of public policy can 
 
 ' In McKenzie v. British Linen Co. 
 6App. Cas. 82, 34 Eng. Rep. 301, 
 Lord Blackburn says: "I wish to 
 guard against being supposed to say 
 that if a document with an unauthor- 
 ized signature was uttered under such 
 circumstances of intent to defraud 
 that it amounted to the crime of for- 
 gery, it is in the power of the person 
 whose name was forged to ratify 
 it so as to make a defense for the for- 
 ger against a criminal charge. I do 
 not think he could. But if the per- 
 son whose name was without author- 
 ity used chooses to ratify the act, even 
 though known to be a crime, he 
 makes himself civilly responsible just 
 as if he had originally authorized it. 
 It is quite immaterial whether this 
 ratification was made to the person 
 who seeks to avail himself of it or to 
 another." 
 
 » See ante, Chap. II. 
 
 •In Greenfield Bank v. Crafts, 4 
 Allen (Mass.) 447, the court says: 
 "The only question upon this part of 
 the case is, whether a signature made 
 by an unauthorized person under 
 such circumstances as show that the 
 party placing the name upon the note 
 was thereby committing the crime of 
 forgery, can be adopted and ratified 
 by any acts and admissions of the 
 party whose name appears on the 
 note, however full and intentionally 
 made and designed to signify an 
 adoption of the signature. The de- 
 fendant insists that it cannot by such 
 evidence as would, in other cases, 
 warrant the jury in finding an adop- 
 tion; and that nothing short of an 
 estoppel, having the element of actual 
 
 damages from delay or postponement, 
 occasioned by the acts of the person 
 whose name is borne upon the note, 
 misleading the holder of it, will have 
 this effect. As to the person himself 
 whose name is signed, it is difficult 
 to perceive any sound reason for the 
 proposed distinction, as to the 
 effects of ratifying an unauthorized 
 act, in the two supposed." (The 
 other case supposed was that of an 
 agent honestly exceeding his author- 
 ity.) " In the first case the actor has 
 no authority any more than in the 
 last. The contract receives its whole 
 validity from the ratification. It may 
 be ratified where there was no pre 
 tense of agency. In the other case, 
 the individual who presents the note 
 thus signed, passes the note as a note 
 signed by the promisor, either by his 
 own proper hand or by some one by 
 his authority. It was clearly compe- 
 tent, if duly authorized, thus to sign 
 the note. It is, as it seems to us, 
 equally competent for the party, he 
 knowing all the circumstances as to 
 the signature and intending to adopt 
 the note, to ratify the same, and thus 
 confirm what was originally an un- 
 authorized and illegal act. We are 
 supposing the case of a party acting 
 with full knowledge of the manner in 
 which the note was signed, and the 
 want of authority on the part of the 
 actor to sign his name, but who uu- 
 derstandingly and unequivocally 
 adopts the signature, and assumes the 
 note as his own. It is difficult to 
 perceive why such adoption should 
 not bind the party whose name is 
 placed on the note as promisor, as 
 
 82
 
 Chap, y.] 
 
 BATIFICATION. 
 
 116. 
 
 be contravened unless the ratification is made upon the condi- 
 tion or for the purpose of preventing the prosecution of the of- 
 fender. And even in cases where the intention is to prevent the 
 act from being treated as a forgery, as between the parties, it is 
 not easy to see how the public interests can be endangered where 
 the result is that the holder of the paper is protected against loss 
 and the delinquent agent is saved from exposure and ruin. 
 
 But whatever may be regarded as the true rule in the abstract, 
 it is certain that the principal may, upon the discovery of the 
 forgery, so conduct himself, as by permitting the paper to be 
 taken upon the strength of his assertion of its genuineness; or by 
 inducing the holder to change his position or intermit some 
 remedial proceeding upon an assurance of its validity or a prom- 
 ise of protection ; or, generally, by remaining silent as to its in- 
 validity when in equity and good conscience he ought to have 
 spoken, as to estop himself from asserting that it is not binding 
 upon him.* 
 
 effectually as if he had adopted the 
 note when executed by one profess- 
 ing to be authorized, and to act as an 
 agent, as indicated by the form of the 
 signature, but who in fact had no au- 
 thority. It is however urged that pub- 
 lic policy forbids sanctioning the rati- 
 fication of a forged note, as it may 
 have a tendency to stifle a prosecu- 
 tion for the criminal offense. It 
 would seem, however, that this must 
 stand upon the general principles ap- 
 plicable to other contracts, and is 
 only to be defeated where the agree- 
 ment was upon the understanding 
 that if the signature was adopted, the 
 guilty party was not to be prosecuted 
 for the criminal offense." 
 
 And see generally to the same 
 effect: Hefner v. Vandolah, 63 111. 
 483, 14 Am. Rep. 106; Commercial 
 Bank V. Warren, 15 N. Y. 577; How- 
 ard V. Duncan, 3 Lans. (N. Y.) 175; 
 Thorne v. Bell, Laior's Sup. (N. Y.) 
 430; Livings v. Wiler, 33 111. 387; 
 Cravens fl. Gillilan. 63 Mo. 28; First 
 National Bank v. Gay, 68 Mo. 33; 
 Harper «. Devene, 10 La. Ann. 734; 
 
 Wellington 9. Jackson, 121 Mass. 157; 
 Forsythe v. Bonta, 5 Bush (Ky.) 547, 
 
 But, contra, except where estoppel 
 is involved or there is a new consid- 
 eration : — McHugh «. Schuylkill 
 County, 67 Penn. St. 391, 5 Am. Rep. 
 445; Shisler v. Vandike, 93 Penn. St. 
 447, 37 Am. Rep. 703; Workman v. 
 Wright, 33 Ohio St. 405, 31 Am. Rep, 
 546; Brook v. Hook, L. R. 6 Exch. 
 89; Corser v. Paul, 41 N. H. 24; 
 Woodruff V. Munroe, 33 Md. 146; 
 Williams v. Bailey, L. R.. 1 H. L. 
 200; Henry v. Heeb, 114 Ind. 275, 5 
 Am. St. Rep. 613. 
 
 » That the principal may be estop- 
 ped from asserting the forgery: — 
 M'Kenzie v. British Linen Co., 6 App, 
 Cas. 83, 34 Eng. Rep. 301; Casco 
 Bank v. Keene, 53 Me. 103; Union 
 Bank d. Middlebrook, 33 Conn. 95; 
 Forsyth v. Day, 46 Me. 176; Crout v. 
 DeWolf, 1 R. I. 393; Rudd v. Mat- 
 thews, 79 Ky. 479, 42 Am. Rep. 231; 
 Cohen v. Teller, 12 Norris (Penn.) 
 123. No ratification where statements 
 were equivocal: — Smith v. Tramel, 68 
 Iowa, 488. 
 
 83
 
 § 117. THE LAW OF AGENCY. [Jiook I. 
 
 III. 
 
 ■WHO MAT RATIFY. 
 
 § 117. The subdivisions of this chapter are so intimately con- 
 nected that much which is applicable to one is equally true of 
 another. Thus carrying out the line of the last subdivision it 
 may be said to be the 
 
 General Rule^ that whoever was capable of entering into a 
 contract which another, unauthorized, has assumed to make for 
 him as his agent, and who is still capable of entering into it, is 
 capable of ratifying that contract, thereby rendering it good 
 from the beginning and the same as though he had originally 
 authorized or made it.' 
 
 § 118. Corporations may ratify. And this rule is as true in 
 the case of a corporation as of an individual. An act not within 
 the corporate powers of the corporation cannot be rendered oper- 
 ative by ratification,* but if the act were one which the corpora- 
 tion might lawfully have done or authorized in the first instance, 
 its unauthorized performance, in its behalf, may be ratified in the 
 same manner and with the like effect as by an individual.^ 
 
 So as in the case of an individual, it is not necessary that there 
 should be a direct proceeding, with an express intention to ratify. 
 It may be done indirectly, and by acts of recognition or acquies- 
 cence, or by acts inconsistent with repudiation or disapproval.* 
 
 » Wilson t). Dame, 58 N. H. 392; Gloucester Bank, 17 Mass. 1, 9 Am. 
 
 Williams t>. Butler, 35 111. 544; In- Dec. Ill; Bulkley c. Derby Fisliing 
 
 dianapolis, &c., R. R Co. ». Morris, Co., 2 Conn. 253, 7 Am. Dec. 271; 
 
 67111. 295; Pollocks. Cohen, 32 Ohio Peterson p. Mayor, 17 N. Y. 449; 
 
 St. 514; Sentell ». Kennedy, 29 La. Baker©. Cotter, 45 Me. 286; Despatch 
 
 Ann, 679; McCracken e. San Fran- Line*. Bellamy Mnf'g Co.. 12 N H 
 
 Cisco, 16 Cal. 591. 205, 37 Am Dec. 203; Whitewell «. 
 
 s Taymouth n. Koehler, 35 Mich. Warner, 20 Vt. 425 ; City of Detroit 
 
 22; Highway Commissioners ». Van t. Jackson, 1 Doug. (Mich.) 106; 
 
 Dusan, 40 Mich. 439; Supervisor c. Church tJ. Sterling. 16 Conn. 388; 
 
 Arrighi, 54 Miss. 668; Smith t). New- Planters' Bank v. Sharp, 4 Smedes «& 
 
 burgh, 77 N. Y. 130; Green «. Cape M. (Miss.) 75, 43 Am Dec. 470. 
 May. 41 N. J. L. 45; Hague v. Phila- « Scott v. Methodist Church, 50 
 
 delphia, 48 Penn. St. 528; Bangor Mich. 528; Taymouth v. Koehler. 35 
 
 Boom Co. «. Whiting. 29 Me. 123. Mich. 22; Sherman u. Fitch, 93 Mass. 
 
 »Kelsey «. National Bank, 69 Penn. 59; Lyndeborough Glass Co. c. Massa- 
 
 8t. 426; Fleckner v. U. S. Bank, 8 chusetts Glass Co., Ill Mass. 315; 
 
 Wheat. (U. S.) 363; Salem Bank ». Brown e. Winnisimmet Co., 11 Allea 
 
 84
 
 Chap. Y.] RATIFICATION. § 122. 
 
 § 119. Partners may ratify. Partners, also, are undoubtedly 
 competent to ratify what they might properly have authorized, 
 and within the same limits, one partner may ratify for the firm, 
 and the ratification of the whole partnership may be implied 
 from acquiescence after knowledge brought home to one, under 
 such circumstances as to make the knowledge of one the knowl- 
 edge of all. ' 
 
 § 120. Infant cannot ratify. As has been seen,* it is held 
 that, as an infant cannot appoint an agent he cannot ratify the 
 act of one who has, unauthorized, assumed to act for him. 
 
 § 121. When Agent may ratify. An agent cannot ratify his 
 own unauthorized act ;' nor can one of two joint agents ratify the 
 act of his coagent ;* but where the act, which when done by one 
 agent was unauthorized, is within the general power of another 
 agent of the same principal, the doing of the act by the first 
 agent may be ratified by the second.* This doctrine is frequently 
 applied to the ratification of the acts of subordinate agents by the 
 superior agents of corporations.* 
 
 § 122. Ratification by incompetent Person. A contract made 
 
 (Mass.) 326; A.rlington v. Peirce, 122 299; Toledo, Wab, & West. R R. Co. 
 
 Mass. 270; Hoyt v. Thompson, 19 N. v. Rodrigues, 47 111. 188; Toledo, &c. , 
 
 Y. 307; Scott v. Middletowa, &c., R. R. R. Co. v. Prince, 50 111. 26; Balls- 
 
 R. Co. 86 N. Y. 200; Gold Mining ton Spa Bank v. Marine Bank, 16 
 
 Co. V. National Bank, 96 U.S. 640; Wis. 129; Anglo-Californian Bank©. 
 
 Law V. Cross, 1 Black (U. S.) 533. Mahoney Mining Co., 6 Sawy. (U. S. 
 
 'Forbes v. Haginan, 75 Va. 168. C. C) 255, s. c. 104 U. S. 192; Sher- 
 
 See Chouteau v. Qoddin, 39 Mo. 229, man v. Fitch, 98 Mass. 59; Walworth 
 
 90 Am. Dec. 462; Baldwin®. Leonard, Co. Bank v. Farmers' L. «& T. Co., 16 
 
 39 Vt. 260, 94 Am. Dec. 324. Wis. 629; Hoyt v. Thompson, 19 N. 
 
 *Ante, § 52. Y. 207; Darst v. Gale, 83 111. 136; 
 
 'Trudo V. Anderson, 10 Mich. 357, First National Bank r. Kimberlands, 
 
 81 Am. Dec. 795; Hotchin v. Kent, 8 16 W. Va. 555; Burrill v. Nabant 
 
 Mich. 526. Bank, 2 Mete. (Mass.) 163, 35 Am. 
 
 «Penno. Evans, 28 La. Ann, 576. Dec. 395; Wood v. Whelen. 93 111. 
 
 s Mound City Mutual L. Ins. Co. «. 155; Chouteau v. Allen, 70 Mo. 290; 
 
 Huth, 49 Ala. 530; Whitehead v. Reichwald v. Commercial Hotel Co., 
 
 Wells, 29 Ark. 99; Dorsey «. Abrams, 106 111. 439; Lyndeborough Glass Co. 
 
 85 Penn. St. 299; Palmer v. Cheney, v. Mass. Glass Co.. Ill Mass. 315; 
 
 35 Iowa, 281. Olcott v. Tioga R. R. Co., 27 N. Y. 
 
 •Thus see Cairo & St. L. R. R. Co. 546; Union Mutual Life Ins. Co. v. 
 
 V. Mahoney, 82 111. 73, 25 Am. Rep. Masten, 3 Fed. Rep. 881. 
 
 85
 
 § 123. THE LAW OF AGENCY. [Book 1. 
 
 by or for a party during a period of incompetence may be rati- 
 fied by him after his competency is restored.* 
 
 § 123. Ratiflcation by Guardian or Executor. And this may 
 be done, as has already been stated, by the incompetent's guar- 
 dian or committee, or by his personal representatives after the 
 incompetent's death.* 
 
 IV. 
 
 CONDITIONS OF RATIFICATION. 
 
 § 124. 1. Prinoipal m.u3t have been identified. The act to 
 be ratified must have been done by one claiming to represent the 
 person ratifying or persons of his description.* It is not neces- 
 sary that the intended principal be known to the agent at the 
 time, but it is necessary that the person for whom the agent pro- 
 fesses to act must be a person who is then capable of being ascer- 
 tained. Neither is it necessary that he should have been named, 
 but there must be such a description of him as shall amount to a 
 reasonable designation of the person intended to be bound.* 
 
 § 125. 2. Principal must have been in Existence. It follows 
 necessarily from the doctrine of the preceding section that the 
 principal must also have been in existence at the time the act to 
 be ratified was done. A principal, e. g.^ a corporation, subse- 
 quently coming into existence may become liable upon contracts 
 assumed to have been made in its behalf before its organization 
 by persons who undertook to bind it in advance, as where the 
 corporation when organized, with knowledge of the facts, appro- 
 priates and retains the benefits of the contracts so made on its 
 account ;• but this liability is rather that of a new implied con- 
 tract than the ratification of one wliich was made before the cor- 
 poration had acquired a legal existence.* 
 
 \Ante, § 50. St. 54, 21 Am, Rep. 39; Paxton Cat- 
 
 «^7i^e, §50. tie Co. e. First National Bank, 21 
 
 'FoslerV Bates, 12 M. & W. 226. Neb. 621, 59 Am. Rep. 85'3; Western 
 
 <Wat5ion?;. Swann, lie. B. (N. S.) Screw Co. v. Cousley, 72 111. 531; 
 
 771; 103 Eng. Com. Law Rep. 770; New Tork, &c., R. R. ,Co. «. Ketch- 
 
 Kelncr v. Baxter, L. R. 2 C. P. 174. um, 27 Conn. 170. 
 
 «Rockford, &c., R. R. Co. b. Sage, «Morawetz on Corporations, § 548. 
 
 65 111.328, 16 Am. Rep. 587; Bull's See also aw^*, § 75. 
 
 Gap R. R. Co. «. Christy, 79 Penn. 
 
 86
 
 Chap, v.] EATIFICATION. § 128. 
 
 § 126. 3. Principal must have present Ability. As has been 
 seen, the power to ratify presupposes a present ability in the 
 principal to do the act himself or to authorize it to be done.' If, 
 therefore, for any reason, the principal has become, since the 
 doing of the act to be ratified, incapable of doing the act himself 
 and of authorizing it to be done, he is incapable of ratifying it.* 
 
 And so if third persons acquire rights after the act is done and 
 before it has received the sanction of the principal, the ratifica- 
 tion cannot operate retrospectively so as to overreach and defeat 
 those rights.' 
 
 § 127. 4. Act must have been done as Agent. The act rati- 
 fied must also have been done by the assumed agent as agent and 
 in behalf of the principal. If the act was done by him as prin- 
 cipal and on his own account, it cannot thus be ratified.* 
 
 §128. 5. Knowledge of material Facts. It will be seen here- 
 after that the ratification of an unauthorized act may be express 
 or implied. It may be the intentional act of the principal, and 
 it may also be, in a measure, an unintentional act. Upon learn- 
 ing of the unauthorized act of his agent, the principal, deeming 
 the act to be to his advantage, may expressly ratify it and avail 
 himself of its benefits ; or, deeming it to be to his detriment, he 
 may expressly repudiate it ; or, as is more often the case, he may 
 take no decisive step in either direction, but tacitly leave his in- 
 tention to be determined by his subsequent acts. He is under no 
 obligation to expressly affirm,* but if he decides to do so, he may 
 
 > Zottman v. San Francisco, 20 Cal, Am. Dec. 613; Stoddart's Case, 4 Ct, 
 
 96, 81 Am. Dec. 96. "Ratification of CI. 511. See also pos<, § 1C8. 
 
 can only be made when the principal * Collins v. Suau, 7 Robt. (N. Y.) 
 
 possesses at the time the power to do 623; Hamlin v. Sears, 82 N. Y. 327; 
 
 the act ratified. He must be able at Pittsburg, &c., R. R. Co. v. Gazzam, 
 
 the time to make the contract to 32 Penn. St. 340; Collins v. Wag- 
 
 which, by his ratification he gives goner, Breese (111.) 26; Beverid^^e v. 
 
 validity." Field, J., in McCracken Rawson, 51 111. 504; Commercial 
 
 V. San Francisco, 16 Cal. 591. See Bank ». Jones, 18 Tex. 811; Grand c. 
 
 also Grngan v. San Francisco, 18 Cal. Van Vleck, 69 111. 479; Harrison v. 
 
 590; Marsh v. Fulton County, 10 Mitchell, 18 La. Ann. 260; Koby v. 
 
 Wall. (U. S.) 676; Davis v. Lane, 10 Cossitt, 78 111. 038; Allredc. Bray. 41 
 
 N. H. 158. Mo. 484; Vanderbilt v. Turnpike Co. 
 
 2 Cook V. TuUis, 18 Wall. (U. S.) 2 N. Y. 479; Brainerd v. Dunning, 
 832. 30 N. Y. 211. 
 
 3 Wood t). McCain, 7 Ala. 800, 42 s Combs c. Scott, 13 Allen (Mass.) 
 
 493. 
 
 87
 
 § 129. THE LAW OF AGENCY. [Book I. 
 
 fully inform himself of all the material facts, or he may inten- 
 tionally assume the risk without inquiry,' or he may deliberately 
 ratify upon such knowledge as he possesses without caring for 
 more.* If he determines expressly to repudiate the contract he 
 must either ascertain the facts or incur the risk of having the 
 contract subsequently shown to be within the agent's powers and 
 enforced against him, notwithstanding his attempted repudiation. 
 
 But by far the most numerous and troublesome class of cases 
 is that where it is attempted by third persons to hold the princi- 
 pal liable, upon the basis of an implied affirmance. The principal 
 may in fact have had a positive intention not to ratify the con- 
 tract, and yet he may have so conducted himself with reference 
 to third parties that he will be presumed to have ratified it. 
 What shall amount to a ratification and what shall be deemed to 
 be sufficient evidence thereof, are questions reserved for consid- 
 eration hereafter. 
 
 § 129. Same Subject— General Rule. It may therefore be 
 stated as the general rule, that, except in those cases where the 
 principal intentionally assumes the responsibility without 
 inquiry, or deliberately ratifies, having all the knowledge 
 in respect to the act which he cares to have,' any ratifica- 
 tion of an unauthorized contract, in order to be made 
 effectual and obligatory upon the alleged principal, must 
 be shown to have been made by him with a full knowl- 
 edge of all the material facts connected with the transac- 
 tion to which it relates ; and especially must it appear that the 
 existence of the contract and its nature and consideration were 
 known to him.* It is not necessary, however, that he should also 
 
 •Lewis V. Read, 13 M. & W. 834. Dysart, 9 B. Monr. (Ky.) 413; Wood- 
 
 «Kelley t). Newburyport Horse R. bury v. Larned, 5 Minn. 339; Humph- 
 
 R. Co., 141 Mass. 496. rey t). Havens, 12 Id. 298; Seymour 
 
 8Lewiso. Read, 13 M. & W. 834; v. Wyckoff, 10 N. Y. 213; Brass v. 
 
 Kelley v. Newburyport Horse R. R. Worth, 40 Barb. (N. Y.) 648; Roach 
 
 Co., 141 Mass. 496. v. Coe, 1 E. D. Smith (N. Y.) 175; 
 
 < Dickinson v. Conway, 12 Allen Pittsburg, &c., R. R. Co. b. Gozzam, 
 
 CMass.) 491; Combs v. Scott, Id. 493; 32 Penn. St, 340; Dupont v. Werthe- 
 
 Owings*. Hull, 9 Pet. (U. S.) 607; man, 10 Cal. 354; Billings b. Morrow, 
 
 Hardeman v. Ford, 12 Qa, 205; Mapp 7 Cal. 171, 68 Am. Dec. 235; Ward 
 
 V. Phillips, 32 Ga. 72; Mathews v. v. Williams, 26 111. 447. 79 Am. Dec. 
 
 Hamilton, 23 111. 470; Tidrick v. 385; Manning v. Gasharie, 27 Ind. 
 
 Rice, 13 Iowa, 214; Dodge v. Mc- 399; ^tna Ins. Co. v. N. W. Iron 
 
 Donnell, 14 Wis. 553; Fletcher v. Co., 21 Wis. 458; McCants e. Bee, 1 
 
 88
 
 Chap, v.] 
 
 EATIFICATION. 
 
 §130. 
 
 be informed of the legal effect of the facts. If he knows the 
 facts, it is enough. But if the material facts were suppressed, or 
 were unknown to him, except as the result of his intentional and 
 deliberate act, the ratification will be invalid because founded 
 upon mistake or fraud.* And the same rule applies to the settle- 
 ment of the liability of the agent to his principal for his unau- 
 thorized act." 
 
 § 130. 6. No Ratification of Part of Act. It is a fundamental 
 
 McCord Ch. 883, 16 Am. Dea 610; 
 White V. Davidson, 8 Md. 169, 63 
 Am. Dec, 699; Bryant «. Moore, 26 
 Me. 84, 45 Am. Dec. 96; Pennsyl- 
 vania Steam Nav. Co. «. Dandridge, 
 8 Gill & John. (Md.)248, 29 Am. Dec. 
 643; Bohart v. Oberne, 86 Kan. 284; 
 Spooner v. Thompson, 48 Vt. 259; 
 Reynolds v. Ferree, 86 111. 570; 
 Adams Exp. Co. v. Trego, 35 Md. 
 47; Lester v. Kinne, 37 Conn. 9; De- 
 laney v. Levi, 19 La. Ann. 251; Wil- 
 linms V. Storm, 6 Cold. (Tenn.) 203; 
 Miller v. Board of Education, 44 Cal. 
 166; Commercial Bank «. Jones, 18 
 Tex. 811; Bannon v. Warfleld. 42 Md. 
 22; Bosseau v. O'Brien, 4 Blss. (U. 
 
 8. C. C.) 395; Union Gold Min. Co. 
 «. Rocky Mt. Nat. Bank, 2 Col. 565; 
 Bank of Owensboro v. Western Bank, 
 13 Bush. (Ky.) 526, 26 Am. Rep. 211; 
 Meyeri?. Baldwin, 52 Miss. 263; Kerr 
 
 9. Sharp, 83 111. 199; Stein v. Ken- 
 dall, 1 111. App. 103; SnowD. Grace, 
 29 Ark. 131; Turner v. Wilcox, 54 
 Ga. 593; Craighead v. Peterson, 72 
 N. Y. 279. 28 Am. Rep. 150; Smith 
 V. Kldd, 68 N. Y. 130, 23 Am. Rep. 
 157; Baldwin v. Burrows, 47 N. Y. 
 212; Silverman v. Bush, 16 111. App. 
 437; Hovey 17. Dover, 59 N. H. 522; 
 Curry v. Hale, 15 W. Va. 8G9: Bell v. 
 Cunningham, 3 Pet. (U. S.) 69; Paci- 
 fic Rolling Mill Co. v. Dayton, 7 Saw- 
 yer, (U. 8. C. C.)67. 5 Fed Rep. 852; 
 Forrestier v. Bordman, 1 Story, (U. 
 S. C. C.) 52; Reese v. Medlock, 27 
 Tex. 120, 84 Am. Dec. 611; Bennecke 
 
 V. Ins. Co. 105 U. S. 355; Fuller v. 
 Ellis, 39 Vt. 345, 94 Am. Dec. 327; 
 Delhi V. Adams Ins. Co. 58 Penn. St. 
 443; Bevin v. Conn. Mut. L. Ins. Co. 
 23 Conn, 244; International Bank v. 
 Ferris, 118 111, 465. But see Scott v. 
 Middletown, &c,, R. R. Co. 86 N. Y. 
 200, as to when knowledge will be 
 presumed, 
 
 * In a recent case in Massachusetts 
 it is held that it is not necessary that 
 the principal should have knowledge 
 not only of all of the facts, but also 
 of the legal effect of the facts, and 
 that he should then, with a knowledge 
 of both law and facts, have ratified 
 the contract by some independent 
 and substantive act. "It is suffl 
 cient," says Allen, J., "if a ratifi- 
 cation is made with a full knowledge 
 of all the material facts. Indeed, a 
 rule somewhat less stringent may 
 properly be laid down where one 
 purposely shuts his eyes to means of 
 information within his own possession 
 and control, and ratifies an act de- 
 liberately, having all the knowledge 
 in respect to it which he cares to 
 have." In Kelley v. Newburyport 
 Horse R. R. Co., 141 Mass. 496, citing 
 Combs V. Scott, 12 Allen (Mass.) 
 493; Phospiiaie of Lime Co. v. Grecu, 
 L. R. 7. C, P. 43, 1 Eng. Rep. 89. 
 
 »Bank of Owensboro v. Wesstem 
 Bank, 18 Bush. (Ky.) 626, 26 Am. 
 Rep. 211; Hoffman v. Livingston, 46 
 N. Y. Super. Ct. 553. 
 
 89
 
 § 131. THE LAW OF AGENCY. [Book I. 
 
 rule that if the principal elects to ratify any part of the un- 
 authorized act he must ratify the whole of it. He cannot avail 
 himself of it so far as it is advantageous to him, and repudiate 
 its obligations ; and this rule applies not only when his ratifica- 
 tion is express but also when it is implied.' 
 
 § 131. 7. Rights of other Party must be prejudiced. The 
 acts claimed to effect a ratification must be of such a nature that 
 the rights of the other party who has relied upon them will be 
 prejudiced if a ratification has not taken place.' 
 
 § 132. Burden of Proof. The burden of proving a ratifica- 
 tion rests upon the party alleging it.' 
 
 § 133. Kelief of Principal when Facts not fully known. It 
 follows necessarily from the authorities cited to the general rule 
 that, except in those cases in which the principal intentionally 
 assumes the risk without inquiry, or deliberately ratifies without 
 caring for further information, the principal will, to the extent 
 that the alleged ratification was without full knowledge on his 
 part of the material facts, be relieved from the effect of it.* 
 
 V. 
 
 WHAT AMOUNTS TO A EATIFIOATION. 
 
 § 134. Importance of Question. It is obvious that this is the 
 most important question to be considered in this chapter, and that 
 within it are embraced, to a greater or less degree, all of the 
 prciliminary topics that have just been considered. Given the 
 proper parties and the right conditions, does this writing, this 
 
 ' McClure v. Briggs, 58 Vt. 82; Crans c. Hunter. 28 N. Y. 8S9; Rufif- 
 
 Eberts v. Selover, 44 Mich. 519; ner ©. Hewett, 7 W. Va. 585; Mercier 
 
 Rudasill v. Falls, 92 N. C. 222; Tas- v. Copelan, 73 Ga. 636; Hutchings v. 
 
 ker V. Kenton Ins. Co. 69 N. H. 438; Ladd, 16 Mich. 493. 
 
 Barhydt v. Clark, 12 111. App. 646; sDoughaday v. Crowell, 11 N.J. 
 
 Southern Express Co. v. Palmer, 48 Eq. 201. 
 
 Ga. 85; Krider v. Western College, 31 "Reese v. Medlock, 27 Tex. 120, 84 
 
 Iowa, 547; Crawford ». Barkley, 18 Am. Dec. 611. 
 
 Ala. 270; Hodnett v. Tatura, 9 Ga. 70; * Miller v. Board of Education. 44 
 
 Henderson v. Cummings, 44 111. 325; Cal. 166; Dean v. Bassett, 57 Cal. 640; 
 
 Eiam D. Carruth, 2 La. Ann. 275; Adams Express Co. v. Trego, 35 Md. 
 
 Widner v. Lane, 14 Mich. 124; Pen- 47; and see generally cases cited in 
 
 insular Bank v. Hanner, Id. 208; %12,9, supra. 
 Coleman v. Stark, 1 Oregon, 115; 
 
 90
 
 Chap, y.] RATIFICATION. § 137. 
 
 conduct, this speaking, this silence, amount to a ratification of 
 this unauthorized contract? is the vital question to which all the 
 preliminary considerations lead. 
 
 § 135. Written or unwritten— Express or implied. As has 
 been seen and will hereafter be more clearly seen, the ratification 
 of an unauthorized act is deemed to be equivalent to a prior 
 authority to perform it; and as that prior authority may have 
 been written or unwritten, express or implied, so this ratification 
 may be effected in the same way.' 
 
 Where the facts are undisputed, the question whether or not 
 they amount to a ratification, is one of law for the court; but in 
 other cases the question of ratification or not becomes one of fact 
 to be determined by the jury.' 
 
 a. Express Ratification. 
 
 % 136. General RtQe. It is the general rule that the act of 
 ratification must be of the same nature as that which would be 
 required for conferring the authority in the first instance.' If, 
 therefore, sealed authority was indispensable, sealed ratification 
 must be shown ; and if written authority was required, written 
 ratification must appear.* 
 
 § 137. Deed at Common Law ratified only by Instrument 
 under Seal. Thus, as authority to execute an instrument under 
 seal could only be conferred by authority under seal,* it was the 
 doctrine of the common law that the unauthorized deed of an 
 agent could only be ratified by an instrument under seal.* 
 
 ' Goss r>. Stevens, 82 Minn. 472; nor." Parker, C. J. in Despatch 
 
 Post, Subd. a and h\ Taylor v. Con- Line ». Bellamy Mfg. Co. 12 N. H. 
 
 ner, 41 Miss. 722, 97 Am. Dec. 419. 205; 37 Am. Dec. 203. 
 
 sSwarlwout v. Evans, 37 111. 443; < Pollard®. Gibbs, 55 Ga. 45; Grove 
 
 Trustees t. McCormick, 41 111. 323; v. Hodges, 55 Penn. 81. 504; Palmer 
 
 Marine Co. ■c. Carver, 42 111. 66; Paul «. Williams, 24 Mich. 328; and cases 
 
 V. Berry, 78 111. 158; Henderson v. cited in following section. Where a 
 
 Cummings, 44 111. 325. statute required that the authority of 
 
 8 " A ratification of an act done by an agent to make contracts of surety- 
 one assuming to be an agent relates ship should be in writing, a subse- 
 back and is equivalent to a prior au- quent parol ratification was held in- 
 thority. When therefore the adop- suflScieut. Ilagan v. Chenault, 78 
 tion of any particular form or mode Ky. 545. 
 is necessaiy to confer the authority in ^Ante, § 82, 
 
 the first instance there can be no valid « Despatch Line v. Bellamy Mfg. 
 
 ratification except in the same man- Co. supra; Spoffard v. Hobbs. 29 Me. 
 
 91
 
 ft 138. THE LAW OF AGENCY. [Book I. 
 
 8 138. Same Subject— Rule relaxed in Partnership Cases. 
 This rule has been <^reatly relaxed in partnership cases, and it is 
 now quite universally held that the act of one partner in execut- 
 ino-, in the name of the firm, an instrument under seal, may be 
 ratified by the other partner by parol. Said Breese C. J. : " We 
 think it may be safely said that the modern rule is that one part- 
 ner may, in furtherance of the partnership business and for its 
 benefit, execute a deed under seal which will be binding on the 
 other if he has foreknowledge, or subsequently ratifies it, and 
 this may be proved by acts and circumstances or by his verbal 
 declarations and admissions." ' 
 
 8 139. Same Subject— Massacliusetts Rule. And in Massa- 
 chusetts the court has gone still further, and it is said that the 
 law is settled in that commonwealth that the unauthorized execu- 
 tion of a deed in the name either of a partnership or of an indi- 
 vidual may be ratified by parol.* 
 
 § 140. Same Subject— Modem Rule more liberal. As has 
 been already stated, the tendency in modern times is to attach 
 less importance to the presence of a seal, and to mitigate the 
 severity of those technical rules of the common law which were 
 based upon reasons no longer applicable to the conditions and 
 methods of the present day. In many of the States statutes have 
 
 148, 48 Am. Dec. 521; Bellas e.Hays, an authority under seal is sufficient. 
 5 Serg. & R. (Penn.) 427, 9 Am. Dec. Blood v. Goodrich, 12 Wend. (N. Y.) 
 385; Stetson v. Patten, 2 Greenl. (Me.) 525, 27 Am. Dec. 152. 
 358; 11 Am. Dec. Ill ; Blood v. Good- * Peine v. Weber, 47 111. 45; and to 
 rich, 9 Wend. (N. Y.) 68, 24 Am. the same effect are Mclntyre v. Park, 
 Dec! 121; McDowell v. Simpson, 3 11 Gray (Mass.) 102. 71 Am. Dec. 
 Watts (Penn.). 129, 27 Am. Dec. 338; 690; Cady v. Shepherd, 11 Pick. 
 Heath v. Nutter, 50 Me. 378; Paine v. (Mass.) 400, 22 Am. Dec. 379; Skin- 
 Tucker, 21 Id. 138, 38 Am. Dec. 255; ner v. Dayton, 19 Johns. (K Y.) 513, 
 Hanfor'd v. McNair, 9 Wend. (N. Y.) 10 Am. Dec. 286; Holbrook v. Cham- 
 54; Taylor v. Robinson, 14 Gal. 400; berlain, 116 Mass. 155, 17 Am. Rep. 
 Ingram v. Little, 14 Ga. 173, 58 Am. 146; Russell v. Annable, 109 Mass. 72, 
 Dec. 549; Drumright v. Philpot, 16 12 Am. Rep. 665; Kendall t). Garland, 
 Ga. 424, 60 Am. Dec. 738; Pollard v. 5 Gush. (Mass.) 79; Swan v. Stedman. 
 Gibbs,55 Ga. 45; Grove v. Hodges, 55 4 Mete. (Mass.) 552; Dillon v. Brown, 
 Penn.' St. 504; McCracken v. San 11 Gray (Mass.) 179. 
 Francisco, 16 Cal. 591; and upon » Gray, C. . I. in Holbrook «. Cham- 
 analogous reasoning is Ragan ». Chen- berlain, 116 Mass. 155, 17 Am, Rep. 
 ault, 78 Ky. 545. 146; Mclntyre v. Park, 11 Gray 
 But a parol acknowledgment of (Mass.) 102, 71 Am. Dec. 690. 
 
 92
 
 Chap, v.] RATIFICATION. § 144. 
 
 been enacted by which the absence of a seal from an instrument 
 formerly requiring it is declared to be immaterial, or by which all 
 of the old distinctions between sealed and unsealed instruments 
 are swept away.* Where such statutes prevail, the technical rule 
 requiring a ratification under seal would have no force. 
 
 § 141. Unnecessary Seal may be disregarded. In accordance 
 with rules previously referred to,* if the instrument executed by 
 the accent, though under seal, be one upon which no seal was re- 
 quired, the seal may be disregarded and the instrument ratified 
 as a simple contract.' 
 
 § 142. By Authority subsequently conferred. The unauthor- 
 ized execution of a deed may be expressly ratified by a power of 
 attorney subsequently executed authorizing its execution and 
 dated back prior to the date of the deed. Thus, where an at- 
 torney appointed by parol, executed a bond in the name of his 
 principal, and afterwards his principal gave him a power of 
 attorney dated prior to the bond and authorizing its execution, 
 this was held to be a good ratification of the bond and that the 
 principal was estopped to assert that the power of attorney was, 
 as a matter of fact, executed subsequently to the bond.* So a 
 letter from a principal authorizing certain acts, but received after 
 the performance, will be a ratification.* 
 
 § 143. By Answer in Chancery. So where a sheriff under 
 the authority and by the direction of B sold certain lands in 
 which B had an interest, making a deed thereof in B's name, 
 
 1 Provisions of this nature are found But, eontra, Howe v. Ware, 30 Ga. 
 
 in Arkansas, California, Dakota, In- 278; Pollard v. Gibbs, 55 Ga. 45. 
 
 diana, Iowa, Kansas, Micliigan, Mis- * Milliken v. Coombs, 1 Greenl. 
 
 sissippi, Montana, Nebraska, Tennes- (Me.) 343, 10 Am. Dec. 70; United 
 
 see, Texas, and probably in other States Express Co. v. Rawson, 106 
 
 States. Ind. 215; Riggiu v. Grain, — Ky. — , 
 
 » Ante % 95. 5 S. W. Rep. 561. 
 
 « Adams v. Power, 52 Miss. 828, « Rice v. McLarren, 42 Me. 157. 
 
 citing Worrall v. Munn, 5 N. Y. 229, But in Moore v. Lockett, 2 Bibb (Ky.) 
 
 55 Am. Dec. 330; Lawrence v. Tay- 67, 4 Am. Dec. 683, it was held that a 
 
 lor, 5 Hill (N. Y.), 113; Randall v. letter giving an agent power to sell 
 
 Van Vechten, 19 Johns. (N. Y.) 60. but written subsequently to an unau- 
 
 10 Am. Dec. 193; Evans v. Wells, 23 thorized sale under an insufficient 
 
 Wend. (N. Y.) 340. And to the same power, did not ratify the previous 
 
 effect are State «. Spartansburg, &c. sale. And see Stillman v. Fitzgerald, 
 
 R. R. Co. 8 S. C. 129; Hammond v. — Minn—, 33 N. W. Rep. 564. 
 Hannin, 21 Mich. 374, 4 Am. Rep. 490. 
 
 93
 
 g 144.. THK LAW OF AGENCY. [Book 1. 
 
 and B, in Lis answer to a bill in chancery filed in relation to this 
 transaction, admitted the sale as aforesaid, the court held the ad- 
 mission to be a confirmation of the sale of B's interest.* 
 
 8 144. Contract for Sale or leasing of Land ratified by ParoL 
 It has been seen that in many of the States, authority to make 
 contracts for the sale or leasing of land of the principal is not re- 
 quired to be in writing,' and it has, therefore, been held that in 
 these States the unauthorized making of such contracts may be 
 Bubsequently ratified without writing.* And even in a State 
 where the agent's authority was required to be in writing it was 
 held that such a contract might be ratified by paroL* 
 
 S 145. " Lawfully authorized " • under Statute of Frauds. 
 And it has been held sufficient to satisfy that provision of the 
 Statute of Frauds which requires that the contract shall be in 
 writing, signed by the principal or by some one thereunto by him 
 lawfully authorized, to show a subsequent ratification of the act 
 of the agent in signing such a contract.* 
 
 h. Implied Ratification. 
 
 § 146. In general. But since, as has been seen, authority for 
 the doing of any lawful act, — except in those cases in which an 
 authority in writing or under seal is expressly required, — can be 
 conferred by parol, and since the existence of such authority may 
 be presumed from the conduct of the parties, so also, with the 
 same exceptions, the unauthorized doing of any such act may be 
 ratified by parol, and the fact of such ratification may likewise 
 be presumed from the conduct of the parties. In this case also, 
 as in the other, it will be found that this is the most usual method 
 by which the result is effected. 
 
 The reasons, too, are similar. Whoever by his acts, his words 
 or his silence, has led an innocent third person reasonably to con- 
 clude that the act of another in his behalf has been adopted and 
 sanctioned by him, and has permitted such third person to rely 
 thereon in such a manner as to prejudice his rights if the conclu- 
 
 ' Stonoy «. Shultz, 1 Hill Ch. (S.C.) < Hammond «. Hanuin, 21 Mich, 
 
 465. 27 Am. Dec. 429. 374, 4 Am. Rep. 490. 
 
 ^Ante,%^^. sMcLeaa v. Dunn, 4 Bing. 722; 
 
 3 .McDowell V. Simpson, 8 Watts Soames v. Spencer, 1 Dowl. & R. 32, 
 (Pcnn.) 129, 27 Am. Dec. 338. 
 
 94
 
 Chap, v.] KATrFICATION. § 148. 
 
 eion is Dot correct, ought not to be heard to assert that the fact 
 is otherwise than he has caused or permitted it to appear. 
 
 Ratification, like authorization of which it is the equivalent, is 
 generally the creature of intent, but that intent may often be 
 presumed by the law in cases where the principal, as matter of 
 fact, either had no express intent at all, or had an express intent 
 not to ratify. 
 
 These acts, words, silence of the principal are sometimes spoken 
 of as in themselves a ratification. As a rule, however, this is 
 not strictly accurate. They are rather the evidence of a ratifica- 
 tion, than the ratification itself. 
 
 § 147. Variety of Methods. The methods by which a rati- 
 fication may be effected are as numerous and as various as the 
 complex dealings of human life. It is impossible to state them 
 all. But certain forms that have been judicially passed upon 
 may be grouped, and instances be given which may furnish a rule 
 for future cases. 
 
 § 148. By accepting Benefits. It is a rule of quite universal 
 application that he who would avail himself of the advantages 
 arising from the act of another in his behalf must also assume 
 the responsibilities. If the principal has knowingly appropriated 
 and enjoyed the fruits and benefits of an agent's act he will not 
 afterwards be heard to say that the act was unauthorized. One 
 who voluntarily accepts the proceeds of an act done by one 
 assuming, though without authority, to be his agent, ratifies the 
 act and takes it as his own with all its burdens as well as all its 
 benefits. He may not take the benefits and reject the burdens, 
 but he must either accept them or reject them as a whole.^ But 
 
 'RuffglestJ. "Washington Co. 3 Mo. Wright (Ohio) 663; Davis v. Krum, 
 
 496; Hastings v. Bangor House, 18 13 Mo. App. 879; Parish ij. Reeve, 63 
 
 Me. 436; Low v. Conn., «&c., R. R. Wis. 315; Hauss v. Niblack, 80 Ind. 
 
 Co., 46 N. H. 384; Reid v. Hibbard, 407; Rich v. State Natl. Bank, 7 Neb. 
 
 6 Wis. 175; Cushman v. Loker, 3 201; Fowler c. N. Y. Gold Exchange, 
 
 Mass. 106; Niirra.!?ansett Bank v. At- 67 N. Y. 138; Snow v. Grace, 21) Ark. 
 
 lanlic Co., 3 Mete. (Mass.) 283; Cod- 131; State v. Smith, 48 Vt. 266; Dunn 
 
 wise V. Hacker, 1 Cai. (N. Y.) 526; «. Hartford, &c., R. R. Co., 43 Conn. 
 
 Moss V. Rossie Co., 5 Hill (N. Y.) 137; 484; Hurd v. Marple, 3 111. App. 403; 
 
 Palmerton v. Huxford, 4 Den. (N. Y.) Ely v. James, 133 Mass. 36; Aurora 
 
 166; Houghton v. Dodge, 5 Bosw. Agl. Soc. v. Paddock, 80 111. 263; 
 
 (N. Y.) 326; Farmers', &c., Bank v. Bacon v. Johnson, 56 Mich. 183; Ea- 
 
 Sherman, 6 Id. 181; State v. Perry, die v. Ashbaugh, 44 Iowa, 519; Man- 
 OS
 
 § 149. THE LAW OF AGENCY. [Book T, 
 
 here, as in other cases, it is indispensable that the principal 
 should have had full knowledge of the material facts, or that he 
 should have intentionally accepted the benefits without inquiry. 
 Otherwise the receipt and retention of the benefits of the unau- 
 thorized act, is no ratification of it.* 
 
 § 149. Same Subject— Instances. Thus a principal who, with 
 full knowledge of the facts, receives and appropriates to his own 
 use without objection, the purchase price or rent of land or other 
 property sold or rented by one assuming to act on his behalf as 
 his agent, ratifies the act.* But the mere receipt of a portion of 
 the money, realized from an unauthorized sale by a sheriff, will 
 not ratify the sale ;* nor will the receipt of money ratify the sale 
 where the principal would have the right to receive the money 
 without ratifying tlie sale;* nor if the principal demand from 
 the agent, money which the agent has misapplied, will such de- 
 mand ratify the misapplication.* But where the owner of a 
 judgment with knowledge of the facts retains the proceeds of an 
 unauthorized assignment of it, he will be assumed to have rati- 
 fied the assignment.* And so where the owner of a mortgage 
 voluntarily accepted the proceeds of an unauthorized discharge 
 of it, the discharge was held to be ratified.' And again, where 
 the principal knowingly accepts of security taken by an agent in 
 
 dorff V. Wickersham, 63 Penn. St. See also Walworth, &c. Bank t>. 
 
 87, 3 Am Rep. 531; Waterson v. Ro- Farmers' &c. Co., 16 Wis. 629; Pow- 
 
 gers, 21 Kan. 529. ell v. Gossom, 18 B. jMonroe (Ky.) 
 
 iBohart v. Oberne, 36 Kans. 284; 179; Bainest). Burbridge, 15 La. Ann. 
 Schutz V. Jordan, 33 Fed. Rep. 55; 628; BreitUhnupt v. Thurmond, 3 
 Kelley v. Newburyport Horse R. R. Rich. (S. C.) 216; Harris v. Simmer- 
 Co., 141 Mass. 496; Combs v. Scott, 12 man, 81 111. 413. 
 Allen (Mass.) 493; Phosphate of Lime » Harris v. Miner. 28 111. 135; Smith 
 Co. V. Green, L. R. 7 C. P. 43, and v. Tracy, 36 N. Y. 79. 
 cases cited in preceding note. < White v. Sanders, 32 Me. 188. 
 
 »Lindroth v. Litchfield, 27 Fed. »Blevins e. Pope. 7 Ala. 371. 
 
 Rep. 894; Reynolds v. Davison, 34 'Wallace «. Lawyer, 90 Ind. 499. 
 
 Md. 662; Abbott v. May, 50 Ala. 97; And where a bank appropriates to its 
 
 Snow t). Grace, 29 Ark. 131 ; Turner own use, bonds purchased by its 
 
 V. Wilcox, 54 Ga. 593; Seago v. Mar- cashier without authority, it cannot 
 
 ten, 6 Heisk. (Tenn.) 308; Roby «. afterwards repudiate the cashier's act. 
 
 Cos'sitt, 78 111. 638; Warden v. Eich- Logan County Bank v Townsend, 
 
 baum. 3 Grant (Penn.) Cases, 42; — Ky. — , 3 S. W. Rep. 122. 
 
 Lyman v. Norwich University. 28 Vt. 'Tooker v. Sloan, 30 N. J. Eq. 394. 
 560; Pierce e. O'Keefe, 11 Wis. 180. 
 
 96
 
 Chap, v.] EATIFIOATION. § 150. 
 
 pursuance of an arrangement made with a debtor, the arrange- 
 ment 80 made will be deemed to be ratified ; ' and so the volun- 
 tary acceptance of the avails of a compromise made by an agent 
 will ratify the compromise,* and the voluntary retention of a 
 conveyance of lands which an agent has taken from a debtor in 
 payment of a debt, will sanction such payment.' So where a 
 principal shipped cotton to his broker with instructions not to 
 sell at less than a certain price, and the broker sold for less than 
 that rate and immediately notified his principal, it was held that 
 the principal by drawing the proceeds of the sale witliout objec- 
 tion, ratified the act of the broker in selling at the smaller 
 price.* 
 
 Where an agent sold his principal's property without authority 
 and embezzled the proceeds, and the principal, with full knowl- 
 edge of the facts, took from the agent something in satisfaction 
 of the wrong, it was held that the principal had ratified the sale 
 made by the agent, and could not afterwards pursue the property 
 sold.* But where a principal without full knowledge of the 
 facts, took from an agent security for money collected by the 
 agent from debtors of the principal, and wrongfully appropriated 
 to his own use, it was held that this would not ratify the pay- 
 ments to the agent because done without full knowledge of the 
 facts ; • and for the same reason where one who was in the pos- 
 session of the plaintiff's horse sold him without authority to the 
 defendant, receiving in payment therefor a check which he 
 endorsed and gave to the plaintiff in payment of a debt he owed 
 him, but did not inform him of its origin, it was held that the 
 plaintiff by collecting the check, and applying the proceeds to 
 the payment of the debt, without knowledge of the sale of the 
 horse had not ratified such sale.' 
 
 § 150. Same Subject— Other Instances. So where one, on 
 whose account an agent has bought goods without authority, with 
 full knowledge of the facts, accepts, uses and sells them, he will 
 
 •Keelert). Salisbury, 33 N. Y. 648. 'Smith v. Kidd, 68 N. Y. 130, 23 
 
 • Strasser v. Conklin, 54 Wis. 103. Am. Rep. 157. 
 
 •Miles©. Ogden, 54 Wis. 573. TThacher v. Pray, 113 Mass. 291; 
 
 * Meyer v. Morgan, 51 Miss. 21, 24 18 Am. Rep. 480. And to the same 
 Am. Rep. 617. effect is Penn., «&c.. Co. v. Dandridge, 
 
 •Ogden V. Marchand, 39 La. Ann. 8 Gill <fc John. (Md.)248, 29 Am. Dec. 
 61. 543. 
 
 7 97
 
 8 150. THE LAW OF AGENCY. [Book I. 
 
 be deemed to have ratified the purchase and will be liable for the 
 price.' In such a case the court said : " If one purchase goods 
 for another without authority, and the person for whom they are 
 purchased receives them and uses or sells them on his own 
 account, after being informed that they were purchased for hira, 
 this is an implied ratification of the agency. And if, on receiv- 
 ing the goods, and being informed that they were purchased in 
 his name, he merely informs the seller that the purchase was un- 
 authorized, this is not enough. He should either restore the 
 goods to the seller or pay for them if he converts them to his 
 own purpose." * 
 
 But where an agent had purchased goods without authority 
 and added them to his principal's stock, and the principal, upon 
 discovering the fact, attempted to select such of the goods as re- 
 mained unsold, for the purpose of returning them to the vendor, 
 but was unable to identify them, it was held that his retention of 
 the goods under such circumstances was no ratification of the 
 agent's purchase." 
 
 And where one, to whom certain goods were sent by an agent's 
 order on approval, claimed to be the owner of the goods at the 
 time of an attempted levy upon them as the property of another, 
 he was held to have ratified the agent's act and accepted the 
 goods.* So where an agent exchanged a mule for a horse with- 
 out authority, the principal's subsequent assertion of title to the 
 tiorse was held to be a ratification of the trade." So in a case 
 involving the ratification of a loan made by a committee of an 
 
 « Piker. Douglass, 28 Ark. 59; Mc- the truth of the case and demand 
 
 Dowell «. McKinzie, 65 Ga. 630; payment. If the principal accepts 
 
 Hastings v. Bangor House, 18 Me. tlie property, knowing all the facts, 
 
 4jjg that is a ratification of the agency ; 
 
 2 Pike «. Douglass, supra. See also but even if he knows nothing of the 
 Ketchum v. Verdell, 43 Ga. 534, facts, but accepts the property aa 
 where it was said by McKay, J., sold him by the agent, yet if the 
 " The general rule, as I understand agent was not in fact the true owner 
 it, is that where one professes to act as and the seller so notifies the pur- 
 agent of another, even if he has no chaser before any settlement, the 
 authority at all, and as such agent ob- right of action in the seller exists." 
 tains goods which in fact go to the ' Schutz v. Jordan, 33 Fed Rep. 55. 
 use and benefit of the principal, the « Brooks v. Fletcher, 56 Vt. 634. 
 seller may at any time before the » Jones c. Atkinson,68 Ala. 167. See 
 principal has settled with the pre- also Cochran «. Chitwood, 59 111. 53. 
 tended agent, notify the principal of 
 
 98
 
 Chap, y.] KATIFICATION. § 151. 
 
 agricultural association, Beickell, C. J., said : "It is shown very 
 fully that the association ratified and approved all the acts of the 
 executive committee in this transaction, not only the mode 
 adopted in borrowing the money but the execution of the mort- 
 gage. We do not mean that it was shown that there was assent 
 to, and confirmation of the transaction expressed in words. That 
 is not essential, for ratification is more often implied from the 
 acts and conduct of parties having an election to avoid or confirm 
 than found expressed in words. And it is implied, whenever the 
 acts and conduct of the principal having full knowledge of the 
 facts are inconsistent with any other supposition than that of pre- 
 vious authority or an intention to abide by the act though it was 
 unauthorized. Here the association accepted all the benefits of 
 the transaction, received and appropriated to its own uses the 
 money obtained on the promissory notes and has acquiesced in 
 all that was done by the executive committee, not even now ob- 
 jecting that it was unauthorized. A corporation has as full capa- 
 city as a natural person to ratify the unauthorized or defectively 
 executed act of its agents and the ratification is the equivalent of 
 a prior authority. Having received and retained the benefits of 
 the transaction with full knowledge of all the facts, the associa- 
 tion has ratified and confirmed it unless intentional fraud is 
 shown for which there is neither room nor reason." ' 
 
 § 151. By bringing Suit based on Agent's Act. One of the 
 most unequivocal methods of showing ratification of an agent's 
 act is the bringing of an action at law based upon such act. 
 Thus a demand made by an agent will be deemed to be ratified 
 by the principal, if he brings an action founded upon such de- 
 mand,' and ratification by a bank of its cashier's endorsement of 
 a note is established by the fact that the bank prosecutes an action 
 on the note in the name of the endorsee;* so if the principal 
 appear in court and prosecute an action of attachment begun in 
 his name by one assuming to act as his agent, he will be held to 
 have ratified the act of such agent in signing his name to the 
 
 1 Taylor v. A. & M. Association, 68 N. H. 34; Town of Grafton v. Fol- 
 Ala. 239. And to the same effect is lansbee, 16 N. H. 450, 41 Am. Dec. 
 Maddux v. Be van, 39 Md. 485. 736. 
 
 sHamu. Boody, 20 N. H. 411. 51 sCorser©. Paul, 41 N. H. 24, 77 
 
 Am. Dec. 235; Payne r. Smith, 12 Am. Dec. 753. 
 
 99
 
 § 152. THE LAW OF AGENCY. [Book I. 
 
 attachment bond.' And where a vendor who has been defrauded 
 in a sale of his goods made by an agent, proceeds to judgment 
 against the vendee after being fully apprised of the fraud, he 
 ratifies tlie sale.' And where an agent without authority had 
 consigned his principal's goods for sale, and the principal brought 
 an action against the agent for the price and value of the goods 
 BO consigned, it was held a prima facie ratification of the consign- 
 ment,' and an action to enforce a contract made by an agent, is 
 sufficient evidence of the agent's authorit}^ to make it.^ And an 
 action to recover upon a note taken in payment of goods sold by 
 an agent, ratifies the sale, and with it, in cases where the agent 
 would have authority to warrant, a warranty made by the agent 
 as a part of the sale.' And bringing an action on a mortgage 
 taken by an agent, ratifies his act in taking it.' So a princi- 
 pal's abandonment of a suit upon a compromise of the cause of 
 action by an agent ratifies the compromise.' 
 
 § 152. Mere Delay in suing, no Rattflcation. Where, how- 
 ever, the principal has expressly repudiated an unauthorized act, 
 mere delay in bringing a necessary suit cannot be construed into 
 a ratification.* 
 
 § 153. Ratification by Acquiescence— Silence. It is a maxim 
 of the law that he who remains silent when in conscience he 
 ought to speak, will be debarred from speaking when in con- 
 science he ought to remain silent, and this rule is of frequent 
 application in determining whether or not an alleged principal 
 has set the seal of his sanction upon a transaction assumed to 
 have been done in his behalf. 
 
 § 154. Same Subject— Election. A principal upon being in- 
 formed of the unauthorized act of another in his behalf, has the 
 
 'Bank of Augusta t>. Conrey, 28 » Franklin t). Ezell, 1 Sneed (Tenn.) 
 
 Miss. 667; Dove v. Martin, 23 Miss. 497; Cochran v. Chitwood, 59 111. 53 
 
 588. Smith v. Tracy. 36 N. Y. 79. 
 
 •Lloyd V. Brewster, 4 Paige (N. 'Partridge v. White. 59 Me. 564. 
 
 Y.)537; Bank of Beloil v. Beale, 34 And see Beidman ». Goodell, 56 
 
 N. T. 473. Iowa, 592. 
 
 •Frank ». Jenkins, 22 Ohio St. 597. » Hoit v. Cooper, 41 N. H. 111. 
 
 ♦Dodge V. Lambert, 2 Bosw. (N. 'McClure «. Evartson, 14 Lea 
 
 T.)570; Benson c. Liggett, 78 Ind. (Tenn.) 495. 
 462. 
 
 100
 
 Chap, v.] RATIFICATION. § 155. 
 
 right to elect whether he will ratify or repudiate the act.' And 
 this right of election belongs in the first instance to him alone, 
 and so long as the condition of all parties remains unchanged, he 
 cannot be prevented from ratifying because the other party may, 
 for any reason, prefer to treat the act as invalid.* And even 
 though at first he may disapprove, he may afterwards, if the con- 
 dition of all parties remains unchanged, elect to give confirma- 
 tion to the act.* 
 
 § 155. Same Subject— Must elect within a reasonable Time. 
 
 But where the rights and obligations of third persons may depend 
 on his election, it is obvious that he is bound to act or suffer the 
 necessary consequences of inaction, and that if, after knowledge, 
 he remains entirely passive in regard to the transaction, it is but 
 just, when the protection of third persons may require it, to pre- 
 sume that what upon knowledge he has failed to repudiate, he 
 has at least tacitly confirmed.* If therefore he would escape re- 
 sponsibility for the act, he must give notice of his non-concur- 
 rence. The time within which this notice is to be given has not 
 been settled with absolute harmony by the courts. Many cases 
 hold that the principal is bound to act at once upon receiving 
 knowledge,' but the better rule and the one supported by the 
 majority of the authorities, is, that if the principal desires to re- 
 pudiate the transaction he must give notice thereof within a 
 reasonable time after becoming fully informed ; and that if he 
 does not so dissent his silence will afford conclusive evidence of 
 his approval.* What shall be deemed to be a reasonable time 
 
 » Andrews v. ^tna L. Ins. Co. 93 Coker, 11 Heisk. (Tenn.) 579; Hart ©. 
 
 N. Y. 596. DixoQ, 5 Lea (Tenn.), 336; Meister v. 
 
 2 Idem. But see post, § 179. Cleveland Dryer Co. 11 111 App. 227. 
 
 8 Woodward i>. Harlow, 28 Vt, 338. 'Saveland v. Green, 40 Wis. 431; 
 
 4 Saveland v. Green, 40 Wis. 431. Heyn v. O'Hagen. 60 Mich. 157; Mo- 
 
 5 Ward V. Williams, 26 111. 447, 79 bile & Montgomery Ry. Co. c. Jay. 65 
 Am. Dec. 385; Johnston v. Berry, 3 Ala. 113; Miller v. Excelsior Stone 
 111. App. 256; Pitts ». Shubert, 11 La. Co. 1 111. App. 273; Hamlin v. Sears; 
 286, 30 Am. Dec. 718; Kehlor v. 82 N. Y. 327; Meyer v. Morgan, 51 
 Kemble, 26 La. Ann. 713; Foster v. Miss. 21; 24 Am. Rep. 617; Wright ». 
 Rockwell, 104 Mass. 167; Crane v. Boynton, 37 N. H. 9; Gold Mining 
 Bed well, 25 Miss. 507; Bredin v. Du- Co. v. National Bank, 96 U. S. 640; 
 barry, 14 Serg. & R (Penn.) 27; Kel- Parish b. Reeve, 63 Wis. 315; Alex- 
 sey V. National Bank of Crawford ander®. Jones, 64 Iowa, 207; Lafittet). 
 Co. 69 Penn. St. 426; Williams v. Godchaux,35 La. Ann. 1161; Breed c. 
 Storm, 6 Cold. (Tenn.) 203; Fort ». Central City Bank, 6 Col. 235; Gold 
 
 101
 
 § 156. THE LAW OF AGENCY. [Book I. 
 
 depends in this case as in others upon the situation of the parties 
 and the facts and circumstances of the case.' 
 
 § 156. Same Subject— Sleeping on Rights. This rule is the 
 familiar one of reasonable promptness. Parties must not sleep 
 upon their rights. To use the forcible language of a Louisiana 
 judge, " The genius of our law does not favor the claims of those 
 who have long slept upon their rights and who after years of 
 inertia conveying an assurance of acquiescence in a given state of 
 things suddenly wake up at the welcome vision of an unexpected 
 advantage and invoke the aid of the courts for relief under the 
 operation of a newly discovered technical error in some ancient 
 transaction or settlement." ' 
 
 § 157. Same Subject— Rules. This subject is of so much im- 
 portance as to appear to warrant a somewhat full exposition of the 
 different statements of the rule which governs it. 
 
 Thus it was said by a distinguished judge, "We suppose 
 acquiescence or tacit assent to mean the neglect to promptly and 
 actively condemn the unauthorized act, and to seek judicial 
 redress after the knowledge of the committal of it, whereby in- 
 nocent third parties may have been led to put themselves in a 
 position from which they cannot be taken without loss. It is the 
 doctrine of equitable estoppel." ' 
 
 And by another, " The rule as to what amounts to ratification 
 of an unauthorized act is elementary and may be safely stated 
 thus : AVhere a person assumes in good faith to act as agent for 
 another in any given transaction, but acts without r.uthority, 
 whether the relation of principal and agent does or does not exist 
 between them, the person in whose behalf the act was done, upon 
 
 Mining Co. t). Rocky Mt. Nat. Bank, Connett v. Chicago, 114 111. 233; 
 
 2 Col. 565; Law v. Cross, 1 Black (U. Booth v. Wiley. 102 III, 84; Johnston 
 
 8.) 533; Norris v. Cook.l Curt. (U. S. ». Wingate, 29 Me. 404; Farwell v. 
 
 C. C.) 464; Abbe «.Rood,6 McLean (U. Howard, 26 Iowa, 381; International 
 
 S. C. C.) 106; Brigham tj. Peters, 1 Gray Bank v. Ferris, 118 111, 465. 
 
 CMass.) 139;Lorie v. North Chicago 'McDermid v. Cotton, 2 111. App. 
 
 City Ry. Co., 32 Fed. Rep. 270; Bray 297; Philadelphia, &c. R. R. Co. v. 
 
 V. Gunn, 58 Ga. 144; Oliver v. John- Cowell, 28 Penn. St. 32'J, 70 Am. 
 
 son, 24 La. Ann. 400; Reese v. Med- Dec. 12S; Reese v. Medlock, supra. 
 
 lock, 27 Tex. 120; 84 Am. Dec. 611; sLafitte v. Godchaux, 35 La. Ann. 
 
 Clay V. Spratt 7 Bush (Ky.) 334; 1161, 
 
 Cooper V. Schwartz, 40 Wis. 54; Hep- sFolger, J., in Kent ij. Quicksilver 
 
 burn V. Dunlop, 1 Wheat. (U. S.)179; Mining Co., 78 N Y. 137. 
 
 102
 
 Chap, v.] KATIFIOATION. § 159. 
 
 being fully informed thereof, must within a reasonable time dis- 
 affirm such act, at least in cases where his silence might operate 
 to the prejudice of innocent parties, or he will be held to have 
 ratified such unauthorized act."' 
 
 And again, "The correct rule seems to be that when the prin- 
 cipal has full knowledge of the acts of his agent from which he 
 receives a direct benefit he must dissent and give notice of his 
 non-concurrence within a reasonable time, or his assent and rati- 
 fication will be presumed." * 
 
 § 158. Same Bule applies to private Corporations. And, as 
 has been seen, these rules apply as well to corporations within 
 the scope of their corporate powers as to individuals.' 
 
 " It seems to be now well settled," says Chief Justice Shaw, 
 "since the great multiplication of corporations, extending to 
 almost all the concerns of business, that trading corporations, 
 whose dealings embrace all transactions from the largest to the 
 minutest and affect almost every individual in the community, 
 are affected like private persons with obligations arising from 
 implications of law, and from equitable duties which imply obli- 
 gations; with constructive notice, implied assent, tacit acquies- 
 cence, ratifications from acts and from silence, and from their 
 acting upon contracts made by those professing to be their 
 agents ; and generally by those legal and equitable considerations 
 which affect the rights of natural persons." * 
 
 § 159. And to MTinicipal and Quasi Municipal Corporations. 
 The same rules apply also to municipal and quasi municipal cor- 
 porations, although from their nature, a ratification by acquies- 
 
 ' Lyon, J., in Saveland v. Green, 40 " The law is well settled that a prin- 
 
 Wis. 431; cited with approval, ex- cipal who neglects promptl}' to dis- 
 
 cept as to the element of good faith, avow an act of his agent by which 
 
 in Heyn v. O'Hagen. 60 Mich., at p. the latter has transcended his author- 
 
 157. ity, makes the act his own; and the 
 
 2 Mobile & Montgomery Ry Co. v. maxim which makes ratification 
 Jay, 65 Ala. 113, modifying Powell's equivalent to a precedent authority, 
 Admr. t. Henry, 27 Ala. 613. is as much predicable of ratification 
 
 3 Sheldon Hat Blocking Co. c.Eicke- by a corporation as it is of ratification 
 meyer Hat Blocking Co., 90 N. Y. by any other principal, and it is equal- 
 607; Kelsey«. National Bank of Craw- ly to be presumed from the absence 
 ford Co., 69 Penn. St. 426. of dissent." Williams, J., in Kei- 
 
 *Melledge v. Boston Iron Co., 5 sey t>. National Bank, «M^ra. 
 Cash. (Mass.) 158, 51 Am. Dec. 59. 
 
 103
 
 § 160. THE LAW OF AGENCY. [Book I. 
 
 cence is not so readily to be inferred as in the case of individuals 
 or of private corporations. The numbers composing the munici- 
 pal corporation being large and their direct participation in 
 municipal affairs being less, the evidence of ratification, where it 
 is based upon acquiescence, must manifestly be sufiicient to show 
 the approval of the corporation as such. It cannot be based 
 alone upon the acquiescence of unofficial individuals who have 
 no authority to act for or bind the entire body.* 
 
 § 160. How when assumed Agent is a mere Stranger. While 
 it is abundantly settled that acquiescence may result in the rati- 
 fication of the act of an agent, it has been much questioned 
 whether the same result would follow if the person assuming to 
 act for the other was a stranger. All of the authorities agree that 
 the relations of the parties have much to do in determining 
 whether or not there has been a ratification, but it is held by sev- 
 eral of the courts that when he who assumes to act for another is 
 not one sustaining to him the relation of an agent but is a mere 
 volunteer, no duty exists on the part of the other to repudiate 
 the act on its being brought to his notice, and that nothing short 
 of a positive affirmance will make it binding upon him. Thus 
 it is said in an Illinois case, " In general where an agent is au- 
 thorized to do an act and he transcends his authority, it is the 
 duty of the principal to repudiate the act as soon as he is fully 
 informed of what has been thus done in his name by the agent, 
 else he will be bound by the act as having ratified it by implica- 
 tion ; but where a stranger, in the name of another, does an un- 
 authorized act, the latter need take no notice of it, although 
 informed of the act thus done in his name, and he shall only be 
 bound by an affirmative ratification." * And this view is supported 
 by eminent judges and text writers.' 
 
 But the contrary view is also maintained by judges of great 
 ability. Thus it is said by Woodward, J., "I do not understand 
 counsel to mean that there can be no valid ratification unless one 
 
 'School District*, ^tna Ina. Co., « Ward v. Williams, 26 111. 44.7. 79 
 
 63 Me. 330; Chamberlain v. Dover, 13 Am. Dec. 385, approved in Searing 
 
 Me. 466, 29 Am. Dec. 517; Davis v. v. Butler. 69 111. 575. 
 
 School District, 24 Me. 349; White v. ' Evans' Agency, 68; Livermore's 
 
 Sanders, 32 Me. 188; Fisher v. School Agency, §§255, 258 ; Duer, Vol. II, 
 
 Di-strict, 4 Cush. (Mass.) 494; BlisB t>. 151-154. 
 Clark, 16 Gray (Mass.) 60. 
 
 104:
 
 Chap, v.] EATIFICATION. § 160. 
 
 of the conditions specified — either prior agency or possession of 
 principal's property — has existed, but that silence, after knowl- 
 edge of the act done, is evidence of ratification only in such 
 cases. It must be admitted that the act of a mere stranger or 
 volunteer is capable of ratification, for all the authorities are so; 
 but the argument is that the silence of the party to be affected, 
 whatever the attending circumstances, cannot amount to ratifica- 
 tion of the act of a stranger. * * * * jf ^jjgn tjjg principle 
 of law be that I can ratify that only which is done in my name, 
 but when I have ratified whatever is done in my name, I am 
 bound for it, as by the act of an authorized agent, it is apparent 
 that my silence in view of what has been done, is to be regarded 
 simply as evidence of ratification more or less expressive, accord- 
 ing to the circumstances in which it occurs. It is not ratification 
 of itself but only evidence of it, to go to the jury along with all 
 the circumstances that stand in immediate connection with it. 
 Among these the prior relations of the parties are very import- 
 ant. If the party to be charged has been accustomed to contract 
 through the agency of the individual assuming to act for him, 
 or has intrusted property in his keeping, or if he were a child or 
 servant, partner or factor, the relation conjunctionis favor would 
 make silence strong evidence of assent. On the other hand, if 
 there had been no former agency and no peculiarity whatever in 
 the prior relations of the parties, silence, — a refusal to respond to 
 mere impertinent interference, — would be very inconclusive but 
 not an absolutely irrelevant circumstance. The man who will 
 not speak when he sees his interests affected by another must be 
 content to let a jury interpret his silence. It is a clear principle 
 of equity that where a man stands by knowingly and suffers an- 
 other person to do acts in his own name without any opposition or 
 objection, he is presumed to have given authority to do those 
 acts. * * * * If mental assent may be inferred from cir- 
 cumstances, silence may indicate it as well as words or deeds. To 
 say that silence is no evidence of it is to say that there can be no 
 implied ratification of an unauthorized act — or at the least to tie 
 up the possibility of ratification to the accident of prior relations. 
 Neither reason nor authority justifies such a conclusion. A man 
 who sees what has been done in his name and for his benefit, 
 even by an intermeddler, has the same power to ratify and con- 
 firm it that he would have to make a similar contract for himself 
 
 105
 
 § 161. THE LAW OF AGENCY. [Book I. 
 
 and if the power to ratify be conceded to him the fact of ratifi- 
 cation must be provable by tlie ordinary means." ' 
 
 § 161. Same Subject— True Rule. Keeping in mind that the 
 question in these cases is, not whether the silence is of itself a 
 ratification, but whether it is any evidence from which, in con- 
 nection with other facts, a ratification may be inferred, it is 
 undoubtedly the better rule that while the relations of the par- 
 ties are very significant they are not conclusive, and that even in 
 the case of a mere stranger a ratification may be established by 
 the same kind of evidence that is admissible in other cases, al- 
 though the presumptions arising from acquiescence are much 
 stronger in a case where an agency exists than in the case of a 
 stranger.* 
 
 § 162. Silence does not ratify if Stranger acts in his own 
 Name. Where, however, the stranger does not assume to act in 
 the behalf of the alleged principal but in his own name and be- 
 half, the silence of the alleged principal will not be evidence of 
 a ratification of the stranger's act.' 
 
 8 163. Information from Letter. Though omitting to answer 
 a written communication is in general no evidence of the truth 
 of the facts therein stated,* yet the information as to the acts of 
 
 » Philadelphia, &c. R. R. Co. v. the person giving credit to, and rely- 
 
 Cowell, 28 Penn. St., 329, 70 Am, ing upon, such assumed agency, or 
 
 Dec. 128. to induce him to believe such agency 
 
 s Union Gold Mining Co. v. Rocky did in fact exist, and to act upon 
 
 Mt. Nat. Bank, 2 Col. 248; Ladd v. such belief to his detriment, then 
 
 Hildebrant, 27 "Wis. 135, 9 Am . Rep. such silence or inaction may be 
 
 445; Saveland v. Green, 40 Wis. 431; considered as a ratification of the 
 
 Southern Ex. Co. v. Palmer, 48 Ga. agency." See also Hurley?). Watson, 
 
 85; Greenfield Bank v. Crafts, 4 —Mich.— ,13West. Rep.543; Carson u 
 
 Allen (Mass.) 447; Heyn e. Hagen. Cummings, 69 Mo. 325. 
 60 Mich. 150. In this case Cham- » Hamlin v. Sears, 82 N. Y. 837; 
 
 PLiN, J. says: "Whether silence Qarvey i>. Jarvis. 46 N.Y. 310,7 Am. 
 
 operates as presumptive proof of Rep. 335. 
 
 ratification of the act of a mere vol- * Commonwealth v. Eastman, 1 
 unteer, must depend upon the pecu- Cush. (Mass.) 189; Fearing v. Kim- 
 liar circumstances of the case. If ball, 4 Allen (Mass.) 125; Learned v. 
 those circumstances are such that the Tillotson, 97 N. Y. 1 ; Canadian 
 inaction or silence of the party Bank of Commerce v. Coumbe, 47 
 sought to be charged as principal Mich. 358. None of these being a 
 ■would be likely to cause injury to case of agency. 
 
 106
 
 Chap, v.] KATIFIOATION. § IGi. 
 
 the assumed agent may be imparted to the principal by letter as 
 well as by any other means.* 
 
 §164. Ratification by Acquiescence— Illustrations. The cases 
 in which this principle has been applied are very numerous, but 
 a few of them are given here as illustrations of its nature and 
 effect. Thus where one in the presence of the principal sold the 
 goods of the principal as his agent without objection, the tacit 
 consent of the principal was presumed.' And where a son with- 
 out authority exchanged his father's horse for another with a 
 near neighbor and the father, although he saw th& neighbor fre- 
 quently, kept the horse so acquired and used it as his own for 
 about three months without expressing any dissent, it was held 
 that a ratification of the exchange must be presumed." And so 
 where a son assuming to act for his father, but without authority, 
 sold a half interest in his father's mowing and reaping machine, 
 and for two years thereafter the father and the purchaser used 
 and kept the machine in repair as joint owners, it was held that 
 the father could not complain that the sale was unauthorized.* 
 Again, where an agent without authority sold the land of the 
 principal to the knowledge of the latter, who made no objections 
 for more than four years, during which time the purchaser had 
 been occupying and improving the land, the principal was held 
 to have acquiesced in the sale.* So where a railroad company 
 used and partly paid for a quantity of material purchased b}' one 
 assuming to be its agent, the purchase was held to be ratified ;• 
 and under like circumstances it was held that knowledge of the 
 purchase on the part of the company would be presumed.' And 
 where the president of a railroad company', witliout authority, 
 made a sale of property belonging to the company, in part pay- 
 ment of a debt owed by it, and the fact of the sale was commu- 
 nicated to the board of directors and talked over publicly at one 
 
 'Foster «. Rockwell, 104 Mass. « Owsley c.Woolhopter, 14 Ga. 124; 
 
 167; Cooper «. Schwartz, 40 Wis. Gillinger v. Lake Shore Traffic Co. 67 
 
 54;'RufEner v. Hewitt, 7 W. Va. 585. Wis. 529. 
 
 See also Searing v. Butler, 69 111. ^ Hall v. Harper, 17 111. 83. 
 
 575; Ward «. Williams, 26 111 447. < Swart woutc. Evans, 37 111. 442. 
 
 79 Am. Dec. 385; Kehlor v. Kemble, » Alexander v. Jones, 64 Iowa, 207. 
 
 26 La. Ann. 713; Pittsburgh. &c. R. « Evans v. Chicago, &c. R. R. Co. 
 
 R. Co. r. Woolley, 12 Bush. (Ky.) 26 111. 189. 
 
 451; Jennison v. Parker, 7 Mich. t Scott tj. Middletown, &c. Ry, 86 
 
 355. N. Y. 200. 
 
 107
 
 I 165. THE LAW OF AGENOT. [Bcok I. 
 
 of their meetings, but they did nothing to disaffirm it, it was 
 held to be ratified.' Other cases involving the same principle 
 are cited in the note," and it may be said generally that ratifica- 
 tion will be presumed whenever the acts of the principal are in- 
 consistent with any other hypothesis." 
 
 § 165. Rule applies only to Principals. The doctrine of rat- 
 ification by aquiescence applies only to the principals in the tran- 
 saction, and cannot therefore operate to effect a ratification upon 
 the ground of the acquiescence of one of two joint agents in the 
 acts of his coagent.* 
 
 VI. 
 
 THE RESULTS OF RATIFICATION. 
 
 § 166. What for this Subdivision. Having thus considered 
 the preliminary questions, it remains to determine what are the 
 results of a ratification made in conformity to the rules hereto- 
 fore laid down. It is obvious that there are several parties whose 
 rights and obligations may be affected by a ratification, and we 
 shall consider the question, — I. In general. 11. As between 
 principal and agent. III. As between the principal and the 
 other party. IV. As between the agent and the other party. 
 
 1. In General. 
 
 § 167. Equivalent to precedent Authority. By ratifying the 
 unauthorized act the principal assumes and adopts it as his own, 
 and as has been seen,' this adoption extends to the whole of the 
 act, — it goes back to its inception and continues to its legitimate 
 end. Subject therefore to an exception to be immediately no- 
 ticed, it is the universal rule that as against the principal the rati- 
 
 » Walworth County Bank «. Farm- 51 Miss. 21, 24 Am. Rep. 617; Haw- 
 
 ers, &c Co. 16 Wis. 639. kins v. Lange, 22 Mian. 557: Johnston 
 
 » Williams v. Merritt, 23 111.623; «. Berry, 3 111. App. 253; Marsh «. 
 
 Bogel ?). Teutonia Bank. 28 La. Ann. Whitmore, 21 Wall. (U. S.) 178; Hoyt 
 
 953; Matthews??. Fuller, 123 Mass. ©.Thompson, 19 N Y. 218; Law v. 
 
 448; Marshall B. Williams, 2 Biss. (U. Cros<*, 1 Black (U. S.) 533. 
 
 S C. C.) 255; Hanks v. Drake, 49 'Maddux v. Bevan, 39 Md. 488; 
 
 Barb (N. Y.) 186; Maddux ??. Bevan, Scott z). Methodist Church, 50 Mich. 
 
 39 Md. 485; Farwdl v. Howard, 26 528. 
 
 Iowa, 381; Pittsburgh c. Woolley, 12 «Penn«. Evans, 28 La. Ann. J76. 
 
 Bu«h (Ky.) 451 Lafitte c. Godchaux, %ee ante, % 121. 
 
 35 La. Ann. 1161; Meyer e. Morgan, * Ante, § 130. 
 
 lOS
 
 Chap, y.] EATIFICATION. § 167. 
 
 fication is retroactive and equivalent to a prior authority,' or to 
 use the lanojuage of a distinguished writer and judge, " No maxim 
 is better settled in reason and law than the maxim omnis rati- 
 hdbitio retrotrahitur, et mandato priori equiparatur^ at all 
 events where it does not prejudice the rights of strangers." " 
 
 "The ratification operates upon the act ratified precisely as 
 though the authority to do the act had been previously given 
 except where the rights of third parties have intervened between 
 the act and the ratification."' And this rule applies as well to 
 corporations as to individuals.* 
 
 It has been seen also, that the principal cannot avail himself of 
 the benefits of the act and repudiate its obligations.* Having 
 with full knowledge of all the material facts ratified, either ex- 
 pressly or impliedly, the act assumed to be done in his behalf, he 
 thenceforward stands responsible for the whole of it to the full 
 extent to which the agent assumed to act, and he must abide bv 
 it whether the act be a contract or a tort,* and whether it results 
 to his advantage or detriment.' 
 
 But, as will be seen in a following section, a principal, not 
 himself bound by the agent's act or contract, will not, by mere 
 ratification alone, and while the contract remains executory, be 
 able to build up affirmative rights against the other party.* 
 
 •Fleckner®. Bankof U.S,,8 Wheat. Rep. 490; Mclntyre v. Park, 11 Gray 
 
 (U. S.) 338; Cook v. Tullis. 18 Wall. (Mass.) 103, 71 Am. Dec. 690; Louis- 
 
 (U. S.)333; Despatch lAnev. Bellamy ville, &c. Ry. Co. v. McVay, 98 Ind. 
 
 Mfg. Co., 13 N. H. 305, 37 Am. Dec. 391, 49 Am. Rep. 770. 
 
 203; Clealand «. Walker, 11 Ala. 1058, » Story, J. ia Pleckner t». Bank, 
 
 46 Am. Dec. 238; McMahaa v. Mc- supra. 
 
 Mahan, 13 Penn. St. 376, 53 Am. Dec. 3 Field, J. in Cook v. Tullis, supra. 
 
 481; Pearsons v. McKibben, 5 Ind. < Planters' Bank v. Sharp, mpra; 
 
 261, 61 Am. Dec. 85; Wood v. Mc- Despatch Line v. Bellamy Mfg. Co. 
 
 Cain, 7 Ala. 800, 42 Am. Dec. 612; supra; Leggett v. N. J. Mfg. and 
 
 Plantera'Bank v. Sharp, 4 Sraedes «fe Banking Co. 1 Saxt. Ch. (N. J.) 541, 
 
 M. (Miss.) 75, 43 Am. Dec. 470; 23 Am. Dec. 738; Frankfort S. T. Co. 
 
 Starks v. Sikes, 8 Gray (Mass.) 609, v. Churchill, 6 T. B. Monroe (Ky.) 
 
 69 Am. Dec 270; Goss ». Stevens, 33 437. 17 Am. Dec. 159; Everett v. 
 
 Minn. 4T3; United States Express Co. United States, 6 Port. (Ala,) 166; 30 
 
 «. Rawsou, 106 Ind. 215; Bronson v. Am. Dec. 584. 
 
 Chappell. 12 Wall (U. S.) 681; Law- i Ante, § 130. 
 
 rence v. Taylor. 5 Hill (N. Y ) 107; • Cooley on Torts, 127. 
 
 Lowry v. Harris, 13 Minn. 355; Han- 'Wood v. McCain, and cases cited 
 
 kins V. Baker, 46 N. Y. 606; Ham- in note 3 above, 
 
 mond «. Hannin, 21 Mich. 374, 4 Am. • See post, § 179. 
 
 109
 
 § 168. THE LAW OF AGENCY. [Boolc I. 
 
 § 168. Cannot affect intervening Rights. Until ratification 
 the principal has not been a party to the transaction. Although 
 done in his name, the act had no binding force as to him until he 
 sanctioned it. And although in ordinary cases the ratification 
 extends back to the beginning and operates upon all that has 
 since been done, yet it is obviously just and reasonable that where 
 prior to his ratification, — before he has given his sanction, — third 
 persons have in good faith acquired such substantial rights or 
 have been placed in such position in reference to the same tran- 
 saction that they will be prejudiced by such retroactive effect, 
 the ratification should not be allowed to overreach and defeat 
 those rights. And such is the rule of law. The intervening 
 rights of third persons cannot be defeated by the ratification. 
 If prior to the ratification the principal has put it out of his 
 power to perform the contract ratified, by conveying the subject- 
 matter thereof to a third person who took the same in good 
 faith,^ or if third parties have in good faith acquired an estate, 
 or interest in, or a lien or claim upon the subject-matter by at- 
 tachment,' judgment or otherwise, these rights cannot be cut off 
 at the mere volition of the principal.* Nor will the principal 
 by ratifying be permitted to impose substantial duties or obliga- 
 tions upon third persons which would not exist if ratification had 
 not taken place. 
 
 § 169. Ratification irrevocable. As has been seen, the prin- 
 cipal upon being fully informed of the unauthorized act of one 
 assuming to be his agent has the right to elect whether he will 
 ratify such act or not; bat when he has once exercised this right 
 the election is final. If therefore he adopts the act, even for a 
 moment, he adopts it forever, and he will not be allowed, at least 
 where the rights of other parties may be affected thereby, to 
 revoke his ratification.* 
 
 » McCrackenc. City of San Fran- Case, 4 Ct. of CI. 511; Pollock v. 
 
 ciHco, 16 Cal. 624. Cohen, 32 Ohio St. 514. 
 
 «Wood V. McCain, 7 Ala. 800, 42 <Jone8 v. Atkinsoo, 68 Ala. 167; 
 
 Am. Dec. 613; Taylor v. Robinson, 14 Smith v. Cclogan. 2 T. R. 189; Clarke 
 
 Cal. 396. V. Van Reimsdyk, 9 Cranch (U. S. C. 
 
 8 Cook V. Tullis, 18 Wall. (U. S) C.) 153; Hazelton v. Batchelder, 44. 
 
 332; McMahan v. McMahan, 13 Penn. N. Y. 40; Brock v. Jones, 16 Tex. 461; 
 
 St. 376, 53 Am. Dec. 481 ; Stoddard's Beall v. January, 62 Mo. 434. 
 
 110
 
 Chap, v.] KATincATioN. § 171. 
 
 2. As heiween Principal and Agent. 
 
 § 170. In general. The general result of a ratification has 
 already been stated. It is now to be considered what special 
 results ensue affecting the mutual rights and obligations of the 
 principal and the agent. It will readily be seen that these results 
 are of great consequence to the agent. Whether he was an agent 
 who had exceeded the authority conferred upon him, or whether 
 he was a mere stranger with no semblance of authority at all, his 
 acts were not binding upon the assumed principal. He had un- 
 dertaken to act for another from whom he had no authority at 
 all, or with authorit}' insufficient to justify the act assumed to be 
 done, and he would himself be liable either to the parties to 
 whom he had failed to bind the principal, or to that principal for 
 damages occasioned by exceeding the authority with which he 
 was invested. From this dilemma, however, the ratification 
 relieves him. Thenceforward the principal assumes the respon- 
 sibility of the transaction with all of its advantages and all of its 
 burdens. 
 
 § 171. The general Rule therefore is that by such ratifica- 
 tion the principal absolves the agent from all responsibility for 
 loss or damage growing out of the unauthorized transaction.' 
 Here, as in other cases, the ratification must have been made 
 with full knowledge of all the material facts, and if the agent 
 has kept back or suppressed any such facts, the ratification of 
 the principal made in ignorance of them is no defense to the 
 agent.* And even if the agent communicate to his principal all 
 the facts known to him at the time, but if afterwards it turns out 
 that the facts so communicated were not the real facts of the 
 
 » Hoffman v. Livingston, 46 N. T. Clark, 5 Denio (N. Y.) 503; Skinner 
 
 Super. Ct. 552; Courcier t». Ritter, v. Dayton, 19 Johns. (N. T.) 513, 10 
 
 4Wash. C. C. 549; Caimes ©. Bleeck- Am, Dec. 286; Bray v. Gunn, 53 
 
 er, 12 Johns. (N. Y.) 300; Pickett v. Ga. 144; Foster c. Rockwell, 104 
 
 Pearsons,17Vt. 470; Hanks ». Drake, Mass. 172; Clay v. Spratt. 7 Bush 
 
 49 Barb. (N. Y.) 202; Vianna v. Bar- (Ky.) 335; Bank of St. Mary's v. Cal- 
 
 clay, 3 Cow. (N. Y.) 283; Towle c. der, 3 Strob. (S. C.) 403; iEtna lua. 
 
 Stevenson, 1 Johns. (N. Y.) Cas. 110; Co. v. Sabine, 6 McLean (U. S. C. C.) 
 
 Ward t. Warfleld, 3 La. Ann. 471; 393. 
 
 Flower v. Downs. 6 Id. 538; Oliver v. »Bell v. Cunningham, 3 Pet. (U. S.) 
 
 Johnson, 24 /d. 460; Hazards Spears, 69, and cases last cited; Bank of 
 
 4 Keyes (N. Y.) 485; Woodward v. Owensboro v. Western Bank, 13 
 
 Suydam, 11 Ohio, 360; Green v. Bush. (Ky.) 526, 26 Am. Rep. 211. 
 
 Ill
 
 § 172. THE LAW OF AGENCY. [Book 1. 
 
 case, the agent is not relieved by a ratification made under snch 
 a inisappreliension,* although the facts and circumstances may 
 have been innocently concealed or inadvertently misrepresented.* 
 Id such a case the assumed condition is not that claimed to have 
 been ratified. 
 
 § 172. Agent's Motives unimportant. The motives of the 
 agent in the transaction are of no importance. If he has 
 deviated from his duty he becomes liable to his principal for 
 such losses as are the direct and natural consequences of such 
 deviation, whether his motives were good or bad ; and he is 
 only released from such liability where the principal with full 
 knowledge of all the material facts ratifies such departure from 
 hi« duty.* 
 
 § 173. Efforts to avoid Loss, no Eatiflcation. The mere 
 effort of the principal, having knowledge of the agent's devia- 
 tion from his instructions, to avoid loss therel)y or to make the 
 loss as small as possible, will not constitute such a ratification as 
 will release the agent. Thus where an agent for the collection 
 and transmission of a sum of money, who was given specific in- 
 structions by his principal to remit it by express, purchased a 
 check drawn by parties then in good standing and credit in New 
 York and sent the same to his principal who forwarded it to New 
 York for collection, but before it was cashed the drawers had he- 
 come insolvent and the check was dishonored, it was held that 
 the agent having violated his instructions in regard to the mode 
 of sending the money was liable to the principal for the loss sus- 
 tained, and that the sending of the check to New York for col- 
 lection was not an absolute ratification of the act of the agent in 
 transmitting the money in that way.* 
 
 § 174. Ratification must be in toto. Here also applies the 
 rule of a ratification in toto. If the principal adopts a portion 
 of the agent's act he adopts the whole of it, and tlierefore re- 
 lieves the agent from all responsibility. Hence if the agent has 
 incurred expenses in departing from his authority and the prin- 
 
 * Bank of Owensboro ». Western • Bank of Owensbori v. Westera 
 
 Bank, mpra. Bank, supra. 
 
 « Vincent v. Rather, 81 Tex. 77, 98 « Walker r. Walker, 6 Hei8k.(Tenn.) 
 Am. Dec. 518. 425. 
 
 112
 
 Chap. Y.] EATIFIOATION. § 179. 
 
 cipal afterwards ratify such departure, the agent is entitled to be 
 reimbursed for the expenses so incurred.' 
 
 § 175. Katiflcation of Appointment of Subagent. So if the 
 agent without authority has employed a subagent, the ratifica- 
 tion will embrace the appointment and acts of the subagent." 
 
 § 176. Ratification of Torts does not discharge Agent's Liar 
 bility to third Persons. But as will be seen hereafter, the rati- 
 fication by the principal of a tort committed by the agent does 
 not relieve the agent from liability to third persons.* 
 
 §177. Acts of Ratification liberally construed. The conduct 
 of the principal will be liberally construed in favor of the agent 
 in efEecting a ratification.* 
 
 3. As between Principal and the other Party. 
 
 § 178. a. Other Party against Principal. As soon as the un- 
 authorized act is ratified, he who before was only nominally a 
 party to the transaction, becomes in reality the party responsible. 
 From this time on, he is subject to all the obligations that per- 
 tain to the transaction in the same manner and to the same extent 
 that he would be had the act been done originally by him in per- 
 son, or by his express authority. The other party therefore may 
 demand and enforce on the part of the principal the full per- 
 formance of the contract entered into by his agent.* And if tlie 
 act or contract of the agent was tainted or procured by fraud, 
 the principal by ratification assumes responsibility for the fraud,* 
 It is unnecessary to cite instances of this. What has been or 
 may be hereafter said of the obligations of the principal, applies 
 as well to one who became such by ratification as to one who was 
 such by original agreement. 
 
 § 179. h. Principal against the other Party. Where, how- 
 ever, the principal attempts, by means of a subsequent ratifica- 
 tion, to build up afiirinative rights against the other party, 
 
 •Trixione «. Tagliaferro, 10 M. P. 90, 96 Am. Dec. 383; Flower «. Jones, 
 
 C. C. 175. 7 Martin, (La.) N. S. 143. 
 
 »Eggleston v. Boardman, 37 Mich. »See cases cited in § 167, ante. 
 
 14, 20; Blantinc.Whitaker, UHump. •National Life Ins. Co. v. Minch, 
 
 (Tenn.) 313; Sheldon t. Sheldon, 3 53 N. Y. 144; Elwell e. Chamberlin, 
 
 "VVis. 699. 31 N. Y. 611; Smith e. Tracy, 36 N. 
 
 •See po«<, § 183. Y. 79; Lane v. Black, 21 W. Va. 617. 
 
 « Szymanski v. Plassan, 20 La. Ann. 
 
 8 113
 
 § 179. THE LAW OF AGENCY. [Book I, 
 
 different considerations apply. As a rule the obligations of a 
 contract must be mutual, — both parties must be bound or neither. 
 Hence if the contract made by the agent was not binding upon 
 the principal because of the agent's want of autliority, the con- 
 tract laclvs this element of mutuality, and the principal not being 
 bound the other party is free also. 
 
 The principal, however, as has been seen, may by his subse- 
 quent affirmance become bound by the contract, but it is obvious 
 that unless the other party has expressly agreed to that effect, it 
 cannot rest with the principal alone to bind the other part^^ also 
 to the contract. That can be done only by some act on the part 
 of the other party signifying his present consent to be bound. 
 His attempt to enforce the contract against the principal upon 
 the basis of the latters affirmance of it, or his acceptance of the 
 principal's performance of it, would be such an act, and, as in 
 the case of the principal, if he elects to avail himself of the ben- 
 efits, he must also assume the obligations. 
 
 The principal, therefore, when the other party thus evinces his 
 affirmance of the contract, is invested with all the rights against 
 such other party which the contract confers, and may enforce its 
 performance in the same manner as though it had been originally 
 made with him in person.^ But in the absence of this affirmance 
 by the other party, the principal cannot, while the contract re- 
 mains purely executory, by his affirmance alone, create obliga- 
 tions in his behalf against the other party. 
 
 ' Soames v. Spencer, ID. & R. 82; plaintiff to sell, defendant was not 
 
 State V. Torinus, 26 Minn. 1. bound to purchase. The court found 
 
 • Thus in Dodge v. Hopkins, 14 that the agent's authority was insutii- 
 
 Wis. 6o0, a person assuming to act as cient, and thereupon, by Dixon, C. 
 
 plaintiff's agent, had, without suffl- J., said: — "We are next to ascertain 
 
 cient authority, entered into a con- the effect of this want of authority 
 
 tract with defendant, by which de- upon the rights of the defendant. It 
 
 fendant agreed to purchase of plaint- is very clear, in the present condition 
 
 iff certain real estate and to pay of the case, that the plaintiff was not 
 
 therefor certain sums of money, bound by the contract and that he 
 
 PlaintiflE seeking to enforce the con- was at liberty to repudiate it at any 
 
 tract, brought an action against the time before it had actually received 
 
 defendant to recover certain install- his sanction. Was the defendant 
 
 ments of the purchase price which bound? And if he was not, could the 
 
 defendant had refused to pay. De- the plaintiff by his sole act of ratifica- 
 
 fendant resisted upon the ground that tion, make the contract obligatory 
 
 as the contract, owing to the agent's upon himT We answer both these 
 
 lack of authority, did not bind the questions in the negative. The cot- 
 
 lltt
 
 Chap, v.] 
 
 EATIFIOATIOW. 
 
 §179. 
 
 Thus if an agent, without authority, enter into a contract with 
 another by which, on account of such lack of authority the 
 alleged principal is not bound, the principal cannot, when he 
 afterwards finds that the contract is advantageous to him, aflBrm 
 
 enants were mutual — those of the 
 defendant for the payment of money 
 being iu consideration of that of the 
 plaintiff for the conve3'ance of the 
 lands. The intention of the parties 
 was that they should be mutually 
 bound — that each should execute the 
 instrument so that the other could set 
 it up as a binding contract against 
 him, at law as well as in equity, from 
 the moment of its execution. In 
 Buch cases it is well settled both on 
 principle and authority, that if either 
 party neglects or refuses to bind him- 
 self, the instrument is void for want 
 of mutuality, and the party who is 
 not bound cannot avail himself of it 
 as obligatory upon the other. Towns- 
 end V. Corning, 23 Wend. 435, and 
 Same c. Hubbard, 4 Hill, 351, and 
 cases there cited. 
 
 The same authorities also show that 
 where the instrument is thus void in 
 its inception, no subsequent act of the 
 party who has neglected to execute it 
 can render it obligatory upon the 
 party who did execute, without his 
 assent The opinion of Judge Bron- 
 60N in the first named case is a con- 
 clusive answer to all arguments to be 
 drawn from the subsequent ratifica- 
 tion of the party who was not origin- 
 ally bound. In that case as in this, 
 the vendors had failed to bind them- 
 selves by the agreement. He says: 
 'It would be most extraordinary if 
 the venilors could wait and speculate 
 upon the market, and then abandon 
 or set up the contract as their own 
 interests might dictate. But without 
 any reference to prices and whether 
 the delay was long or short, if this 
 was not the deed of the vendee at the 
 time it was signed by himself and 
 
 Baldwin (the agent), it is impossible 
 that the vendors, by any subsequent 
 act of their own without his assent 
 could make it his deed. There ih, I 
 think, no principle in the law which 
 will sanction such a doctrine.' The only 
 point in which the facts in that case 
 differ materially from those here pre- 
 sented, is, that no part of the pur- 
 chase money was advanced to the 
 agent. But that circumstance cannot 
 vary the application of the principle. 
 The payment of the money to the 
 agent did not affect the validity of 
 the contract, or make it binding upon 
 the plaintiff. He was at liberty to 
 reject the money, and his acceptance 
 of it was an act of ratification with 
 which the defendant was in no way 
 connected, and which, although it 
 might bind him, imposed no obliga- 
 tion upon the defendant until he ac- 
 tually assented to it. It required the 
 assent of both parties to give the con- 
 tract any vitality or force." 
 
 "I am well aware that there are 
 dicta and observations to be found in 
 the books, which, if taken literally, 
 would overthrow the doctrine of the 
 cases to which I have referred. It is 
 said in Lawrence p. Taylor, 5 Hill, 113, 
 that ' such adoptive authority relates 
 back to the time of the transaction, 
 and is deemed in law the same to all 
 purposes as if it had been given be- 
 fore.' And in Newton e. Bronson, 3 
 Kern. 594, (G7 Am. Dec. 87), the court 
 says: ' That a subsequent ratification 
 is equally effectual as an origiuiil 
 authority, is well settled.' Such ex- 
 pressions are no doubt of frequent 
 occurrence, and although they display 
 too much carelessness in the use of 
 language, yet if they are understood 
 
 116
 
 §179. 
 
 THE LAW OF AGENCY. 
 
 [Book I. 
 
 the contract so made and compel the other party to perform it 
 on his part.' (a) 
 
 A well recognized illustration of this rule exists, also, in 
 the case of landlord and tenant. Thus a subsequent assent on 
 the part of a landlord will not establish bj relation an unauthor- 
 ized notice to quit given by his agent. The tenant must act 
 upon the notice at the time it is given, and the notice must, 
 therefore, at that time, be such as he can act upon with security; 
 otherwise the tenant would be subjected to the injustice of being 
 left in doubt as to his action until the ratification or disavowal 
 of the principal.* 
 
 tinction, I apprehend, that the de- 
 cisions which I have cited are to be 
 sustained. Lawrence v. Taylor and 
 Newton V. Bronson were both actions 
 in which the adverse party claimed 
 rights through the agency of indivi- 
 duals whose acts had been subse- 
 quently ratified. And the authorities 
 cited in support of the proposition 
 laid down in the last case (Weed*. 
 Carpenter, 4 Wend. 219; Episcopal 
 Society e. Episcopal Church, 1 Pick. 
 372; Corning u Southland, 3 Hill, 552; 
 Moss V. Rossie Lead Mining Co., 5 
 Id. 137; Clark v. Van Riemsdyk, 9 
 Cranch, 153, and Willinks v. Hollings- 
 worth, 6 Wheat 241), will, when ex- 
 amined, be found to have been cases 
 where the subsequent assent was em- 
 ployed against the persons who had 
 given it and taken the benefit of the 
 contract." 
 
 •Dodge V. Hopkins, 14 Wis. 630, 
 affirmed in Atlee v. Bartholemew, 6* 
 Wis. 43, 5 Am. St. Rep. 103. See 
 also Wilkinson v. Heavenrich, 58 
 Mich. 674, 55 Am. Rep. 708. 
 
 2 Brahn v. Jersey City Forge Co. 38 
 N. J. L. 74; Ri2;ht v. Cuttrel, 5 East, 
 491; Doe v. Walters, 10 B. & C. 625; 
 Doe V. Qoldwin, 2 Q. B. 143. 
 
 Contra, Roe v. Pierce, 2 Camp. 96; 
 Goodtitle v. Woodward, 8 B. «& Ald» 
 
 as applicable only to the cases in 
 which they occur, they may be con- 
 sidered as a correct statement of the 
 law. The inaccuracy consists in not 
 properly distinguishing between those 
 cases where the subsequent act of 
 ratification is put forth as the founda- 
 tion of a right in favor of the party 
 who has ratified, and those where it 
 is made the basis of a demand against 
 him. There is a broad and mani- 
 fest difference between a case in 
 which a party seeks to avail himself, 
 by subsequent assent, of the unauthor- 
 ized act of his own agent, in order to 
 enforce a claim against a third per- 
 son, and the case of a party acquiring 
 an inchoate right against a principal, 
 by an unauthorized act of his agent, 
 to which validity is afterwards given 
 by the assent or recognition of the 
 principal. Paley on Agency, 192, 
 note. The principal in such a case 
 may, by his subsequent assent, bind 
 himself, but if the contract be execu- 
 tory, he cannot bind the other party. 
 The latter may, if he choose, avail 
 himself of such assent against the 
 principal, which if he does, the con- 
 tract, by virtue of such mutual rati- 
 fication, hecomes mutually obligatory. 
 There are many cases where the acts 
 of parties, though unavailable for 
 their own benefit, may be used against 689. 
 them. It is upon this obvious dis- 
 
 (o) This role Is criticized In note to 6 Am. St Rep- "^ npon t^jJ authority of Maclean v 
 Dunn 4 BiDK 722; Soames v. Spencer, 1 Dowl. & R. 82; Hammond v. Hannm, 21 Micli,J73„ 
 S^ws JT^tna L. Ins. Co.. 92 N. Y. 596; but these cases do not, in the writer's opmif^a 
 antagonize the rule. See 24 Am. L. Rev. 580. 
 
 116
 
 Cliap. Y.] EATIFIOATIOlir. § 182. 
 
 4. As between Agent and the other Party. 
 
 § 180. In general. It is the general rule, as will be more 
 fully seen hereafter, that when one assumes to act as agent of 
 another but fails to bind that other as assumed on account of a 
 lack of authority, he will himself become personally liable to the 
 party who relied upon his pretended authority for all losses and 
 damages which he may sustain by reason of such failure.* As 
 between the principal and agent, as has been seen, this lack of 
 authority is fully supplied by ratification. But as between the 
 agent and third persons a distinction is made between cases of 
 contract and those of tort. 
 
 § 181. Ratification releases Agent on Contract. Where the 
 contract has been made in the name and on behalf of the alleered 
 principal, and the latter, with full knowledge of the facts, has 
 ratified it, the contract then becomes in fact, so far as the rights 
 of the other party are concerned, what at first it only assumed to 
 be, — the contract of the principal. The other party has then 
 what he contracted for, — the liability and responsibility of the 
 principal ; and he can obviously suffer no injurj' from the fact 
 that the agent's act was originally unauthorized. The agent, 
 therefore, drops out of sight. His identity is thereafter merged 
 in that of the principal and he cannot personally call upon the 
 other party for performance, nor can performance be demanded 
 of him. He cannot sue in his own right, nor can he be rendered 
 personally liable upon the ground of the failure of an assumed 
 authority.' 
 
 But if, for any reason, the ratification fails, as where it is made 
 in ignorance of material facts, there would seem to be no reason 
 why the rights of the other party, who has done no more to re- 
 lease the agent than to attempt in good faith to realize what the 
 agent had assumed to assure to him, should not thereupon be re- 
 vived as aojainst the ag:ent. 
 
 § 182. Otherwise in Tort. But while, by ratifying the tort 
 committed by his agent the principal becomes liable therefor, 
 this is an additional liability and not a substituted one. The 
 agent still remains liable to third persons and satisfaction may be 
 
 » Bee po»t, §§ 541, 550. Ad, 114; Bowen e. Morris, 3 Taunt. 
 
 « See East India Co. v. Hensley, 1 374. 
 Esp. 112; Polhm V. Walter, 8 B. & 
 
 117
 
 § 182. THE LAW OF AGENOT. [Book L 
 
 demanded either of the principal or of the agent or of both. It 
 is no defence to one who is sued for committing a trespass to 
 reply that he acted as the agent of another. ' 
 
 'Stephens v. Elwall, 4 M. «fc S. Eaton, 7 Wis. 595; Thorp o. Burling, 
 
 259; Perminter v. Kelly, 18 Ala. .716, 11 Johns. (N. Y.) 285; Richardson t. 
 
 54 Am. Dec. 177; Josselyn t). Mc- Kimball, 28 Me. 463; Burnap v. 
 
 Allister, 22 Mich. 800; Wright t>. March, 13 111. 535. 
 
 118
 
 Chap. VI.] 
 
 DELEGATION OF AUTHOEITY. 
 
 §184. 
 
 CHAPTER VI. 
 
 OP DELEGATION OP AUTHORITY. 
 
 § 183, In general. 
 
 I, Delegation by the Principal. 
 II. Delegation by the Agent. 
 
 184. Delegatus non potest delegari. 
 
 185. General Rule. 
 
 186. Same Subject — Judgment and 
 
 Discretion cannot be dele- 
 gated. 
 
 187. Attorneys cannot delegate per- 
 
 sonal Undertakings. 
 
 183. Arbitrators cannot delegate 
 their Powers. 
 
 189. Executors, &c. cannot dele- 
 gate personal Trusts. 
 
 190. Same Rule applies to Munici- 
 
 pal Corporations. 
 
 191. And to private Corporations. 
 
 192. Exceptions and Modifications. 
 
 193. 1. Sub-agent may be employed 
 
 when Duties are mechanical 
 or ministerial merely. 
 
 3. When Necessity requires it. 
 8. When justified by Usage or 
 
 Course of Trade. 
 
 4. When originally contempla- 
 ted. 
 
 Effect of Appointment. 
 
 194. 
 195. 
 
 196. 
 
 197. 
 
 § 183. In general. The authority which one assumes to ex- 
 ercise on the behalf of another may be derived either from the 
 principal himself, or from some person to whom the principal has 
 confided it. It is obvious therefore that a complete view of the 
 doctrine of the delegation of authority embraces : 1. Delegation 
 by the principal, and, 2. Delegation by the agent. 
 
 I. 
 
 DELEGATION BY THE PRINCIPAL. 
 
 The original delegation of authority by the principal has been 
 quite fully discussed in preceding sections, and needs no separate 
 attention here. Who may be a principal, and how he may con- 
 fer authority upon his agents, have been the subjects of special 
 examination. 
 
 II. 
 
 DELEGATION BY THE AGENT. 
 
 § 184. Delegatus non potest delegari. The appointment of 
 an agent in any particular case is made, as a rule, because he is 
 
 119
 
 § 185. THE LAW OF AGENCY. [Book L 
 
 supposed by his principal to have some fitness for the perform- 
 ance of the duties to be undertaken. In certain cases his appoint- 
 ment is owing to the fact that he is considered to be especially 
 and particularly fit. The undertaking demands judgment and 
 discretion, which he is supposed to possess ; or it requires the 
 skill and learning of an expert, which he assumes to be ; or per- 
 sonal force and influence are desirable, and these the agent is 
 thought to be able to exercise. Here is the delectus personae, 
 and it is obvious that unless the principal has expressly or im- 
 pliedly consented to the employment of a substitute, the agent 
 owes to the principal the duty of a personal discharge of the 
 trust. 
 
 § 185. General Rule. Hence it is the general rule of the law 
 that in the absence of any authority, either express or implied, 
 to employ a subagent, the trust committed to the agent is pre- 
 sumed to be exclusively personal and cannot be delegated by him 
 to another so as to affect the rights of the principal.' 
 
 But this general rule is, as will be seen, subject to be modified 
 by the peculiar circumstances and necessities of each particular 
 case, from which or from the usage of trade, a power to delegate 
 the authority may be inferred.* 
 
 8 186. Same Subject— Judgment and Discretion not to be dele- 
 gated. The reasons for this rule are particularly applicable to 
 those cases where the performance of the agency requires, upon 
 the part of the agent, the exercise of special skill, judgment or 
 
 • Appleton Bank v. McGilvray, 4 authority from another to do any act, 
 
 Gray (Mas8.) 518,64 Am. Dec. 92; must execute it himself, and cannot 
 
 McCormick v. Bush, 38 Tex. 314 ; delegate it to a stranger; for this be- 
 
 White V. Davidson, 8 Md. 169, 63 ing a trust or confidence reposed in 
 
 Am. Dec. 699; Lyon ». Jerome, 26 him personally, it cannot be assigned 
 
 Wend. (N. Y.) 485, 37 Am. Dec. 271; to one whose integrity or ability may 
 
 Wright t». Boynton, 37 N. H. 9, 72 not be known to the principal, and 
 
 Am. Dec. 819; Smith «, Sublett, 28 who, if he were known, might not 
 
 Tex. 163; Stoughton e. Baker, 4 be selected by him for such a purpose. 
 
 Mass. 522, 3 Am. Dec. 236; Lynn e. The authority is exclusively personal 
 
 Burgoyne, 13 B. Men. (Ky.) 400 
 Loomis ». Simpson, 13 Iowa 532 
 Connor «. Parker, 114 Mass. 331 
 
 unless from the express language 
 used or from the fair presumptions 
 growing out of the particular trans- 
 
 Gillis V. Bailey 21 N. H 149; Furnas action a broader power was intended 
 
 T. Frankman, 6 Neb. 429; Harralson to be conferred." Bell, J., in 
 
 e. Stoin, 50 Ala. 347. Wright v. Boynton, mpra. 
 
 " One who has a bare power of • See post, § 192, et seq. 
 
 120
 
 Chap. VI.] DELEGATION OF AUTHORITY. § IS 7. 
 
 discretion. Such relations are obviously created because the 
 principal places special confidence in the particular agent selected, 
 and there is abundant reason why the trust should not be trans- 
 ferred to another of whose fitness or capacity the principal may 
 have no knowledge, without the latter's express consent.* 
 
 Thus where an agent had been entrusted with the general ad- 
 ministration of the affairs of a trading company, but no power 
 to substitute others in his place had been given him, it was held 
 that no such power could be implied, because there was evidently 
 a confidence reposed in him which the company might not be 
 willing to repose in others." For the same reasons the agent who 
 has been given the important power to bind his principal by the 
 execution of promissory notes cannot delegate the power to a 
 subagent.* 
 
 A bailment of personal property to an agent with power to sell, 
 also creates a personal trust which cannot be delegated.* So 
 where an agent had been authorized to sell real estate, but in his 
 absence and without his knowledge, the land was sold by one 
 falsely assuming to be a subagent, it was held that the sale was 
 binding neither upon the principal nor the agent, as the princi- 
 pal was entitled to the judgment and discretion of the agent in 
 making the sale.' 
 
 § 187. Attorneys cannot delegate personal Undertaking. The 
 appointment of an attorney to argue or conduct a cause creates a 
 personal trust, and he can neither entrust the performance of this 
 duty to another attorney of his own selection, nor let the case 
 out on shares, without the express consent of his principal.* 
 
 This rule, however, does not demand that the attorney shall 
 perform, in person, all of the merely mechanical or minister- 
 ial work involved in the case. As will be seen in a subsequent 
 section, the performance of such duties through the agency of 
 
 ' Emerson «. Providence Hat Co. C. 534; Pendall v. Rench, 4 McLean 
 
 12 Mass. 237, 7 Am. Dec. 66; Paul v. (U. S. 0. C.) 259. 
 
 Edwards, 1 Mo. 80; Lewis v. Inger- 'Emerson v. Providence Hat Co., 
 
 Boll, 8 Abb. (N. Y.) App. Dec. 55; mpra. 
 
 Say re v. Nichols, 7 Cal. 535, 68 Am. «Idem. 
 
 Dec. 280; Commercial Bank®. Nor- *}i\into. Douglass, 22 Vt. 128. 
 
 ton, 1 Hill (N. Y.) 501; Dorchester, » Barret c. Rhem. 6 Bush. (Ky.) 4G6. 
 
 &c., Bank v. New England Bank, 1 'Egglestone. Boardman, 87 Mich. 
 
 Gush. (Mass.) 177; Planters &c,, 14. 
 Bank v. First National Bank, 75 N. 
 
 121
 
 § 188. THE LAW OF AGENCY. [Book 1. 
 
 others, falls under a well recognized exception to tlie general 
 rule. • 
 
 § 188. Arbitrators cannot delegate their Powers. This rule 
 also applies with special force to arbitrators. They are selected 
 by parties who have placed particular confidence in their personal 
 judgment, discretion and ability, and it would be a palpable in- 
 justice if they were to be permitted to delegate their responsibi- 
 lities and powers to others.' But it is entirely proper for arbitra- 
 tors, in a case requiring it, to obtain from disinterested persons 
 of acknowledged skill such information and advice in reference 
 to technical questions submitted to them, as may be necessary to 
 enable them to come to correct conclusions, provided that the 
 award is the result of their own judgment after obtaining such 
 information.' They may also avail themselves of such mechan- 
 ical or ministerial assistance as the nature of their duties may re- 
 quire.* 
 
 § 189. Executors, &c., cannot delegate personal Trusts. 
 This principle is, likewise, of frequent application to the case of 
 persons upon whom the law has devolved discretionary or fiduci- 
 ary powers, such as executors, guardians and public trustees. 
 Such powers cannot be delegated without express authority.* 
 
 § 190. Same Rule applies to Municipal Corporations. The 
 same rule applies to the powers and duties conferred upon muni- 
 cipal corporations and municipal officers. Wherever judgment 
 and discretion are to be exercised, the body or ofiicer entrusted 
 with the duty must exercise it; it cannot be delegated or farmed 
 out.* 
 
 « See post § 193 ; Eggleston*. Board- » Berger ». Duff, 4 Johns. (N. Y.) 
 
 nvxvi, suiira. Ch. 369; Newton c. Bronson, 13 N. 
 
 » Ling wood v. Eade, 2 Atk. 501; Y. 587. 67 Am. Dec. 89; Lyon v. 
 
 Proctor V. Williams, 8 C. B (N. S.) Jerome, 26 Wend. (K Y.) 485, 37 
 
 380; Whitmorec. Smith, 5 H. & K Am. Dec. 271; Hicks e. Dorn, 43 N. 
 
 824; Little*. Newton, 2 Scott N. R. Y. 51; St, Peter «. Denison, 58 N. 
 
 509. Y. 431 ; Curtis v. Leavitt. 15 N. Y. 
 
 » Soulsby T). Hodgson, 3 Burr. 1474; 190; The California, 1 Sawyer, 603; 
 
 Caledonia Ry Co. c, Lockhart, 3 White v. Davidson, 8 Md. 169, 63 Am. 
 
 Macq, 808; Anderson v. Wallace, 3 Dec. 699; Merrill t. Farmers. &c., 
 
 CI. &Fin. 26; Eads v. Williams, 4 Co. 24Hun(N. Y.) 300; Stoughton i). 
 
 DeGex. Mac. & Gor. 674. Baker. 4 Mass. 523, 3 Am. Dec. 236. 
 
 ♦Thorpe. Cole, 2 Cr. M. «fc R. 367; 'State e. Hauser, 63 Ind. 
 
 Harreyc. Shelton, 7Beav. 455; Moore 155; State «. Bell, 34 Ohio 
 
 V. Barnett, 17 Ind. 349. St. 194; Birdsall v. Clark, 73 
 
 122
 
 Chap. VI.] DELEGATION OF AUTHORITY. § 194. 
 
 § 191. And to private Corporations. " The general super- 
 vision and direction of the affairs of a corporation," says Mr. 
 Morawetz, " are especially intrusted by the shareholders to the 
 board of directors; it is upon the personal care and attention of 
 the directors that the shareholders depend for the success of their 
 enterprise. It follows that authority to delegate these general 
 powers of management cannot be implied." * 
 
 § 192. Exceptions and Modifications. But the general rule 
 above given is subject to certain exceptions and modifications 
 growing out of the nature of the authority or the exigencies and 
 necessities of the case, or based upon the custom and usage of 
 trade in similar cases. Thus — 
 
 § 193. 1. Subagent may be employed when Duties are m©- 
 ohanical or ministerial merely. Where in the execution of the 
 authority an act is to be performed which is of a purely mechan- 
 ical, ministerial or executive nature, involving no elements of 
 judgment, discretion or personal skill, the power to delegate the 
 performance of it to a subagent may be implied.* 
 
 Thus an agent empowered to execute a promissory note,' or to 
 bind his principal by an accommodation acceptance,* or to sign 
 his name to a subscription agreement,' having himself first deter- 
 mined upon the propriety of the act, may direct another to per- 
 form the mechanical act of writing the note or signing the accept- 
 
 N. Y. 73, 29 Am. Rep. 105; Brook- 896; Ruggles «. Collier, 43 Mo. 353; 
 
 lynD. Breslin, 57 N. Y. 591; Mat- Meuser c. Risdon. 36 Cal. 239; Dar- 
 
 thewa t». Alexandria, 68 Mo. 115, 30 lingt). St.Paul, 19 Minn. 389; St. Louis 
 
 Am. Rep. 776; Maxwell v. Bay City v. Clemens, 43 Mo. 395, S. C. 52 Mo. 
 
 Bridge Co., 41 Mich. 453; Clark t?. 133. 
 
 Washington, 12 Wheat. (U. S.) 54; * Morawetz on Corporations, § 536. 
 
 Thompson v. Schermerhorn, 6 N. Y. » Williams v. Woods, 16 Md. 220; 
 
 93; Davis v. Read, 65 N. Y. 566; Grinnell v. Buchanan, 1 Daly (N. 
 
 Supervisors v. Brush, 77 111. 59; Y.). 538; Eldridge c. Holway, 18 111. 
 
 Thompson c. Boonville, 61 Mo. 382; 445; Joor o. Sullivan, 5 La. Ann. 177. 
 
 State V. Fiske, 9 R. I. 94; State v. Grady i). American Cent. Ins. Co., 60 
 
 Paterson, 34 N. J. L. 168; Hydes v. Mo. 116; Newell v. Smith, 49 Vt. 255. 
 
 Joyes, 4 Bush. (Ky.) 464; Oakland®. »Sayre v. Nichols, 7 Cal. 535, 68 
 
 Carpentier, 13 Cal. 540; Whyte v. Am. Dec. 280. 
 
 Nashville, 2 Swan (Tenn.) 364; Lord * Commercial Bank «. Norton, 1 
 
 V. Oconto. 47 Wis. 386; Lauenstein v. Hill (N. Y.) 501. 
 
 Fond du Lac, 28 Wis. 336; Gale v. » Norwich University «. Denny, 47 
 
 Kalamazoo, 23 Mich. 844; Indiana- Vt. 13. 
 
 polls e. Indianapolis Gas Co., 66 Ind. 
 
 123
 
 § 194. THE LAW OF AGENCY. [Book I. 
 
 ance or subscription, and the act so performed will be binding 
 upon the principal. 
 
 So an agent authorized to sell real estate, who exercises his 
 own discretion as to the price and the terms, may employ a sub- 
 agent to look up a purchaser,' and an insurance agent may era- 
 ploy clerks, and authorize them to solicit risks, deliver policies, 
 collect premiums and give credit for the same.* 
 
 § 194. 2. When Necessity requires it. It is obvious, too, 
 that there are many cases where from the very nature of the 
 duty, or the circumstances under which it is to be performed, the 
 employment of subagents is imperatively necessary, and that the 
 principal's interests will suffer if they are not so employed. In 
 such cases, the power to employ the necessary subagents will be 
 implied.' The authority of the agent is always construed to in- 
 clude the necessary and usual means to execute it properly. 
 
 Thus if a note be sent to a bank for collection, and for the pro- 
 tection of the principal it becomes necessary to have the note 
 protested, the authority of the bank to employ the proper officer 
 will be implied ; * and so if a note or draft be sent to a bank, to 
 be collected at a distant point, the authority of the bank to era- 
 ploy a subagent at the place of collection, and to forward the 
 note or draft to him there, would be presumed.* 
 
 So an agent employed to collect a demand by suit would have 
 implied power to employ the necessary attorneys;* or if author- 
 ized to sell goods, to employ a broker or auctioneer; ' or if auth- 
 orized to charter a vessel, to employ a vessel broker to assist him 
 in securing the charter.' 
 
 § 195. 3. When justified by Usage or Course of Trade. Again 
 
 'Renwick e. Bancroft, 56 Iowa, » Appleton Bank v. McGilvray, 4 
 
 527. Gray (Mass.) 518, 64 Am. Dec. 92; 
 
 'Bodine e. Exchange Ins. Co., 51 Baldwin v. Bank of Louisiana, 1 
 N. Y. 123; Grady©. American Cent. La. Ann. 13, 45 Am. Dec, 73; Cora- 
 Ins. Co. supra. mercial Bank v. Martin, 1 La. Ann. 
 
 3 Dorchester, &c. Bank v. New 344, 45 Am. Dec. 87. 
 
 England Bank, 1 Cush. (Mass.) 177; • Commercial Bank v. Martin, 
 
 Johnson «. Cunningham, 1 Ala. 249; supra; Buckland «. Conway, 16 
 
 Gray v. Murray, 3 Johns. (N.Y.) Ch. Mass. 396. 
 
 167; Rossi ter e. Trafalgar Life Assur. t Harralson t>. Stein, 50 Ala. 347; 
 
 Ass'n, 27 Beavan, 377. Strong «. Stewart, 9 Heisk. (Tenn.) 
 
 * Tieman v. Commercial Bank, 7 147. 
 
 How. (Miss.) 648, 40 Am. Dec. 83. » Saveland «. Green, 40 Wis. 431. 
 
 124
 
 ■ Chap. VI.] DELEGATION OF AUTHOKITT. § 195. 
 
 the appointment of a subagent may be justified by a known and 
 established usage or course of dealing.' Parties contracting in 
 reference to a subject-matter concerning which there is such a 
 usage may well be presumed to have it in contemplation. 
 In contractis iacite insunt qitae sunt moris et consueiudinis, is a 
 maxim of law.* 
 
 Thus where goods were entrusted by the plaintiff to a mer- 
 chandise broker to sell, deliver and receive payment, and the 
 broker deposited them in accordance with an usage with a com- 
 mission merchant connected with an auctioneer, taking his note 
 therefor, and some of the goods were afterward sold at a less 
 price than the broker was authorized to sell them for, it was hehl 
 that the principal was bound by such act of the broker and that 
 he could not maintain trover against the commission merchant. 
 Said the court: "Business to an immense amount has been 
 transacted in this way, and the usage being established, it fol- 
 lows that when the plaintiff authorized his broker to sell, he 
 authorized him to sell according to the usage ; and when the 
 defendants dealt with the broker, even if they had known that 
 the goods were not his own, they had a right to consider him as 
 invested with power to deal according to the usage." • 
 
 The power of a bank receiving a note for collection at another 
 place, to forward the note to a bank at that place for payment, 
 may also be derived from the same source, as may other powers 
 referred to in the preceding section.* Usage, however, will not 
 be permitted to contravene express instructions, and if the agent 
 has been denied the power of delegation, usage can not confer 
 it." Nor can usage justify the agent in violating the funda- 
 
 1 Buckland «. Conway, 16 Mass, 
 396; Smith t>. Sublett, 23 Tex. 163 
 Lynn v. Burguoyne,13 B. Mon. (Ky.] 
 400; Moon v. Guardians, 3 Bing. N 
 Cas. 814; Gray v. Murray, 8 Johns 
 (N. Y.) Ch. 167: Darling v. Stan wood 
 14 Allen (Mass.) 504, Johnson v. Gun 
 
 from the usual course of trade or the 
 nature of the transaction. 
 
 » Barksdale v Brown, 1 Nott & 
 McC. (S. C.) 517. 9 Am. Dec 720; 
 Bliss?). Arnold, 8 Vt. 253, 30 Am. 
 Dec 467; Hall v. Storrs, 7 Wis. 253; 
 Day V. Holmes, 103 Mass. 306; Par- 
 
 ningham, 1 Ala. 249. sons b Martin, 11 Gray (Mass.) 112; 
 
 s See Ewell's Evans' Agency, 58. Clark v. Van Northwick, I Pick. 
 
 » Laussatt t>. Lippincott, 6 Serg. «fc (Mass) 343; Leland v. Douglass, 1 
 
 R (Penn.)386, 9 Am. Dec. 440. Wend. (N. Y.)490; Catlin v. Smith, 
 
 * Wilson V. Smith, 3 How.(U. S.) 24 Vt. 85; Hutchinga v. Ladd, 16 
 
 763, where the court speaks of it as Mich. 493. 
 an authority fairly to be implied 
 
 125
 
 § 196. THE LAW OF AGENCY. [Book I. 
 
 mental duties which he owes to his principal or to change the 
 intrinsic character of the contract existing between them.' 
 
 S 196. 4. When originally oontemplated. If the appointment 
 of a snbagent was contemphited by the parties at the time of the 
 creation of the agent's authority, or if it was then expected that 
 subagents might or would be employed, this would be treated as 
 at least implied authority for such an appointment.' 
 
 S 197. Effect of Appointment. It is not the purpose here to 
 go minutely into the mutual rights and obligations of the princi- 
 pal, agent, and subagent. This subject is reserved for subse- 
 quent consideration. But — 
 
 In ge7ieral.—U an agent employs a subagent for his principal, 
 and by his authority, expressed or implied, then the subagent is 
 the agent of the principal and is directly responsible to the prin- 
 cipal for his conduct, and if damage results from the conduct of 
 Buch subagent, the agent is only responsible in case he has not 
 exercised due care in the selection of the subagent. 
 
 But if the agent, having undertaken to transact the busmess 
 of his principal, employs a subagent on his own account to assist 
 him in what he has undertaken to do, he does so at his own risk, 
 and there is no privity between such subagent and the principal. 
 The subagent is, therefore, the agent of the agent only and is 
 responsible to him for his conduct, while the agent is responsible 
 to the principal for the manner in which the business has 
 been done, whether by himself, or his servant or his agent.* 
 
 » Robinson v. Mollett, L. R. 7 H. Campbell e. Reeves, 3 Head (Tenn.) 
 
 of L. 803, 14 Eng. Rep. 177; Minne- 226; Commercial Bank v. Jones, 18 
 
 sota Cent. R. R. Co, v. Morgan, 52 Tex. 811; Barnard v Coffin, 141 Mass, 
 
 Barb. (K Y.) 217. 37; 55 Am. Rep. 443; Warren Bank 
 
 a Johnson v. Cunningham, 1 Ala. v. Suffolk Bank, 10 Cush. (Mass.) 
 
 249; Duluth Nat. Bank v. Fire Ins. 582; Pownall v. Balr, 78 Penn. 8t 
 
 Co. 85 Tenn. 76, 4 Am. St. Rep. 744. 403; Darling v. Stanwood, 14 Allen 
 
 » Appleton Bank v. McGilvray, 4 (Mass.) 504; Stephen* «. Babcork, 8 
 
 Gray (Mass.) 518; 64 Am. Dec. 92: B. & AdoL 354; McCanta «. Wells, 4 
 
 Sexton 9. Weaver, 141 Mass. 273; S. C. 381. 
 
 126
 
 Chap. YII.] TERMINATION OF THE RELATION. 
 
 CHAPTER VII. 
 
 OP THE TERMINATION OF THE RELATION. 
 
 i 198. Purpose of Chapter. 
 1U9. Variety of Methods. 
 
 I. By Original Agkehment. 
 
 200. 1. By Efflux of Time. 
 
 201, 2. By Accomplishment of Ob- 
 
 ject. 
 
 203. Same Subject. 
 
 IL By Act of thk Parties. 
 
 1. BffDocation by th« Principal. 
 
 A. Private Agency. 
 
 204. General Rule — As between 
 
 Principal and Agent, Agency 
 is revocable at any Time if 
 not coupled with an Inter- 
 est. 
 
 205. What Interest sufficient. 
 
 206. Same Subject — Instances. 
 
 207. What Interest not sufficient — 
 
 Instances. 
 
 208. Same Subject — Bare Powers. 
 
 209. Power to revoke — How dis- 
 
 distinguished from Right to 
 revoke. 
 
 210. When Right to revoke exists. 
 
 211. What amounts to Contract for 
 
 definite Time — Unilateral 
 Agreements. 
 
 212. Same Subject — When definite 
 
 Time will be implied. 
 218. Agency terminable for Agent's 
 Incompetence. 
 
 214. When Agency may be termi- 
 
 nated for Agent's Miscon- 
 duct 
 
 215. Same Subject — Illustrations. 
 
 216. How the Authority may be 
 
 revoked. 
 
 i 217. Same Subject. — By sealed In- 
 strument. 
 
 218. Same Subject. — Express revo- 
 
 cation not required. 
 
 219. Revocation may be implied. 
 
 220. By disposing of Subject-mat- 
 
 ter. 
 
 221. By Dissolution of Partnership 
 
 or Corporation. 
 
 222. By Severance of Joint Inter- 
 
 est. 
 
 223. Notice of Revocation. 
 
 a. To Third Persons. 
 
 224. When Authority was general. 
 
 225. Where Authority was special. 
 
 b. To Agents. 
 
 226. Notice must be given to 
 
 Agent. 
 
 c. To Subagents. 
 
 227. Notice must be given to Sub- 
 
 agents — When. 
 
 228. Notice — How given — What 
 
 sufficient. 
 
 229. When Evidence of Agency re- 
 
 corded, Revocation should 
 be recorded. 
 
 2o0. Notice should be unequivocal. 
 
 231. How Sufficiency of Notice de- 
 termined. 
 
 B. Public Agency. 
 233. Statutory Agency not revoca- 
 ble at Will of Prino ipal. 
 
 2. Renunciation by Agent. 
 
 233. General Rule — Agent may re- 
 
 nounce at any Time. 
 
 234. By mutual Consent. 
 
 127
 
 §198. 
 
 THE LAW OF AGENCY. 
 
 [Book I. 
 
 i 235. Abandonment may be treated 
 
 as Renunciation. 
 336. Agent may abandon if required 
 
 to do unlawful Act. 
 237. Notice of Renunciation. 
 
 III. By Operation of Law. 
 
 1. By Death of one of (he Partiea. 
 
 a. By Death of the Principal. 
 
 239. In general. 
 
 240. General Rule— Death of Prin- 
 
 cipal terminates Agency. 
 
 241. Same Subject — Not when 
 
 coupled with an Interest. 
 
 242. Same Subject— What Interest 
 
 sufHcient. 
 
 243. Same Subject — What Interest 
 
 sufficient — Instances. 
 
 244. Same Subject — What Interest 
 
 not sufficient — Iiistances. 
 
 245. How when Death unlsnown, 
 
 246. Same Subject — Instances. 
 
 247. Death of Partner or joint 
 
 Owner dissolves Agency. 
 
 248. Death of Principal dissolves 
 
 Authority of Substitute. 
 
 b. By death of the Agent. 
 
 249. General Rule — Death of Agent 
 
 terminates Agency. 
 
 250. Not when coupled with an 
 
 Interest. 
 
 251. When Death of one of two 
 
 Agents terminates Agency. 
 
 252. Effect on Substitute. 
 
 2. By Insanity of one of the Parties. 
 a. By Insanity of the Principal. 
 
 253. In general. 
 
 § 254. General Rule. 
 
 255. But — Ignorance of Insanity. 
 
 256. When coupled with an Inter- 
 
 est. 
 
 257. What Evidence of Insanity 
 
 sufficient. 
 b. By Insanity of the Agent. 
 
 258. In general. 
 
 259. General Rule — Terminates 
 
 Agency unless coupled with 
 an Interest. 
 
 260. How when Insanity unknown. 
 
 261. Insanity of one of two or 
 
 more Agents. 
 
 262. Subagents. 
 
 3. By Bankruptcy of one of the Parties. 
 
 a. Bankruptcy of Principal. 
 
 263. General Rule— Bankruptcy of 
 
 Principal terminates Agent's 
 Authority. 
 
 264. Mere Insolvency not enough. 
 
 265. Agent's Authority not dis- 
 
 solved when coupled with an 
 Interest. 
 
 266. How when Bankruptcy un- 
 
 known. 
 
 b. Bankruptcy of the Agent 
 
 267. General Rule. 
 
 4. By Marriage. 
 
 268. In general. 
 
 5. By War. 
 
 269. In general 
 
 6. By Termination of the PrincipaVt 
 AutJiority. 
 
 270. Principal's Removal from 
 
 Office removes Subordinates. 
 
 § 198. Purpose of Chapter. Having heretofore considered 
 in what manner and under what conditions the relation of prin- 
 cipal and agent may be created, it now remains to be seen in 
 what manner and under what conditions that relation may be 
 terminated, and also to ascertain what results may follow from 
 such termination. 
 
 The termination of the author- 
 
 § 199. Variety of Methods. 
 
 128
 
 Chap. YIl.] TERMINATION OF THE RELATION. § 200. 
 
 itj may be effected by a variety of methods. Thus the aj^ency 
 may have been created to endure only for a limited period, and 
 at the expiration of that period would come to a close by the 
 mere efflux of time ; or it may have been called into being for 
 the express purpose of performing a single act or a series of acts, 
 and these being performed the agency would be terminated by 
 the accomplishment of that for which it was created. Again, 
 under certain circumstances, the agency may be concluded by 
 the act of the parties, as where the principal revokes or the agent 
 renounces it. So subsequent changes in the condition or relation 
 of the parties may render the continuance of the agency inconsist- 
 ent or impossible, and it will be terminated by operation of law. 
 For convenience of treatment these various methods may be 
 distributed under three heads: I. By original agreement. IL 
 By act of the parties, and, III. By operation of law. 
 
 I. 
 
 BY ORIGINAL AGREEMENT, 
 
 § 200. 1. By Efflxix of Time. Where the agency was origin- 
 ally created to endure during a given period or until the happen- 
 ing of a certain event, the expiration of that period and the 
 happening of that event would respectively operate to terminate 
 the agency. 
 
 "Where the language used by the parties is express as to the 
 length of time the agency is to continue, there can of course be 
 no doubt as to its duration ; but this result may also be reached 
 where the period is not expressly fixed but must be determined 
 by the facts and circumstances of the case. 
 
 Thus where a resident of Australia who was possessed of 
 estates in England, executed a written power of attorney to a 
 firm of English solicitors, in which he recited, "Whereas I 
 am about to return to South Australia and am desirous of ap- 
 pointing attorneys to act for me during my absence from England 
 in the care and management of the said estate * * * * 
 and generally to act for me in the management and dealings with 
 any property belonging to me during my absence from Eng- 
 land," and then proceeded by the operative part of the instru- 
 ment to convey such a power, but without any limitations as to 
 
 9 129
 
 § 200. THE LAW OF AGENCY. [Book I. 
 
 time, it was held that the recital controlled the general language 
 used in the operative part of the instrument and limited the 
 exercise of the powers of the attorneys to the period of the 
 principal's absence from England. Kay, J., said : " The opera- 
 tive part of the instrument does not refer in any way to the 
 duration of the power, therefore a statement in the recital or any 
 other part of it that it was only intended to have effect during 
 the donor's absence from England would not be repugnant to 
 anything in the operative part. It is only a conclusion of law 
 that if such a power is silent as to its duration it must last during 
 the donor's life, or until he revokes it. I asked during the 
 argument if the recital had contained a stipulation in the most 
 express words that could be employed, that the power should 
 only be used during the donor's absence or other limited time, 
 whether that could be disregarded, and the answer was that it 
 could. With that I am unable to agree. A power of attorney 
 like a release or a bond, as in the case of Lord Arlington v. Mer- 
 ricke,^ seems to me precisely the kind of instrument which may 
 be limited by a recital. And the only question upon which it 
 appears to me there can be any reasonable doubt is whether that 
 is the true effect of the recital in this power, 
 
 "It is said that it was only inserted for the purpose of show- 
 ing the motive for giving the power of attorno}', but I can see 
 no object in introducing the recital for that purpose. And after 
 the best consideration I can give the matter, I come to the con- 
 clusion that the words 'during my absence from England' which 
 occur twice in this recital are there used for expressing the limit 
 of time during which the power was to be exercised." ' 
 
 So where an agreement creating an agency for the sale of 
 machines, made no provisions as to the time of its continuance, 
 but did provide that the agency should extend over a certain 
 section of the country, and that the principal agreed to furnish 
 to the agent " such number of machines as he may be able to sell 
 as their agent, prior to October 1st, 1867," it was held in an 
 action against the agent's sureties, that a fair and reasonable con- 
 struction of the agreement created an agency only until the first 
 day of October, 1867.* 
 
 ' Williams Saunders, 813. » Gundlach v. Fischer, 59 111. 172. 
 
 * Dauby v. Coutta, L. R., 29 Ch. An agency may be revoked in pur- 
 
 Div. 500. suance of a stipulation to that effect 
 
 130
 
 Chap. Yll.] TEEMINATION OF THE RELATION. § 201. 
 
 § 201. 2. By Accomplishment of Object. Where the agency 
 was created for the purpose of performing some specific act or 
 acts, it will be terminated by the accomplishment of the purpose 
 which called it into being. Having fulfilled its mission it is 
 henceforth functus officio. 
 
 Thus is an Iowa case, the firm of A & B had been employed 
 by one S to negotiate for him the purchase of some land. In the 
 month of July they made the purchase and delivered to S the 
 contract of sale, and S then gave them one-half of the purchase 
 price for payment to the vendor, and paid them for their services. 
 In August a deed for the land was sent to them and they delivered 
 it to S, who then paid the balance of the purchase price. In 
 October following, A bought the same land at a sale thereof for 
 taxes, and subsequently brought an action to recover the land of 
 the vendee of S, and it was attempted to defeat the action upon 
 the ground that A & B were still the agents of S at the time 
 A made the purchase at the tax sale. But the court said that 
 upon these facts it was quite clear that the agency of the plaint- 
 iff, or of A & B for the purchase of the land for S, terminated 
 at tiie time they delivered to him the written contract for the con- 
 veyance of the land on receipt of one-half of the purchase money 
 and the payment of their fee for the services performed. When 
 this was accomplished A & B had done all they had been em- 
 ployed to do. They had made the purchase as S had desired 
 them to do, delivered to him the written contract sent to them 
 for S and had received the first payment as per agreement. This 
 completed the services they had undertaken. S himself so re- 
 garded it, for when these things were done, he inquired how 
 much they charged for their services, and on being informed of 
 the amount he paid the same. They had performed the business 
 for which the agency had been constituted, and by operation of 
 law, the agency was terminated. This was in July. The pur- 
 chase at the tax sale was not made until October of the same 
 year. At that time they were as free to purchase the same as any 
 other persons. Their agency no longer existed.* 
 
 So where an agent was employed to find a purchaser for land 
 
 in the contract of employment. Ore- a like ruling was madp in the similar 
 gon Mortgage Co. ■». American Mort- case of Walker v. Derby, 5 Bissell. 
 gage Co. 35 Fed. Rep. 22. 134. See also Blackburn v. Scholea, 
 
 » Moore «. Stone, 40 Iowa, 259. And 2 Camp. 343. 
 
 131
 
 § 202. THE LAW OF AGENCY. [Book I. 
 
 at a fixed price, which he did, it was held that thereupon his agency 
 to the seller terminated, and he was at liberty to undertake the 
 service of the purchaser in attending to the due execution of the 
 conveyance.' 
 
 So a power delegated to an agent to "fix and determine" a 
 matter in which he has no power of his own outside of the agency, 
 is expended when he has once acted upon it.' 
 
 § 202. Same Subject. Again where the object for which the 
 agency was created is accomplished by other means before the 
 agent has acted, there is nothing left for him to act upon, and his 
 authority is therefore terminated. Thus where the inhabitants 
 of a town authorized their treasurer to borrow money for the ad- 
 justment of a State tax, but the tax was adjusted in another way 
 before the treasurer had acted, it was held that Iiis authority to 
 borrow money was thereby terminated.* So where before one of 
 two agents separately authorized to sell real estate had found a 
 purchaser, the principal had effected a sale of the land to a pur- 
 chaser produced by the other agent, it was held that the first 
 agent's authority to sell was terminated by the sale.* 
 
 II. 
 
 BY ACT OF THE PARTIES. 
 
 § 203. It has been said above that the relation of principal 
 and agent may, under certain circumstances, be terminated by 
 the act of one or other of the parties, as by revocation of the 
 agency by the principal, or its renunciation by the agent. 
 
 It is now proposed to consider each of these cases and deter- 
 mine when and under what conditions each party may exercise 
 this right. 
 
 1. Revocation hy the PHncipal. 
 
 A.. Private Agency. 
 
 § 204. Q-eneralRule— As between Principal and Agent, Author- 
 ity i8 revocable at any Time if not coupled with an Interest. 
 The authority of the agent to represent the principal depends 
 
 > Short V. Millard, 68 111. 292. » Benoit ». Conway, 10 Allen 
 
 sDouvielle «. Supervisors, 40 Mich. (Mass.) 528. 
 686. * Ahern v. Baker, 34 Minn. 98. 
 
 132
 
 Chap. Yir.] TERMINATION OF TUE RELATION. § 20i. 
 
 upon tlie will and license of the latter. It is the act of the prin- 
 cipal which creates the authority ; it is for his benefit and to sub- 
 serve his purposes, that it is called into beinf^ ; and, unless the 
 agent has acquired with the authority an interest in the subject- 
 matter, it is in the principal's interest alone that the authority is 
 to be exercised. The agent, obviously, except in the instance 
 mentioned, can have no right to insist upon a further execution 
 of the authority if the principal himself desires it to terminate.' 
 
 It is the general rule of law, therefore, that as between the 
 agent and his principal, the authority of the agent may be re- 
 voked by the principal at his will at any time, and with or with- 
 out good reason therefor, except in those cases where the author- 
 ity is coupled with a sufficient interest in the agent.* And this is 
 true even though the authority be in express terms declared to be 
 " exclusive" ' or "irrevocable."* But although the principal has 
 the power thus to revoke the authority, he may subject himself 
 to a claim for damages if he exercises it contrary to his express 
 or implied agreement in the matter. 
 
 An agency is sometimes said to be irrevocable when it is con- 
 ferred for a valuable consideration. It is believed, however, 
 that this is only another form of stating the general rule that it 
 must be coupled with an interest. 
 
 This right to revoke exists when the State is the principal as 
 well as when the principal is a private individual.' 
 
 *Huut V. Rousmanier, 8 Wheat. 236; Simpson c. Lamb, 84 Eng. Com. 
 
 (U. S.) 201; State «. Walker, 88 Mo. L. 603; Creager b. Link, 7 Md. 259; 
 
 379. Hartshorne v. Thomas, — N. J. Eq. 
 
 ^Posten V. Rassette, 5 Cal. 467; — , 10 Atl. Rep. 843; Kirk v. Hart- 
 Hynson v. Noland. 14 A.rk. 710; Barr man, 63 Penn. St. 97; Coffin v. Lan- 
 V. Schroeder, 32 Cal. 609; Bonney v. dis, 10 Wright (Penn.) 426. 
 Smith, 17 111. 531; Hutchins «. Heb- 'Chambers v. Seay, supra. Con- 
 bard, 34 N. Y. 24; Brookshire «. tract to give an agent the "exclusive" 
 Voncannon, 6 Ired. (N. C.) 231; agency in certain territory, does not 
 Wheeler «. Knaggs, 8 Ohio, 169; prevent the principal from selling 
 Hartley's Appeal, 53 Penn. St. 212; there. Packing Co. p. Farmers' 
 Blackstone v. Buttermore, Id, 266; Union, 55 Cal. 606. 
 Brown®. Pforr, 88 Cal. 550; Shiff v. < Chambers©. Seay; Blackstone c. 
 Lesseps, 22 La. Ann. 185; Chambers Buttermore, supra; Frink c. Roe, 70 
 V. Seay, 73 Ala. 372; Tucker v. Law- Cal. 296; McGregor v. Gardner, 14 
 rence, 56 Vt. 467; Simpson v. Carson, Iowa, 326; Walker®. Denison, 86 111. 
 11 Oregon, 361; Darrowc. St. George, 142; Attrill v. Patterson, supra. 
 8 Col. 592; Hunt v. Rousmanier, » State ®. Walker, 88 Mo. 279. 
 tupra; Attrill «. Patterson, 58 Md. 
 
 133
 
 § 205. THE LAW OF AGENCY. [Book I. 
 
 8 205. What Interest snfacient. What interest in the agent 
 will be sufficient to render the authority irrevocable is not easy 
 of exact and comprehensive definition. Certain it is, however, 
 that it is not any interest which will sufiice.^ But it must be an 
 interest or estate in the thing itself or in the property which is 
 the subject of the power ; the power and the estate must be 
 united and co-existent, and, generally, of such a nature that the 
 power would survive the principal in such a way as to be capable 
 of execution in the agent's name after the death of the princi- 
 pal.* 
 
 § 206. Same Subject— Instances. In the following cases the 
 ao-ent has been held to have such ah interest in the power as to 
 render it, to the extent of the agent's interest, irrevocable at the 
 will of the principal : Where the agent has authority to collect a 
 debt and out of the proceeds to reimburse himself for advances 
 made by him to the principal ; • where the authority is given to 
 the agent to sell real or personal property and apply the proceeds 
 in payment of a debt due him from the principal ;♦ where the 
 authority forms a part of the contract and is given as security for 
 money or to effectuate a security ; ' or where it is conferred to 
 enable the agent, as for instance a factor, to reimburse himself 
 for prior advances ;• and where it is given to indemnify a surety 
 against loss.'' 
 
 8 207. What Interest not sufficient— Instances. But a mere 
 interest in the results or proceeds of the execution of the au- 
 thority, as by way of compensation, is not enough. 
 
 Thus where one is given authority to sell the lands or other 
 
 'Chambers*. Seay, 73 Ala. 373. 'Hunt ». Rousmanier, 8 Wheat. 
 
 sHunt V. Rousmanier, 8 Wheat. (U. S.) 175; Walsh v. Whitcomb, 2 
 
 (U. S.) 175; Blackstone v. Butter- Esp. 565; Drinkwater v. Goodwin, 
 
 more, 53 Penn. St. 266; Bonney v. Cowp. 251; Beecher v. Bennett. 11 
 
 Smith, 17111. 531; Mansfield v. Mans- Barb. (N. Y.) 380; Hutchins v. Heb- 
 
 field, 6 Conn. 559; Raleigh v. Atkin- bard, 34 N. Y. 27; Knapp v. Alvord, 
 
 son, 6 M. & W. 670; Chambers v. 10 Paige (N. Y.) Ch. 205, 40 Am. 
 
 Seay supra; Attrill v. Patterson, Dec. 241; Evans c. Fearne, 16 Ala. 
 
 g^p^a. 689, 50 Am. Dec. 197. 
 
 • Marizou v. Pioche, 8 Cal. 522; 'Smart v. Sanders, 6 C. B. 895; 
 
 Postin X. Rassette, 5 Cal. 467. Raleigh v. Atkinson. 6 M. & W. 570; 
 
 4Gaussen v. Morton, 10 B. & C. De Comas r. Prost, 3 Moore, P. C.N. 
 
 731; Watsons. King. 4 Cowp. 272; S. 158. 
 Barr v. Schroeder, 32 Cal. 609. 'Hynson «. Noland, 14 Ark. 710. 
 
 134
 
 Chap. YII.] TERMINATION OF THE RELATION. § 208. 
 
 property of another, and is to have a certain commission or share 
 out of the proceeds for making the sale, the anthoritj may be 
 revoked at the will of the principal, even thou<^h in terms it was 
 declared to be exclusive or irrevocable ;' and so where one was 
 authorized to collect a debt and was to have one-half of what he 
 collected for his services, the power was held not to be coupled 
 with a sufficient interest and was therefore revocable by the prin- 
 cipal at will.* The interest in the commissions to be earned and 
 in the moneys expended in endeavoring to carry out the agency, 
 is not sufficient to prevent revocation. And so a mere power of 
 attorney to confess judgment in favor of a third person not 
 shown to have been executed on any consideration or to have 
 been given as a security for any demands or to render a security 
 effectual, is revocable at the will of the principal.* 
 
 § 208. Same Subject— Bare Powers. A bare power, not con- 
 xiected with any interest in the agent, may, therefore, be revoked 
 without liability at any time before its execution. Thus where a 
 debtor, or one on his behalf, without consideration, deposits 
 money with another to be paid to a creditor of the debtor, or to 
 compromise an action against him, the relation of principal and 
 agent arises between the debtor and the person with whom the 
 money is so deposited. In such a case the money remains the 
 property of the principal and he may revoke the authority at any 
 time until the agent has actually paid the money to the creditor, 
 or until the agent has given and the creditor has taken credit for 
 it.* And any disposition of the money by the debtor, before 
 such payment or credit, inconsistent with the appropriation first 
 intended, as by an assignment for the benefit of creditors, will 
 operate as a revocation.' So a deposit of stock with the ofiicers 
 
 'Chambers e. Seay, 73 Ala. 373; sHartley'sAppeal, supra; Flanagan 
 
 Barr v. Schroeder, 33 Cal. 609; Hart- v. Brown, 70 Cal. 354. 
 
 ley's Appeal, 53 Penn. St. 313; Gil- « Evans ». Fearne, 16 Ala. 689, 50 
 
 bertt). Holmes, 64 '111. 550; Hunt ®. Am. Dec. 197; Woodruff v. Du- 
 
 Rousmanler, 8 Wheat. (U. S.) 175; buque, &c., R. R. Co., 30 Fed. Rep. 
 
 Darrow v. St. George, 8 Col. 609; 91. 
 
 Simpson©, Carson, 11 Oregon, 361; * Howard College v. Pace, 15 Ga. 
 
 Blackstone v. Buttermore, 53 Penn. 486; Phillips c. Howell, 60 Ga, 411; 
 
 St. 366; Bonney t>. Smith, 17 111. 531; Simonton v. First National Bank, 34 
 
 Brown v. Pforr, 38 Cal. 550; Frink v. Minn. 316. 
 
 Roe, 70 Cal. 296. • Simonton v. First National Bank, 
 
 supra. 
 
 135
 
 R 209. THE LAW OF AGENCY. [Book I. 
 
 of a corporation to enable it to be voted upon and sold, is but a 
 bare power and may be revoked at any time before sale.' 
 
 §209. Power to revoke— How distinguished from Right to 
 revoke. Wliere, then, the authority is not coupled with an in- 
 terest, the principal has the power to revoke it at his will at any 
 time. But this power to revoke is not to be confounded with the 
 right to revoke. Much uncertainty has crept into text books 
 and decisions from a failure to discriminate clearly between them. 
 
 Except in those cases where the authority is coupled with an 
 interest, the law compels no man to employ another against his 
 will. As it has been seen, the relation of the agent to his prin- 
 cipal is founded in a greater or less degree upon trust and confi- 
 dence. It is essentially a personal relation. If then for any 
 reason the principal determines that he no longer desires or is 
 able to trust and confide in the agent, it is contrary to the policy 
 of the law to undertake to compel him to do so. Trust and con- 
 fidence come at no man's command, nor can the decree of a court 
 arouse and keep in life those sentiments and feelings which are 
 based upon our natural human instincts. It is the rule of law, 
 therefore, that contracts of agency, like those creating other per- 
 sonal relations, will not be specifically enforced.' Nor does it 
 make any difference in this view, that the principal has expressly 
 agreed that he will continue to confide in the agent for a definite 
 period. It is no less difiicult, on that account, to coerce compli- 
 ance. Confidence, like "honest instinct," only "comes a volun- 
 teer." The law, therefore, leaves the principal in such cases to 
 determine for himself how long the relation shall continue. 
 
 This, then, is what is meant when it is said that the principal 
 may revoke the authority at any time. 
 
 But it by no means follows that, though possessing the power, 
 the principal has the right to exercise it without liability regard- 
 less of his contracts in the matter. It is entirely consistent with 
 the existence of the power that the principal may agree that for 
 a definite period he will not exercise it, and for the violation of 
 such an agreement the principal is as much liable as for the 
 breach of any other contract.* It is in this view, therefore, that 
 the question of the right to revoke the authority arises. 
 
 » Woodruff V. Dubuque, «&c. , R. R. Thia subject will be more fully treated 
 Co. 30 Fed. Rep. 91. in § 615, post. 
 
 »See Watermaa on Spec. Per. § 33. * See post, %% 620-635. 
 
 136
 
 Chap. YIL] TERMINATION OF THB RELATION. § 210. 
 
 § 210. When Right to revoke exists. "Where no express or 
 implied agreement exists that the agent shall be retained for a 
 definite time the power and tlie right of revocation coincide. Such 
 employments are deemed to be at will merely and may therefore 
 be terminated at any time by either party without violating con- 
 tract obligations or incurring liability.* The law presumes that 
 all general employments are thus at will merely, and the burden 
 of proving an employment for a definite period rests npon him 
 who alleges it. 
 
 It is not uncommon to provide that the agency, although other- 
 wise for a definite period, shall cease or may be terminated by 
 either party upon the happening of a certain event or the arising 
 of a certain contingency, and when the agency does so cease, or 
 is so terminated, no liability attaches to either party. Thus it is 
 competent to provide that the relation shall continue only so long 
 as one or either of the parties is satisfied, and where such is the 
 agreement, the dissatisfaction of the party to be satisfied, if it be 
 honajide^ is a sufficient ground for terminating the relation with- 
 out liability.* 
 
 So there are certain implied conditions which enter into every 
 contract of agency, for a violation of which the principal may 
 rightfully revoke the authority. The most important of these 
 are those which relate to the questions of the agent's ability to 
 perform the appointed service, and the fidelity with which he 
 employs the powers entrusted to him. 
 
 But where the agent has been employed for a fixed period the 
 agency cannot be rightfully terminated before the expiration of 
 that period at the mere will of the principal, but only in accord- 
 ance with some express or implied condition of its continuance. 
 Any other termination of such an agency by the act of the prin- 
 cipal will subject him to liability to the agent for the damages 
 he has sustained thereby.* The principal will also be liable to 
 the agent for his compensation up to the time of the wrongful 
 revocation and for any liabilities and expenses which the agent 
 
 *Kirk». Hartman, 63 Penn. St. 97; « Tyler t». Ames, 6 Lans. (N. Y.) 
 
 Coffin c. Landis, 10 Wright (Penn.) 280; Adriance v. Rutherford, 57 
 
 426; Jacobs v. Warfleld, 23 La, Ann. Mich. 170; Hotchkiss v. Gretna Gin. 
 
 895. See generally upon this subject & Compress Co. 36 La. Ann. 517. 
 
 post, § 616. » See post, §§ 620-623. 
 
 137
 
 g 211. THE LAW OF AGENCY. [Book I. 
 
 has fairly and in good faith incurred on the principal's account 
 in the execution of the authority before its revocation.' 
 
 § 211. "What amounts to Contract for definite Time— Unilat- 
 eral Agreements. It is, in many cases, difficult to determine 
 whether the parties have made a definite agreement for a fixed 
 time or not. It is not indispensable that they should, in the first 
 instance, be both bound for the same period. It may lawfully be 
 made to rest with either party to determine, at his option, that 
 the agreement shall be one for a certain time. So it has been 
 held that the appointment of an agent to do certain acts during 
 a given period does not, of itself, amount to an agreement that 
 he should be permitted to continue to act during that period. 
 
 Thus where an agent agreed to transport all the goods that 
 might be "presented to him" for that purpose during one year, 
 but the principal did not expressly agree to furnish any goods for 
 transportation, it was held that the agreement was binding upon 
 the agent only, and that the principal might, at any time, refuse 
 to furnish any goods, and thus, practically, terminate the agency 
 during tlie year without liability ; ' and so where the owner of 
 coal mines appointed agents for the sale of the coal at Liverpool 
 for seven years, but did not agree to furnish them any coal to 
 sell during that period, it was held that the owner might sell his 
 mines and terminate the agency even though the seven years had 
 not expired, without liability to the agents.* So where a travel- 
 
 * See pout, g§ 620-622. facturing cement. Held, on action 
 
 s Burton v. Great Northern Ry Co. brought by A assigning as a breach of 
 
 9 Excbeq. 507. this agreement that B wrongfully 
 
 » Rhodes v. Forwood, L. R. 1 App. discharged him, the plaintiff, from 
 
 Cas. 256, 15 Eng. Rep. (Moak) 124. his service, and from manufacturing 
 
 See also Churchward ®.The Queen. L. cement for the use of the defendant, 
 
 R. 1 Q. B. 173; Ex parte Maclure, L. and from any longer instructing the 
 
 R. 5 Ch. 737. plaintiff in the art of manufacturing 
 
 So where it was agreed between A cement, before the expiration of two 
 and B that A should manufacture years from the agreement, that this 
 cement for the use of B of a speci- agreement did not raise an implied 
 fied quality; that B should pay A a contract of hiring and service for 
 certain weekly sum for two years three years between the parties, and 
 from the agreement, and another therefore the action was not main- 
 weekly sum for one year after, and tainable. Aspdin v. Austin, 1 Dav. 
 should receive A into partnership in & M. 515; 8. c. 5 Q. B. 671. 48 Eng. 
 
 the business of manufacturing cement Com. Law Rep. 671, 8. o. 5 A. & E. 
 
 ^ 6 
 
 i- 
 
 138 
 
 at the end of three years; and that A 671. 
 
 should instruct B in the art of manu- So where it appeared that by in-
 
 Chap. Yil.l TERMINATION OF THE RELATION. § 211. 
 
 ing salesman, "in consideration of the sum of $2,100 for the 
 year 1873, and $2,400 for the year 1874, to be paid in semi- 
 monthly or monthly installments, agreed to devote his whole time 
 and attention solely to the interests of" a certain firm, and 
 entered into their service and continued until June 11, 1873, at 
 which date the firm became bankrupt and suspended business, 
 and the salesman was discharged, it was held, in an action 
 brought by the salesman to recover damages for his discharge, 
 that the contract contained no undertaking on the part of the 
 firm to retain or continue him in their employ for any definite 
 term and that hence he could not recover. Said Scott J.: " Their 
 undertaking is to pay him at a certain rate of compensation, if 
 he shall discharge the duties assumed by him to be performed. 
 Kg doubt it is true each party contracted on the supposition 
 the business would continue through the space of two yeai-s, but 
 appellants' firm did not obligate themselves to continue it for 
 that length of time. As a matter of fact, it terminated much 
 sooner. We have no authority to add to the contract as the par- 
 ties have made it, enlarging the liability of either one of them, 
 and have no disposition to do so." ' 
 
 But where one had been appointed general agent of a life 
 insurance company for five years, but without any express agree- 
 ment on the part of the company to employ him for any definite 
 period, and the company, after the time had partly expired, be- 
 came insolvent, abandoned the business and discharged the agent, 
 
 denture between defendant of the that he and the plaintiff performed 
 first part, J. D. son of plaintiff, of the their part of the agreement, and were 
 second part, and plaintiff of third ready and willicg to continue such 
 part, plaintiff, covenanted that hia performance during the term. And 
 son should be assistant to the de- the breach alleged was that defend- 
 fendant, a dentist, for five years, and ant refused to permit the son to con- 
 do all such service as defendant tiuue in the service and dismissed 
 should order to be performed in the him. 
 
 way of his art; and that defendant. It was held there was no implied 
 
 for the services to be done by the son, covenant by the defendant to retain 
 
 covenanted during the term, and in the son in the service durini^ the five 
 
 case the son should perform his part years. Dunn v. Sayles, 1 Dav. & M. 
 
 of the agreement, that he, defendant 579; s. c. 5 Q. B. 085, 8. c. 5 A. & E. 
 
 would pay the son a certain sum 685. 
 
 weekly during the terra as compensa- ' Orr v. "Ward, 73 111 318, citing 
 
 tion for the services aforesaid. That Williamson v. Taylor, 5 A. «& E. 175, 
 
 the son entered upon the service, and and Aspdin v. Austin, supra. 
 
 139
 
 § 211. '/HE LAW OF AGENCY. [Book I. 
 
 a different conclusion was readied. In an action brought by the 
 agent to recover damages for the discharge, it was argued on 
 behalf of the defendant that by the terms of the contract sued 
 on, the plaintiff was merely appointed agent for the company for 
 five years, and as the company did not expressly bind itself to 
 continue in business for that length of time, its inability to act 
 and execute the whole stipulation on its part constituted no 
 breach. But it was said in reply by the learned judge who ren- 
 dered the opinion of the court: "It is true there was no positive 
 and direct covenant, on the part of the company, to carry on the 
 business for any definite time. But the plaintiff agreed to act 
 exclusively for the company for the period of five years, and 
 had he neglected or failed, he would have been liable in damages. 
 If be was bound for that length of time, it necessarily follows 
 that the company must also have been bound, for mutuality 
 was essential to the validity of the agreement. It very frequently 
 happens that contracts on their face and by their express terms 
 appear to be obligatory on one party only ; but in such cases 
 if it be manifest that it was the intention of the parties, and 
 the consideration upon which one party assumed an express obli- 
 gation, that there should be a corresponding and correlative 
 obligation on the other party, such corresponding and correlative 
 obligation will be implied. As, if the act to be done by the party 
 binding himself can only be done upon a corresponding act being 
 done or allowed by the other party, an obligation by the latter 
 to do, or allow to be done, the act or things necessary for the 
 completion of the contract will necessarily be implied.' When 
 the plaintiff bound himself to give his exclusive services to the 
 defendant for the period of five years, there was a correlative 
 and corresponding obligation upon the part of the defendant to 
 give him employment and allow him to pursue and execute the 
 terms of the contract. This was manifestly the intention of the 
 parties. 
 
 " The defendant's insolvency or inability furnished no excuse 
 for its breach of the contract. Had it desired to be exempted 
 from liability in such an event, it should have stipulated for the 
 exemption upon the happening of the contingency. The criterion 
 
 •Citing, Pordage «. Cole, 1 Wm. Queen, 6 B. & S. 807; Black c. Wood- 
 Saund. 319; Churchward v. The row, 39 Md. 194 
 
 140
 
 Chap. VII.] TERMINATION OF THE RELATION. § 211. 
 
 of damaojes would be to ascertain how much the plaintiff has lost 
 by the defendant's breach of the contract.'" 
 
 Mutuality under Statute of Frauds. — Cases under this head 
 frequently arise in which the Statute of Frauds becomes an im- 
 portant element. Thus in a recent case' it appeared that the 
 defendants had entered into a written contract with the plaintiff 
 as follows : 
 
 "We promise and agree to pay Thomas Wilkinson wages or 
 salary at the rate of $3,500 a year for three years from the sec- 
 ond day of October, 1882, in consideration of his working for us 
 that length of time as cutter in our merchant tailoring depart- 
 ment in the city of East Saginaw, Michigan. Payments to be 
 made as earned, in such sums and at such times as he may desire. 
 
 " Dated October 14, 1882. 
 
 "Heavenrich Bros. & Co." 
 
 Plaintiff alleged that he entered upon and continued in 
 the employment under the contract until on or about July 5, 
 1884, when he was discharged without cause and against his pro- 
 test. On July 8, he wrote to defendants, saying : " 1 hereby 
 protest against your attempt to cancel our contract. I hold your 
 written agreement for a three years' term of service, from Octo- 
 ber 2d, 1882. That contract I am ready and willing to perform 
 on ray part, and I hereby offer to continue, and request you to 
 furnish me employment under the terms of that agreement." 
 
 In an action brought to recover damages for the discharge, the 
 trial judge held that as the plaintiff had not also signed the con- 
 tract, it was not binding as to liira under the Statute of Frauds; 
 and that as he was not bound to stay three years, there was no 
 mutuality in the agreement and that hence the defendants were 
 not bound. A verdict was therefore directed for the defend- 
 ants, and plaintiff appealed. 
 
 In delivering the opinion of the court, Champlin, J., said: 
 "The conflict of authority upon questions of the kind raised 
 upon this record is truly bewildering, and the cases are incapable 
 of being reconciled with each other ; a large and respectable class 
 holding that a contract which the Statute of Frauds declares 
 
 • Wagner, J. in Lewis «. Atlas contract. See Vanuxena v. Bostwick, 
 
 Mut. L. Ins. Co., 61 Mo. 534, 538. — Penn. St. — , 7 Atl. Rep. 598. 
 
 That the priacipal's insolvency fur- "Wilkinson v. Heavenrich, 58 
 
 nishes no excuse for a breach of the Mich. 574, 55 Am. Rep. 708. 
 
 141
 
 §211. 
 
 THE LA.W OF AGENCY. 
 
 [Book I. 
 
 Bhall not be valid unless in writing and signed by the party to be 
 charged therewith, need only to be signed by the party defend- 
 ant in the suit, and that it is no objection to maintaining such 
 suit and recovering upon such contract, that the other party did 
 not also sign and was not bound by its terms.* Another and 
 equally respectable class of jurists hold that unless the party 
 bringing the action is bound by the contract, neither is bound 
 because of the want of mutuality.* 
 
 "I shall not attempt a reconciliation where reconciliation is 
 impossible ; but as the question is new in this State, the court is 
 left to adopt such view as appears to rest upon principle. It is a 
 general principle in the law of contracts, but not without excep- 
 tion, that an agreement entered into between parties competent 
 to contract, in order to be binding, must be mutual; and this is 
 especially so when the consideration consists of mutual promises. 
 In such cases, if it appears that one party never was bound on his 
 part to do the act which forms the consideration for the promise 
 of the other, the agreement is void for want of mutuality.* 
 
 " Such was the case here. The consideration consisted of 
 mutual promises of the parties, not to be performed within a 
 year from the making thereof. The defendants' promise was in 
 
 * Gltmg,2 Kent's Com. 510; 2 Stark. 
 Ev. 614; Smith's Appeal, 69 Penn. St. 
 480; Tripp v. Bishop, 56 Penn. St. 
 424; Perkins 7>. Hadsell, 50 111. 217; 
 Old Colony R. R. Corp. v. Evans, 6 
 Gray (Mass.) 31, 66 Am. Dec. 394; Wil- 
 liams c. Robinson, 73 Me. 186, 40 Am. 
 Rep. 353. See also Mason v. Decker, 
 72 N. Y. 695, 28 Am. Rep. 190; Jus- 
 tice V. Lang. 42 N. Y. 493, 1 Am. 
 Rep. 576; Shirley c. Shirley, 7 Blackf. 
 (lad.) 452; Douglass v. Spears, 2 N. 
 & McC. (S. C.) 207; 10 Am. Dec. 588; 
 Morin v. Martz, 13 Minn. 191; An- 
 derson V. Harold, 10 Ohio, 399; Bars- 
 tow V. Gray, 3 Greenl. (Me ) 409; 
 Allen V. Bennett, 3 Taunt, 175; Lay- 
 thoarp i>. Bryant, 2 Bing. N C.735; 
 Saunderson v. Jackson, 2 Bos. & Pul. 
 238. 
 
 « Citing. Lees v. Whitcomb, 3 C. & 
 P. 289; Sykest). Dixon, 9 Ad. & El. 
 
 698, 36Eng. Com. L. 366; Krobn t. 
 Bantz, 68 Ind. 277; Stiles v. McClel- 
 land, 6 Col. 89; and as bearing upon 
 the question. Hall v. Soule, 11 Mich. 
 496; Scott v. Bush, 26 Mich. 418; Lid- 
 die V. Ncedham, 39 Mich. 147, Mc- 
 Donald V. Bewick, 51 Mich. 79. See 
 also, Corbitt v. Salem Gaslight Co. 6 
 Oreg. 405, 25 Am. Rep. 541 and note. 
 'Citing, Hopkins v. Logan, 5 M. & 
 W. 241; Dorsey v. Packwood, 12 
 How. (U. S.) 126; Ewins v. Gordon, 
 49 N. H. 444; Hoddesdon Gas Co. v. 
 Haselwood, 6 C. B, (N. S.) 239; 
 Souch V. Strawbridge, 2 M. G. & S. 
 808; Callis v. Bothamly, 7 Wk. Rep. 
 87; Sykes r. Dixon, 9 Ad. & El. 693; 
 Addison, Cont. § 18; Parsons, Cont. 
 449; Utica, &c. R. Co. v. Brincker- 
 hoff, 21 Wend. (N Y.) 139; Lester v. 
 Jewett, 12 Barb. (N. Y.) 502. 
 
 142
 
 Chap. VII.] TERMINATION OF THE RELATION. § 212. 
 
 writing, and signed by them ; but the phiintiffs promise does not 
 appear in the writing signed by the defendants, nor was any note 
 or memorandum made and signed by him promising to labor for 
 defendants three years or any lengtli of time. Plaintiff was 
 never bound by the agreement. There never was, then, any 
 consideration to support defendants' promises. The agreement 
 was void for want of mutuality. The plaintiff was under no 
 legal obligation to work for defendants a moment longer than he 
 chose, and the defendants were under none to keep him in their 
 employment. The plaintiff could neither revive nor make a con- 
 tract with defendants after he was discharged by them, without 
 their consent and concurrence. The letter written after he was 
 discharged was of no avail." 
 
 The weight of authority, however, seems to be against the view 
 taken by the court in this case as to the necessity of the signing 
 by both parties.' 
 
 § 212. Same Subject— When definite Time will bo implied. 
 But a contract to retain the agent for a definite time will be im- 
 plied, although not clearly expressed, where from the facts and 
 circumstances surrounding the case, such appears to have been 
 the intention of the parties. 
 
 Thus in a leading case where it appeared that the plaintiff had 
 entered into a contract with a joint stock company whereby he 
 agreed that from a certain date he would act as the attorney and 
 Bolicitor of the company for a salary of 1001. a year, and the com- 
 pany on its part agreed to retain and employ him as such attor- 
 ney and solicitor on the terms aforesaid, it was held, although no 
 time for the continuance of the relation was agreed upon, that it 
 must be construed to be a retainer for at least one year.* So 
 where an offer of employment as superintendent of ships was 
 made by a letter stating that the wages would be one hundred 
 dollars per month, " and if you give me satisfaction at the end of 
 the first year, I will increase your salary accordingly," it was held 
 that this was a contract for a yearly hiring." So a letter engagnig 
 a person as a hotel manager at a salary of one hundred and 
 twenty-five dollars per month, and showing upon its face that 
 
 ' See Wood on the Statute of » Morton v. Co well, 65 Md. 359, 57 
 Frauds, § 405, and cases cited. Am. Rep. 331. 
 
 2 Emmens v. Elderton, 13 Com. B. 
 495, 76 Eng. Com, L. 405. 
 
 143
 
 § 213. THE LAW OF AGENCY. [Book I. 
 
 the engagement contemplated his giving up another situation 
 and removing, with his family, several hundred miles to a hotel, 
 and there undertaking, besides the duties of a manager, those 
 of secretary and treasurer of the hotel company, was held to im- 
 port an engagement for at least a year.^ 
 
 The mere fixing of the salary by the year or other interval is 
 not, however, enough to make the employment one for such 
 interval, unless the nature of the undertaking or the surrounding 
 circumstances indicate that such was the evident intent of the 
 parties.' 
 
 A person who has been previously employed by the month, year 
 or other fixed interval, and who is, permitted to continue in the 
 employment after the period limited by the original employment 
 has expired, will, in the absence of anything to show a contrary 
 intention, be presumed to be employed until the close of the cur- 
 rent interval and upon the same terms.' 
 
 § 213. Agency terminable for Agent's Incompetence. As will 
 be seen hereafter, there is an implied covenant on the part of every 
 agent that he possesses and will exercise in the execution of his 
 undertaking, a reasonable degree of skill, knowledge and ability.* 
 If, therefore, the agent, though employed for a definite period, 
 proves not to possess that reasonable degree of skill, or, if pos- 
 sessing it, he neglects or refuses to exercise it, the principal may 
 properly terminate his authority therefor without liability for a 
 breach of the contract.* A fortiori would this be true where the 
 covenant for competency was express instead of implied. Any 
 other rule would, as can readily be seen, place the principal at 
 the mercy of an incompetent agent, and compel him to suffer, 
 perhaps for a long period, a constant and increasing loss and 
 injury from the inefficiency of an agent who had impliedly, if not 
 expressly, warranted himself to be competent. 
 
 If, however, at the time of the employment, the principal knew 
 
 » Smith e. Theobald, — Ky. — , 6 Poor, 58 Mich. 503; Tallon v. Mining 
 
 8. W. Rep. 391 Co. 55 Mich. 147; Tatterson v. Suffolk 
 
 s Palmer B. Marquette Rolling Mill Mnfg. Co. 106 Mass. 56; Alba ». Mor- 
 
 Co 32 Mich. 274; Franklin Mining iarty. 36 La. Ann. 680; McCullough 
 
 Co. t). Harris, 24 Mich. 115; De Briar Iron Co. v. Carpenter, 67 Md. 554, 11 
 
 «. Minium. 1 Cal, 450; Tatterson tJ. Atl. Rep. 176; Weise v. Milwaukee 
 
 Suffolk Mnfg. Co. 106 Mass. 56; County Supervisors, 51 Wis. 684. 
 
 Haney d. CaldweU, 35 Ark. 156. « See -post, §§ 488-508. 
 
 8 Sines e. Superintendents of the » See post, §§ 618, 488-503. 
 
 144
 
 Chap. YII.] TERMINATION OF THE RELATION. § 214. 
 
 of tlie agent's incompetence, he could not discharge him on tliat 
 ground, unless the incompetence were greater than the principal 
 knew or had reasonable grounds to suppose. If a man knowingly 
 chooses incompetent agents, he has no reason to complain if he 
 receives incompetent service.* 
 
 § 214. When Agency may be terminated for Agent's Miscon- 
 duct. It is also an implied condition in every contract of agency, 
 that the agent will not wilfully disobey or disregard the reason- 
 able and lawful instructions of his principal; that he will not 
 willingly permit to suffer his principal's interests committed to 
 his care ; that he will be honest and faithful, and will exercise 
 reasonable care and diligence in the performance of his duties ; 
 and that he will not intentionally violate the established princi- 
 ples of morality or the laws of the land.* 
 
 If, therefore, the agent, though employed for a definite time 
 violates this condition, the principal may discharge him therefor 
 without incurring liability on account of such discharge.' 
 
 This rule is indispensable for the protection of the pi-incipal. 
 The agency is created by him for the furtherance of his interests. 
 It is his will that is to be executed, his object that is to be 
 accomplished. Within reasonable and lawful limits, he has, and 
 of necessity must have, the right to determine the time, the 
 methods and the means to be employed. He has a right to have 
 the business performed in his own way, if it be a lawful way, 
 although the agent may think or know that there is a very much 
 better way ; and if the agent is not willing to conform to the 
 principal's desires, he should decline the agency. 
 
 The principal is also entitled to the undivided and unreserved 
 loyalty of the agent. The relation, as has been seen, is founded 
 npon trust and confidence, and cannot exist in its true character 
 if the agent is to be permitted to undermine or overreach his 
 principal, or to use his position or its opportunities to make gain 
 for himself at the expense of his principal. 
 
 Neither can the principal be rightly required to retain or 
 
 •8eepo««, §§ 615-635. "Chicago, &c. Ry. Co. t>. Bayfield, 
 
 •Callo t>. Brouncker. 4 C. & P. 518; 87 Mich. 205; Dieringer v. Meyer, 42 
 
 Atkin V. Acton, 4 C. &P. 208; Bixby Wis. 311, 24 Am. Dec. 415; Hender- 
 
 ». Parsons, 49 Conn. 483, 44 Am. Rep. son «. Hydraulic Works, 9 Phila. 
 
 246. (Penn.) 100. 
 
 10 145
 
 § 215. THE LAW OF AGENCY. [Book I. 
 
 employ an agent who is devoid of moral principles or who is 
 guilty of criminal acts or practices. 
 
 § 215. Same Subject— Illustrations.— In accordance with these 
 principles it has been held that where an agent with power to 
 sell property, ran off with it and, having sold it, embezzled the 
 proceeds, such fraudulent conduct of itself operated to terminate 
 the agent's authority,' and so where an insurance agent wrong- 
 fully appropriated and converted to his own use, the money of 
 his principal which came into his hands by reason of his employ- 
 ment, it was held that he might lawfully be discharged therefor." 
 
 So it is well settled that if an agent who has contracted his 
 entire time to his principal, without the consent of his principal, 
 engage in an employment or business for himself or another, 
 which may tend to injure his principal's trade or business, he 
 may be lawfully discharged before the expiration of the agreed 
 term of service. This is so because it is the duty of the agent 
 not only to give his time and attention to his principal's business, 
 but, by all lawful means at his command, to protect and advance 
 his principal's interests. When the agent engages in a business 
 which brings him into direct competition with his principal, the 
 tendency is to injure or endanger, not to protect and promote, 
 the interests of the latter. And it makes no difference in such a 
 case that the agent gives his whole time and services to the busi- 
 ness of his principal ; his interest in the other business, though 
 actually conducted by agents of his own, is hostile to his princi- 
 pal's interests.' 
 
 So where a clerk and traveling agent, employed by the year, 
 assaulted his principal's maid servant with intent to ravish her, 
 
 > Case V. Jennings, 17 Tex. 661. 171; Amor v. Fearon, 9 Ad. & E. 548; 
 
 « Phcenix Mut. L. Ins. Co. v. Hallo- Horton v. McMurtry, 5 Hurl. & N. 
 
 way, 51 Conn. 311, 50 Am. Rep. 20. 667. 
 
 •Dieringer v. Meyer, 42 Wis. 311, Thus where it appeared that a 
 
 24 Am. Rep. 415, citing Singer v. Mc- travelling salesman who had con- 
 
 Corraick, 4 W. «fc S. (Penn.) 265; traded his entire time to his em- 
 
 Jaffray c. King, 34 Md. 217; Adams ployer, had been secretly taking 
 
 Express Co. v. Trego, 35 Md. 47; orders for another firm, it was held 
 
 Lacy V. Osbaldiston, 8 C. «& P. 80; that this would justify his discbarge 
 
 Read v. Dunsmore, 9 C. & P. 588; though employed for a fixed term. 
 
 Nichol e. Martyn. 2 Esp 732; Gard- Ovvv. Ward, 73111. 318, citing Ridge- 
 
 ner v. McCutcheon, 4 Beav. 534; way c. Market Co. supra; Spotswood 
 
 Ridgway v. Market Co. 8 Ad & E. v. Barrow. 5 W. H. & G. 110. 
 
 146
 
 Chap. VIL] TERMINATION (W THE RKLATION. § 21G. 
 
 it was held that this was a good cause for his dismissal without 
 notice, and that he was not entitled to recover wages for the time 
 he had served.* This decision was based upon the ground that 
 the agent by his misconduct had broken the implied agreement 
 which formed part of the contract of hiring and gave the princi- 
 pal the right to rescind it. So where an agent seduced the minor 
 daughter of his principal it was held that this was a good cause 
 for his discharge and that the principal might recoup against the 
 agent's claim for wages, the damages sustained by the seduction.' 
 
 So if the agent proves to be wilfully or habitually disobedient 
 or disregardful of his principal's reasonable instructions or direc- 
 tions;' or if he proves to be an habitual drunkard, or if he be- 
 comes a drunkard to such an extent as to incapacitate him for 
 the performance of his undertaking,* he may properly be dis- 
 charged. And so if he becomes a gambler upon the stock ex- 
 change. 
 
 But it is not for every slight offense, or for every default 
 causing no serious injury, that the agent is to be discharged. 
 The question of the sufficiency of the reason in such a case is 
 ordinarily one of fact and law to be determined from all the 
 facts and circumstances of each particular transaction. The dis- 
 obedience of the agent ought to be such as to show such a spirit 
 of insubordination or of reckless and careless disregard for proper 
 instructions as reasonably to indicate that he could not be relied 
 upon for faithful and efficient service.' 
 
 § 216. How the Authority may be revoked. The means by 
 which the authority may be revoked are as various as the meth- 
 ods by which it may be conferred. It may be done by a solemn 
 instrument under seal, or by a writing not under seal, or by a 
 public and formal announcement or proclamation, or by a simple 
 
 * Atkin r. Acton, 4 C. «& P. 208. charging him. Newman v. IJeagan, 
 
 « Bixby V. ParsoDS, 49 Conn. 483, 65 Ga. 513. 
 
 44 Am. Rep. 246. «McCormick ». Demary, 10 Neb. 
 
 3 Ford V. Banks, 16 La. Ann. 119; 515; Physioc v. Shea, 75 Ga. 466; 
 
 Edwards v. Levy, 2 Post. & Fin. 94; Nolan v. Thompson. 11 Daly (N. Y.f 
 
 Callo V. Brouncker, 4 C. »& P. 518. 314; Bass Furnace Co. v. Glasscrnk, 
 
 Where an agent wilfully sells his 83 Ala. 453, 2 South. Rep. 315, 60 
 
 principal's goods for less than the Am. Rep. 748. 
 
 fixed price or so conducts himself as »Pearce v. Foster, 7 Q. B. Div. 538. 
 
 to drive away his principal's custom- « Shaver c. Ingham, 58 Mich. 649, 
 
 ers, the principal is justified in dis- 55 Am. Rep. 712. 
 
 147
 
 § 217. THE LAW OF AGENCY. [Book 1. 
 
 and private declaration. It raaj also be inferred from circum- 
 stances. 
 
 The precise mode to be adopted in any given case, or tlie mode 
 which, having been adopted, shall be deemed sufficient in such 
 case, is to be determined largely by considering the object with 
 which an authority is revoked. A revocation is not elTected by 
 the mere operation of the principal's will. That will must be 
 expressed, and its expression must be brought to the attention of 
 those whom it is desired to affect. This leads to the necessity of 
 giving notice of the revocation, a question hereafter to be con- 
 sidered. It will be evident, too, that the mode adopted for 
 accomplishing the revocation must not only be co-extensive with 
 the degree to which by length of time or widespread operations 
 or publicity of appointment, the knowledge of the authority hae 
 been disseminated, but that it must also be adapted to the partic- 
 ular means by which such dissemination was effected. 
 
 § 217. Same Subject— By sealed Instrument. It is very cus 
 tomary to revoke a power of attorney under seal by an instru- 
 ment executed with the same degree of solemnity, and the 
 statutes of many States provide for giving constructive notice of 
 the revocation of a recorded power of attorney by recording the 
 instrument of revocation in the same office with the power. But 
 a revocation under seal is not necessary even where the authority 
 was conferred by deed. A parol revocation will suffice,' and par- 
 ticularly so when the seal upon the power to be revoked was super- 
 fluous, not being required by the nature of the act to be performed.* 
 
 § 218. Same Subject — Express Revocation not required. 
 Neither is it necessary that the revocation, in absence of a stat- 
 ute requiring it, should be in writing, or should be couched in 
 any formal phrase. It is not necessary that the word " revoke," 
 or other similar words, should be used. A request to resign wil) 
 amount to a revocation. Thus the words " I am very sorry to 
 have to ask you to resign your position " in a letter from a princi- 
 pal to his agent were held by the court to be a civil form but none 
 the less a peremptory discharge of the agent, and that he rightly 
 treated it as such.* 
 
 > Brookshire B. Brookshire, 8 Ired. « Brookshire «. Brookshire, «Mpra. 
 
 (N. C.) Law, 74, 47 Am. Dec. 341; 'Jones t;. Graham, Ac. Transp. C!a. 
 Copeland v. Mercantile Ins. Co. 6 51 Mich, 539. 
 Pick. (Mass.) 198. 
 
 148
 
 <Jliap. VII.] TERMINATION OF THE EELATION. § 221. 
 
 § 219. Eevocation may be implied. So a revocation may be 
 implied from the circumstances of the case. Thus if the powers 
 conferred upon one agent are subsequently given to another, it 
 will, in general, operate as a revocation of the authority of the, 
 first, as where a power is given to an agent to sell the interest of 
 a principal in a vessel and the principal afterwards confers the 
 same power upon the first agent jointly with another.' But an 
 employment by written contract to do a specified thing is not 
 necessarily revoked by a subsequent general employment to at- 
 tend to all the principal's business; * nor is a power of attorney 
 executed by a widow and heirs at law of a decedent empowering 
 the agent to complete an engagement entered into by the dece- 
 dent, necessarily revoked by a subsequent grant of administration 
 to the widow ; ' nor will a second power given to one of two pre- 
 viously appointed agents necessarily revoke the authority of the 
 other, where the second appointment confers no new or additional 
 authority in reference to the subject-matter of the agency ; * nor 
 will an authority given by a principal to an agent to collect a 
 sum of money, be necessarily revoked by the mere appointment of 
 another agent to collect the same sum.* 
 
 § 220. By disposing of Subject-matter. Where the principal, 
 before the execution of the authority, disposes of the subject- 
 matter upon which the agency was to operate, a revocation of the 
 power will be implied. Thus if a principal authorizes an agent 
 to sell his real estate,' or his interest in a patent,' but before the 
 agent has found a purchaser the principal sells the same himself, 
 there is nothing left to support the agency and the revocation will 
 be presumed.* 
 
 § 221. By Dissolution of Partnership or Corporation. So 
 where a firm or corporation which has appointed an agent, is sub- 
 sequently dissolved, the dissolution will operate as a revocation 
 of the power ; • but a mere change in the name of the firm, where 
 
 • Copeland v. Mercantile Ins. Co. 6 • Gilbert v. Holmes, 64 111. 548; 
 Pick. (Mass.) 198. Ahem v. Baker, 34 Minn. 98. 
 
 2 Smith V. Lane. 101 Ind. 449. "> Walker v. Denison, 86 111. 142. 
 
 •Jones*. Commercial Bank, 78 • Bissell ©. Terry, 69 111. 184. 
 
 Ky. 413. • Schlater v. Winpenny, 75 Penn. 
 
 * Cushman v. Glover, 17 111. 600, 52 St. 321; Montross v. Roger Williams 
 Am. Dec. 461. Ins. Co. 49 Mich. 477; Whitworth v. 
 
 5 Davol V. Quimby, 11 Allen (Mass.) Ballard, 56 Ind. 279; Meyer ». Atkins, 
 208. 
 
 149
 
 § 222 THE LAW OF AGENCY. [Book 1. 
 
 the new firm is composed of the same members as the old, does 
 not operate to revoke an agency conferred upon it, the identity 
 remaining the same.* 
 
 § 222. By Severance of a joint Interest. Upon the same 
 ground, it is held that where two or more principals jointly ap- 
 point an agent for the transaction of some business in which they 
 are jointly interested, a severance of this joint interest will oper- 
 ate to revoke the agency.* 
 
 § 223. Notice of Revocation. In order to render the revocation 
 effectual, notice of it must be given to those parties whom the 
 revocation is desired to affect, and these parties are the agent him- 
 self and those persons who, from knowledge of his authority or 
 from previous dealings with him as such, would be likely to con- 
 tinue to deal with him in good faith upon the strength of the 
 previous authority. 
 
 a. To Third Persons. 
 
 8 224. Where Authority was general. Where a general author- 
 ity is once shown to have existed, it may be presumed to continue 
 until it is shown to have been revoked,' and persons who have 
 dealt with the agent as such, or who have had notice of his author- 
 ity, may very properly expect that if the authority be withdrawn, 
 they will be given reasonable and timely notice of that fact, and 
 they may therefore lawfully presume, in the absence of such no- 
 tice, that the authority still continues. 
 
 General Rule. And it is therefore the general rule of the law 
 that the acts of a former general agent within the scope of his 
 original authority will, notwithstanding its revocation, continue 
 to bind the former principal to those parties who have been and 
 still are dealing with him in good faith in reliance upon his former 
 authority until they have had notice of its revocation.* But this 
 
 29 La. Ann. 586; Vaccaro v. Toof. 9 17 Mo. 204; Hancock v. Byrne, 6 
 
 Heisk. (Tenn.) 194. Dana (Ky.) 513; Beard v Kirk, 11 
 
 » Billingsley v. Dawson, 27 Iowa, N. H. 397; Diversy v. Kellogg, 44 
 
 210. 111. 114; Longworth v. Conwell, 3 
 
 sRowe V. Rand, 111 Ind. 206, 12 K Blackf. (Ind.) 469; Baltimore v. Esch- 
 
 E. Rep. 377. bach, 18 Md. 276; Planters' Bank v. 
 
 • Insurance Co. e. McCain, 96 U. S. Cameron, 3 Sm. & M. (Miss.) 609; 
 84; McNeilly v. Insurance Co., 66 N. Munn v. Commission Co., 15 Johns. 
 Y. 23. (N. Y.) 44; Murphy c. Ottenheimer, 
 
 ♦ Lamothe u St. Louis, &c., Co., 84 111. 39; Marsh «. Gilbert, 4 Thomp. 
 
 150
 
 Ohap. YII.] TERMINATION OF THE RELATION. § 226. 
 
 rule has no application where the act done is beyond the scope of 
 the agent's former authority, and particularly so where the act is 
 in excess of the power which the agent himself claimed to 
 possess.* 
 
 § 225. Where Authority was special. Where, however, the 
 authority was special or limited, a different rule applies. As lias 
 been seen, an authority created for the performance of a specific 
 act exhausts itself in the accomplishment of the purpose for 
 which it was created. No such presumption can arise from the 
 performance of a single act, as from a continuous course of 
 dealing. 
 
 General Bute. — It is therefore the general rule that no notice 
 is required to be given to third persons of the revocation of the 
 authority of a special agent.* 
 
 This rule, however, would be subject to the exception that if 
 the revocation is effected after the agent has entered upon the 
 performance of his agency, notice thereof should be given to 
 those persons with whom the agent had occasion to deal while so 
 engaged in the performance. 
 
 b. To Agents. 
 
 § 226. Notice must be given to Agent. Notice of the revo- 
 cation of his authority, whether general or special, must be given 
 by the principal to the agent. As between the agent and hia 
 principal, the revocation becomes operative as to the agent from 
 
 & Cook(N. Y.), 259; McNeillyc. Ins. Cuddy, 21 La. Ann. 388; Baudouine 
 
 Co., 66 N. Y. 23; Claflin «. Lenheim, v. Grimes, 64 Iowa, 370; Capen ®. 
 
 Id. 301; Barkley v. Rensselaer, &c.. Pacific Mut. Ins. Co., 1 Dutch. (N. 
 
 Co., 71 N. Y. 205; Packer v. Hinck- J.) 67, 64 Am. Dec. 412. See also 
 
 ley Locomotive "Works, 122 Mass. Cupples v. Whelan, 61 Mo. 583; Sum- 
 
 484; Hatch t>. Coddington, 95 U. S. merville v. Hannibal, &c. R. R. Co., 
 
 48; Rice v. Barnard, 127 Mass. 241; 63 Id. 391; Howe Machine Co, t>. 
 
 Insurance Co. rs. McCain, 96 U. S. Simler, 59 lud. 307; Van Dusen c. 
 
 84; Braswell v. American L. Ins. Co., Star Quartz Mining Co., 36 Cal. 571, 
 
 75 N. C. 8; Ulrich v. McCormick, 66 95 Am. Dec. 209. 
 
 Ind. 243; Meyer v. Hehner, 96 111. 'Baudouine v. Grimes, 64 Iowa, 
 
 400; Fellows v. Hartford, «fec., Co., 370. 
 
 38 Conn 197: Rice v. Isham, 4 Abb. » Watts v. Kavanagh, 35 Vt. 34; 
 
 App. (N. Y.) 37; Wright v. Herrick, Strachan v. Muxlow, 24 Wis. 21; 
 
 128 Mass. 240; Tier v. Lampson, 35 Fellows v. Hartford & N. Y. Steam- 
 
 Vt. 179, 82 Am. Dec. 634; Glrard v. boat Co., 38 Conn. 197. 
 Hirsch, 6 La. Ann. 651; Harris v. 
 
 151
 
 § 227. THE LAW OF AGENCY. [Book I. 
 
 the time it is actually made known to him.' If it be given by 
 letter, it takes effect from the time the agent receives the letter, 
 and not from the time of its mailing.* But after revocation of 
 the agent's authority, the principal is not bound, as between him- 
 self and the agent, to notify the latter of his dissent from acts 
 which the agent thereafter assumes to do by virtue of the orig- 
 inal authority.* 
 
 c. To Subagents. 
 
 § 227. Notice must be given to Subagent— When. Where 
 the subagent derives his authority solely from the agent, no 
 notice is required to be given by the principal to the subagent of 
 the revocation of the agent's authority ; but where the subagent 
 was appointed by and with the authority of the principal, he is, 
 as has been seen, the agent of the principal, and notice should be 
 given to him of the revocation of his authority.* 
 
 § 228. Notice— How given— What sufficient. What shall be 
 deemed sufficient notice in any case, and how it shall be given, 
 are questions concerning which it is impossible to lay down any 
 general rule, which shall be both comprehensive and precise. It 
 is evident that these questions must be largely determined by the 
 facts and circumstances of each particular case. What would be 
 sufficient notice of the revocation of the authority of a clerk to 
 buy butter and eggs of the farmers of a single township in a 
 country store, would not be adequate to the revocation of the 
 authority of the general agent of a great railroad or insurance 
 company whose transactions extended over states or continents. 
 Yet the principle involved in each case would be the same. All 
 must be done that may reasonably be required to make the 
 knowledge of the revocation co-extensive with the knowledge of 
 the authority. 
 
 The case is analogous to that of the dissolution of a partner 
 ship, and is governed by the same rules.* To all persons who 
 have had actual dealings with the agent, actual notice must be 
 given, or such knowledge of the fact must be brought home to 
 
 » Weile e. United States, 7 Ct. of 'Kelly e. Phelps, 57 Wis. 425, 
 
 CI. 535; Harper v. Little. 2 Greenl. « Story on Agency, § 469. 
 
 (Me ) 14, 11 Am. Dec. 25; Jones v. »Claflia t>. Lenheim, 66 N. Y. 801, 
 
 Hodgkins, 61 Me. 480. 305. 
 
 « Robertson v. Cloud, 47 Miss. 208. 
 
 152
 
 Chap. YII.] TERMINATION OF THE RELATION. § 230. 
 
 them as would be sufficient to put an ordinarily prudent man 
 upon inquiry. To persons who liave had no actual dealings, 
 notice may be given by publication in some newspaper of general 
 circulation. Notice by publication is sufficient even to those 
 who have had dealings with the agent if it can be shown that 
 they saw it ; otherwise not.* 
 
 § 229. When Evidence of Agency recorded. Revocation 
 should be recorded. It is a common provision of the statutes of 
 the various States, that powers of attorney or other instruments 
 conferring authority upon the agent to deal with the principal's 
 real estate, shall or may be recorded in the proper recording 
 office of the county or district in which the land is situated. 
 These statutes commonly provide also tliat any instrument revok- 
 ing such a power shall or may be recorded in the same office, and 
 make such recording in either case constructive notice of the 
 facts which the record discloses. Where such statutes prevail, 
 the recording of a revocation of the agent's authority is notice 
 to all who may subsequently have occasion to deal with him ;* 
 and where the statute is imperative, the revocation cannot be 
 given effect in any other way, unless by express notice.' 
 
 § 230. Notice of Revocation should be unequivocal. But 
 whatever may be the form adopted, the notice should be un- 
 equivocal and not leave the parties in doubt as to the principal's 
 intentions. Any ambiguity or uncertainty in such a case should 
 be construed most strongly against the principal, in whose power 
 it lay to prevent such a result. 
 
 As was said by a distinguished judge in a case involving the 
 revocation of an express power to draw bills, "Nothing could be 
 more inconsistent with that candor and good faith which ought 
 to mark the transactions of mercantile men, than to favor the 
 revocation of an explicit contract on the construction of a corre- 
 
 'EweU's Lindley on Partnership, attorney or other instrument so re- 
 
 414-416; Claflin v. Lenheim, supra; corded, shall be deemed to be revoked 
 
 Braswell v. American L. Ins. Co., 75 by any act of the party by whom it 
 
 N. C. 8; Fellows v. Hartford, &c., was executed, unless the instrument 
 
 Co., 38 Conn. 197; Williams v. Bir- containing such revocation be also 
 
 beck, Hoffman (N. Y.) Ch. 359. recorded in the same office in which 
 
 s Arnold v. Stevenson, 2 Nev. 234. the instrument containing the power 
 
 'The statute of Michigan, for ex- was recorded." How. Stats., § 5093. 
 ample, provides that " No letter of 
 
 153
 
 § 231. THE LAW OF AOENOT. [Book I. 
 
 spondence nowhere avowing that object. It was in the defend- 
 ant's power to have revoked his assumption, at any time prior to 
 its execution ; but it was incumbent on him to have done so 
 avowedly, and in language that could not be charged with equiv- 
 ocation." ^ 
 
 § 231. How Suflciency of Notice determined. Where the 
 circumstances are controverted, or where notice is sought to be 
 inferred as a fact from circumstances, the question is for the jury ; 
 they must determine as a question of fact whether the party 
 claiming against the principal did or did not have notice of revo- 
 cation ; and if there be some evidence of this fact, it must be 
 submitted to the jury. Where, .however, the facts are undis- 
 puted, and the only question is whether they amount to con- 
 structive notice, or are sufficient to put the party upon inquiry, 
 the question is not for the jury, but for the court.* 
 
 B. Public Agency. 
 
 § 232. Statutory Agency not revocable at Will of Principal 
 Where the State requires the creation and maintenance of an 
 agency to subserve some purpose in which its citizens may have 
 an interest, the authority of an agent appointed in pursuance of 
 such a requirement cannot be revoked at the mere will of the 
 principal, unless for the appointment of another in his place, 
 while the exigency continues against which the statute was 
 intended to provide. 
 
 Thus where a statute required any foreign insurance company 
 doing business within the State, to appoint an agent within the 
 State upon whom process against the company might be served, 
 it was held that the company having appointed such an agent, 
 could only revoke his authority upon the appointment of another. 
 Said the court : " Taking into consideration its evident purpose, 
 and its utter futility if a company appointing an agent to 
 receive service could by any act, known only to the agent 
 and itself, withdraw his powers, it must be held that this appoint- 
 ment was irrevocable, unless the revocation might be made by 
 the appointment, duly notified upon the records, of a new agent, 
 
 » Johnson. J., in Lanusse v. Bar- 56; Claflin v. Lenheim, 66 N. Y. 
 ker. 3 Wheat. (U. S.) 101. 14B; See 301. 
 Hatch V. Coddington, 95 U. S. 48, » Claflin v. Lenbeim, 66 N. Y. 801. 
 
 154
 
 Chap. VII.] TERMINATION OF THE RELATION. 
 
 § 233. 
 
 who should be competent to receive service of process in regard 
 to any controversies arising upon contracts previously entered 
 into." • 
 
 S. Renunciation hy Agent. 
 § 233. General Rvile— Agent may renounce at any Time. The 
 agent may, in general, renounce his agency at any time. His 
 power to do this, in the sense that his further performance will 
 not be specifically enforced, is co-extensive with the principars 
 power to revoke ; but his right to do so, is, like the principal's 
 right to revoke, limited by his contracts in the premises. Where 
 the agency is indefinite in duration the agent may, upon giving 
 reasonable notice, sever the relation at any stage without liability 
 to the principal,* and will be entitled to compensation and reim- 
 bursement for his services and expenses up to that time.' Where, 
 however, the agency was created for a definite period, or was 
 undertaken for a valuable consideration, tlie agent who renounces 
 before the expiration of that period, or before the performance 
 of his undertaking, will be liable to his principal for the damages 
 he may sustain thereby.* 
 
 * Gibson v. Manufacturers' Ins. Co. 
 144 Mass. 81, 10 N. East. Rep. 729; 
 and to the same effect see Michael ». 
 Mutual Ins. Co., 10 La. Ann. 737. 
 
 s Barrows f>. Cushway, 37 Mich. 
 481; United States v. Jarvis, Davies 
 (U. 3. D. C.) 274; Coffin t>. Landis, 
 46 Penn. St. 426. 
 
 » See post, § 633. 
 
 < United States v. Jarvis, supra; 
 Coffin » Landis, supra. The language 
 of Ware, J., in United States v. Jar- 
 vis, supra, is worthy of full quota- 
 tion upon the subject of revoca- 
 tion and renunciation: "There is 
 no doubt, as a general rule, 
 that the appointment of an agent 
 may at any time be revoked by 
 the principal without giving a reason 
 for it. because it is the right of every 
 man to employ such agents as he 
 sees fit. The agent, also, has the 
 same general right to renounce the 
 agency at his own will, for it is an 
 
 engagement at the will of both par- 
 ties. But the contract of agency in- 
 volves mutual obligations between 
 the parties, and these commence, if 
 not as soon as the appointment is 
 made, at least as soon as the agent 
 commences the execution of the 
 agency. If he has entered on the 
 business, even if he does not accom- 
 plish prosperously what he has under- 
 taken, he will be entitled from the 
 principal to an indemnity for his ex- 
 penses and services, if the failure 
 does not arise from his own fault. 
 
 After he has engaged in the busi- 
 ness of the agency, the principal may 
 at any time revoke his powers and 
 dismiss him from his service. But 
 If his power is thus revoked, tiie 
 principiil will be responsible to him 
 for any engagements he may have 
 entered into and any liabilities he 
 may have incurred, in good faith ia 
 the proper business of the agency. 
 
 155
 
 I 234:. THE LAW OF AGENCY. [Book I. 
 
 § 234. By mutual Consent. The relation of principal and 
 agent may, of course, be terminated at any time by the mutual 
 consent of the parties without liability on either side.* 
 
 § 235. Abandonment may be treated as Renunciation. If 
 the agent abandon the agency he may not complain if the prin 
 cipal treats this as a renunciation, and appoints another in his 
 stead. Thus where an agent in Philadelphia wrote to his prin- 
 cipal in New York that he had decided to give up the business 
 and requested him to come or to send some one to take charge 
 of it, it was held that the principal might treat this as an aban- 
 donment and appoint a new agent.* So where an agent was 
 arrested upon a criminal charge and kept in jail for two weeks dur- 
 ing the busiest part of the season, it was held that the principal 
 might lawfully treat the employment as abandoned, although 
 it subsequently proved that the imprisonment was unauthorized.* 
 
 § 236. Agent may abandon if required to do unlawful Act. 
 If the principal requires of the agent the performance of an 
 illegal or immoral act, the agent may lawfully renounce his 
 ao-ency. As is said by a learned judge : ^'- Honeste vivere is a 
 part of the law of principal and agent." * 
 
 § 237. Notice of Renunciation.— Kotice of the renunciation 
 must be given by the agent to the principal, and as between the 
 parties the renunciation will be operative from the time the prin- 
 cipal receives the notice of it. The principal must also for his 
 own protection give notice to third persons of the termination of 
 the authority by renunciation in the same manner as where the 
 authority is revoked.* 
 
 before he had notice of the revoca- rendering himself responsible for the 
 
 tion. And so the agent, after enter- consequences." 
 
 ing upon the business, may renounce See also post, § 633. 
 
 the agency. But this must be done 'Conreyt).Brandegee,2La.Ann.l32. 
 
 in good faith, and be preceded by « Stoddart v. Key, 62 How. Pr. 
 
 reasonable notice, or the agent will (N. Y.) 137. 
 
 be liable to the principal for any loss * Leopold v. Salkey, 89 111. 412. 
 
 that may result to him from this cause. « Conrey ©. Brandegee, 2 La Ann. 
 
 The agent cannot withdraw himself 132; See sAso post, § G32. 
 
 from his engagement wantonly and » Capen v. Pacific Mut. Ins. Co. 1 
 
 without reasonable cause without Dutch. (N. J. Law) 67, 64 Am. Dec. 
 
 412. 
 
 156
 
 Chap. VII.] TERMINATION OF THE KELATION. § 240. 
 
 III. 
 BY OPERATION OF LAW. 
 
 § 238. Bnt the intentional act of the parties does not furnish 
 the only means by wliich the relation of principal and agent may 
 bo dissolved. Such changes in condition, capacity and surround- 
 ings of the parties, or the subject-matter may occur as to render 
 the further continuance of the relation inconsistent or impossi- 
 l)le, and the agenc}' will thereupon be terminated or dissolved by 
 the operation of law. 
 
 Thus one or both parties to the relation may die, or become 
 insane, or bankrupt. War may interrupt the commercial tran- 
 sactions between citizens of different states or countries, or the 
 subject-matter of the agency may cease to exist or it become im- 
 possible or unlawful to be performed. Each of these contin- 
 gencies it is important to consider. 
 
 1. By Death of One of the Parties. 
 a. By the Death of the Principal. 
 
 § 239. In general. The relation of principal and agent nec- 
 essarily presupposes at least two existing and competent parties, 
 — one competent to act for himself and in his own behalf, but 
 preferring for reasons of convenience or otherwise to delegate 
 this power to another; the other likewise competent, ordinarily, 
 to act for himself, but undertaking for the time being to assume 
 a representative character and to act in the name and for the 
 benefit of the person represented ; — one supplying authorit}', the 
 other exercising it. 
 
 By the death of either of these parties, therefore, it is obvious 
 that the relation must ordinarily be terminated. If the principal 
 dies, there is thenceforward no one to be represented ; no one in 
 whose name the agent can act ; no one from whom the supply of 
 ]>ower can continue to flow, and unless there is something in the 
 nature of the authority by which it can survive a severance from 
 its source, it must perish with it. 
 
 § 24:0. General Rule— Death of Principal terminates Agency. 
 It is therefore the general rule that the authority of an agent, not 
 coupled with an interest, is instantly terminated by the death of 
 the principal, even though it may have been irrevocable in his 
 
 157
 
 § 241. 
 
 THE LAW OF AGENCY. 
 
 [Book 1. 
 
 life-time; and that any attempted execution of the authority 
 after tliat event is not binding upon the heirs or representatives 
 of the deceased principal.' 
 
 The relation being thus terminated by the act of God, the 
 agent can maintain no claim for damages thereby, although he 
 had been employed for a fixed term which had not yet expired.* 
 
 Of course where the authority has been fully executed before 
 the principal's death, that event cannot affect the rights of the 
 other party. So if before the principal's death, the authority 
 has been executed in part, his death cannot operate as a revoca- 
 tion of the executed portion, nor, if the authority be entire, of 
 that which yet remains unexecuted.' 
 
 ^ 241. Same Subject— Not when coupled with an Interest. 
 Where, however, the authority of the agent is coupled with an 
 interest in the subject-matter of the agency, it is not terminated 
 by the death of the principal, and a subsequent execution of it 
 by the agent will be good.* 
 
 > Saltmarsh v. Smith, 32 Ala. 404; 
 Boone v. Clarke, 3 Cranch (U. S. C. 
 C.) 389; Hunt v. Rousmanier, 8 
 Wheat. (U. S.) 174; Ferris v. Irving, 
 28 Cal., 645; McDonald v. Black, 20 
 Ohio, 185; Primm v. Stewart, 7 Tex. 
 178; Michigan Ins. Co. v. Leaven- 
 worth, 30 Vt. 11; McGrifi v. Porter, 
 5 Fla. 373; Lewis v. Kerr, 17 Iowa 
 73; Gale v. Tappan, 12 N. H. 145, 37 
 Am. Dec. 194; Merry v. Lynch, 68 
 Me. 94; Darr v. Darr, 59 Iowa 81; 
 Lincoln e. Emerson, 108 Mass. 87; 
 Huston V. Cantiil, 11 Leigh (Va.) 
 136; Harper v. Little, 2 Greenl. (Me.) 
 14, 11 Am. Dec. 25; Staples v. Brad- 
 bury, 8 Greenl. (Me) 181. 23 Am. 
 Dec. 494; Jenkins v. Atkins, 1 
 Humph. (Tenn.) 294, 84 Am. Dec. 
 648; Wellborn v. Weaver, 17 Ga. 
 267, 63 Am. Dec. 235; Clayton v. 
 Merrett, 52 Miss, 353; Davis v. Wiud- 
 8or Savings Bank, 46 Vt. 728; Trav- 
 ers V. Crane, 15 Cal. 12; Marlett v. 
 Jackman, 3 Allen (Mass.) 287; John- 
 son V. Wilcox, 25 Ind. 182; Turnan 
 V. Temke, 84 111. 286; Cleveland v. 
 
 1 
 
 Williams, 29 Tex. 204, 94 Am. Dec. 
 274; Doe v. Smith, 1 Jones (N. C.) 
 L. 135, 59 Am. Dec. 581 ; Cassiday v. 
 McKenzie, 4 W. & S. (Penn.) 282, 39 
 Am. Dec. 76; Wilson t>. Edmonds, 
 24 K H. 517; Easton v, Ellis, 1 
 Handy (Ohio.) 70; Scruggs v. Driver, 
 31 Ala. 274. 
 
 « Yerrington v. Greene, 7 R. I. 589, 
 84 Am. Dec. 578; but in Fereira v. 
 Sayres, 5 W.& S.(Penn,) 210, 40 Am. 
 Dec. 496, it was held that the death 
 of one of two partners did not ab- 
 solve the firm from liability to an 
 ag( nt who had been employed for a 
 term which had not yet expired. But 
 a contrary result to that of the last 
 case was reached in Tasker v. Shep- 
 herd, 6 H »& N. 575; Dtrnet v. Hope, 
 9 Ont. Rep. 10. 
 
 » Garrett v. Trabue, 82 Ala. 227; 
 Story on Agency, § 46(i. 
 
 <Hunt V. Rousmanier, 8 Wheat. 
 (TJ. S.) 174; Merry v. Lynch, 68 Me. 
 94; Bergen v. Bennett, 1 Caine's 
 Cases (N. Y.) 1, 2 Am. Dec. 281; 
 Knapp V. Alvord, 10 Paige (N. Y.) 
 
 58
 
 Chap. YII.] TERMINATION OF THE RELATION. § 242. 
 
 § 242, Same Subject— What Interest sufficient.— The same 
 difficulty is experienced here that was met with in defining the 
 interest which would protect an authority from revocation during 
 the principal's life-time.' But it must, in general terms, be an 
 interest in the thing itself which is the subject of the agency and 
 be capable of execution in the name of the agent. A mere 
 power, though irrevocable by the principal in his life-time, is, 
 nevertheless, terminated by his death. But as is said by Chief 
 Justice Marshall: "This general rule, that a power ceases 
 with the life of the person giving it, admits of one exception. 
 If a power be coupled with an 'interest' it survives the person 
 giving it and may be executed after his death. As this proposi- 
 tion is laid down too positively in the books to be controverted, 
 it becomes necessary to inquire what is meant by the expression 
 ' a power coupled with an interest ' ? Is it an interest in the sub- 
 ject 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 accompa- 
 nies or is connected with an interest. The power and the interest 
 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. 
 
 "But the substantial basis of the opinion of the court on this 
 point is found in the legal reason of the principle. 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 
 
 205, 40 Am. Dec. 241; Leavitt v. taling v. Marvin, 7 Barb. (N. Y.) 
 Fisher, 4 Duer (N. Y.) 1; Iloagh- 412, 
 
 ' Ante. § 205. 
 159
 
 § 243. THE LAW OF AGENCY. [Boolc 1. 
 
 principal, to be legally effectual, mnst be in his name, and must 
 be such an act as the principal himself would be capable of per- 
 forming, and which would be valid if performed bj 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 person 
 acts in his own name. The estate being in him, passes from him 
 by a conveyance in his own name. He is no longer a substitute 
 acting in the place and name of another, but he is a principal 
 acting in his own name in pursuance of powers which limit his 
 estate. The legal reason which limits the power to the life of 
 the person giving it, exists no longer ; and the rule ceases with 
 the reason on which it is founded." ' 
 
 Again it is said by a learned judge, " A power is simply 
 collateral and without interest, or a naked power, when to a 
 mere stranger, authority is given to dispose of an interest in 
 which he had not before, nor has by the instrument creating the 
 power, any estate whatsoever ; but when the power is given to a 
 person who derives under the instrument creating the power or 
 otherwise, a present or future interest in the property, the subject 
 on which the power is to act, it is then a power coupled with an 
 interest." * 
 
 §243. Same Subject — What Interest suflSLcient — Instances. 
 Thus the indorsement and delivery for the purpose of collection 
 of a promissory note passes the legal title in trust, and the agent 
 may sue upon it in his own name afjer the death of the princi- 
 pal.* So the power of sale conferred by a mortgagor upon the 
 mortgagee is one coupled with an interest and is not revoked by 
 the mortgagor's death.* 
 
 § 244. Same Subject— What Interest not sufficient— Instances. 
 But a power of attorney not containing any words of conveyance 
 or assignment but a simple authority to sell and convey, although 
 
 ' Hunt V. Rousmanier, 8 Wheat. 158; Berry «. Skinner. 30 Md. 567; 
 
 (U. S.) 174. Beatie v. Butler, 21 Mo. 313; Bradley 
 
 « Thompson, J., in McGriff v. Por- v. Chester Valley R. R. Co., 3G Penn. 
 
 ter, 5 Fla. 373. 379. St. 141; Bergen v. Bennett, 1 Cainea' 
 
 « Moore v. Hall, 48 Mich. 143; Boyd Cas. (N. Y.) 1, 2 Am. Dec. 281; Wil- 
 
 V. Corbitt, 37 Mich 52. son v. Troup, 2 Cow. (N. Y.) 195, 14 
 
 *Conner8 v. Holland, 113 Mass. 50; Am. Dec. 458. 
 Varnum v. Meserve, 8 Allen (Mass.) 
 
 160
 
 Chap. YII.] TERMINATION OF THE KELATION. § 244. 
 
 given as collateral security for the payment of certain notes 
 executed by the principal to the attorney and authorizing him to 
 Bell the property named in case of default and reimburse himself, 
 is not a mortgage but a bare power and is terminated by the 
 death of the principal before execution ;^ so where to secure the 
 loan of money the borrower executed an instrument in writing, 
 authorizing the lender, upon default in payment, to enter upon 
 the premises of tlie borrower and take away certain slaves therein 
 specified, and to sell and dispose of them and out of the proceeds 
 of the sale to reimburse himself for the loan and all expenses, and 
 to return the surplus, if any, to the borrower, tlie same ruling 
 was made ; ' and again where a principal debtor gave his surety 
 a written power of attorney authorizing him to sell certain lands 
 to pay the debt, but the surety did not exercise the power during 
 the grantor's life-time, it was held that the authority was utterly 
 dissolved by the latter's death ; ' so a power given by a debtor to 
 his creditor authorizing him to collect a debt, due to the debtor, 
 and to apply it on his claim, but containing no conveyance or 
 assignment of the debt, is terminated by the debtor's death.* 
 
 A fortiori^ is this so where the authority conveyed is a mere 
 power, or where the only interest is that in compensation to be 
 gained from the proceeds of the sale of property or the collection 
 of a debt.' 
 
 Of the former class, an authority to occupy land as an agent ; • 
 a power to sell a chattel ; ' an authority by a landlord to his 
 tenant to make repairs ; * a power of attorney to demand pay- 
 ment of a note,* or to receive notice of its dishonor ; " a power 
 of attorney to procure a patent, " are examples, and expire with 
 the life of him who granted them, 
 
 > Hunt «, Rousmanier, 8 Wheat. «. Kerr, 17 Iowa, 78; Primm ». Stew- 
 
 (U. S.) 174 art, 7 Tex. 178. 
 
 sMcGrifE e. Porter, 5 Fla. S73. •Lincoln v. Emerson, 108 Mass. 87. 
 
 s Huston «. Cantril, 11 Leigh (Va.) t McDonald e. Black. 20 Ohio, 185. 
 
 13Q • Wilson V. Edmonds, 24 N. H. 517. 
 
 « Houghtaling e. Marvin, 7 Barb. • Gale «. Tappan, 12 N. H. 145, 37 
 
 (N. Y.) 412. Am. Dec. 194, 
 
 6 Harper t. Little, 2 Greenl (Me.) 14, '«Bank of Washington e. Peirson, 
 
 11 Am. Dec. 25; Saltmarsh «. Smith, 2 Cranch. (U. S. C. C.) 685. 
 
 82 Ala. 404: Traverse. Crane, 15 Cal. •' Eagleston Mnfg. Co. t». West 
 
 12; Ferris v. Irving, 28 Cal. 645; Mnfg. Co., 18 Blalch. (U. 8. C. C.) 
 
 Coney t). Sunders. 28 Ga. 511; Lewis 223. 
 11 161
 
 § 245. THE LAW OF AGENCY. [Book I. 
 
 § 245. How when Death unknown. When the authority has 
 thus been dissolved by the death of the principal, all subsequent 
 attempts to execute it, or to act by virtue of it, even though 
 made in good faith and in ignorance of the fact of the death, are 
 ineffectual to bind the estate of the principal. Where the au- 
 thority is one which must be executed in the name of the princi- 
 pal, as by executing deeds, this rule is unquestioned * but where 
 the act is one which, while it is done for the principal, is not 
 expressly required to be done in his name, it has been criticised 
 and even denied by some text writers and judges.* Even in the 
 latter case, however, the rule is supported by an undoubted pre- 
 ponderance of authority.' 
 
 By the civil law, the act of an agent done in good faith in 
 ignorance of the death of the principal, is binding upon his rep- 
 resentatives. There the death does not necessarily and ipso facto 
 operate as a dissolution of the agency, but the agency, as in the 
 case of an express revocation, determines only from the time of 
 notice.* But by the common law, the rule is different, as has 
 been seen, and the death, except in cases coupled with an inter- 
 est, works an instantaneous dissolution of the relation. Some 
 tendency has been manifested to apply the rule of the civil law 
 in certain cases as being more consonant with reason and justice. 
 Thus in Cassiday v. McKenzie,' it was held that the payment 
 made by an agent after the death of the principal, but in ignor- 
 ance of it, was good. So in Dick v. Page,* the deposit of col- 
 laterals made by an agent as security for advances made after the 
 principal's death, but all the parties being in ignorance of it, was 
 held to be valid as against the executor of the principal, and the 
 same principle was enforced in Ish v. Crane.' 
 
 » Harper «. Little, 2 Greenl. (Me.) Cleveland v. Williams, 39 Tex. 204, 
 
 14, 11 Am. Dec. 25; Travers c. Crane, 94 Am. Dec. 274; Michigan Ins. Co. c. 
 
 15 Cal. 12; Ferris v. Irving, 28 Cal. Leavenworth, 30 Vt. 11; Davis «. 
 
 645; Coney «. Sanders, 28 Ga. 511; Windsor Savings Bank, 46 Vt. 728; 
 
 Lewis V. Kerr, 17 Iowa, 73. Jenkins t. Atkins, 1 Humph. (Tenn.) 
 
 a Story on Agency, § 495; Wharton 294, 34 Am. Dec. 648; Rigs r. Cage, 
 
 on Agency, §102; Cassiday®. McKen- 2 Humph. (Tenn.) 350, 37 Am. Dec. 
 
 zie, 4 W. & S. (Penn.) 282, 39 Am. 559. 
 
 Dec. 76; Dick «. Page, 17 Mo. 234; <Inst. 3, 27, 10; Digest, 17, 1, 6; 1 
 
 Ish t. Crane, 8 Ohio St. 520, S. 0. 18 Domat b. 1. Tit. 15, § 4. 
 
 Id. 574. * Supra. 
 
 8 Clayton v. Merrett, 52 Miss, 353; 'Supra. 
 
 Gait V. Galloway, 4 Pet. (U. S.) 331; ^ Supra, 
 
 162
 
 Chap. YIl.] TERMINATION OF THE EELATION. § 245. 
 
 But these cases have not been followed by other courts, and it 
 is said of them by a learned judge, that " in as far at least as 
 they announce the doctrine under discussion they are exceptional. 
 The Pennsylvania case is believed to stand almost if not quite 
 alone, in announcing the principle in its broadest scope. The 
 overwhelming weight of authority is to the effect that the death 
 of the principal operates as an instantaneous revocation of the 
 agency where it is a naked power unaccompanied with an inter- 
 est, and every act of the agent thereafter performed is null so 
 far as tlie estate of the principal is concerned. This rule fre- 
 quently operates very unjustly and produces very great hard- 
 ships. A party dealing with an insolvent agent, upon the faith 
 of his well known authority from a wealthy and distant princi- 
 pal, is suddenly confronted with the fact that the authority had 
 ceased by the death of the principal, one day or perhaps one houi 
 before his transactions occurred. Impressed with the hardship 
 of such a case, the civil law adopts the rule contended for in the 
 case at bar and renders valid a contract executed or a payment 
 made under such circumstances," but he goes on to say that 
 "however great the injustice produced in particular cases, un- 
 doubtedly the common law rule is that death revokes the agency 
 and nullifies all acts thereafter performed. This doctrine rests 
 upon the obvious principle that as a dead man can do no act for 
 himself, so no man can do an act for him. When, therefore, the 
 agent undertakes to act in his name, he is acting for a being not 
 in existence. To hold his act valid is not to bind the dead man 
 but his heirs and representatives, who are thus held liable for the 
 acts of one whom they never appointed and whom perhaps they 
 would be unwilling to trust. Whether a system of jurisprudence 
 which would accomplish this result would be found in the long 
 run less productive of injustice than our present rule may well 
 be doubted. At all events we are satisfied that such is not the 
 law." ' 
 
 Of the reason of the common law rule, it has been said, " Though 
 it may be true that when a power is revoked by the act of the 
 party, notice may be necessary, yet when revoked by his death, 
 the revocation at once takes effect, and if any act is subsequently 
 done under the power, though without notice of the death of the 
 
 1 Chalmers, J., in Clayton «. Merrett, tupra. 
 163
 
 fi 246. THE LAW OF AGENOT. [Book I. 
 
 party, the act is void, and there is the best reason in the world 
 for this fundamental distinction. It is an event of which each 
 party has equal means of knowledge, and must take notice of it 
 at his peril." * 
 
 S 2-i6. Same Subject— Instances. In accordance with the rule 
 of the common law, therefore, it has been held that a payment 
 made to an agent after the death of his principal, though the 
 party paying did so in good faith and without notice of 
 the death of the principal, was not sufficient, and that the 
 administrator of the principal was entitled to recover it;' that 
 the discount in good faith and without notice of the prin- 
 cipal's death, of a note put into circulation by an agent after 
 that event, conferred no right against the estate of the prin- 
 cipal ;• that the sale of real estate by an agent after the death of 
 his principal, but in ignorance of it, was not binding upon the 
 estate,* and hence not upon the purchaser;* that the act of an 
 agent in separating, measuring and delivering, after the death of 
 his principal, a quantity of corn that had been bargained by the 
 principal in his lifetime, but the title to which, by want of such 
 separating, measuring and delivering, had not passed to the other 
 party, was not good against the principal's estate ;• that an 
 agent's power to buy goods for his principal ceases with his 
 death, and that the seller could not recover against the adminis- 
 trators of the principal's estate, though the fact of the death was 
 unknown both to the seller and the agent.' 
 
 But where an agent, authorized to buy goods, sent an order for 
 them by mail on the day before the principal died, to a non-resi- 
 dent merchant with whom he had a general arrangement to sup- 
 ply goods on such orders, and the merchant filled the order within 
 a reasonable time in ignorance of the principal's death, it was 
 held that the contract was binding as of the day on which the 
 order was deposited in the mail, and that the principal's estate 
 
 » Bennett, J., in Michigan Ins. Co. « Jenkins t>. Atkins, 1 Humph. 
 
 fl. Leavenworth, supra. (Tenn.) 294, 84 Am. Dec. 648. 
 
 • Davis V. Windsor Savings Bank, » Lewis «. Kerr, 17 Iowa, 73. 
 
 46 Vt 728; Clayton t>. Merrett, 53 'Cleveland v. Williams, 29 Tex. 
 
 Miss 353. 204, 94 Am. Dec. 274. 
 
 » Michigan Ins. Co. v. Leavenworth, » Rigs v. Cage, 2 Humph. (Tenn.) 
 
 80 Vt. 11. 850, 87 Am. Dec. 559. 
 
 164
 
 Chap. VI L] TERMINATION OF THE RELATION. § 250. 
 
 was bound, notwithstanding the order was not received by the 
 merchant until after the deatli of the principal.* 
 
 § 247. Death of Partner or joint Owner dissolves Agenoy. 
 The death of one partner ordinarily operates to dissolve the 
 partnership, and the partnership being dissolved, the authority 
 «f an agent appointed by the firm thereupon ceases, where the 
 authority is not coupled with an interest.' The same effect 
 would also ordinarily follow from the death of one of two joint 
 owners, their joint interest being thereby severed.^ 
 
 It has been held that the death of one of two partners does 
 not relieve the firm of liability to an agent who has been engaged 
 for a definite period,* but a contrary result has also been 
 reached.* 
 
 § 248. Death of Principal dissolves Authority of Substitute. 
 The death of the principal not only dissolves the authority of 
 the agent within the limits referred to, but also that of a substi- 
 tute or subagent appointed by the agent, whether appointed 
 with the consent and authority of the principal or not.* 
 
 b. By Death of the Agent. 
 
 § 249. General Rule — Death of Agent terminates Agenoy. 
 Upon the death of the agent invested with a mere power, the 
 agency is terminated. There is then no one to exercise the de- 
 rivative authority which must of course cease to flow. If the 
 agent were one selected for his skill, judgment or discretion, this 
 furnishes an additional reason why the authority should be held 
 not to descend to the personal representatives of the agent, with 
 whom the principal may be unacquainted and to whom he might 
 be unwilling to confide the power.' 
 
 § 250. Not when coupled with an Interest Where, however, 
 
 'Garrett v. Trabue, 83 Ala. 227; 'Tasker t>. Shepherd, 6 H. & N. 
 
 Hatchett v. Molton, 76 Ala. 410. 575; Burnet v. Hope, 9 Ont. Rep. 10. 
 
 > See ante, § 221 ; McNaughton «. • Peries v. Aycinena, 8 W. & Serg. 
 Moore, 1 Hayw. (N. C.) 189. See (Penn.) 79. 
 
 Bank of New York «. Vanderhorst, 'Qage ». Allison, 1 Brer. (8. C.) 
 
 32 N. T. 553. 495, 2 Am. Dec. 682; Merrick's Estate 
 
 > See ante, § 222; Rowe v. Rand, 111 8 Watts & Serg. (Penn.) 402; Adrianco 
 Ind. 206. «. Rutherford, 67 Mich. 170. 
 
 « Fereira v. Sayres, 5 "Watts & Serg. 
 (Penn.) 310, 40 Am. Dec. 496. 
 
 165
 
 § 251. THE LAW OF AGENCY. [Book I. 
 
 tlie agent Las acquired with the power an estate or interest in the 
 thing which is the subject of the agency, his death will not 
 operate to defeat it. Thus the power of sale conferred upon a 
 mortgagee is not revoked by his death, but may be exercised by 
 his representatives or assigns.' 
 
 § 251. When Death, of one of two Agents terminates Agenoy. 
 As has been seen, a power confided to two or more private agents 
 must ordinarily be exercised by all of them jointly ; the death of 
 one of them therefore, where the authority is joint, renders the 
 further execution of the agency impossible, and it is therefore 
 terminated.' Where however the agency is joint and several, 
 the death of one agent does not terminate it* 
 
 § 252. Effect on Substitute. Where the agent has appointed 
 a substitute or subagent without direct authority, and for his 
 own convenience merely, the death of the agent annuls the au- 
 thority of the subagent or substitute,* and this rule also applies 
 even though the agent was expressly given the right of substitu- 
 tion.* Wliere, however, the subagent, though appointed by the 
 agent, derives his authority directly from the principal, it will 
 not be effected by the death of the agent.* 
 
 II. 
 
 BY INSANITY OF ONE OF THE PAETIE8. 
 
 1. By Insanity of the Principal. 
 
 % 253. In general. The act of every agent exercising a bare 
 power of authority necessarily presupposes, as has been seen, the 
 existence of a principal competent to perform the same act him- 
 self in his own behalf. It is his will that is being carried out 
 through the medium of the agent. If for any reason, therefore* 
 
 'Collins V. Hopkins, 7 Iowa, 463; Rep. 450; Bank t>. Vanderhorst, 39 
 
 Harnickell «. OrndorlT, 35 Md. 341; N. Y. 553. 
 
 Menia c. Lewis, 90 111. 505; Lewis t). * Jackson Ins. Co. e. Partee, 9 
 
 Wells, 50 Ala. 198. Heisk. (Tenn ) 296. 
 
 ' Hartford Fire Ins. Co. c. "Wilcox, » Lehigh Coal «& Nav. Co. «. Mohr, 
 
 57 111. 180; Marline v. International 83 Penn. St. 228, 24 Am. Rep. 161; 
 
 L. Ins. Society, 53 N. Y. 339, 13 Am. Watt c.^Watt, 3 Barb. (N. Y.) Ch. 
 
 Rep. 539; Rowe v. Rand, 111 Ind. 371; Peries v. Aycinena, 3 Watts & 
 
 206, 12 K East. Rep. 377. Ser. (Penn.) 79. 
 
 » Wilson V. Stewart, 5 Penn. L. J. 'Smith e. White, 5 Dana (Ky.)878, 
 
 166
 
 Chap. YII.] TERMINATION OF THE RELATION. § 257. 
 
 the principal becomes incapable of acting and exercising an in- 
 telligent will in regard to the transaction, it is evident that an 
 essential element in the relation is lacking, and while that ele- 
 ment remains absent, the further exercise of the relation must 
 be suspended. 
 
 § 254. General Rule. It is the general rule, therefore, that 
 the after-occurring insanity of the principal, or his incapacity to 
 exercise any volition upon the subject by reason of an entire loss 
 of mental power, operates as a revocation or suspension for tlie 
 time being, of the authority of an agent acting under a bare 
 power. If, on the recovery of the principal, he manifests no will 
 to terminate the authority, it may be considered as a mere sus- 
 pension, and his assent to acts done during the suspension may 
 be inferred from his forbearing to express dissent when they 
 come to his knowledge.' 
 
 § 255. But— Ignorance of Insanity. But this general rule is 
 subject to the exception ordinarily made in dealing with an in- 
 sane person, that when third persons in good faith, relying upon 
 an apparent authority and in ignorance of the principal's insan- 
 ity have given a consideration of value, they will be protected.* 
 
 § 256. When coupled with an Interest. And where the au- 
 thority of the agent is coupled with such an estate or interest 
 that he may exercise it in his own name, the after-occurring in- 
 sanity of the principal will not affect it' Thus a mortgagee's 
 power of sale is not revoked by the after-occurring insanity of tlie 
 mortgagor.* 
 
 S 25T. What Evidence of Insanity sufficient. It has been 
 held that the insanity of the principal must be established as a 
 fact by an inquisition before it would revoke the agency,* and 
 
 ' Davis V. Lane, 10 N. H. 156, 160; 156; Drew « Nunn, 4 Q. B. Div. 661, 
 
 Matlhiesson, &c. Co. «. McMahon,38 29 Eng. Rep. 92. 
 
 N. J. L. 536; Hill v. Day, 34 N. J. » Davis «. Lane, 10 N. H. 158; 
 
 Eq. 150; Bunce v. Gallagher, 5 Matthiesson v. McMahon, 88 N. J. 
 
 Blatch. (ij. S. C. C.) 481; Drew v. L. 536; Hill v. Day, 84 N. J. Eq. 150; 
 
 Nunn, 4 Q. B. Div. 661, 29 Eng. Wallis ©. Manhattan Co. 2 Hall (N. 
 
 Rep. (Moak.) 92, Y.) 495. 
 
 2 Matthiesson v, McMahon, 88 N. * Berry v. Skinner, 80 Md. 567. 
 
 J L 536; Davis e. Lane, 10 N. H. » Wallis «. Manhattan Co. 2 HaU 
 
 (N. Y.) 495. 
 
 167
 
 § 258. THE LAW OF AGENCY. [Book I. 
 
 thi8 view is approved by Chancellor Kent ' in his Commentaries, 
 but it is believed that the weight of authority, as well as sound 
 reasoning, leads to the conclusion that the after-occurring insanity 
 of the principal operates, per se, as a revocation or suspension of 
 the agency, except in cases where a consideration has previously 
 been advanced in the transaction which was the subject-matter of 
 the agency so that the power became coupled with an interest, or 
 where a consideration of value is given by a third person, trust- 
 ing to an apparent authority in ignorance of the principal's in- 
 capacity.' The mere fact that a guardian has been appointed 
 over the principal as an insane person is not sufficient without 
 proof that the insanity was of such a character as disqualified 
 him from making a valid contract.* 
 
 2. By Insanity of the Agent. 
 
 § 258. In general. The proper exercise of the authority con- 
 ferred implies in every case the exercise of more or less intelli- 
 gence upon the part of the agent, and the subsequent loss of that 
 intelligence by the agent renders the proper performance of hia 
 duty thereafter impossible. This is especially true where the 
 a»ent was selected for his mental capacity or endowments, as in 
 the case of an attorney, architect or author. 
 
 8 259. General Rule— Terminates Agency unless coupled with 
 an Interest. The after-occurring insanity of the agent to such a 
 degree as to incapacitate him from further execution of the agency 
 operates as a dissolution or suspension for the time being, of hia 
 authority in all cases except he has with it an estate or interest in 
 the thing which is the subject-matter of the agency. Mere par 
 tial derangement or monomania would not necessarily have that 
 effect, unless the mania related to the subject-matter of the 
 agency or destroyed the agent's capacity for its proper execution. 
 
 § 200. How when Insanity unknown. Executed dealings had 
 by third persons with the agent in good faith and in ignorance 
 of his insanity, could not be affected by it, where no advantage 
 had been taken of it and the parties could not be restored to their 
 original situation.* 
 
 » IT Kent's Com. 645. 156; Bunce «. Gallagher, 5 Blatch. 
 
 » Matthiesson «. McMahon, 88 N. (U. S. C. C.) 481. 
 J. L. 536; Davis v. Lane, 10 N. H. » Motley v. Head, 43 Vt. 638. 
 
 4 See ante, § 255. 
 168
 
 Chap. YU.] TERMINATION OF THE RELATION. § 265. 
 
 § 261. Insanity of one of two or more Agents. For the same 
 reason that the death of one of two or more joint agents oper- 
 ates to dissolve the agency, the insanity of one of two or more 
 joint agents has the same effect.' If, however, the agency was 
 joint and several, it may be executed by the others. 
 
 § 262. Effect on Subagents. The termination of the agent's 
 authority would also bring to an end the authority of the substi- 
 tutes and subagents who derived their powers from him. But 
 if the subagent was appointed with the authority of the princi- 
 pal, the insanity of the agent would not necessarily operate to 
 dissolve the subagent's authority. 
 
 3. By Bankruptcy of one of the Parties. 
 a. Bankruptcy of Principal. 
 
 ^ 263. General Rule— Bankruptcy of Principal terminates 
 Agent's Authority. The legal bankruptcy of the principal or 
 his assignment for the benefit of creditors of the subject-matter 
 of the agency, operates to revoke the authority of the agent for 
 the transaction of the principal's business. By this event the 
 principal's control and management of his affairs is divested and 
 confided to the assignee or trustee for the benefit of his creditors, 
 who is thereupon entitled to collect and possess the bankrupt's 
 credits and property, and the subject-matter of the agency passes 
 under his control.* 
 
 § 264. Mere Insolvency not enough. The mere insolvency, 
 or inability of the principal to pay his debts when due, would not 
 have this effect. It only results from the operation of the law 
 when, either voluntarily or involuntarily, the principal surrenders 
 and the law assumes the control of his affairs. 
 
 § 265. Agent's Authority not dissolved when coupled with 
 an Interest. Where however the authority of the agent is 
 coupled with an interest, the bankruptcy of the principal will 
 not dissolve it. Thus the power of sale conferred upon a mort- 
 gagee is not revoked by the mortgagor's bankruptcy.' 
 
 » Salisbury «. Brisbane, 61 K Y. per 251; Parker v. Smith, 16 East 
 617; Rowe v. Rand, 111 Ind. 206, 12 882. 
 N. East. Rep. 877. * Hall v. Bliss, 118 Mass. 554; Dixon 
 
 s Minett v. Forrester, 4 Taunt, ». Ewart, 3 Meriv. 823. 
 641; Drinkwater v. Goodwin, Cow- 
 
 169
 
 § 266. THE LAW OF AGENCY. [Book L 
 
 § 266. How when Bankruptcy unknown. Where after the 
 act of bankruptcy but before adjudication, the agent deals by vir- 
 tue of the power with third persons who are ignorant of the 
 bankruptcy and who with good faith part with value upon the 
 strength of the agent's authority, their rights will be protected.' 
 
 b. Bankruptcy of the Agent. 
 
 § 267. General Rule. The bankruptcy of a business agent, 
 as for example, an agent appointed to sell merchandise," or to re- 
 ceive payment of money due his principal,* operates as a revoca- 
 tion of his authority, but not where his authority is merely to do 
 some formal act, as the execution of a deed in the name of hia 
 principal, or the carrying out of some existing trust which is in- 
 cumbent upon him.* 
 
 4. By Marriage, 
 
 § 268. In general. The marriage of the principal will, in 
 certain cases, operate to revoke a power previously given, where 
 the power will defeat or impair rights acquired by the marriage. 
 
 Thus where a man gave a power of attorney to another to sell 
 his homestead, but before a sale was effected the principal mar- 
 ried, it was held that the marriage operated as a revocation of 
 the power. By the marriage the wife acquired interests in the 
 property of which she could only be divested with her consent, 
 evidenced by her joining in the deed, or in the power of attorney 
 by virtue of which the deed was executed.* 
 
 So at the common law, the subsequent marriage of 2^ feme sole 
 operated to revoke a power of attorney previously executed by 
 her, and the same rule would still apply wherever the modern 
 married woman's acts have not clothed her with full capacity to 
 deal as sole with her own property.* 
 
 5. By War. 
 % 269. In general. Every kind of trading, or commercial 
 
 ' Ex parte Snowball, L. R. 7 Ch. • Hudson «. Granger, supra. 
 
 App. 548. * Dixon v. Ewart, 3 Mer. 333; Hud- 
 
 « Audeni-ied v. Betteley, 8 Allen son v. Granger, tupra. 
 (Itlass.) 303; Scott v. Surman, Willes 'Henderson v. Ford, 46 Tex. 637. 
 
 (K. B.) 400; Hudson c. Granger, 5 • Wambole ». Foote, 2 Dak. 1. 
 Barn. & Aid. 37. 
 
 170
 
 Chap. YII.] TERMINATION OP THE RELATION. ^ 2C/.^ 
 
 dealing, or intercourse, whether by transmission of money or 
 goods, or of orders for the delivery of either, between two conn- 
 trios at war, directly or indirectly, or through the intervention of 
 third persons or partnerships, or by contracts in any form looking 
 to or involving such transmission are prohibited.' 
 
 It results, therefore, that war between the state or conntry of 
 the principal and that of the agent, as a general rule, renders fur- 
 ther prosecution of the agency unlawful and operates to dissolve 
 tlie relation. 
 
 It is said by a learned judge :* " That war suspends all com- 
 mercial intercourse between the citizens of two belligerent coun- 
 tries or states, except so far as may be allowed by the sovereign 
 authority, has been so often asserted and explained in this 
 court within the last fifteen years, that any further discussion of 
 that proposition would be out of place. As a consequence of 
 this fundamental proposition it must follow that no active busi- 
 ness can be maintained either personally or by correspondence or 
 through an agent, by the citizens of one belligerent with the 
 citizens of the other. The only exception to the rule recognized 
 in the books, if we lay out of view contracts for ransom and 
 other matters of absolute necessity, is that of allowing the pay- 
 ment of debts to an agent of an alien enemy, where such agent 
 resides in the same state with the debtor. But this indulgence 
 is subject to restrictions. In the first place it must not be done 
 with the view of transmitting the funds to the principal during 
 the continuance of the war, though if so transmitted without the 
 debtor's connivance, he will not be responsible for it. 
 
 " In the next place, in order to the subsistence of the agency 
 during the war, it must have the assent of the parties thereto, — 
 the principal and the agent. As war suspends all intercourse 
 between them, preventing any instructions, supervision, or 
 knowledge of what takes place on the one part, and any report 
 or application for advice on the other, this relation necessarily 
 ceases on the breaking out of hostilities even for the limited 
 purpose before mentioned, unless continued by the mutual as- 
 sent of the parties. It is not compulsory ; nor can it be made so 
 
 'Kershaw B. Kelsey, 100 Mass. 561, United States, 15 Wall. (U. 8.) 395, 
 1 Am. Rep. 142; Woolsey Interna- 400. 
 
 tional Law, §117; Montgomery v. • Bradley, J. in Insurance Co. «l 
 
 Davis, 94 U. S. 425. 
 
 171
 
 § 269. THB LAW OF AGENOT. [Book L 
 
 on either side, to subserve the ends of third parties. If the 
 agent continues to act as such, and his so acting is subsequently 
 ratified by the principal, or if the principal's assent is evinced by 
 any other circumstances, then third parties may safely pay money 
 for the use of the principal into the agent's hands; but not other- 
 wise. It is not enough that there was an agency prior to the war. 
 It would be contrary to reason that a man without his consent 
 should continue to be bound by the acts of one whose relations 
 to him have undergone such a fundamental alteration as that 
 produced by a war between the two countries to which they 
 respectively belong ; with whom he can have no correspondence, 
 to whom he can communicate no instructions, and over whom he 
 can exercise no control. It would be equally unreasonable that 
 the agent should be compelled to continue in the service of 
 one whom the law of nations declares to be his public enemy. 
 If the agent has property of the principal in his possession or 
 control, good faith and fidelity to his trust will require him to 
 keep it safely during the war and to restore it faithfully at its 
 close. This is all. * * ♦ 
 
 " What particuliar circumstances will be suflScient to show the 
 consent of one person that another shall act as his agent to receive 
 payment of debts in an enemy's country during war may some- 
 times be difficult to determine. Emerigon says that if a foreigner 
 is forced to depart from one country in consequence of a decla- 
 ration of war with his own, he may leave a power of attorney 
 to a friend to collect his debts and even to sue for them.* But 
 though a power of attorney, to collect debts, given under such 
 circumstances, might be valid, it is generally conceded that a 
 power of attorney cannot be given during the existence of war 
 by a citizen of one of the belligerent countries resident therein, 
 to a citizen or resident of the other; for that would be holding 
 intercourse with the enemy which is forbidden. Perhaps it may 
 be assumed that an agent ante helium^ who continues to act as 
 such during the war in the receipt of money or property on be- 
 half of his principal where it is the manifest interest of the latter 
 that he should do so, as in the collection of rents and other debts, 
 the assent of the principal will be presumed unless the contrary 
 be shown ; but that where it is against his interests, or would im- 
 
 • Trait6 des Assurances, Vol. 1, 667. 
 172
 
 Chap. VII.] TEKMINATION OT THE KELATION. § 270. 
 
 pose upon him some new obligations or burdens, his assent will 
 not be presumed, but must be proved, either by his subsequent 
 ratification or in some other manner. In some way, however, it 
 must appear that the alleged agent assumed to act as such and 
 that the alleged principal consented to his so acting." * 
 
 6. By Termination of PrincipaVs Authority. 
 § 270. Principal's Removal from Office removes Subordi- 
 nates. Where the principal's power of appointing agents is 
 derived from his occupying an office or position of a fiduciary 
 character, his ceasing to longer occupy the position operates to 
 determine the authority of those also who were his subordinates 
 in the performance of the trust.* 
 
 ' Upon this question see al; o New Robinson v. Life Ass. Co. 42 N. Y. 
 
 York L. Ins. Co. v. Statham, 93 U. 8. 54. 1 Am Rep. 490; Sands v. Life 
 
 24: Wardt). Smith, 7 Wall. (U. S.) Ins. Co. 50 N. Y. 626, 10 Am. Rep. 
 
 447; Brown v. Hiatts. 15 Wall (U. 8.) 535: Manhattan Life Ins Co. e. War- 
 
 177- Fretz v Stover, 22 Id. 198. The rick, 20 Gratt. (Va.) 614, 8 Am. Rep. 
 
 decisions in the state courts do not 218; Jones v. Harris, 10 Heisk. 
 
 seem to be altogether harmonious. (Tenn.)9S; Blackwell v. Willard, 65 
 
 See, Shelby v. Offutt, 51 Miss. 128; N. C. 555, 6 Am. Rep. 749. 
 Darling t). Lewis, 11 Heisk. (Tenn.) « 2 Livermore on Agency, § 307. 
 125; HoweU v. Gordon, 40 Qa. 303; 
 
 173
 
 §271. 
 
 THB LAW OF AGENCY. 
 
 [Book IL 
 
 BOOK II. 
 
 OF THE AUTHORITY CONFERRED ; ITS NATURE AND 
 
 EFFECT. 
 
 CHAPTER I. 
 OF THE NATURE OF THE AUTHORITY. 
 
 § 271. Purpose of Book IL 
 
 272. Nature and Extent of the Au- 
 
 thority. 
 
 I. Of Express and Implied Au- 
 
 thority. 
 
 273. Where Authority is express. 
 
 274. Where Authority is implied. 
 
 II. Univerbal, General and Spe- 
 
 cial Agencies. 
 
 275. In general. 
 
 276. Persons dealing with Agent 
 
 must ascertain his Authority. 
 
 Different Aspects of Question. 
 
 Authority an Attribute of 
 Character bestowed by Prin- 
 cipal. 
 
 The Province of Instructions — 
 Apparent Authority cannot 
 be limited by secret Instruc- 
 tions. 
 280. The Doctrine of implied Pow- 
 ers. 
 
 277. 
 278. 
 
 279. 
 
 § 281. Powers conferred by Usage. 
 283. What constitutes Authority. 
 
 283. General and special Authority. 
 
 284. Same Subject. 
 
 285. Same Subject— The true Dis- 
 
 tinction. 
 
 286. General Agency not unlimi- 
 
 ted. 
 
 287. General Agent binds Princi- 
 
 pal only when acting within 
 the Scope of his Authority. 
 
 288. Special Agent's Authority 
 
 must be strictly pursued. 
 
 289. Third Persons must act in 
 
 good Faith. 
 
 290. Person dealing with Agent 
 
 must exercise reasonable 
 Prudence. 
 
 291. Same Subject — Must ascer- 
 
 tain whether necessary Con- 
 ditions exist. 
 
 292. Same Subject — Authority of 
 
 Public Agents must be as- 
 certained. 
 
 R 271. Purpose of Book 11. It has heretofore been seen how 
 the relatiou of principal and agent may be created and how 
 it may be terminated. The purpose of creating the agency is 
 to confer authority upon the agent,— to clothe him to a greater 
 
 1T4
 
 Chap. I.] NATUKK OF THE AUTHOKITY. § 273. 
 
 or less extent, and for a shorter or longer period, with a portion 
 of that power with which nature and the laws of society have 
 invested the principal. For the time being, and in some 
 capacity, the principal has another self, who, by his will and act 
 is invested with the power to speak and do with like effect as if 
 he himself should speak or do. 
 
 It will be very evident that to those persons who may have occa- 
 sion to deal with the principal through this other self, the ques- 
 tion of how fully, how certainly and for how long a time, he has 
 invested the latter with his own personality, becomes exceedingly 
 important. And not only this, but these matters being ascer- 
 tained, it is no less important to determine whether any given act 
 assumed to be done by virtue thereof, is, in reality, within the 
 fullness, the certainty and the term of the investment. 
 
 It will be equally evident that these are questions not always 
 easy of solution, not only because men are notoriously careless 
 and indefinite in their words and acts, but because even if, in a 
 given case, a power has been conferred in terms the most express 
 and definite, the questions may still arise whether the express 
 words embrace the act assumed to be done by virtue of them ; 
 whether the mode of doing has been that contemplated by the 
 language used ; whether subsequent changes in the circumstances 
 of the parties, or the condition of the subject matter have war- 
 r^mted any departure from that mode ; whether in consideration 
 of the nature of the act to be done, or the time and place of doing 
 it, custom or necessity have added to, or subtracted from, the 
 powers originally conferred. 
 
 It is the purpose of Book II to ascertain the principles upon 
 which the solution of these questions rests. 
 
 § 272. Nature and Extent of the Authority. In determining 
 these principles much must depend upon the general nature and 
 extent of the authority conferred. In its nature, the authority 
 may be either express or implied ; in its extent, it may be uni- 
 versal, general or special. 
 
 OF EXPRESS AND IMPLIED AUTHOEITT. 
 
 § 273. Where Authority is express. It has been seen in the 
 preceding book how the creation of an authority may be either 
 
 175
 
 § 274. THE LAW OF AGKNOY. [Book II. 
 
 express or implied, and nothing more need now be said upon that 
 particular subject. But in determining the scope of the authority 
 the question whether it is express or implied becomes important. 
 
 If the power be an express one, the extent of the authority 
 conferred, and the time, place and manner of its exercise may be 
 expected to be clearly defined. And to the degree to which this 
 is done, the limits fixed are necessarily conclusive upon all parties 
 who have notice of them.* So, to the extent to which the power 
 is express it is exclusive of every other main power, for while usage 
 and necessity may often determine the mode in which the power 
 is to be exercised, they cannot operate to change the essential char- 
 acter of the authority conferred.' Parties dealing with an agent 
 known by them to be acting under an express power, whether 
 the authority conferred be general or special, are bound to take 
 notice of the nature and extent of the authority conferred. They 
 must be regarded as dealing with that power before them, and 
 are bound at their peril to notice the limitations thereto prescribed 
 either by its own terms or by construction of law.* So where 
 the act assumed to be done by the agent is one for which the 
 authority is required by law to be conferred by a written instru- 
 ment or by a writing under seal, the parties dealing with him 
 must take notice of that fact and they will be bound by any limi- 
 tations or restrictions contained therein, although they have not 
 had actual knowledge of them.* 
 
 § 274. Where Authority is implied. Although, as has been 
 
 »Towleii. Leavitt, 23 N. H. 360, 55 281, 62 Am. Dec. 648; The Floyd 
 
 Am. Dec. 195; Brown v. Johnson, 12 Acceptances, 7 Wall. (U. 8.) 666; 
 
 Smedes & M. (Miss.) 398, 51 Am. Whiteside t>. United States, 93 U. 8. 
 
 Dec. 118; Hurley B. Watson, — Mich. 247; Lewis v. Commissioners, 12 
 
 — , 13 West. Rep. 543; Chaffe c. Kans. 186; Craycraft v. 8elvage, 10 
 
 Stubbs, 37 La. Ann. 656; Rust v. Bush. (Ky.) 696; Dozier v. Fietmau, 
 
 Eaton, 24 Fed. Rep. 830; Stainback 47 Miss. 647; Baxter «. Lamont, 60 
 
 t. Read, 11 Gratt. (Va.) 281, 62 Am. 111. 237; Cruzan^. Smith, 41 lad. 288; 
 
 Dec. 648; Bryants. Moore, 26 Me. 84, Blackwell v. Ketcham, 53 Ind. 184; 
 
 45 Am. Dec. 96; Wood Mow. & Reap. Silliman r. Fredericksburg, &c., R. 
 
 Machine Co. r. Crow, 70 Iowa, 340; R. Co. 27 Gratt. (Va.) 120; Snow v, 
 
 Siebold t. Davis, 67 Iowa, 561; Bo- Warner, 10 Mete. (Mass.) 132, 43 Am. 
 
 oart V. Oberne, 36 Kans. 284. Dec. 417. 
 
 sRobinsone. Mollett, L. R. 7 H. of * Peabody r. Hoard, 48 111. 242; 
 
 L. 802, 14 Eng. Rep. (Moak.) 177, re- Weise's Appeal, 72 Penn. St. 351; 
 
 versing the same case in L. R. 7 C. P. National Iron Armor Co. c. Bruner, 
 
 84, 1 Eng. Rep. 335. 19 N. J. Eq. 331 ; Reese v. Medlock, 
 
 » Stainback v. Read, 11 Gratt. (Va.) 27 Tex. 120, 84 Am. Dec. 611. 
 
 176
 
 Chap. 1.] 
 
 NATURE OF THE AUTHORITY. 
 
 §27i. 
 
 seen, authoritj may be implied from the words and conduct of 
 the parties, or from the circumstances of the case, yet the extent 
 of the authority so implied cannot exceed the necessary and legiti- 
 mate effect of the facts from which it is inferred, but must be 
 limited to the performance of like acts under like circumstances.* 
 And so, as has been elsewhere noticed, the authority, if implied 
 at all, can only be implied from facts. It is not to be created by 
 mere presumption, nor by any abstract considerations, however 
 potent, that it would be expedient or proper or convenient that 
 the aurhority should exist.* The authority if it exists at all must 
 find its source in the intention of the principal, either express- 
 ed or implied. If that intention cannot be shown, the authori- 
 ty cannut exist.* 
 
 ' See Graves v. Horton, — Minn. 
 — , 35 N. W. Rep 568, where Mitch- 
 ell, J., says: "It is true that agency 
 may be proved from the habit and 
 course of dealing between the parties; 
 tliat is, if one has usually or fre- 
 quently employed another to do cer- 
 tain acts for him, or has usually rati- 
 fied such acts when done by him, 
 such person becomes his implied 
 agent to do fueh arts; as, for example, 
 the case of the manager of a plantation 
 in buying supplies for it, or the super- 
 intendent of a sawmill in making 
 contracts for putting in logs for the 
 use of the mill, which are the cases 
 cited by respondent. It is also 
 true, as was said in Wilcox «. Rail- 
 road Co., 24 Minn, 269 (which in- 
 volved the question of the authority 
 of the person to whom goods were 
 delivered to receive them), a single 
 act of an a-sumed agent, and a single 
 recognition of it, may be of so un- 
 equivocal and of so positive and 
 comprehensive a character as to place 
 the authority of the agent to do 
 rimilar acta for the principal beyond 
 question. It is also true that the 
 performance of subsequent as well as 
 prior acts, authorized or ratified by 
 the principal, may be evidence of 
 
 agency, where the acts are of a simi- 
 lar kind, and related to a continuous 
 series of acts embracing the time of 
 the act in controversy, as indicating a 
 general habit and course of dealing ; 
 as for example, the acts of the presi- 
 dent of a railroad company in making 
 drafts in the name of the company, 
 which were honored by it, which 
 was the case of Olcott v. Railroad 
 Co., 27 N Y. 546. cited by counsel. 
 But we think the books will be 
 searched in vain for a case where it 
 was ever held that authority to nego- 
 tiate for the sale of property to one 
 person at one time on certain terms, 
 the transfer to be made by the prin- 
 cipal in person, was evidence of 
 authority to sell and transfer the 
 same property at some former time 
 to another person on different terms." 
 See also Rusby v. Scarlett, 5 Esp. 76; 
 Baines v. Ewing, L. R. 1 Exch. 320; 
 B&jv. Boyd, 6 Heisk. (Tenn.) 458; 
 Cooley V. Willard, 34 111. 68, 85 Am. 
 Dec. 296; Johnson v. Wingate, 29 
 Me. 404; Surles ». Pipkin, 69 N. C. 
 513; Washington Bank v. Lewis, 22 
 Pick. (Mass.) 24. See also post, % 312. 
 »Bickford v. Menier, 107 N.Y. 490, 
 •Law V. Stokes, :J Vroom (N. J.) 
 349, 90 Am. Dec. C55. 
 
 12 
 
 177
 
 § 276. THE LAW OF AGENCY. [Book II. 
 
 II. 
 UNTVERSAL, GENERAL AND SPECIAL AGENCIES. 
 
 § 275. In general. The classification of agencies, based upon 
 the extent of the authority conferred, into universal, general and 
 special, has already been referred to. Cases of true universal 
 agency are very rare. They can only be created by clear and 
 unequivocal language and will not be inferred from any general 
 expressions, however broad.* No special attention therefore will 
 be given to them in this connection, what may be said in 
 reference to general agencies applying a fortiori to the uni- 
 versal. 
 
 § 276. Persons dealing with Agent must ascertain his Author- 
 ity. In approaching the consideration of the- inquiry whether an 
 assumed authority exists in a given case, there are certain funda- 
 mental principles which must not be lost sight of. Among these 
 are, as has been seen, that the law indulges in no bare presump- 
 tions that an agency exists ; it must be proved or presumed from 
 facts ; that the agent cannot establish his own authority, either 
 by his representations or by assuming to exercise it ; tliat an au- 
 thority cannot be established by mere rumor or general reputa- 
 tion; that even a general authority is not an unlimited one, and 
 that every authority must find its ultimate source in some act of 
 the principal. Persons dealing with an assumed agent there- 
 fore, whether the assumed agency be a general or special one, 
 are bound at their peril, to ascertain not only the fact of the 
 ao-eucy but the extent of the authority, and in case either is 
 controverted, the burden of proof is upon them to establish 
 it.* 
 
 S 277. DiEFerent Aspects of Question. The authority of an 
 ao^ent in a given case has three aspects ; one, looking to the rela- 
 tions between the agent and his principal ; another, to the rela- 
 
 1 Gulick c. Grover, 83 N. J. L. 463. Wamer, 10 Mete. (Mass.) 133, 43 Am. 
 
 97 Am. Dec. 728. "Dec. 417; Dickinson County v. Miss- 
 
 2 Rice V. Peninsular Club, 53 Mich. issippi Valley Ins. Co., 41 Iowa, 286 
 87; Chaffe v. Stubbs, 37 La, Ann. Beringer ?>. Meanor, 85 Penn. St.223 
 656; Rust t). Eaton, 24 Fed. Rep. 830; Weise's Appeal, 72 Penn. St. 351 
 Reitz V. Martin, 12 Ind. 306, 74 Am. Dozier v. Freeman, 47 Miss. 647 
 Dec. 215; Hurley «. Watson, — Mich. Davidson «. Porter, 57 Dl. 300. 
 , 13 West. Rep. 543; Snow v. 
 
 178
 
 Chap. I.] NATURE OF THE AUTHOBITT. § 278. 
 
 tions between the agent and third persons ; and the third, to the 
 relations between the principal and third persons ; and no two of 
 these aspects will always be identical. Thus the agent may bind 
 himself to third persons by assuming to have an authority which 
 he does not in fact possess, but he cannot bind his principal by 
 any such assumption. He may, however, bind his principal to 
 third persons, in certain cases, even though the act done exceed- 
 ed or violated his instructions from his principal ; but in so doing 
 he may also make himself liable to his principal for damages sus- 
 tained by the latter on account of such violation. 
 
 § 278. Authority an Attribute of Character bestowed by the 
 Principal. By the creation of the agency, the principal bestows 
 upon the agent a certain character. For some purpose, during 
 some time and to some extent, the agent is to be the alter ego, — 
 the other self, of the principal. This purpose, time and extent 
 are determined by the principal to suit the needs or objects which 
 he has in view, and which the agent is expected to accomplish. 
 These, however, are matters in which third persons have no part ; 
 they are considered and determined by the principal alone. 
 What third persons are interested in, is, not the secret processes 
 of the principal's mind, but the visible result of those processes, 
 — the character in which the agent is held out by the principal 
 to those who may have occasion or opportunity to deal with him. 
 This character is a tangible, discernible thing, and, so far as third 
 persons are concerned, must be held to be the authorized, as it is 
 the only, expression and evidence from which the principal in- 
 tends that they shall determine his purposes and objects. They 
 must conclude, and have a right to conclude, that the principal 
 intends the agent to have and exercise those powers, and those 
 only, which necessarily, properly and legitimately belong to the 
 character in which he holds him out. 
 
 The authority of an agent in any given case, therefore, is an 
 attribute of the character bestowed upon him in that case by the 
 principal. Thus if the principal has by his express act, or as the 
 logical and legal result of his words or conduct, impressed upon 
 the agent the character of one authorized to act or speak for him 
 in a given capacity, authority so to speak and act, follows as a 
 necessary attribute of the character, and the principal having 
 conferred the character will not be heard to assert, as against 
 third persons who have relied thereon in good faith, that he did 
 
 179
 
 § 279. THE LAW OF AGENCY. [Book II. 
 
 not intend to impose so much authority, or that he had given the 
 agent express instructions not to exercise it. The latter question 
 is one to be settled between the agent and himself. It rested 
 with the principal to determine in the first instance what charac- 
 ter he would impart, but having made the determination and 
 imparted the character, he must be held to have intended also 
 the usual and legal attributes of that character. 
 
 § 279. The Province of Instructions— Apparent Authority 
 cannot be limited by secret Instructions. It is not to be in- 
 ferred, however, that third persons have the right to attribute to 
 the agent any powers they please, and by so doing bind the prin- 
 cipal. It is lawful for the principal to confer as much or as little 
 authority as he sees fit. He may impose all such lawful restric- 
 tions and limitations upon it as he thinks desirable, and these 
 restrictions and limitations will be as binding and conclusive 
 upon third persons who have notice of them as upon the agent, 
 provided the principal has done nothing to waive or nullify them. 
 But on the other hand, instructions or limitations which are not 
 disclosed cannot be permitted to affect apparent powers. 
 
 The criterion in this case, as in others, is the character be- 
 stowed by the principal. He may not hold the agent out in the 
 character of one having a general or a special power, and bind 
 third persons who have relied thereon in good faith, by secret 
 limitations and restrictions upon the agent's authority which are 
 inconsistent with the character bestowed. Although the agent 
 violates his instructions or exceeds the limits set to his authority, 
 he will yet bind his principal to such third persons, if his acts are 
 within the scope of the authority which the principal has caused 
 or permitted him to appear to possess. But if the agent be not 
 held out as one possessing other than the limited and restricted 
 power, then the instructions and the authority may coincide.' 
 
 »Munn t». Commission Co. 15 Dec. 358; Towle t). Leavitt, 23 N. H. 
 
 Johns. (N. T.) 44, 8 Am. Dec. 219; 860, 55 Am. Dec. 195; Bryant v. 
 
 Rossiter e. Rossiter, 8 Wend. (N. Y.) Moore, 26 Me. 84, 45 Am. Dec. 96; 
 
 494. 24 Am. Dec. 62; Walker c. Skip- Merchants Bank e. Central Bank, 1 
 
 with, Meigs (Tenn ) 502, 33 Am. Dec. Ga. 418, 44 Am. Dec, 665; Williams 
 
 161; Commercial Bank «?. Kortright, v. Getty, 31 Penn. St. 461,72 Am. 
 
 22 Wend. (N. Y.) 348, 34 Am. Dec. Dec. 757; Lister e. Allen, 31 Md. 543» 
 
 317; Topham v. Roche. 2 Hill (S. C.) 100 Am Dec. 78; Carmichael v. 
 
 807,' 27 Am. Dec. 387; Lobdell e. Buck, 10 Rich. (S. C.) L. 332, 70 Am. 
 
 Baker, 1 Mete. (Mass.) 193, 35 Am. Dec. 226; Butler v. Maples, 9 Wall. 
 
 180
 
 Ohap. I.] 
 
 NATURE OF THE AUTHORITT. 
 
 §281. 
 
 § 280. The Doctrine of implied Powers. It is a fundamental 
 principle in the law of agency that every delegation of power 
 carries with it the authority to do all those things which are rea- 
 sonably necessary and proper to carry into effect the main power 
 conferred, and which are not forbidden.* The reasons and pur- 
 poses of this rule will be more fully considered hereafter, but it 
 requires to be mentioned in this place as one of the elements 
 which go to make up the authority of the agent in a given case. 
 
 § 281. Powers conferred by Usage. Where the principal 
 confers upon his agent an authority of a kind, or empowers him 
 to transact business of a nature, in reference to which there is a 
 well defined and publicly known usage, it is the presumption of 
 the law, in the absence of anything to indicate a contrary intent, 
 that the authority was conferred in contemplation of the usage, 
 and third persons, therefore, who deal with the agent in good faith 
 and in the exercise of reasonable prudence, will be protected 
 against limitations upon the nsual authority, of which they had 
 no notice." 
 
 (U S.)766; Union Mut. Ins. Co.*. 
 Wilkinson, 13 Wall. (U. S.) 222; 
 Paine v. Tillinghast, 52 Conn. 532; 
 Abbott V. Rose, 63 Me. 194; Home 
 Life Ins. Co. «. Pierce, 75 111. 426; 
 Murphy v. Soutiiern Life Ins. Co. 3 
 Baxter (Tenn.) 440; Cruzan v. Smith, 
 41 Ind. 288; Bell v. Offutt, 10 Bush 
 (Ky.) 633; Cosgrove v. Ogden. 49 N. 
 Y. 255; Morton v. Scull, 23 Ark. 289; 
 Furnas «. Frankman, 6 Neb. 429; 
 Willard v. Buckingham, 36 Conn. 
 895; Gelding v. Merchant, 43 Ala. 
 705; Adams Express Co. v. Schles- 
 Binger, 75 Penn. St. 246; Palmer v. 
 Cheney, 35 Iowa, 281; Williams v. 
 Mitchell, 17 Mass. 98; Odiorne v. 
 Maxcy, 13 Mass. 178; Hough v. Doyle, 
 4 Rawle (Penn.) 291 ; Shelhamer v. 
 Thomas. 7 Serg. & R. (Penn.) 106; 
 Wilcox V. Routh, 9 Smedes & M. 
 (Miss.) 476; Howry v. Eppinger, 34 
 Mich. 29; Davenport v. Peoria, &c. 
 Ins. Co. 17 Iowa, 276. 
 
 * See post, §311. 
 
 • Adams v. Pittsburgh Ins Co. , 95 
 
 Penn. St. 348, 40 Am. Rep. 663; 
 Pickering v. Busk, 15 East 38; White- 
 head V. Tuckett, 15 East 400; Wil- 
 liams V. Getty, 31 Penn. St. 461, 72 
 Am. Dec. 757; York County Bank 
 V. Stlue, 24 Md. 447; Wright v. 
 Solomon, 19 Cal. 64, 79 Am. Dec. 
 196; Chouteaux v. Leech, 18 Penn. 
 St. 234, 57 Am. Dec. 603; McMasters 
 «. Pennsylvania R. R. Co. 69 Penn. 
 St. 374, 8 Am. Rep. 284; Minor v. 
 Mechanics Bank, 1 Pet. (U. 8.) 46; 
 Mount Olivet Cemetery u. Shubert, 
 2 Head (Tenn.) 116; Schuchardt v. 
 Aliens, 1 Wall (U. S.) 359; Greely v. 
 Bartlett, 1 Greenl. (Me.) 172. 10 Am. 
 Dec. 54; Day v. Holmes, 103 Mass. 
 806; Daylight Burner Co. v. Odlin, 
 51 N. H. 56, 12 Am. Rep. 45; Smith 
 V. Tracy, 36 N. Y 79; Goodenow «. 
 Tyler, 7 Mass. 36, 5 Am. Dec. 22; 
 Frank r. Jenkins, 22 Ohio St. 597; 
 Willard v. Buckingham, 36 Conn, 
 895; Randall v. Kehlor, 60 Me. 37; 
 Upton V. Suffolk County Mills, 
 11 CuBh, (Mass.) 586; 69 Am. Dec. 
 
 181
 
 §282. 
 
 THE LAW OF AGENCY. 
 
 [Book II. 
 
 In order to give the usage this effect it must be reasonable ;* it 
 must not violate positive law ;* and it must have existed for such 
 a time, and become so widely and generally known, as to warrant 
 the presumption that the principal had it in his view at the time 
 of the appointment of the agent.' But if the usage was a 
 purely local and particular one, the principal may repel this pre- 
 sumption of knowledge by showing that in fact he had no notice 
 of it.* 
 
 Usage, however, cannot operate to change the intrinsic charac- 
 ter of the relation,* nor will it be permitted as between the 
 principal and the agent, or as between the principal and third 
 persons having notice of them, to contravene express instruc- 
 tions,* or to contradict an express contract ' to the contrary. So 
 a usage not known to the principal, cannot operate to authorize 
 the making of an invalid instead of a valid contract, or to bind 
 him to take one thing when he has ordered another." 
 
 § 282. What constitutes Authority. The authority of the 
 agent, so far as it concerns the rights of third persons, may thus 
 
 163; Brady t). Todd. 9 C. B. (N. S.) 
 592; Pickert v. Marston, 68 Wis. 
 465, 60 Am. Rep. 876; American 
 Cent. Ins. Co. v. McLanathan, 11 
 Kans. 533; Bailey v. Bensley, 87 
 111. 556; Phillips v. Moir, 69 111. 155. 
 
 » Knowles v. Dow, 22 N. H. 387, 
 55 Am. Dec. 163; Minnesota Cent. R. 
 R. Co. e. Morgan, 52 Barb. (N. Y.) 
 217; Wadley v. Davis, 63 Barb. (N. 
 Y.)500. 
 
 » Raisin v. Clark, 41 Md. 158, 20 
 Am. Rep. 66; Farns worth v. Hem- 
 mer, 1 Allen (Mass.) 494, 79 Am. 
 Dec. 756. 
 
 » Adams «. Pittsburgh Ins. Co., 
 95 Penn. St. 248, 40 Am. Rep. 
 663; Citizens Bank «. Grafflin, 31 
 Md. 507, 1 Am. Rep. 66; Smith v. 
 Wright, 1 Caines (N. Y.) 43, 2 Am. 
 Dec. 162; Porter v. Hills, 114 Mass. 
 106; Fowler v. Pickering, 119 Mass. 
 33. 
 
 < Walls V. Bailey, 49 N. Y. 464. 10 
 Am. Rep. 407; Bradley c. Wheeler, 
 44 N. Y. 500; Higgins v. Moore, 34 
 
 N. Y. 417; Barnard «. Kellogg; 10 
 Wall. (U. 8.) 383; Fisher v. Sargent, 
 10 Cush. (Mass.) 250; Caldwell t>. 
 Dawson, 4 Mete. (Ky.) 121. 
 
 • Robinson e. MoUett, L. R. 7 H. 
 of L. 802, 14 Eng. Rep. (Moak.) 177. 
 
 • Barksdale v. Brown, 1 Nott. & M. 
 (S. C.) 517, 9 Am. Dec. 720; Hall ©. 
 Storrs, 7 Wis. 253; Bliss v. Arnold, 
 8Vt. 253,30 Am. Dec. 467; Hufchings 
 V. Ladd, 18 Mich. 493; Lehnd v. 
 Douglass, 1 Wend. (N. Y.) 490; Clark 
 V. Van Norlhwick, 1 Pick. (Mass) 
 343; Catlin v. Smith, 24 Vt. 85; Day 
 V. Holmes, 103 Mass. 306; Parsons* 
 Martin, 11 Gray (Mass.) 112. 
 
 f Brown v. Foster, 113 Mass. 138, 
 18 Am. Rep. 463, Randall v. Smith, 
 63 Me. 105. 18 Am Rep. 200; Rogers 
 V. Woodruff, 23 Ohio St. 6:J2, 13 Am. 
 Rep. 276; Grinnell v. Western Union 
 Tel. Co. 113 Mass. 299, 18 Am. Rep. 
 485. 
 
 8 Perry c. Barnett, 15 Q. B. Div. 
 388. 
 
 182
 
 Chap. I.] NATUBB OF THE AUTHOKITY. § 282. 
 
 be a composite matter made up of a number of elements. It 
 consists — 
 
 First, and primarily, of the powers directly and intentionally 
 conferred by the voluntary act of the principal.' 
 
 Second, of those incidental powers which are reasonably neces- 
 sary and proper to carry into effect the main powers conferred 
 and which are not known to be prohibited.* 
 
 Third, of those powers which usage and custom have added to 
 the main powers, and which the parties are to be deemed to have 
 had in contemplation at the time of the creation of the agency, 
 and which are not known to have been forbidden.' 
 
 Fourth, of all such other powers as the principal has, by his 
 direct act or by negligent omission or acquiescence, caused or 
 permitted persons dealing with the agent reasonably to believe 
 that the principal had conferred.* 
 
 Fifth, of all those other powers whose exercise by the agent, 
 the principal has subsequently, with full knowledge of the facts, 
 ratified and confirmed.* 
 
 For the acts done in pursuance of those powers which were 
 directly conferred or which were incidental to those powers and 
 not prohibited, the principal is of course responsible, because 
 they are the direct result of his voluntary and intentional act. 
 He is likewise responsible, and for the same reasons, for those 
 acts which he has intentionally led third persons to believe that he 
 had authorized. He is responsible for the acts of the agent 
 which he has, by negligent omission or acquiescence, led the per- 
 sons dealing with the agent'to believe he has authorized, because 
 to deny them would be a fraud upon innocent persons.' He is 
 
 » This of course follows directly as • See ante. Chapter on Ratification, 
 
 the result of the maxim, Qui faeit • The general rule is so well stated 
 
 per aZium, faeit per to. by Defoe, J., in Law v. Stokes, 3 
 
 * See ante, § 280. Vroom (K J.) 249, 90 Am. Dec. 655. 
 
 • See ante, § 281. as to warrant its full quotation: " A 
 « " The scope of an agency Is to be principal is bound by the acts of his 
 
 determined not alone from what the agent within the authority he has 
 principal may have told the agent to actually given him, which includes 
 do, but from what he knows, or in not only the precise act which he ex- 
 the exercise of ordinary care and pressly authorizes him to do, but also 
 prudence ought to know, the agent is whatever usually belongs to the do- 
 doing in the transaction." Kingsley ing of it or is necessary to its per- 
 «. Fitts, 61 Vt. 414. See cases cited formance. Beyond that he is liable 
 in § 84, ante. for the acts of the agent within the 
 
 183
 
 § 2S3. THE LAW OF AGENCY. [Book IL 
 
 responsible for those acts which he has subsequently ratified and 
 confirmed upon the ground that such a ratification is equivalent 
 to a precedent authority. 
 
 As between the agent and the principal the authority would 
 consist of the same elements as in the case of third persons, with 
 the exception that the forbidden powers and secret limitations 
 which would not affect third persons who were ignorant of them, 
 bind the agent who must necessarily have knowledge of them. 
 
 283. General and Speoial Authority. These principles apply 
 to all cases. If by express appointment, or by long acquiescence, 
 recognition or course of dealing, one man has held another out 
 to the world in the character of one possessing the requisite au- 
 thority to represent him in a general way in the transaction of 
 all of his business of a certain kind, he must be held to have 
 conferred upon him the attributes and powers inherent in the 
 character so bestowed. Such an agent, the law denominates, for 
 convenience sake, a general agent. 
 
 But if, on the other hand, in a single instance, either by ex- 
 press terras or by his conduct, he holds the other out to the world 
 in the character of one having authority to do a single thing, 
 perhaps in a specific way, he must be held to have conferred upon 
 him those attributes and powers, and those only, which are in- 
 herent in that character. This agent, for the same convenience, 
 is termed a special agent. 
 
 In either case, the question of the authority of the agent must 
 depend, so far as it involves the rights of innocent third persons 
 who have relied thereon, upon the character bestowed and not 
 upon the instructions given. Or, in other words, the principal 
 
 appearance of authority which the cause to permit him to dispute the 
 
 principal himself knowingly permits authority of the agent in such cases 
 
 the agent to assume, or which he would be to enable him to commit a 
 
 holds the agent out to the public as fraud upon innocent persons. In 
 
 possessing. For the acta of his whichever way the liability of the 
 
 agent, within his express authority, principal is established, it must flow 
 
 the principal is liable, because the from the act of the principal. And 
 
 act of the agent is the act of the when established it cannot.on the one 
 
 principal. For the acts of the agent hand be qualified by the secret in- 
 
 within the scope of the authority he structions of the principal, nor on 
 
 holds the agent out as having, or the other hand be enlarged by the 
 
 knowingly permits him to assume, unauthorized representations of the 
 
 the principal is made responsible; be- agent." 
 
 184
 
 Chap. I.] 
 
 NATURE OF THE AUTHORITT. 
 
 § 2s;;. 
 
 is bound to third persons who have relied thereon in good faith 
 and in ignorance of any limitations or restrictions, by the appar- 
 ent authority he has given to the agent, and not by the actual or 
 express authority where that differs from the apparent, and this, 
 too, whether the agency be a general or a special one.' 
 
 But it is not by any means to be inferred that the apparent and 
 the actual authority can never coincide, or that the agent has, in 
 all cases, an indefinite quantum of power beyond or regardless 
 of his instructions. The actual and the apparent authority are 
 naturally and primarily the same, and if, inany given case, it beheld 
 that the apparent exceeds the actual, it is because the principal 
 
 » It has been said by a learned 
 Judge: " The authority of a general 
 agent may be more or less extensive; 
 and he may be more or less limited in 
 his action within the scope of it. The 
 limitation of his authority may be 
 public or private. If it be public, 
 those who deal with him must 
 regard it, or the principal will 
 not be bound. If it be private 
 the principal will be bound when 
 agent is acting within the scope of 
 his aulliority, although he should 
 violate his secret instructions. A 
 special agent is one employed for a 
 particular purpose only. He also 
 may have a general authority to ac- 
 complish that purpose, or be limited 
 to do It in a particular manner. If 
 the limitation respecting the manner 
 of doing it be public or known to 
 the person with whom he deals, the 
 principal will not be bound if the in- 
 structions are exceeded or violated. 
 If such limitation be private, the 
 agent may accomplish the object in 
 violation of his instructions, and yet 
 bind his principal by his acts." Shep- 
 LEY,J.,in Bryant r.Moore, 20 Me. h4, 
 45 Am. Dec. 96. And by another : 
 *' Where the authority is limited in a 
 boTuifide manner, and the limitation 
 is to be disclosed by the agent and 
 is disclosed either with or without 
 inquiry, any departure from such 
 
 authority or instructions will not 
 bind the principal; but where the 
 authority or instructions given are in 
 the nature of private instructions and 
 so designed to be, they will not be 
 binding upon the parties dealing with 
 the agent. And if the instructions 
 are of such a nature that they would 
 not be communicated if an inquiry 
 was made, (even though it be the 
 duty of the person dealing with the 
 agent to make the inquiry) it is not 
 necessary that it should be made 
 for it would not be communicated if 
 made." Eastman, J., in Towle v. 
 Leavitt, 23 N. H. 360, 65 Am. Dec. 
 195. 
 
 " While the rule is that an agent 
 must act within the scope of his au- 
 thority, yet when the agent's act af- 
 fects innocent third parties the prin- 
 cipal will be bound to the extent of 
 the apparent authority conferred by 
 him on his agent. A principal is 
 bound equally by the authority which 
 he actually gives, and by that which 
 by his own act he appears to give." 
 Webster v. Wray, 17 Neb. 579. See 
 also Van Duzer v. Howe, 21 N. Y. 
 531; Redlich v. Doll, 54 N. Y. 234; 
 Garrard v. Haddan, 67 Penn. St. 83, 
 5 Am. Rep. 412; Hatch, v. Taylor, 10 
 N. H. 538; Carmichael v. Buck, 10 
 Rich. (S. C.) 332, 70 Am. Dec. 236. 
 
 185
 
 § 284. THE LAW OF AGKKOY. [Book II. 
 
 haS) bj his own act or omission, cansed it to be so. The law never 
 
 indulges in the bare presumption that they are not identical. In- 
 deed, this distinction between the actual and apparent authority is 
 in this connection misleading. So far as third persons are con- 
 cerned the apparent authority must be regarded as the real author- 
 ity, where they have no knowledge or notice to the contrary. 
 
 § 284. Same Subject The distinction between a general and 
 a special agency has been deemed to be one of great importance, 
 and a large number of decisions have been made to turn upon it. 
 It is believed, however, that the distinction, as it is ordinarily 
 drawn, is highly artificial and unsatisfactory, if not positively 
 misleading, and that it might well be dispensed with. 
 
 The importance of this distinction, has been said by Mr. Par- 
 sons,' whose language has been much quoted, to lie in the rule 
 that " if a particular agent exceed his authority, the principal is 
 not bound ; but if a general agent exceed his authority, the princi- 
 pal is bound, provided the agent acted within the ordinary and 
 usual scope of the business he was authorized to transact, and 
 the party dealing with the agent did not know that he exceeded 
 his authority." This rule, however, cannot be regarded as 
 strictly accurate. So far as the rights of third persons, who have 
 no knowledge of limitations on his authority are concerned, — and 
 this is what the rule given contemplates, — the agent must be 
 deemed to have authority to do those acts which are within the 
 ordinary and usual scope of the business he was empowered to 
 transact. Such an act therefore cannot be deemed to be in excess 
 of his authority. The very fact that it is, under such circum- 
 stances, declared to be binding upon the principal necessarily pre- 
 supposes that it was authorized. On the other hand, if tlie agent 
 really exceeded his authority the principal could not be bound 
 whether the agency be a general or a special one. The difficulty 
 with this rule is that it fails to discriminate between instructions 
 and authority. 
 
 But many statements of the rule go still further and it is fre- 
 quently declared that if the special agent exceeds his instructions 
 the principal is not bound ; while if the general agent exceeds 
 his instructions, the principal will be bound. This statement is 
 still more misleading than the other, and no little confusion has 
 
 'Parsons on Contracts, Vol. L, p. 42. 
 186
 
 Chap. I.] NATTJBB OF THE AUTHOEITT. § 285, 
 
 crept in to the books because of it. As has been seen instruo- 
 tions, even in case of a special agent, are not in every case the 
 measure of power. They may exactly encompass the authority, 
 but they do not necessarily do so. They may be intentionally or 
 negligently waived or disregarded by the act of the principal. 
 Even in the case of a special agent, it is the character bestowed, 
 — the apparent authority conferred, — which is the test, and not 
 the instructions given. 
 
 That Mr. Parsons himself was not misled by this distinction is 
 evident from what he says further on : " We think the distinction 
 between a general agency and a special agent useful, and suffi- 
 ciently definite for practical purposes, although it may have been 
 pressed too far, and relied upon too much in determining the re- 
 sponsibility of a principal for the acts of an agent. It may, in- 
 deed, be said that every agency is, under one aspect, special, and 
 under another, general. No agent has authority to be in all re- 
 spects and for all purposes an alter ego of his principal, binding 
 him by whatever the agent may do in reference to any subject 
 whatever ; and, therefore the agency must be special so far as it 
 is limited by place or time, or the extent or character of the work 
 to be done. On the other hand every agency must be so far 
 general that it must cover not merely the precise thing to be done, 
 but whatever usually and rationally belongs to the doing of it 
 Of late years, courts seem more disposed to regard this dis- 
 tinction and the rules founded upon it, as altogether subordinate to 
 that principle which may be called the foundation of the law of 
 agency, namely, that a principal is responsible, either when he has 
 giveii to an agent sufficient authority, or, when he justifies a party 
 dealing with his agent in believing that he has given to this agent 
 this authority." * 
 
 § 285. Same Subject— The true Distinction. Bnt it is none 
 the less true that the scope of the authority of a special agent is 
 ordinarily much more restricted than that of a general agent. 
 The fact that the authority is conferred in a special instance, to 
 
 » Contracts, Vol. I., pp. 43, 44. quite insufficient to solve a great 
 
 "Thiere are in the books many loose variety of cases. It is unprofitable 
 
 expressions concerning the distinc- to dwell on that distinction" Com- 
 
 tion between a general and a special stock,.!., in Mechanics' Rank v. New 
 
 agency. Tlie distinction itself is highly York, &c., R. R. Co., 13 N. Y. 633. 
 unsatisfactory and will be found 
 
 187
 
 § 285. THE LAW OF AGENCY. [Buok II. 
 
 do a specific act naturally leads to, if it does not positively 
 require, much more minuteness of direction and much s^reater 
 restrictions and limitations. From the very nature of the case, 
 particularity of instructions and singleness of method are to be 
 expected, and of this persons dealing with the agent may well be 
 required to take notice. 
 
 On the other hand, where the agent is authorized to transact 
 all the principal's business of a certain kind, the very brL'a<lth of 
 the employment and the variety of the duties to be performed 
 necessarily involve more or less of discretion and choice of 
 methods, and render impracticable, if not impossible, much of 
 particularity or precision, either as to the exact means and method 
 to be employed, or as to the scope or extent of the authority 
 itself. Where so little is expressed, more may well be implied. 
 The fact of such an authority, of itself, presupposes a general 
 confidence bestowed upon the agent, and a general committal to 
 his discretion and judgment of all beyond the essential objects to 
 be attained and the outlines of the course to be pursued. It may 
 not unreasonably be presumed, where nothing is indicated to the 
 contrary, that such an agent possesses those powers which are 
 commensurate with his undertaking, and which are usually and 
 properly exercised by other similar agents under like circum- 
 stances. This presumption may well be and is constantly relied 
 upon by persons dealing with such agents, and so reasonable, 
 proper and necessary is this reliance, that it may justly be 
 required that if the principal would impose unusual restrictions 
 upon the authority of such an agent, he should make them known 
 to persons who may have occasion to deal with the agent. 
 
 And herein, it is believed, lies the true distinction between 
 these two classes of agents. One is in its nature limited and 
 implies limitations of power. Of these limitations third persons 
 must inform themselves, unless the principal has by his words or 
 conduct held out the agent as one upon whose authority such 
 limitations are not imposed. The other is, in its nature, general 
 and unrestricted by other limitations that those which confine the 
 authority within the bounds of what is usual, proper and neces- 
 sary under like circumstances. If there are other limitations, the 
 principal must disclose them. 
 
 Neither of these rules dispenses with that which devolves upon 
 every person the duty of ascertaining not only the fact of the 
 
 188
 
 Chap. I.] NATURE OF THE AUTHOEITT. § 2S7. 
 
 agency but also the nature and extent of the authority which the 
 principal has apparently conferred. And neither of them per- 
 mits that authority to be defeated by secret limitations. 
 
 § 286. General Agency not unlimited. It is not, however, to 
 be supposed tliat the general agent's authority is entirely unlim- 
 ited. He is far from being a universal agent or a mere autocrat, 
 and while his authority is not to be constricted by undisclosed 
 limitations, it must, on the other hand, be confined to such trans- 
 actions and concerns as are incident and appurtenant to the busi- 
 ness of his principal and to that branch of the business which is 
 entrusted to his care.' As has been stated, a principal can have 
 but one universal agent, but he may have many general agents 
 neither of whom can encroach upon the province of the otiiers. 
 
 § 287. General Agent binds Principal only within the Scope 
 of his Authority . The general agent, therefore, binds his prin- 
 cipal when, and only when, his act is justiiied by the authority 
 conferred upon him. This authority being in its nature general 
 and not specific ; being often gathered from a variety of sources 
 and composed of different elements, the question of its sufficiency 
 becomes largely one of fact, and may be stated thus: — Viewing 
 all the facts and circumstances; taking into consideration the 
 object to be attained and the means to be adopted ; giving due 
 weight to such usages as were had in contemplation ; considering 
 wiiatever of extension or of modification has been wrought by 
 subsequent conduct ; is the act in controversy included within 
 the limits, or, as it is ordinarily stated, within the scope, of this 
 authority? If it is, the principal is bound ; if it is not, the act 
 of the agent binds himself alone or no one." 
 
 »Odiorne v. Maxcy, 13 M^ss. 178; michael v. Buck, 10 Rich. (S. C.) L 
 
 Stewart v. Woodward, 50 Vt. 78. 28 382. 70 Am Dec. 226; Savings Fund 
 
 Am. R<^p. 488. Society v. Savings Bank. 36 Penn. St. 
 
 2Muun 0. Commission Co., 15 49s, 78 Am. Dlc. 390; Coweta Falls 
 
 Joiins. (N. Y.) 44, 8 Am Dec. 219; Mnfg. Co. v. Rogers, 19 Ga, 416, 65 
 
 Rossiier w Hossiter, 8 Wend. (N. Y.) Am. Dec. 602; A^lier ■». Sutton, 31 
 
 494, 24 Am Dec. 63; Jtflfrey v. Bige- Kans. 286; Robinson v. Cbemical 
 
 low. 13 Wend. (N Y.) 518, 28 Am. Nat. Bank, 86 N. Y. 404; Reed v. 
 
 Dec. 47(); Goodloe v. Godley, 13 Asliburnliam R. R. 120 Mass. 43; 
 
 Smedes& M. (Miss.)233,51 Am. Dec. Abraliams v. Weiiler, 87 111. 179; 
 
 159; Keener v. Harrod, 2 Mi. 63, 56 Lewis v. Shreveport, 108 U. 8. 283; 
 
 Am. Dec. TOO; McCoy v. McKowen, Booth r Wiley, 102 111. 84; Nichol- 
 
 26 Miss. 487, 59 Am. Dec. 261; Car- son v. Moog, (55 Ala. 471; American 
 
 la9
 
 §288. 
 
 THE LAW OF AGENCY. 
 
 [Book II. 
 
 § 288. Special Agent's Authority must be strictly pursued. 
 The authority of the special agent being in its nature limited, its 
 scope is much more easy of determination and must not be ex- 
 ceeded ; or, as the rule is ordinarily stated, his authority must be 
 strictly pursued, and if it is not, the principal will not be bound.' 
 
 It is none the less true, however, as has been seen, that the 
 scope of the general agent's authority must not be exceeded. 
 Each acting within the scope of the authority conferred, binds 
 his principal ; each acting beyond that scope binds only himself. 
 But while these rules applying to the two classes are alike in 
 kind, they differ, as has been shown, in degree. It is believed, 
 however, that the difference is one of degree only, and not of 
 principle. 
 
 § 289. Third Persons must act in good Faith. It is evident 
 that these rules are established for the protection of third persons 
 who act in good faith. As has been stated, every person dealing 
 with an agent is bound to ascertain the nature and extent of his 
 authority.* He must not trust to the mere presumption of 
 
 Express Co. v. Milk, 73 111. 224; Kel- 
 ton V. Leonard, 54 Vt. 230; Lewis «. 
 Bourbon, 12 Kans. 186; Dodge v. Mc- 
 Donnell, 14 Wis. 553; Rboda v. An- 
 nis, 75 Me. 17, 46 Am. Rep. 354; 
 Ward's, «S;c. Co. v. Elkins, 34 Mich. 
 439; New York Life Ins. Co. v. Mc- 
 Gowan, 18 Kans. 300; Morton v. 
 Scull, 23 Ark. 289; Massachusetts 
 Life Ins. Co. v. Eshelman, 30 Ohio 
 St. 647; Planters' Ins. Co. v. Sorrells. 
 
 1 Baxter (Tenn.) 352; Noble v. Cun- 
 ningham, 74 111. 51. This list might 
 be very greatly extended but other 
 illustrations will appear in subsequent 
 portions of the work. 
 
 » Blane v. Proudfit, 3 Call (Va.) 207. 
 
 2 Am. Dec. 546; Thompson v. Stew- 
 art, 3 Conn. 171, 8 Am. Dec. 168; Beals 
 V. Allen, 18 Johns. (N. Y.) 363, 9 
 Am. Dec. 221; Towle v. Leavitt, 23 
 N. H. 360, 55 Am. Dec. 195; Baring 
 V. Peirce, 5 Watts & Serg. (Penn.) 
 548, 40 Am. Dec. 534; Brown v. John- 
 son, 12 Smedes & M. (Miss.) 393, 51 
 Am. Dec. 118; Pursley «. Morrison, 
 
 7Ind. 356, 63 Am. Dec. 424; Carmi- 
 chael V. Buck. 10 Rich. (S. C.) L. 332, 
 70 Am. Dec. 226; Savings Fund So- 
 ciety V. Savings Bank, 36 Penn. St. 
 498, 78 Am. Dec. 300; Thomas v. At- 
 kinson, 38 Ind. 256; Blackwell «. 
 Ketcham, 53 Ind. 186; Baxter v. La- 
 ment, 60111. 237; Adams v. Bourne, 
 9 Gray (Mass.) 100; Silliman v. Fred- 
 ericksburg, &c., R. R. Co. 27 Gratt. 
 (Va.) 119; Wooding v. Bradley, 70 
 Va. 614; Strawn v. CFIaia, 86 111. 
 53; Campbell v. Sherman, 49 Mich, 
 534; Saginaw, &c., R. R. Co. v. Chap- 
 pell. 56 Mich. 190. 
 
 ' " Whoever deals with an agent is 
 put on his guard by that very fact, 
 and does so at his ri.sk. It is his 
 right and duty to inquire into and 
 ascertain the nature and extent of the 
 powers of the agent, and to determine 
 whether the act or contract about to be 
 consumniHted comes within the prov- 
 ince of the agency and will or not 
 bind the principal." Bermudkz, C. 
 J. , in Chaffe v. Stubbs, 37 La. Ann. 
 
 190
 
 Chap. L] NATURE OF THE AUTHOEITT. § 291. 
 
 authority, nor to any mere assumption of authority by the agent. 
 He must at all times be able to trace the authority home to its 
 source. Keeping within the scope of that authority he is safe 
 and cannot be affected by secret instructions of which he was 
 ignorant. 
 
 But if he had knowledge of the instructions, or notice suffi- 
 cient to put him upon an inquiry by which they might have been 
 discovered, he will be held bound by them.' 
 
 § 290. Persons dealing with Agent must exercise reasonable 
 Prudence. The person dealing with the agent must also act 
 with ordinary prudence and reasonable diligence. If the charac- 
 ter assumed by the agent is of such a suspicious or unreasonable 
 nature, or if the authority which he seeks to exercise is of such 
 an unusual or improbable character, as would suffice to put an 
 ordinarily prudent man upon his guard, the party dealing with 
 him may not shut his eyes to the real state of the case, but should 
 either refuse to deal with the agent at all, or should ascertain 
 from the principal the true condition of affairs." 
 
 This is particularly true where the agent is a stranger or one 
 with whom the party has not dealt as agent. Care should be 
 taken in such a case not to rely upon appearances which may be 
 as consistent with other conditions as with the relation of prin- 
 cipal and agent. Thus the mere fact that a stranger has in his 
 possession and offers for sale the property of another as his agent, 
 is as consistent with the fact that the pretended agent is a mere 
 bailee or perhaps a thief, as that he actually has the authority 
 which he assumes to possess. 
 
 S 291. Same Subject— Must ascertain whether necessary Con- 
 ditions exist. So where the nature of the authority is such 
 
 656. See also Buzard v. Jolly, — Tex. him liable to a third party, who, in 
 
 6 8. W. Rep. 422. dealing with such agent fails to exer- 
 
 > Rust V. Eaton, 24 Fed. Rep. 830. else the diligence usual with good 
 
 « " The law is well settled," says business men under the circum- 
 
 Champlin, J., in Hurley v. Watson, stances. If there is anything likely 
 
 Mic!i. — , 13 West. Rep. 54:}, " that to put a reasonable business man 
 
 H person who deals with an agent is upon his guard as to the authority of 
 bound to inquire into his authority, the agent, it is the duty of the third 
 and ignorance of the agent's authority party to inquire how far the agent's 
 is no excuse. * * * The principal acts are in pursuance of the principal's 
 may be careless in reposing confidence limitation." See also Dozier v. Free- 
 in his agent, yet this does not make man, 47 Miss, 647. 
 
 191
 
 § 292. THE LAW OP AGENOT. [Book 11. 
 
 that it must have been conferred by written instrnment, or must 
 be a matter of public record, the party dealing with the agent 
 must, at his peril, take notice of this fact, and ascertain whether 
 the instrumeut or record is sufficient for the purpose.' 
 
 For similar reasons, if the authority is known to be open for 
 exercise only in a certain event, or upon the happening of a cer- 
 tain contingency, or the performance of a certain condition, the 
 occurrence of the event or the happening of the contingency or 
 the performance of the condition, must be ascertained by him 
 who would avail himself of the results ensuing from the exercise 
 of the authority.' 
 
 § 292. Same Subject— Authority of Public Agents must be 
 ascertained. And this rule is particularly true in the case of 
 public agents. Here the authority is a matter of public record 
 or of public law of which every person interested is bound to 
 take notice, and there is no hardship in confining the scope of 
 such an agent's authority witliin the limits of the express grant 
 and necessary implication.* The fact that the same act might 
 have been within the scope of the authority if created by a pri- 
 vate individual is not conclusive.* 
 
 Thus in a case involving the validity of a contract made by the 
 city commissioner of Baltimore, the court said: "Although a 
 private agent acting in violation of specific instructions yet within 
 the scope of a general authority, may bind the principal, the rule 
 
 ' See ante, § 373, post % 292. Iowa. 199. 87 Am. Dec. 42:;: State e. 
 
 « Craycraft v. Selvage, 10 Bush Hays, 52 Mo. 578; Di'laflt'ld />. -^late, 
 
 (Ky.) 696; Weise's Appeal. 72 Penn. 26 Wend (N Y.) 192; Pe-pl- t>. 
 
 St. 351; Kiikpatrick v. Winans, 1 0. Bank, 24 Wfn<i (N. Y.) 481; While- 
 
 E. Green (N. J. Ch.) 407. side v. United S'ates. 93 U. 8. 247. 
 
 'Mayor of Baltimore v. Eschbach, * Mayor v. E>cljbacb, supra; Mayor 
 
 18 Mil. 2S2; Mayor of Baltimore v. t. Reynold'*, supra. 
 Reynolds, 20 Md. 1, 83 Am. Dec. 535; "By the law of agency at the c m- 
 
 Slate V. Bank, 45 Mo. 528; Lee ». mon law, there is this diffi-rence 
 
 Munroe, 7 Cranch (U. S.) 366; Curtis between individuals and the govern 
 
 B. United Slates, 2 Nott. & Hunt (U. ment; the former are liahl.- to the 
 
 S. Ct. CI.) 144; Pierce®. United extent of the power they have appar- 
 
 States, 1 Id. 270; State u. Hastings, 10 ently given to their agents, while the 
 
 Wis. 518; Hull v. Marshall County, government is liable only to the ex- 
 
 12 Iowa. 270; Silliman v. Fredericks- tent of power it has actually given to 
 
 burg, &c. R. R. Co. 27 Gratt. (Va.) its officers." Lorinq, J. in Pieiceu, 
 
 119; The Floyd Acceptances, 7 Wall United States, supra. 
 (U. S.) 680; Clark ». DesMoines, 19 
 
 192
 
 Chap. I.] NATURE OF THB AUTHORITY. § 292, 
 
 as to the effect of a like act of a public agent is otherwise. The 
 city commissioner was the public agent of a municipal corpora- 
 tion, clothed with duties and powers specially defined and limited 
 by ordinance bearing the character and force of public laws, 
 ignorance of which can be presumed in favor of no one dealing 
 with him on matters thus conditionally within his official dis- 
 cretion. For this reason the law makes a distinction between the 
 effect of the acts of an officer of a corporation and those of an 
 agent of a principal in common cases. In the latter the extent 
 of the authority is known only to the principal and agent, while 
 in the former, it is a matter of record in the books of the cor^ 
 poration or of public law." * 
 
 » Mayor of Baltimore v. Eschbach, tuprck 
 13 193
 
 §293. 
 
 THE LAW OF AGENCY. 
 
 [Book U. 
 
 CHAPTER II. 
 
 OP THE CONSTRUCTION OF THE AUTHORITY. 
 
 % 293. Purpose of this Chapter. 
 
 I. When Authority ib conferred 
 
 BY WRITINa. 
 
 294. Construction of Writing for 
 
 Court. 
 
 295. Intention to govern. 
 
 296. How Intention discovered- 
 
 Language Used. 
 
 297. Entire Writing— Other Writ- 
 
 ings. 
 293. Surroundings of the Parties. 
 299. Parol Evidence — Latent and 
 
 patent Ambiguities. 
 
 800. Same Subject — Identifying 
 
 Subject-matter. 
 
 801. Same Subject — Parol Evi- 
 
 dence cannot enlarge Au- 
 thority. 
 
 802. Same Subject — Parol Evi- 
 
 dence cannot contradict 
 Writing. 
 
 803. Effect must be given to every 
 
 Word and Clause. 
 
 804. Transaction to be upheld 
 
 rather than defeated. 
 
 805. Authority to be interpreted in 
 
 Light of Lex Loci, 
 
 % 806. General Powers limited by 
 specific Object or Recital. 
 
 807. Construed to apply only to 
 Principal's private Business. 
 
 308. Only those Powers expressly 
 given or necessarily implied. 
 
 II. Where Authority is unwrit- 
 
 ten OR implied. 
 
 809. Where Authority is unwritten 
 
 but express. 
 
 810. Where Authority is unwritten 
 
 but implied. 
 
 811. Authority carries with it every 
 
 Power necessary to accom- 
 plish Object. 
 
 812. Implied Authority not to be 
 
 extended beyond its legiti- 
 mate Scope. 
 
 813. Implied Power limited to 
 
 Principal's Business. 
 
 III. Where Authority is ambio- 
 
 UOU8. 
 
 814. Duty of Principal to make his 
 
 Instructions clear. 
 315. Where ambiguous, Construc- 
 tion adopted in good Faith 
 sufficient. 
 
 § 293. Purpose of this Chapter. An anthority having been 
 conferred and an attempt made to exercise it, it becomes import- 
 ant to determine whether the act assumed to be done by virtue 
 of the given power is, in reality, embraced within it. This 
 leads to the necessity of construction or interpretation of the 
 authority. 
 
 In the main, the principles governing the construction of a 
 power do not differ from those which prevail in regard to the 
 interpretation of contracts generally. It is proposed in this 
 
 194
 
 Chap. II.] CONSTRUCTION OF THE AUTHOEITY. § 298. 
 
 chapter, to refer briefly to some of these and also to consider in 
 full some of the more important rules that apply to it. And in 
 pursuance of this purpose the subject will for convenience sake, 
 be divided thus: 1. When authority is conferred by written 
 instrument. 2. When authority is unwritten or arises from 
 implication, and 3. When authority is ambiguous. 
 
 WHEN ATJTHORrrr 18 CONFERRED BY WRITINO. 
 
 § 294. Construction of Writing for Court. The construction 
 or interpretation of writings is for the court. Hence where the 
 authority is created by a written instrument, the writing must, 
 in general, be produced, and the nature and extent of the au- 
 thority thereby conferred must be determined by the court.^ 
 
 § 295. Intention to govern. As has been seen, agency is, in 
 general, the creature of intention. Courts sit, not to make con- 
 tracts between parties, but to construe and enforce the contracts 
 which the parties have themselves made. Hence the first and 
 most important rule, in the construction of writings creating an 
 authority, is to ascertain what authority the parties intended to 
 create.* 
 
 § 296. How Intention discovered— Language used. The in- 
 tention of the parties is primarily to be determined from the 
 language used by them. And as a mistake of law does not con- 
 stitute a valid objection, parties cannot be heard to complain that 
 they did not contemplate the legal effect of the language which 
 they have deliberately chosen.' 
 
 § 297. Entire Writing— Other Writings. In this, as in other 
 cases, the intention is to be gathered from the whole instru- 
 ment, whether it be made up of one piece of paper or of many.* 
 
 § 298. Surroundings of the Parties. And so, in doubtful 
 cases, resort must be had to the situation, surroundings, and rela- 
 
 1 Savings Fund Society v. Savings Marsh. (Ky.) 285, 19 Am. Dec. 93. 
 Bank, 36 Penn. St. 498, 78 Am. Dec. See Bishop on Contracts, § 880. 
 
 590 » Bishop on Contracts, § 881 ; Hunt 
 
 2 Marr v. Given, 23 Me. 55. 89 Am. «. Rousmaniere, 1 Pet. (U. S.) 1 ; 
 Dec. 600; Vanada«. Hopkins, 1 J. J. Holmes v. Hall. 8 Mich. 66. 
 
 * Bishop on Contracts, § 383. 
 
 195
 
 § 299. THE LAW OF AGENCY. [Book II. 
 
 tions of the parties ; for though the writing cannot, in general, 
 be contradicted by oral evidence, yet the circumstances may prop- 
 erly be used as aids and, by putting the court more or less fully in- 
 to the exact situation of the parties, to enable it to see the subject- 
 matter as they saw it.^ 
 
 S 299. Parol Evidence— Latent and patent Ambiguities. In 
 the same manner an ambiguity or uncertainty not arising upon 
 the face of the instrument, may be explained by parol.* Where, 
 however, the ambiguity is in the writing itself, resort cannot thus 
 be had to the aid of parol explanation.' 
 
 S 300. Same Subject— Identifying Subject-matter. If the sub- 
 ject-matter be not described with. sufficient certainty, parol evi- 
 dence may be allowed to complete the description and identify 
 the thing intended.* 
 
 S 301. Same Subject— Parol Evidence cannot enlarge Authori- 
 ty. In general, parol evidence is not admissible for the purpose 
 of enlarging or extending the powers conferred by the written 
 instrument, and the nature and extent of the authority must be 
 ascertained from the instrument itself.* But, except where writ- 
 ing is indispensable, the principal may, notwithstanding this gen- 
 eral rule, expressly extend or change the agent's powers by parol ; 
 or he may hold the agent out as possessing greater powers than 
 those conferred by the writing ; or he may so conduct himself as 
 to be estopped from asserting that they were not greater.* 
 
 S 302. Same Subject— Parol Evidence cannot contradict "Writ- 
 ing. It is also a familiar rule that, in the absence of fraud or 
 mistake parol evidence cannot be admitted for the purpose of 
 varying or contradicting the written instrument.' This rule 
 however, in its application to the law of agency, is substantially 
 the same as the preceding, and is subject to the same exceptions 
 
 R 303. Effect must be given to every "Word and Clatise. "Wher- 
 
 1 Bishop on Contracts, |§ 372, 873. Mechanics' Bank e. Schaumburg, 88 
 
 •Bishop on Contracts, § 374. Mo. 228. 
 
 • Idem § 375. * Hartford Ins. Co. «. Wilcox, 67 
 
 «Pope t». Machias. &c., Co., 62 Me. 111. 182; "Williams e. Cochran, 7 Rich. 
 
 635; Norris «. Spoflord, 127 Mass. 85; (8. C.) 45; Coleman «. National Bank. 
 
 Bishop on Contracts, § 376. 63 N. Y. 388. 
 
 5 Ashley v. Bird, 1 Mo. 640, 14 Am. » Bishop on Contracts, § 169. 
 Dec. 813; State ». Bank, 45 Mo. 528; 
 
 196
 
 Chap. II.] CONSTRUCTION OF THE AUTHORITY. § 306. 
 
 ever it is possible, eflfect is to be given to every word and clause 
 used by the parties. It is to be presumed that the parties used 
 the word or clause with some purpose, and that purpose is, if 
 possible, to be ascertained and enforced.* 
 
 § 304. Transaction to be upheld rather than defeated. So the 
 intention of the parties is to be sustained rather than defeated.' 
 If the writing be open to two constructions, one of which would 
 uphold while the other would overthrow the contract, the former 
 is, where possible, to be chosen. So if by one construction 
 the contract would be illegal, and by another equally permissible 
 construction it would be lawful, the latter is always to be chosen, 
 as it will not be presumed that the parties intended to violate 
 the law.* 
 
 8 305. Authority to be interpreted in Light of Lex Loci. Every 
 authority given to an agent to transact business for his prin- 
 cipal, must, in the absence of anything to show a contrary 
 intent, be construed to empower him to transact it according 
 to the laws of the place where it is to be done, of which laws the 
 principal is presumed to have knowledge.* 
 
 § 306. General Powers limited by specific Object or Beoital. 
 The meaning of general words used in the instrument must be 
 construed with reference to the specific object to be accomplished 
 and limited by the recitals made in reference to such object.* 
 Thus in a case already referred to, the recital by the princi- 
 pal in the preamble of the power of attorney, that he de- 
 signed appointing an agent to act for him during his absence 
 from England, was held to limit the general words used in the 
 appointing part of the instrument to the period of his absence.* 
 So where an agent was appointed to accomplish the adjustment of 
 his principal's affairs in the State of New York, and the instru- 
 ment concluded with a general authority " to do any and every act 
 
 1 Bishop on Contracts, § 384. Attwood t>. Munnings, 7 B. & C. 278; 
 
 • HoUaday t». Daily, 19 Wall. (U. Geiger «. Bolles, 1 Thomp. & C. (N. 
 
 S.) 606, 1 Myer's Fed. Dec. § 455. Y.) 129; Berry v. Harnage, 39 Tex. 
 
 8 Bishop on Contracts, §§ 391,393. 638; Coquillard v. French, 19 Ind. 
 
 «0wing8 0. Hull, 9 Peters (U. S.) 274; Hodge v. Combs, 1 Black, (U. 
 
 609. S.) 192. 
 
 •Rountree*. Denson, 59 Wis. 522; 'Danby «. Coutts, L. R. 29 Ch. 
 
 Perry «. Holl, 2 DeGex, F. & J. 48; Div. 500. 
 Esdaile*. La Nauze, 1 Y. & C. 394; 
 
 197
 
 § 307. THE LAW OF AGENCY. [Book 11. 
 
 in his name which he could do in person," it was held that this 
 broad o-eneral power must be limited to the doing of those acts 
 only which were contemplated by the specific object of the 
 appointment.' And a power of attorney granting authority to 
 the agent to ask, demand and receive of a debtor all money due 
 from him to the principal, will be limited to this specific 
 object, although it also confers in general terms power " to trans- 
 act all business ; " the words " all business " must be confined to 
 business necessary for the receipt of the money.* 
 
 § 307. Construed to apply only to Principal's private Business. 
 A power of attorney given to an agent to act in the name and on 
 behalf of his principal, though ' couched in general language, 
 must, in the absence of anything showing a contrary intent, be 
 construed as giving authority to act only in the separate, indi- 
 vidual business of the principal and for his benefit. It cannot be 
 construed as permitting the agent to engage in transactions 
 foreign or repugnant to that business, or to bind the principal by 
 acts done not for his benefit and in his behalf, but for the pri- 
 vate benefit of the agent himself or of third persons.* 
 
 S 308. Only those Powers expressly given or necessarily im- 
 plied. So a formal instrument conferring authority will be strictly 
 construed and can be held to include only those powers which 
 are expressly given and those which are necessary, essential and 
 proper to carry out those expressly given.* It will be presumed 
 that the principal in conferring a power, intended to confer with 
 it the right to do those things without which the object 
 
 « Rossi ter v. Rossiter, 8 Wend. (N. Hazeltine v. Miller, 44 Me. 177; Rob- 
 
 Y.) 494. 24 Am. Dec. 62. ertson t». Levy, 19 La. Ann. 827; 
 
 » Hay ». Goldsmidt, cited in Hogg Bank of Hamburg v. Johnson, 8 
 
 V. Snaith, 1 Taunt. 349. Rich. (S. C.) L. 42, 
 
 » Stainback v. Read, 11 Gratt. (Va.) * Vanada v. Hopkins, 1 J. J. Marsh. 
 
 281. 62 Am. Dec. 648; Attwood v. (Ky.) 285. 19 Am. Dec. 92; Wood v. 
 
 Mannings, 7 Barn. & Cress. 278; Goodridge, 6 Cush. (Mass.) 117, 53 
 
 North River Bank v. Aymar, 3 Hill Am. Dec. 771 ; Reese c. Medlock. 27 
 
 (N. Y.) 262; Wood v. McCain, 7 Ala. Tex. 120, 84 Am. Dec. 611; Craighead 
 
 800, 42 Am. Dec. 612; Camden Safe v. Peterson. 72 N. Y. 279, 38 Am. 
 
 Dep. Co. «. Abbott. 44 N. J. L. 257; Rep. 150; Franklin «. Ezell, 1 Sneed, 
 
 Wallaces. Branch Bank, 1 Ala. 565; (Tenn.) 497; Strong©. Stewart, » 
 
 Adams Express Co. o. Trego. 35 Md. Heisk. (Tenn.) 137; Farrar v. Dun- 
 
 47; Gulick V. Grover, 33 N. J. L. 463, can, 29 La. Ann. 126; McAlpin v. 
 
 97 Am. Dec. 728; Sewanee Mining Cassidy, 17 Tex. 449; Mechanics' 
 
 Co. «. McCall, 3 Head (Tenn.) 619; Bank©. Schaumburg, 88 Mo. 328. 
 
 198
 
 Chap. II.] CONSTRUCTION OF THE AUTHORITY. § 310. 
 
 contemplated could not be accomplished, but beyond this the 
 authority will not be extended by construction. The principle 
 is analogous to the one which applies to the powers of corpora 
 tions, i. e. those powers only which are expressly given or whicli 
 arise from necessary implication. The rule has been thus stated 
 by a learned judge : — " A formal instrument delegating powers 
 is ordinarily subjected to strict interpretation, and the authority 
 is not extended beyond that which is given in terms, or 
 which is necessary to carry into effect that which is expressly 
 given. They are not subject to that liberal interpretation which 
 is given to less formal instruments, as letters of instruction, etc. 
 in commercial transactions which are interpreted most strongly 
 against the writer, especially when they are susceptible of two 
 interpretations, and the agent has acted in good faith upon one 
 of such interpretations." * 
 
 IL 
 
 WHERE AUTHORITT IS UNWRITTEN OR IMPLIED. 
 
 § 309. Where Authority is unwritten but express. Where 
 the authority, though not conferred by written instrument, is 
 express and limited, it is subject to the same general rules of 
 construction that apply to a written power. But when not so 
 expressly limited, a more liberal rule of construction applies 
 than in those cases where the authority is conferred by a formal 
 instrument in writing. 
 
 § 310. Where Authority is imwritten but implied. As has 
 been seen, a large proportion of the agencies of the modern 
 business world are not expressly conferred, but whether an 
 agency exists or not, and, if so, of what nature and extent, are 
 questions to be determined from the conduct and relations of the 
 parties. Some of the rules which govern in determining whether 
 an agency has been created or not, have heretofore been referred 
 to. But it having been found that an agency has been so created, 
 it then becomes as necessary to rightly interpret the authority so 
 conferred, as in those cases where it is evidenced by a w/itten in- 
 strument. And in general the same rules apply. But it is obvious 
 from the very nature of the case that greater liberality of con- 
 
 ' Craighead v. Peterson, supra, 
 199
 
 § 311. THE LAW OF AGENOT. [Book II. 
 
 strnction must be indulged in. If the principal desires to set 
 exact and definite limits to the authority he may do so by con- 
 ferring it only by express and definite action; but where he 
 leaves it to be inferred from his conduct, he cannot complain if 
 the rules of interpretation applied are more flexible and expan- 
 sive than would otherwise have governed. 
 
 If from his neglect to make the limits certain, it is difficult to 
 determine exactly along what lines they lie, it is but just to 
 innocent persons who may be misled thereby to give them the 
 benefit of the doubt and construe the authority most strictly 
 against him. 
 
 § 311. Authority carries with it every Power necessary to 
 accomplish Object. Every delegation of authority, whether it 
 be general or special, express or implied, unless its extent be 
 otherwise expressly limited by some instrument conferring it, 
 . carries with it, as an incident, the power to do all those things 
 which are necessary, proper, usual and reasonable to be done in 
 order to effectuate the purpose for which it was created. It em- 
 braces all the appropriate means to accomplish the desired end. 
 This principle is founded on the manifest intention of the party 
 creating such authority and is in furtherance of such intention.^ 
 
 § 312. Implied Authority not to be extended beyond its 
 legitimate Scope. But while, as has been seen, authority is often 
 to be implied from the conduct of the parties, yet it is a neces- 
 sary and logical limitation upon the construction of such an au- 
 thority, that the power implied shall not be greater than that 
 fairly and legitimately warranted by the facts. The reason of 
 this rule is so apparent and so just that it needs no argument to 
 support it. 
 
 If the agency arises by implication from acts done by the 
 agent with the tacit consent or acquiescence of the principal, it is 
 to be limited in its scope to acts of a like nature ; if it arises 
 
 > Benjamin v. Benjamin, 15 Conn. 43 Mich. 864; Farrar v. Duncan, 29 
 
 847, 39 Am. Dec. 384; Huntley «. La. Ann. 126; Craighead v. Peterson, 
 
 Mathias. 90 N. C. 101, 47 Am. Rep. 72 N. T. 279, 28 Am. Rep. 150; Har- 
 
 516; LeRoy «. Beard, 8 How. (U. S.) dee v. Hall, 12 Bush. (Ky.) 327; Boyd 
 
 451; 1 Myers' Fed. Dec. § 477; Joyce «. Satterwhite, 10 S. C. 45; Shack- 
 
 V. Duplessis, 15 La. Ann. 242, 77 man v. Little, 87 Ind. 187; Benning- 
 
 Am. Dec. 185; McAplia v. Cassidy, hofl ©. Agricultural Ins. Co., 93 N. 
 
 17 Tex. 449; Star Line v. Van Vliet, Y. 495. 
 
 200
 
 Chap. II.] 0ON8TEU0TION OF THE AUTHORITY. § 315. 
 
 from the general habits of dealing between the parties it must be 
 confined in its operation to dealings of the same kind ; if it arises 
 from the previous employment of the agent in a particular busi- 
 ness, it is, in like manner, to be limited to that particular busi- 
 ness. In other words, an implied agency is not to be extended 
 by construction beyond the obvious purpose for which it is ap- 
 parently created.* 
 
 § 313. Implied Power limited to Principal's Business. So, 
 too, where authority is implied, as well as where it is express, it 
 is to be construed as conferring authority to act only in the sep- 
 arate, individual business of the principal and for his benefit, as 
 stated in a previous section.' 
 
 IIL 
 
 WHERE AUTHORITT IS AMBIQUOITS. 
 
 § 314. Duty of Principal to make his Instructions Heat, It 
 is the duty of the principal, if he desires an authority to be exe- 
 cuted in a particular manner, to make his terms so clear and un- 
 ambiguous that they cannot reasonably be misconstrued. If he 
 does so, it is the agent's duty to the principal to execute them 
 strictly and faithfully ; and third persons who know of them or 
 who from the circumstances of the case ought to have known of 
 them, can claim no rights against the principal based upon their 
 violation.* 
 
 § 31 5. When ambiguous, Construction adopted in good Faith, 
 sufficient. But if, on the other hand, the authority be couched 
 in such uncertain terms as to be reasonably susceptible of two 
 different meanings, and the agent in good faith and without neg- 
 ligence adopts one of them, the principal cannot be heard to 
 assert, either as against the agent or against third persons who 
 have, in like good faith and without negligence, relied upon the 
 same construction, that he intended the authority to be executed 
 in accordance with the other interpretation.* If in such a case, 
 the agent exercises his best judgment and an honest discretion, 
 
 » McAlpin V. Cassidy, 17 Tex. 449; • See ante, %% 289, 290. 
 
 Graves v. Horton, — Minn. — , 35 « Ireland v. Livingstone, L. R. 6 H. 
 
 N. W. Rep. 568; see ante, §§ 85, 274. L. 895. 
 
 •AnU. § 307. 
 
 201
 
 §315. 
 
 THE LAW OF AGENOT. 
 
 [Book IL 
 
 he fulfills his duty, and though a loss ensues, it cannot be cast 
 upon the agent.* 
 
 An instrument conferring authority is generally to be con- 
 strued by those having occasion to act in reference to it, " as a 
 plain man, acquainted with the object in view, and attending rea- 
 sonably to the language used, has in fact construed it. He is not 
 bound to take the opinion of a lawyer concerning the meaning 
 of a word not technical and apparently employed in a popular 
 
 sense. 
 
 »Bessent«. Harris, 63 N, C. 543; 
 National Bank o. Merchants' Bank, 
 91 U. S. 92, 104; Shelton c. Mercli- 
 ants Despatch Transp. Co., 59 N. Y. 
 258; LeRoy «. Beard, 8 How. (U. S.) 
 451, 1 Myer'8 Fed. Dec, § 478; Very 
 V. Levy, 13 How. (U. 8.) 345, 1 Myer's 
 Fed. Dec, § 458; Loraine t>. Cart- 
 wright, 8 Wash. (U. S. 0. 0.) 151; 
 
 DeTastett t>. Crousillat, 3 Wash. (U. 
 8. C. C.) 132; Mechanics' Bank •. 
 •Merchants' Bank, 6 Mete. (Mass.) 13; 
 Foster v. Rockwell, 104 Mass. 167; 
 Long V. Pool, 68 N. C. 479; Marsh v. 
 Whitmore, 21 Wall. (U. S.) 178. 
 
 » Curtis, J., in Very t». Levy, supra, 
 citing Withingtont. Herring, 5 Bing. 
 456. 
 
 202
 
 Chap. III.] CONSTEUCTION OF AUTHORITIES. 
 
 CHAPTER III. 
 
 OF THE CONSTRUCTION OF AUTHORITIES OF CERTAIN KINDS 
 
 § 316. Purpose of this Chapter. 
 317. In general. 
 
 I. Of Agent authorized to sell 
 Land. 
 
 818. What Authority is sufficient. 
 
 819. When Authority to be exer- 
 
 cised. 
 
 820. What Execution authorized. 
 831. Authority to sell implies Right 
 
 to convey. 
 
 822. To insert usual Covenants of 
 
 Warranty. 
 
 823. But not to mortgage. 
 
 824. Authority to receive Payment. 
 
 825. Authority to give Credit. 
 326. Authority to sell does not 
 
 authorize Exchange or Qift. 
 
 827. Does not authorize Waste, or 
 
 Sale of Timber separate 
 from the Land, 
 
 828. Does not authorize changing 
 
 Boundaries of Land. 
 
 829. Does not authorize Partition, 
 
 830. Does not authorize Dedication 
 
 to Public Use. 
 
 831. Nor Conveyance in Payment 
 of Agent's Debts. 
 
 832. No implied Power to revoke 
 
 Contract. 
 
 833. No implied Power to discharge 
 
 Mortgage. 
 
 834. No implied Power to invest 
 Proceeds, 
 
 n. Of Agent authorized to bell 
 Personal Property, 
 
 885, When Authority exists. 
 
 886. Authority to receive Payment 
 
 — In general. 
 
 §837. 
 838. 
 339. 
 
 840. 
 841. 
 
 842. 
 
 343. 
 344. 
 
 845. 
 
 346. 
 
 847. 
 
 848. 
 
 849, 
 850. 
 851. 
 352. 
 
 853. 
 
 854. 
 
 Authority to receive Payment 
 not implied from Possession 
 of Bill. 
 
 Agent having Possession or 
 other Indicia ot Ownership 
 may receive Payment. 
 
 Agent to sell merely or to so- 
 licit Orders without Posses- 
 sion of Goods not author- 
 ized to receive Payment. 
 
 When travelling Salesman 
 may receive Payment. 
 
 Same Subject — When Pay- 
 ment to Agent Part of Terms 
 of Sale. 
 
 Same Subject — Notice of 
 Want of Authority. 
 
 Same Subject — No implied 
 authority to sell his Samples. 
 
 Same Subject — Purchaser can- 
 not set off Debt due from 
 Agent. 
 
 Same Subject — Implied Au- 
 thority to hire Horses. 
 
 Same Subject — Authority to 
 procure other Supplies. 
 
 Implied Authority to warrant 
 Quality. 
 
 Same Subject — The general 
 Rule. 
 
 Illustrations of the Rule. 
 
 Limits of this Rule. 
 
 Authority to warrant Title. 
 
 No implied Power to exchange 
 or barter. 
 
 No implied Power to give 
 Credit, 
 
 No Authority to Appropriate 
 to his own Use. 
 
 203
 
 THE LAW OF AGENCY. 
 
 § 865. No implied Authority to re- 
 lease PriDcipal'B Rights or to 
 pay Principal's Debts. 
 
 856, No Authority to pledge Goods. 
 
 857. No Authority to promise Com- 
 
 missions for Subsales. 
 358. No Authority to sell at Auc- 
 tion. 
 
 859. Authority — When to be exer- 
 
 cised. 
 
 860. No Authority to rescind the 
 
 Sale. 
 
 861. No Authority to mortgage. 
 
 862. Authority to fix Price and 
 
 Terms of Sale. 
 
 III. Op Agent authorized to 
 
 Purchase. 
 
 863. May not buy on Credit when 
 
 furnished with Funds. 
 
 864. May buy on Credit when not 
 
 supplied with Funds. 
 
 865. Has Power to agree upon Price 
 
 and Terms of Parchase. 
 366. May not exceed Limits as to 
 Quantity. 
 
 867. Must observe Limits as to 
 
 Quality or Species. 
 
 868. May be restricted as to Per- 
 
 sons with whom to deal. 
 
 369. May make Representations as 
 
 to Principal's Credit 
 
 370. May not execute negotiable 
 
 Paper. 
 
 IV. Of Agent authorized to re- 
 
 ceive Payment. 
 
 371. What constitutes such Au- 
 
 thority. 
 
 372. When implied from negotiat- 
 
 ing the Contract. 
 
 873. When implied from Possession 
 of the Securities. 
 
 374. When implied from having 
 sold the Goods. 
 
 875. Can receive nothing but Mon- 
 ey. 
 
 376. No Authority to release or 
 
 compromise the Debt. 
 
 377. May receive Part Payment. 
 
 [Book II. 
 
 § 378. But may not extend Time. 
 
 879. Authority to collect Interest 
 
 does not authorize Collec- 
 tion of Principal. 
 
 880. Not authorized to receive be- 
 
 fore due. 
 
 881. No Authority to take Checks. 
 
 382. If authorized to take Check 
 
 or Note, has no Authority to 
 indorse or collect it. 
 
 383. Authority to collect does not 
 
 authorize Sale. 
 884. No Authority to deal with 
 
 Funds collected. 
 •385. May give Receipt or Dis- 
 cbarge. 
 
 386. Implies Authority to sue — 
 
 when. 
 
 387. May sue in his own Name- 
 
 when. 
 
 388. May employ Counsel. 
 
 V. Op Agent authorized to 
 Make and Indorse Negotia- 
 ble Paper. 
 
 389. What constitutes such Author- 
 
 ity. 
 890. Same Subject — Authority 
 strictly construed. 
 
 391. When Authority implied. 
 
 392. Must be confined to Princi- 
 
 pal's Business. 
 
 393. Execution to be confined to 
 
 Limits specified. 
 
 394. Negotiable Paper or Deeds de- 
 
 livered to Agent in Blank. 
 
 VL Op Agent authorized to 
 Manage Business. 
 
 895. Extent of Authority depends 
 
 on Nature of Business. 
 
 896. When Power implied to pledge 
 
 Principal's Credit. 
 397. Implied Power to sell Product 
 
 of Business. 
 898. None to bind by Negotiable 
 
 Instrument. 
 
 399. When may borrow Money. 
 
 400. May not make Accommoda- 
 
 tion Paper. 
 
 204
 
 Chap. III.] ooNSTBuonoN of authoeities. 
 
 §318. 
 
 § 401. May not pledge or mortgage 
 
 the Property of the Principal. 
 
 403. May not sell Principal's Land. 
 
 403. May not embark in new and 
 
 different Business. 
 
 404. May not sell the Business. 
 
 VIL Op AGEirr atjthorizkd to 
 
 Sbttle. 
 § 405. May not submit to Arbitra- 
 tion. 
 406. May not assign Demand. 
 
 § 316. Purpose of this Chapter. Having in the preceding 
 chapters considered the question of what constitutes authority, as 
 well as some of the rules which govern its construction and in- 
 terpretation, it is now proposed to see how these principles are 
 applied. 
 
 § 317. In general. In considering the questions discussed in 
 this chapter, the rules already referred to must be kept in mind. 
 Prominent among these, as has been seen, are, that express and 
 formal grants of power are strictly construed ;' that every grant 
 of power is to be interpreted, in the absence of anything to show 
 a contrary intent, as conferring authority to act only in the pri- 
 vate, individual business of the principal, and for his benefit ;* 
 that grants of power, though couched in general language, are to 
 be limited to the particular object contemplated by the power ;• 
 that every power carries with it, as an incident, where no limita- 
 tions appear, the implied authority to do those things which are 
 necessary and proper to be done in order to accomplish the ob- 
 ject sought and which are usually done in the execution of a 
 like authority;* and that a well-defined and publicly known 
 usage may confer incidental powers unless the parties have 
 excluded it.* 
 
 OF AGENT ATJTHOEIZED TO SELL LAND. 
 
 § 318. What Authority is sufficient. A power of attorney 
 " to act in all my business, in all concerns, as if I were present, 
 and to stand good in law, in all my land and other business," 
 gives no power to sell land ; • nor does a power " to ask, demand, 
 recover or receive the maker's lawful share of a decedent's estate, 
 
 > See ante, % 80a 
 I See an^, §807. 
 » See ante, § 306. 
 «Beean^«, §311. 
 
 • See ante, § 281. 
 
 • Ashley v. Bird, 1 Mo. 640, 14 Am. 
 Dec. 813. 
 
 205
 
 § 318. 
 
 THE LA.W OF AQENOT. 
 
 [Book II. 
 
 giving and granting to his said attorney his sole and full power 
 and authority to take, pursue and follow such legal course for the 
 recovery, receiving and obtaining the same as he himself might or 
 could do were he personally present; and upon the receipt thereof, 
 acquittances and other sufficient discharges for him and in his name 
 to sign, seal and deliver ; " ' nor does a power " to make contracts, 
 to settle outstanding debts and generally to do all things that con- 
 cern my interest in any way real or personal, whatsoever, giving 
 my said attorney full power to use my name to release others or 
 bind myself, as he may deem proper and expedient ; " * nor 
 does a power " to attend to the business of the principal gene- 
 rally," or " to act for him with reference to all his business ; " ' 
 nor does autliority to locate and survey land ; * nor does a power 
 to sell " claims " and " effects." • 
 
 > Hay V. Mayer, 8 Watta (Penn.) 
 203. 84 Am. Dec. 453. 
 
 « Billings V. Morrow, 7 Cal. 171, 68 
 Am. Dec. 235. Same power also 
 construed to the same effect in Hun- 
 ter «. Sacramento Valley Beet Sugar 
 Co. 14 Cent. L. Jour. 352,11 Fed. Rep. 
 17. 
 
 » Coquillard v. French, 19 Ind. 274. 
 Nor does a power of attorney ap- 
 pointing one "general and special 
 agent to do and transact all manner 
 of business " necessarily confer power 
 upon the agent to sell bonds belong- 
 ing to his principal. Hodge v. 
 Combs, 1 Black (U. S.) 193; 1 Myers 
 Fed. Dec. § 484. Such a power, 
 said the court, " may be construed to 
 confer almost any or no power." 
 
 ♦ Moore v. Lockett, 3 Bibb (Ky.) 
 67, 4 Am. Dec. 683. 
 
 » DeCordova v. Knowles, 37 Tex. 
 19. See also Berry v. Harnage, 89 
 Tex. 638, where a power of attorney 
 in the following terms was held suffi- 
 cient to authorize a sale of real estate: 
 " to ask, demand, sue for, recover 
 and receive all such sum and sums of 
 money, debts, goods, wares, dues, 
 accounts and other demands what- 
 ever, which are or may be due, 
 
 owing, payable and belonging to me 
 or detained from me by any manner 
 of ways and means whatever, in 
 whose hands soever the same may be 
 found ; giving and granting unto my 
 Baid attorney, by these presents, my 
 whole and full power, strength and 
 authority, in and about the premises, 
 to have, use, and take all lawful 
 ways and means, in my name and for 
 the purposes aforesaid, upon the 
 receipt of any such debts, dues or 
 issues of money, acquittances or 
 other sufficient discharge, for me, 
 and in my name, to make, seal, 
 execute, deeds of convej'^aace, and de- 
 livered and generally all and every 
 act or acts, thing or things, device 
 or devices, in the law whatso- 
 ever needful and necessary to be 
 done in and about the premises, for 
 me and in my name to do, execute 
 and perform." See also Stewart v. 
 Pickering, — Iowa, — , 35 N. W. 
 Rep. 690. In this case the defend- 
 ants, real estate brokers, wrote to the 
 plaintiff's attorney in fact: " Do you 
 have charge of the lands * » ♦ 
 belonging to the estate of ST If so, 
 are they for sale? » » * If the 
 title is all right, we can possibly find 
 
 206
 
 Chap. III.] 0ON8TRU0TION OF AUTHOKITIES. § 318. 
 
 So authoritjr to sell real estate in " lots as surveyed by " a per- 
 son named, does not empower the agent to sell the whole tract 
 for a gross sum or at so much per acre.' 
 
 But where A wrote to " I wish you to manage (ray prop- 
 erty) as you would with your own. If a good opportunity offers 
 to sell everything I have, I would be glad to sell. It may be 
 parties will come into San Antonio, who will be glad to purchase 
 my gas stock and real estate," it was held that C was thereby au- 
 thorized to contract for the sale of the real estate, but not to con- 
 vey it. * 
 
 A power of attorney authorizing the agent " to bargain, sell, 
 grant, release and convey, and upon such sales, convenient and 
 proper deeds with such covenants as to my said attorney shall 
 seem expedient, in due form of law, as deed or deeds, to make, 
 seal, deliver and acknowledge," although it is silent as to what 
 the agent is to sell and convey, is sufficiently broad to authorize 
 the agent to sell and convey whatever estate the principal then 
 had.» 
 
 So a power of attorney in due form, authorizing the agent 
 " to sell, bargain and convey three certain lots of land in the vil- 
 lage of Pentwater belonging to me," but containing no other or 
 further description, is sufficient where the principal had three 
 
 a customer for the list this year. Let the defendant saying; "We have a 
 U8 hear from you as to prices customer (meaning the plaintiff) who 
 &c." The answer was: "I here- would buy your lot if offered at a 
 with inclose you a price-list of our fair price," and asked him to state 
 lands. » » » My mother is tho best price and the terms, for which 
 widow of S, and is the sole devisee. he would sell, and pay their commis- 
 * * • I am executor of my sion, which was stated. The de- 
 father, and attorney in fact of my fendant answered by letter stating 
 mother, The titles are all strictly price, and, in part only, the terms, 
 clear and good." Attached to this for which he would sell, and that he 
 letter was: " Western land for sale, would pay their commission. It was 
 Winnebago county, Iowa," and a list held that the brokers were not there- 
 of land, terms, and prices, and, "Ap- by constituted the defendant's ageals, 
 ply to D. S. * * *" It was held with a power to bind him by a con- 
 that this correspondence, on its face, tract of sale. 
 
 did not contain authority to sell the * Rice v. Tavernier, 8 Minn. 248, 83 
 
 lands, binding on plaintiff, if the sale Am. Dec. 778. 
 
 was made on the terms given. * Lyon v. Pollock, 99 U. S. 668. 
 
 See also Stillman v. Fitzgerald, — ' Marr v. Given, 23 Me. 55, 39 Am. 
 
 Minn. — 83 N. W. Rep. 564, where a Dec. 600. 
 firm of real estate brokers wrote to 
 
 207
 
 g 319. THE LAW OF AGENCY. [Book II. 
 
 Buch lots and only three in that village ; ' but an authority " to 
 convey a piece of land in Colebrook belonging to the Bank," 
 there being more than one such piece is too indefinite.* 
 
 8 319. When Authority to bo exercised. An authority to 
 sell lands at a given sum, if they can be sold "immediately," will 
 not authorize a sale at that price a month afterwards, without any 
 further authority ; ' nor can an agent empowered to sell real es- 
 tate at a given price, without further instructions, sell it three 
 years later at the same price when the land has greatly increased 
 in value.* An authority to an agent to sell real estate within " a 
 short time" will authorize a sale made within two weeks, even 
 though in the meantime the property has enhanced in value.* 
 
 8 320. What Execution authorized. An agent authorized to 
 make the purchase price payable "in three years," has no implied 
 authority to make it payable " on or before three years," • but 
 where he is authorized to make " one-half payable on or before 
 one year " a contract to sell for " one-half payable in one year " 
 is within the terms of the authorization.^ 
 
 A power of attorney authorizing an agent to sell " the one- 
 half " of a lot of land, without specifying which half, or whether 
 in common or in severalty, empowers him to sell one-half in sever- 
 alty and tc exercise his own discretion as to which half.' 
 
 Where an agent is authorized to sell all the land of his princi- 
 pal which the latter had not previously conveyed, he may con- 
 vey what the principal had previously sold but not conveyed ; • 
 and under an authority to sell any of his principal's real estate 
 he may sell that which the principal subsequently acquires.'* 
 § 321. Authority to sell Implies Right to convey. Unless 
 
 1 Vaughn V. Sheridan, 50 Mich. 155. • Alemany v. Daly, 36 Cal. 90 
 
 tLumbard v. Aldrich, 8 N. H. 81, • Mitchell v. Maupin, 3 T. B. Mba. 
 
 28 Am. Dec. 381. (Ky.) 185. 
 
 » Matthews v. Sowle, 13 Neb. 898. «" Fay t». Winchester, 4 Mete. 
 
 <Proudfoot f. Wightman, 78 111. (Mass.) 513. See also Benschoter ®. 
 
 ,3 Lalk, — Neb. — , 88 N. W. Rep. 746. 
 
 • Smith «. Fairchild, 7 Colo. 610. In Greve v. Coffin, 14 Minn. 345, 100 
 
 • Jackson T>. Badger, 35 Minn. 53, Am. Dec. 329. a power of attorney to 
 26 N. W. Rep. 908; to the same effect sell land was construed as authoriz- 
 see, Dana v. Turlay, — Minn, — , 35 ing a sale of that only which was ac- 
 N W. Rep. 860. quired subsequently to the date of 
 
 T Deakin v. Underwood, 87 Minn. the power. 
 98. 5 Am. St. Rep. 837. 
 
 208 
 
 553.
 
 Chap. III.] CONSTRUCTION OF AUTHORITIES. § 323. 
 
 there be something in the instrument by which its scope is lim- 
 ited, as to the mere finding of a purchaser or the negotiation of 
 the sale, a general power to sell real estate carries with it the 
 power to execute all the instruments necessary to complete the 
 sale and carry it into effect.* Said Chief Justice Shaw, " where 
 the term ' sale' is used in its ordinary sense, and the general tenor 
 and effect of the instrument is to confer on the attorney a power 
 to dispose of real estate, the authority to execute the proper in- 
 struments required by law to carry such sale into effect is neces- 
 sarily incident." " 
 
 § 322. To insert usual Covenants of Warranty. Althouo-h 
 the decisions are not entirely harmonious, the better rule seems to 
 be that a general power to sell land carries with it authority to 
 insert in the conveyance the usual covenants of general war- 
 ranty,' but not to make any unusual or special warranty, as of 
 the quantity or quality of the land sold.* A fortiori may the 
 agent warrant where he is expressly authorized to sell on such 
 terms as he shall deem most eligible.' 
 
 § 323. But not to mortgage. A power to sell, however, con- 
 veys no implied authority to mortgage.' Said Judge Coolet, 
 " The principal determines for himself what authority he will 
 confer upon his agent, and there can be no implication from his 
 authorizing a sale of his lands that he intends that his agent may 
 at discretion charge him with the responsibilities and duties of a 
 mortgagor." ' 
 
 * Valentine e. Piper, 22 Pick, town, 43 N. H. 125; Farnliam t». 
 
 (Mass.) 85, 33 Am. Dec. 715; People®. Thornrmon, 34 Minn. 830. See also 
 
 Boring, 8 Cal. 406 ; Fogarty ». Saw- Bronson v. Coffin, 118 Mass. 160| 
 
 yer. 17 Cal. 589; Hemstreet «. Bur- Tazel f>. Palmer, 88 111. 697. 
 
 dick, 90 111. 444; Yale v. Eames, 1 * National Iron Armor Co. «. Bru- 
 
 Mete. (Mass.) 488; Marr c. Given, 33 ner, 19 N. J. Eq. 331. 
 
 Me. 55, 89 Am. Dec. 600; Macgruder ■ LeRoy t>. Beard, mpra. 
 
 c. Peter, 4 Gill «& J. (Md.) 323; Alex- •Jeffrey ©. Hursh, 49 Mich. 81; 
 
 anderc. Walter, 8 Gill (Md.) 239, 50 Wood ». Goodridge, 6 Cash. (Mass.) 
 
 Am. Dec. 688; Farnham v. Thomp- 117; 53 Am. Dec. 771; Albany Fire 
 
 Bon, 34 Minn. 330, 26 N. W. Rep. 9. Ins. Co. «. Bay, 4 N. Y. 9; Ferry v. 
 
 « In Valentine t). Piper, ««;)ro. Laible, 31 N. J. Eq. 566; Kinney r). 
 
 >Vanada «. Hopkins, 1 J. J. Mathews, 69 Mo. 520; Patapsco, &c. 
 
 Marsh. (Ky ) 285, 19 Am. Dec. 93; Co. v. Morrison, 3 Woods (U. S. C. C.) 
 
 Peters v. Farnsworth, 15 Vt. 155, 40 895; Devaynes v. Robinson, 24 Beav. 
 
 Am. Dec. 671; Le Roy v. Beard, 8 86; Morris t). Watson, 15 Minn. 212. 
 
 How. (U.S.) 451; Backman^?. Charles- ' In Jeffrey v. Hursh, myra. 
 
 14 209
 
 § 324. THE LAW OF AGENOT. [Book II. 
 
 §324. Authority to receive Payment. The receipt of so much 
 of the purchase money as is to be paid down, is within the gen- 
 eral scope of an authority to sell and convey, ' but is not within 
 the power of an agent authorized merely to contract for the sale.* 
 Such an authority will not, however, warrant the receipt of sub- 
 sequent payments.' 
 
 § 325. Authority to give Credit. The power to sell land does 
 not of itself imply an authority to sell on credit. The presump- 
 tion is that the sale is to be for cash.* But where the agent is 
 authorized to sell " on such terms as to him shall seem meet" he 
 may grant a reasonable credit* An authority to sell on credit, 
 but not fixing the time to be given, implies a power to grant a 
 reasonable time.* 
 
 § 326. Authority to sell does not authorize Exchange or 
 Gift. Neither will a power to sell and convey land, imply an 
 authority to barter or exchange it for other property or to give it 
 away, or to take the pay in merchandise. It is presumed, in the 
 absence of anything showing a contrary intent, that the land is to 
 be sold only, and sold for cash.' So where the agent is authorized 
 to sell only for a certain sum, he cannot sell for a less sum.* 
 
 § 327. Does not authorize Waste or Sale of Timber separate 
 from Land. An agent or attorney who has power only to bar- 
 gain and sell land subject to confirmation, has no authority to 
 license anyone to enter thereon and commit waste or cut timber, 
 nor has he power to sell the timber distinct from the land.* 
 
 » Peck V. Harriott, 6 Serg & R t Reese v. Medlock, 27 Tex. 120, 84 
 
 (Penn.) 146, 9 Am. Dec. 415; Carson Am. Dec. 611; Trudo«. Anderson, 10 
 
 V. Smith, 5 Minn. 78. 77 Am, Dec. Mich. 357, 81 Am. Dec. 795; Mann v. 
 
 539; Mann v. Robinson, 19 W. Va. Robinson, 19 W. Va. 49, 42 Am. Rep. 
 
 49,42 Am. Rep. 771; Alexander «. 771; Lumpkin «. Wilson, 5 Heisk. 
 
 Jones, 64 Iowa, 207; Yerbey e. (Tenn.) 555; Rhine ». Blake, 59 Tex. 
 
 Grigsby, 9 Leigh (Va.) 387; Johnson v. 240; Morrill v. Cone, 22 How. (TJ. S.) 
 
 McGruder, 15 Mo. 365; Goodale «. 75, 1 Myers' Fed. Dec. § 467; Hamp- 
 
 "VVheeler, 11 N. H. 424. ton e. Moorhead, 62 Iowa, 91; Du- 
 
 2 Mann v. Robinson, mpra. pont v. Wertheman, 10 Cal. 854; Mott 
 
 » Johnson v. Craig, 21 Ark. 533. v. Smith, 16 Cal. 533. 
 
 < Lumpkin «. Wilson, 6 Heisk. » Holbrook v. McCarthy, 61 CaL 
 
 (Tenn.) 555. 216; Bush ». Cole, 28 N. Y. 261, 84 
 
 » Carson v. Smith, 5 Minn. 78, 77 Am. Dec. 843. 
 
 Am. Dec. 539. * Hubbard v. Elmer, 7 Wend. (N. 
 
 « Brown t». Central Land Co. 42 Y.) 446, 22 Am. Dec. 690. 
 Cal. 257. 
 
 210
 
 Chap. III.] 00N8TRU0TION OF AUTHORITIES. § 333. 
 
 § 328. Does not authorize changing Boundaries of Land. 
 Nor has an agent authorized to sell or rent real estate any im- 
 plied power to agree with an adjoining land owner upon a change 
 of the boundaries of the principal's land.^ 
 
 § 329. Does not authorize Partition. Authority to sell and 
 convey land does not authorize a partition of the land in which 
 the principal has an interest as tenant in common.* 
 
 § 330. Does not authorize Dedication to Public Use. Mere 
 authority to sell and convey land does not imply power to dedi- 
 cate any part of it to the public use ; ' but a power " to sell, con- 
 vey, plat and subdivide in such manner as to make the property 
 marketable and to acknowledge and record such plat" implies a 
 power to dedicate such portion as may be necessary to the public 
 use.* So a power to lay out land in order to dispose of it, im- 
 plies authority to dedicate the necessary highways,' and authority 
 to purchase a town site and lay it out, implies power to dedicate 
 proper and appropriate streets.* 
 
 § 331. Nor Conveyance in Payment of Agent's Debts. An 
 agent authorized to sell and convey real estate can do so only for 
 and in behalf of his principal. He may not convey it in trust 
 for the payment of his own debts.' 
 
 § 332. No implied Power to revoke Contract. An agent au- 
 thorized to make a contract for the sale of land exhausts his power 
 with the completion of that contract ; and has thereafter no im- 
 plied power to revoke or rescind it, or to release the purchaser 
 from its obligations.* 
 
 § 333. No implied Power to discharge Mortgage. An agent 
 authorized merely to sell land has therefrom no implied power to 
 release or discharge mortgages belonging to his principal;* but 
 an agent having general authority to deal in land, may bind his 
 principal by the assumption of a mortgage as part of the pur- 
 chase price." 
 
 * Fore V. Campbell, — . Va. — , I • Barteau v. West, 23 "Wis. 416. 
 South East. Rep. 180. » Frink v. Roe, 70 Cal. 296. 11 Pac. 
 
 8 Borel V, Rollins, 30 Cal. 408; Wirt Rep. 820. 
 
 V. McEnery, 21 Fed. Rep. 233. » Luke v. Grigg, — (Dak.)—, 30 N. 
 
 » Wirt V. McEnery, 21 Fed. Rep. W. Rep. 170. 
 
 233; Gosselin v. Chicago, 103 III 623. • Barger «. Miller, 4 Wash. (U. S. 
 
 « Wirt V. McEnery, supra. C. C.) 284. 
 
 • State V. Atherton, 16 N. H. 203. " Schley v. Fryer, 100 N..Y. 7L 
 
 211
 
 § 334. THE LAW OF AGENCY. [Book II. 
 
 § 334. No implied Power to invest Proceeds. A power of 
 attorney authorizing the agent to take possession of and sell all 
 the property of his principal, and collect his debts, does not au- 
 thorize the agent to re-invest the funds of his principal or to en- 
 gage therewith in any Bcheraes of speculation, however tempt- 
 ing.* 
 
 IL 
 
 OF AOENT ATTTHORIZBD TO SELL PERSONAL PEOPERTT. 
 
 § 335. When Authority exists. Authority to an agent to 
 sell personal property may, of course, be expressly conferred, but it 
 may also be implied from circumstances. Such authority, how- 
 ever, cannot be inferred from mere possession of the property, 
 even though the alleged agent be a dealer in property of that 
 kind,' but the principal must have done something more ; he must 
 have so acted as to clothe the agent with apparent authority to 
 sell, or must have conferred upon him, or permitted him to assume, 
 all of the apparent indicia of ownership.* 
 
 § 336. Authority to receive Payment— In general. "Whether 
 an agent authorized to sell personal property has implied author- 
 ity to receive payment, is a question upon which there has been 
 much difference of opinion. It will be obvious that its solution 
 must depend largely upon the nature of the particular transaction 
 and the usages if any in relation thereto. 
 
 If a merchant places behind his counters a clerk to sell goods, 
 it could not be doubted that, in the absence of a known custom 
 to pay a cashier or other person, the clerk would have implied 
 power to receive, at the time of the sale, payment for the goods 
 sold by him.* Whether he would have authority at some sub 
 
 * Stoddard e. United States, 4 Ct. customers or purchasers, and it is im- 
 
 Cl, 516. plied from such employment that hft 
 
 « Levi e. Booth, 88 Md. 305, 42 has authority to rereive pay for them 
 
 Am. Rep. 332. on such sale. But there is no impli- 
 
 » Smith T. Clews, 105 N. T. 283, 59 cation from such employment that 
 
 Am. Rep. 502; and see generally, he has authority, after the goods are 
 
 post, § § 785-788. delivered and taken from the store, 
 
 « See Hirshfleld e. Waldron, 54 to present bills and collect money 
 
 Mich. 649, where Champlin J. says: due to his employers, because it is 
 
 " The usual employment of a clerk not in the scope of the usual em- 
 
 in a retail store is to sell goods to ployment of such clerks." 
 
 212
 
 Chap. III.] CONSTRUCTION OF AUTH0KITIE8. § 338. 
 
 sequent time to receive payment for the goods sold, after the ac- 
 count had gone upon the books, and the matter had passed into 
 other hands, is evidently not so clear. If payment were made 
 CO him at his usual place in the store, the case would present a 
 different aspect than if it had been made to him at his own home 
 or upon the street. So, too, if he were one of many salesmen in 
 a large establishment in the metropolis, a different case would be 
 presented than if he were the only clerk in a country store com- 
 bining in himself salesman, bookkeeper, porter and collector.' 
 
 Again if he were sent about the country with authority to sell 
 goods entrusted to his possession for that purpose, authority to 
 receive payment therefor would be implied, as it would not be 
 presumed that the principal intended that they should be parted 
 with without payment.' But if his authority was simply to 
 solicit orders for goods, a sample of which he had in his possess- 
 ion, it being left for the principal to deliver the goods in pursu- 
 ance of the orders taken, the question whether the agent might 
 subsequently collect payment merely as an incident of the author- 
 ity to take orders, would present other considerations.* 
 
 § 337. Authority to receive Payment not implied from Po»- 
 session of Bill. The mere fact that one claims to be authorized 
 to receive payment is no evidence of his authority, nor can such 
 authority be implied from the mere possession by the assumed 
 agent of the bill or account, though made out upon the princi- 
 pal's bill-head and in his own handwriting.* 
 
 § 338. Agent having Possession or other Indicia of Ownership 
 may receive Payment. Where the principal entrusts the agent 
 with the possession of the goods to be sold and authorizes him to 
 sell and deliver them, authority to receive payment therefor will 
 be implied, and a payment made to the agent at the time of the 
 
 > See Davis v. Waterman, 10 Vt. » See post, % 337. 
 
 526. 33 Am. Dec. 216, where it is held * Hirshfleld v. Waldron, 64 Mich. 
 
 that a clerk in a country store with 649; Dutcher v. Beckwith, 45 111. 460, 
 
 whom are left the goods and demands 92 Am. Dec. 232; Kornemann «. 
 
 of his employer, has charge of both, Monaghan, 24 Mich. 86; Grover & 
 
 and in the absence of his principal. Baker Sew. Machine Co. v. Polh©- 
 
 has power to receive pay on the de- mus, 34 Mich. 247; Reynolds t». Contl- 
 
 mands and to institute suits for their nental Ins. Co. 36 Mich. 181 ; McDon- 
 
 security when an emergency arises. ough v. Heyman, 38 Mich. 834. 
 
 * See following section. 
 
 213
 
 § 339. THE LAW OF AGENCY. [Book II. 
 
 sale and delivery, or as part of the same transaction, will be bind- 
 ing upon the principal ; * of course, in the absence of any knowl- 
 edge on the part of the purchaser that the agent was not author- 
 ized to receive payment. 
 
 Having put the agent into such a position that he may appear 
 to the world as the owner of the property, or having held him 
 out as authorized generally to sell, it would be a fraud upon 
 those who had paid the agent in good faith, for the principal to 
 be permitted to assert that he was not authorized to receive pay- 
 ment. 
 
 I 339. Agent to sell merely or to solicit Orders, without Pos- 
 session of Goods, not authorized to receive Payment. Where 
 however, he is not entrusted with possession, the sale of goods by 
 an agent, or the fact that he is, or acts as, agent to solicit orders 
 for goods, will not, in the absence of a controlling usage to the 
 contrary, authorize him to receive payment therefor.* 
 
 § 340. When travelling Salesmen may receive Payment. 
 The practice of selling goods through the agency of travelling sales- 
 men who go from place to place exhibiting samples and soliciting 
 orders, has become so universal, that the question of the author- 
 ity of such an agent to subsequently receive payment for the goods, 
 has become very important and has been much discussed, but the 
 decisions have not been entirely uniform. The preponderance of 
 the authority, however, is undoubtedly in harmony with the 
 principles stated in the preceding section, that mere authority to 
 
 » Butler*. Dorman, 68 Mo. 298, 30 79 Mo. 204; Clark «. Smith, 88 IlL 
 
 Am Rep. 795; Sumner v. Saunders, 298; McKindly v. Dunham, 55 Wis. 
 
 51 Mo. 89; Rice v. Groffmann, 56 515, 42 Am. Rep. 740; Seiple v. Ir- 
 
 Mo. 434; Higgins v. Moore, 34 N. Y. win SOPenn. St 513; Lawp. Stokes, 3 
 
 417; Seiple v. Irwin, 30 Penn. St. Vroom (N. J. L.) 249, 90 Am. Dec. 
 
 513; Capel«. Thornton, 3 Car. & P. 655; Higgins v. Moore, 34 N. Y 417; 
 
 352; Pickering v. Busk, 15 East, 38; Wright v. Cabot, 89 N. Y. 570; Cros 
 
 Greelyt), Bartlett, 1 Greenl. (Me.) by «. Hill, 39 Ohio St, 100; Graham 
 
 173,10 Am. Dec. 54; Goodenow v. v. Duckwall, 8 Bush. (Ky.)12; Abra- 
 
 Tyler, 7 Mass. 37, 5 Am. Dec. 22; hams ?>. Weiller, 87 111. 179; Kohnt). 
 
 Brooks V. Jameson, 55 Mo. 505; Lum- Washer, 64 Tex. 131, 53 Am. Rep. 
 
 ley V. Corbett, 18 Cal. 494. See also 745; Greenhood v. Keator, 9 Ill.App, 
 
 Howe Machine Co. v. Ballweg, 89 183; Kornemann v. Monaghan, 24 
 
 111. 318. Mich. 36; Bernshouse v. Abbott, 16 
 
 JJanney t>. Boyd, 80 Minn. 319; Vroom (N, J.) 531, 46 Am. Rep 
 
 Buller V. Dorman, 68 Mo. 298, 30 789. 
 Am. Rep. 795; Chambers «. Short, 
 
 214
 
 Chap. III.] CON8TRU0TI0N OF AUTH0KITIE8. § 342. 
 
 solicit orders for goods, or subscriptions for books and other 
 articles sold bj subscription, the orders or subscriptions to be 
 filled by the principal, implies no authority in the agent to sub- 
 sequently receive payment, and payment made to such an agent 
 will not be payment to the principal, unless the agent be in fact 
 authorized or the principal has held him out as so authorized.' If 
 liowever, payment in whole or in part is to be made at the time 
 the order or subscription is taken, authority to receive such pay- 
 ment will be implied.* 
 
 § 341. Same Subject— When Payment to Agent Part of Terms 
 of Sale. But it has been held that an agent authorized to take 
 the order has the implied power to make terms of payment as to 
 time and place, to the extent at least of what was customary and 
 not extraordinary ; and that where it is made one of the terms of 
 sale that payment may be made to the agent at the purchaser's 
 place of business, to save the expense and trouble of remittance, 
 payment to the agent was payment to the principal.* 
 
 So where a travelling salesman agreed, though without author- 
 ity, to receive certain goods in part payment for those sold by 
 him, the purchaser being ignorant of his want of authority, it 
 was held that the agreement was binding upon the principal who 
 had shipped the goods to the purchaser.* 
 
 § 342. Same Subject—Notice of Want of Authority. It is 
 frequently attempted to give notice to the purchaser that the 
 agent is not authorized to receive payment, by printing or writing 
 upon the bill or invoice, a warning to that effect. Actual notice 
 of such limitation is, of course, binding upon the purchaser, but 
 whether such a warning can be held to be constructive notice 
 seems to depend largely upon the degree of prominence given it, 
 
 * Kornemann v. Monaghan, 24 Am. Rep. 682; Trainor v. Morison, 
 
 Mich. 86; McKindly v. Dunham, 55 78 Me. 160, 57 Am. Rep. 790; Hos- 
 
 Wis. 515, 42 Am. Rep. 740; Seiplet). kins v. Johnson, 6 Sneed (Tenn.) 
 
 Irwin, 30 Penn. St. 513; Clark v. 469. 
 
 Smith, 88 111. 298; Chambers v. * Billings ». Mason, — Me. — , 6 
 
 Short, 79 Mo. 204; Greenhood ». New Eng. Rep. 791, 15 Atl. Rep. 59. 
 
 Keator, 9 111. App. 183; Law v. distinguishing Clough v. Whitcomb, 
 
 Stokes, 32 N. J. L. 249, 90 Am. Dec. 105 Mass. 482, and Finch v. Mans- 
 
 655; Butler v. Dorman, 68 Mo. 298, field, 97 Mass. 89, and likening the 
 
 30 Am. Rep. 795. case to Wilson v. Stratton, 47 Me. 
 
 « See ante § 337. 120. 
 
 » Putnam v. French, 63 Vt. 402, 88 
 
 215
 
 g 342. THE LAW OF AGENCY. [Book IL 
 
 Thus, it is said by a Wisconsin judge, " On the face of the bill 
 sent to the defendant, and directly under his address, there 
 appears in large, legible print in red ink, as if stamped upon it, 
 the words ' Agents not authorized to collect.' * * * If these 
 words so legible and prominent on the face of the bill, would not 
 be notice, it would seem to be impossible to give a purchaser such 
 a notice. By all authorities he must be presumed to have ob- 
 served these words, and to have had such notice when they were 
 so prominent on the face of the bill of goods in his possession, 
 and in which he alone was interested as purchaser. It might as 
 well be said that the contents of any written or printed notice of 
 any kind, or for any purpose, were not presumed to have been 
 brought home to, and to be known by, a party on his receipt of 
 the notice." * 
 
 In a Vermont case above referred to it is said : " It is further 
 insisted by the plaintiffs' counsel that the defendants were 
 charged with notice that they must pay the plaintiffs and not 
 Allen (the agent) by reason of the words ' payable at office ' 
 written on their bill rendered, when the last invoice was sent. 
 The defendants did not see those words. Therefore they had no 
 notice in fact. Should they be held chargeable with notice ? The 
 plaintiffs sent that bill without any letter, when the goods were 
 sent, which was three months before the time of payment agreed 
 upon. The defendants examined it as to items charged and 
 amount of same, and filed it away, — never noticing those words ; 
 and when Allen came around at about the time he was to come 
 for the pay by the terms of the sale, they paid him the balance 
 (jue, — supposing all the while that he was, as he claimed to be, a 
 member of the firm. 
 
 In view of the obscure manner in which those words were 
 written on the bill-head ; and of the circumstances under which, 
 and the purposes for which in other respects that bill was sent, 
 and of the terms of the contract as to whom and when and where 
 payment was to be made, we do not think the defendants were 
 guilty of such negligence, in not seeing those words, as to be 
 chargeable with notice which they did not in fact have. It was 
 a matter which the plaintiffs might easily have made plain. 
 They saw fit to undertake to give the notice in an obscure way 
 
 • Ortos, J. in McKindly t>. Dunham, 65 Wis. 515, 42 Am. Rep. 740. 
 
 216
 
 Chap. III.] OONSTBUOTION OF AUTHOKITIES. § 345. 
 
 which was likely to be ineffectual. It turned out bo and they 
 should bear the consequences." ' 
 
 So goods ordered of an agent were delivered as agreed, 
 accompanied by a bill with the words, " All bills must be paid 
 by check to our order or in current funds at our ofl&ce," printed 
 in red at the top. About two weeks afterward, the agent called 
 for and received payment, giving to the purchasers a receipted 
 bill bearing the same notice in red letters that appeared upon the 
 bill sent with the goods. The agent embezzled the money. 
 The court said: "The plaintiff seeks to charge the defendants 
 with knowledge that payment was required to be made according 
 to the terms of the notice in red letters upon the bill sent with 
 the goods. The defendants did not see the notice, nor taking 
 into consideration the care ordinarily exercised by prudent men, 
 are they at fault for not observing it. It is not so prominent 
 upon the bill as to become a distinctive feature of it, one that 
 would be likely to attract attention in the hurry of business and 
 that ought to have been seen by the defendants. It would have 
 been an easy matter for the plaintiff to have inclosed the bill in 
 a letter of advice, calling the attention of the defendants to the 
 fact that he was unwilling to intrust collections to his agent." * 
 
 § 343. Same Subject— No implied Authority to sell his Sam- 
 ples. A travelling salesman has no implied authority to sell the 
 samples furnished him by his principal for use in soliciting or- 
 ders. His sale of them, therefore, and receipt of payment there- 
 for, will be no bar to the recovery of their value by his principal 
 from the purchaser.' 
 
 § 344. Same Subject — Purchaser cannot set off Debt due from 
 Agent. For reasons similar to those preventing payment to an 
 agent authorized merely to sell, the purchaser cannot set off 
 against the principal a debt due him from the agent.* 
 
 § 345. Same Subject— Implied Authority to hire Horses. So 
 an agent authorized to travel from place to place to sell his prin- 
 
 * Veazkt, J. in Putnam v. French, Stokes, 33 N. J. L. 249, 90 Am. Dec. 
 
 53 Vt. 403, 38 Am. Rep. 683. 655. 
 
 « Trainor ©. Morison, 78 Me. 160, » Kohn v. Washer, 64 Tex. 181, 53 
 
 57 Am. Rep. 790; see also Kinsman Am. Rep. 745. 
 
 V Kershaw, 119 Mass. 140; Wass v. * Bernshouse v. Abbott, 16 Vroom 
 
 M. M, Ins. Co., 61 Me. 537; Law v. (N. J.) 631, 46 Am. Rep. 789. 
 
 217
 
 g 34.(3. THE LAW OF AGENCY. [Book II. 
 
 cipal's goods, has implied authority to hire horses and carriages, 
 when necessary for use in the course of his employment, to 
 transport himself and his samples ;' and for that purpose he may 
 use his principal's funds in his hands, or pledge his principal's 
 credit. And even though the agent may have been supplied by 
 the principal with money for that purpose, and forbidden to 
 pledge the credit of the principal therefor, the principal will be 
 liable to one who in good faith has supplied the agent with 
 horses, without knowledge of those instructions.* 
 
 § 346. Same Subject— Authority to procure other Supplies. 
 But from the mere fact that an agent employed to sell goods, has 
 intrusted to his possession a horse and wagon of the principal as 
 well as the goods for sale, the law will not imply a contract on 
 the part of the principal to pay for the board of the agent or the 
 keeping of the horse.' Nor is the principal responsible for a 
 hotel bill covering a period of several months and contracted by 
 his commercial travelling agent without notice to or authority 
 from the principal, it being the custom to pay cash.* 
 
 8 347. Implied Authority to warrant Quality. The question 
 of the implied power of an agent authorized to sell, to warrant the 
 quality of the goods sold, is a very important one, and one that 
 has often arisen, but upon which the authorities are not harmo- 
 nious. It has been attempted in many cases to settle the ques- 
 tion by reference to the arbitrary distinction made between gen- 
 eral and special agencies ; but while these rules may suffice to 
 determine many of the questions arising between the principal 
 and his agent, they are not satisfactory in considering the liabili- 
 ty of the principal to third persons. This question must be de- 
 termined by the same principles which govern the liability of 
 the principal for the acts of the agent in other cases. 
 
 Every person dealing with an assumed agent is bound at his 
 peril to ascertain the nature and extent of the agent's authority ; 
 but authority, as has been seen, is not dependent entirely upon 
 the instructions given, but is an attribute of the character in 
 which the principal holds the agent out to the public. Whatever 
 
 » Huntley «. Mathias, 90 N. C. 101, 8. C. 465; Grover & Baker S. Mach. 
 
 47 Am. Rep. 516; Bentley v. Doggett, Co. v. Polhemus, 34 Mich. 247. 
 51 Wis. 244, 37 Am. Rep. 827. * Covington v. Newberger, — N.C. 
 
 « Bentley v. Doggett, supra. (1888), 27 Cent. L. Jour. 263, 6 S.W. 
 
 » Sampson v. Singer Mn'f g Co., 5 Rep. 205. 
 
 218
 
 Chap, ill.] OONBTKUCTION OF AUTHORITIES. 
 
 §348. 
 
 attributes properly belong to that character will be presumed to 
 exist, and they cannot be cut off by private instructions of which 
 those who deal with the agent are ignorant. Among these at- 
 tributes is the power to do all that is usual and necessary to ac- 
 complish the object for which the agency was created. 
 
 § 348. Same Subjact— The general Rule. Authority conferred 
 upon an agent, whether general or special, to sell personal prop- 
 erty carries with it, in the absence of countervailing circumstan- 
 ces known to the party with whom he deals, implied power to 
 make in the name of the principal such a warranty of the qual- 
 ity and condition of the property sold as is usually and ordi- 
 narily made in like sales of similar property at that time and 
 place.* 
 
 The question of what is usual in such a case is ordinarily a 
 question of fact to be determined by the jury,' but in certain 
 cases the court will take judicial notice of it." The usage must 
 be so well settled, notorious and continuous, as to raise the legal 
 presumption that it was known to buyer and seller and that the 
 sale was made in reference to it.* If it is purely local, the prin- 
 
 I Pickert «. Marston, 68 Wis. 465, 
 60 Am. Rep. 876, 33 N. W. Rep. 
 550; Ahern v. Goodspeed, 73 N. Y. 
 108; Talmage v. Bierhause, 103 Ind. 
 270; Herring v. Skaggs, 63 Ala. 180, 
 34 Am. Rep. 4; McAlpin v. Cassidy, 
 17 Tex. 449; Schuchardt v. Aliens, 1 
 Wall. (U. 8.) 359; Palmer t). Hatch, 
 46 Mo. 585; Huguley ». Morris, 65 
 Ga. 666; Deming v. Chase, 48 Vt. 
 883; Boothbyc. Scales, 27 Wis. 630; 
 Murray v. Brooks, 41 Iowa, 45; Tice 
 V. Gallup, 2 Hun (K Y.) 446; Smith 
 V. Tracy, 36 N. Y. 82; Nelson v. 
 Cowing, 6 Hill (N. Y) 336; Hunter 
 c. Jameson, 6 Ired. (K C.) L. 253; 
 Ezell V. Franklin, 3 Sneed (Tenn.) 
 336; Bradford B. Bush, 10 Ala. 386; 
 Bryant t. Moore. 36 Me. 84, 45 Am. 
 Dec. 96; Cooley v. Perrine, 13Vroom 
 (N. J.) 323, 33 Am. Rep. 310; Decker 
 V. Fredericks, 47 N. J. L. 469; Scott 
 V. McGrath, 7 Barb. (N. Y.) 53; Mil- 
 burn V. Belloni, 34 Id. 607; Gaines v. 
 McKinley, 1 Ala. 446; Skinner v. 
 
 Gunn, 9 Port. (Ala.) 305; Cocke v. 
 Campbell, 13 Ala. 286; Davis v. Bur- 
 nett, 4 Jones, (N. 0.) L. 71, 67 Am. 
 Dec. 263; Upton v. Suffolk Mills, 11 
 Cush. (Mass.) 586, 59 Am. Dec. 163; 
 Graves v. Legg, 2 Hurl. &. N. 210; 
 Dingle tJ. Hare, 7 C. B. (N. 8.) 145, 
 97 Eng. Com. L. 145; Alexander v. 
 Gibson, 2 Camp. 555; Fay v. Rich- 
 mond, 43 Vt. 25; Morris v. Bowen,53 
 N". H. 416; Applegate v. Moffltt, 60 
 Ind. 104; Randall v. Kehlor, 60 Me. 
 37; Croom v. Shaw, 1 Fla, 211; Wil- 
 liamson V. Canaday, 3 Ired. (N. C.) 
 L. 349; Sandford v. Handy, 23 
 Wend. (N. Y.) 260; Taggart v. Stan- 
 bery, 2 McLean (U. 8. C. C.) 543; 
 Woodford v. McClenahan, 4 Gilm. 
 (111.) 85. 
 
 « Herring v. Skaggs, supra; Pickert 
 V. Marston, supra. 
 
 » Ahern v. Goodspeed, supra; Tal- 
 mage V. Bierhause, supra. 
 
 * Herring v. Skaggs, supra. 
 
 219
 
 § 34:9. THE LAW OF AGENCY. [Book II. 
 
 cipal may rebut the presumption of knowledge by showing that, 
 in fact, he did not know of it, in which case he will not be 
 bound.' Proof of the usage is admissible in behalf of either 
 party.' 
 
 § 349. niustrations of this Eule. Thus in a New York case, 
 the court said it was within their judicial observation from 
 many cases before them, that a warranty of commercial charac- 
 ter was the usual accompaniment of a sale, upon the New York 
 stock exchange, of promissory notes having the guise of com- 
 mercial paper, and it was held that an agent authorized to sell 
 such paper had implied power to make such a warranty.' 
 
 So the court will take judicial notice that it is usual and custo- 
 mary in ordering goods of a dealer, through his agent, to require 
 a warranty of quality, where the goods are not present and sub- 
 ject to the inspection of the purchaser, and authority to make 
 such a warranty will be implied.* 
 
 Again, sales of implements and machinery by the manufactur- 
 ers are so generally accompanied by a warranty of fitness for the 
 purpose for which they are intended, that an agent commissioned 
 to sell them, will be presumed to have authority to make such a 
 warranty;* and evidence is not admissible to prove that it was 
 not the custom of such a manufacturer to warrant, unless it also 
 be shown that the purchaser had notice of that custom ; • nor 
 that the agent was expressly prohibited to warrant, unless notice 
 of such prohibition be brought home to the purchaser.' 
 
 So such an agent has implied power to sell upon trial and to 
 give the purchaser the privilege of returning the machine if not 
 satisfactory;' and may sell upon condition that the sale shall not 
 be consummated if the machine does not do good work ;• and, 
 having sold upon condition that if the machine does not prove 
 satisfactory to the purchaser, he shall return it, the agent may 
 waive such return." 
 
 * Pickert v. Marston, supra; see ■ McCormick e. Kelly, 28 Minn. 185 
 anie, % 281. (a harvesting machine.) 
 
 s Pickert v. Marston, supra. ' Murray t». Brooks, 41 Iowa, 45 (a 
 
 •Ahern v. Qoodspeed, 72 N. T. 108, reaping machine.) 
 114. TBoothby v. Scales, 27 Wis. 626. 
 
 ^Talmage t». Bierhause, 103 Ind. *Deering e. Thorn, 29 Minn. 120. 
 
 270. »Oster v. Mickley, 35 Minn. 245. 
 
 "'Pitsinowskyt>.Beardsley,37Iowa,9. 
 220
 
 Chap. III.] ooNSTRUonoN of authorities. § 350, 
 
 An agent authorized to sell goods by sample will have the 
 implied authority to make the warranty usual in such cases, that 
 the goods sold are equal to the sample.' 
 
 Evidence that the authority of the agent to warrant was limi- 
 ted to the giving of a printed warranty only, furnished him by 
 his principal, is not admissible, unless it be also shown that the 
 purchaser had knowledge of the limitation ; * but where the pur- 
 chaser has knowledge that such a warranty was furnished, he 
 cannot accept an oral warranty from the agent, different in its 
 terms, and require the principal to comply with such oral war- 
 ranty.* 
 
 The fact that the vendor of a steam boiler, by his agent, fur- 
 nishes the vendee at the time of the sale with a pamphlet de- 
 scriptive of the boilers, in which their durability is advertised as 
 an essential quality, is evidence from which the agent's authority 
 to warrant their durability may be inferred.* 
 
 § 350. Limits of this Rule. But this rule is not to be extend- 
 ed beyond the limits prescribed by it. It cannot, therefore, ap- 
 ply to sales of property not usually sold with such a warranty, 
 nor to sales made under such circumstances that such a warranty 
 is not usually given, nor can it give countenance to any unusual 
 or extraordinary warranty. 
 
 Thus though an agent authorized to sell liquors may warrant 
 their quality and condition, he has no implied power to warrant 
 that they will not be seized for violation of the revenue laws ; • 
 nor can an agent employed to sell flour, without express authority, 
 warrant that it will keep sweet during a sea voyage from Massa- 
 chusetts to California.* 
 
 So an agent authorized to take orders for his principal's goods 
 
 ' Andrews v. Kneeland, 6 Cow. (N. pressly provides that the agent has no 
 
 Y.) 354; Dayton v. Hooglund, 89 authority to change or vary its terms, 
 
 Ohio St. 671; Schuchardt e. Aliens, 1 such provision is a sufficient notice 
 
 Wall. (U. S.) 359; Murray «. Smith, to the purchaser of the limitations 
 
 4 Daly (N. Y.) 277. upon the agent's authority. Pur- 
 
 " Murray v. Brooks, 41 Iowa, 45. neaux «. Easterly, 86 Kans. 539. 
 
 » Wood Mow. «& Reap. Machine * Smilie «. Hobbs, — N. H. — , 5 
 
 Co. f). Crow, 70 Iowa, 340; limiting Atl. Rep. 711. 
 Eadie v. Ashbaugh, 44 Iowa, 519, and • Palmer v. Hatch, 46 Mo. 685. 
 
 Farrar v. Peterson, 52 Iowa, 420. •Upton o. Suffolk County Mills, 11 
 
 Where the purchaser is furnished Cush. (Mass.) 586, 69 Am. Dec. 163. 
 with a printed warranty which ex- 
 
 221
 
 8 351. THE LAW OF AGENCY. [Book IL 
 
 may warrant that the principal will not sell similar goods to any 
 other dealer in the same town ; * but he cannot warrant that his 
 principal will not afterward sell to others similar goods for a less 
 price.* And though an agent employed to sell negotiable notes 
 would have implied authority, when necessary, to endorse them, 
 he would have no implied authority to make an additional guar- 
 antee of payment.* 
 
 Nor has an agent authorized to sell safes, implied authority to 
 warrant that they are burglar proof.* 
 
 Whether an agent employed to sell a horse has implied power to 
 warrant his soundness, has been much discussed and the authorities 
 are not harmonious. Thus it has been held that an agent of a 
 horse dealer has such implied power, and that it cannot be 
 affected by private instructions from the principal not to war- 
 rant ; * but that the agent of a private individual or a special 
 agent has no such implied power, even in the absence of any 
 restrictions.* On the other hand, it has been decided that unless 
 expressly forbidden, the agent would have such an implied 
 power ; ' and in still other cases, the authority has been declared 
 in general terms.* 
 
 But no satisfactory reason is perceived why the question of 
 the warranty of a horse should stand upon any different basis than 
 the warranty of any other chattel. 
 
 § 351. Authority to warrant Title. An agent authorized to 
 sell goods, as the goods of his principal, would have implied 
 authority to warrant his principal's title. "Warranties of this 
 sort are usual, and would be implied if the principal himself were 
 to offer for sale goods in his own possession.* 
 
 * Keith V. Hlrscbberg Optical Co., the distinction between a general and 
 — Ark. — , 2 S. W. Rep. 777. a special agency. 
 
 •Anderson e. Bruner, 113 Mass. »Deming «. Cbase, 68 Vt. 383; Tice 
 
 14 •. Gallup, 2 Hun (N. Y.) 446. 
 
 » Qraul f>. Strutzel, 53 Iowa, 712. • Ezell v. Franklin, 2 Sneed (Tenn.) 
 
 ♦ Herring©. Skaggs, 63 Ala, 180, 34 236; Skinner v. Gunn, 9 Port (Ala.) 
 Am. Rep. 4, Same Case, 73 Ala. 446. 305; Lane v. Dudley, 2 Murph, (N. 
 
 8 Howard v. Sheward, L. R. — , 2 C. C.) 119, 5 Am. Dec. -523; Gaines v. Mc- 
 
 p, 148. Kinley, 1 Ala. 446; Helyear c. 
 
 « Brady v. Todd. 9 C. B. (N. 8.) Hawke, 5 Esp. 72; Alexander e. Qib- 
 
 592; Cooley v. Perrine, 12 Vroom (K son, 2 Camp. 555; Bradford t. Bush, 
 
 J.) 323, 33 Am. Rep. 210. The de- 10 Ala. 386. 
 
 cision in this case was based solely on • See Benjamin on Sales, Bennett's 
 
 Ed. § 641, and cases cited. 
 
 222
 
 Chap. III.] CONSTBUCTION OF AUTHORITIES. 
 
 § 354. 
 
 § 352. No implied Power to exchange or barter. Mere au- 
 thority to sell gives an agent no power to exchange the chattels 
 for other property, or to take anything else than money in pay- 
 ment for them.^ He cannot therefore, take payment in notes, 
 checks or other paper.' And having received payment in money, 
 he has no authority to exchange the money with a third person 
 for other money, and if he does so and receives a counterfeit 
 bill, his principal may recover the money given for it.* 
 
 § 353. No implied Power to give Credit. In the absence of 
 anything to the contrary, it will be presumed that the sale is to 
 be for cash in hand. An agent authorized to sell chattels has, 
 therefore, no implied power to give credit, unless there is a valid 
 usage to that effect at that time and place. ^ 
 
 § 35i. No Authority to appropriate to his own Use. An 
 agent entrusted with goods to sell for his principal, has no right 
 to sell or deliver them in payment of his own debt, or to pledge 
 them as security for his own debt, and persons dealing with such 
 an agent are bound to take notice of this limitation of his author- 
 ity.' A creditor therefore who receives the goods under such an 
 
 I Trudo V. Anderson, 10 Mich. 357, 
 81 Am. Dec. 795; Wheeler & Wilson 
 Mnfg. Co. V. Givan, 65 Mo. 89; Tay- 
 lor V. Starkey, 59 N. H. 143; Brown 
 «. Smith, 67 K C. 245; Victor Sew- 
 ing Mach. Co. V. Heller, 44 Wis. 265; 
 Kent V. Boistein, 12 Allen (Mass.) 
 342; City of Cleveland v. State Bank, 
 16 Ohio St. 246, 88 Am. Dec. 445; 
 Guerreiro v. Peile, 3 B. & Aid. 616. 
 
 sBuckwalter v. Craig, 55 Mo. 71, 
 A direction to sell for cash does not 
 permit the agent to take a check pay- 
 able 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. Hall v. Storrs, 
 7 Wis. 253. An agent who takes 
 check payable ten days after date is 
 liable if bank fails before payment. 
 Harlan v. Ely, 68 Cal. 523. 
 
 •KentTJ. Borstein, supra. 
 
 ♦Payne v. Potter, 9 Iowa, 549; May 
 V. Mitchell, 5 Humph. (Tenn.) 365; 
 Burks V. Hubbard, 69 Ala. 379; 
 
 School District v. Mtna Ins. Co., 62 
 Me. 330; State «. Delafield, 8 Paige 
 (N. Y.) 527. That a factor may sell 
 on credit, see post, Chapter on Fact- 
 ors. 
 
 •Wheeler & Wilson Mnfg. Co. «. 
 Givan, 65 Mo. 89; Holton v. Smith, 
 7 K H. 446; Whitney v. State Bank, 
 
 7 Wis. 620; Burks «. Hubbard, 69 
 Ala. 379; Stewart «. Woodward, 50 
 Vt. 78, 28 Am. Rep, 488; Levi v. 
 Booth, 58 Md. 305, 42 Am. Rep. 332; 
 Williams v. Johnston, 93 N, C. 532, 
 53 Am. Rep. 428; Parsons v. Webb, 
 
 8 Qreenl. (Me.) 38, 22 Am. Dec. 230; 
 Greenwood v. Burns, 50 Mo. 53; 
 Butts V. Newton, 29 Wis. 682; Rodick 
 V. Coburn, 68 Me. 170; McCormickt;. 
 Keith, 8 Neb. 143; Hart v. Hudson, 6 
 Duer (N. Y.) 294; Hurley v. Watson, 
 — Mich. — . 13 West. Rep. 543; 
 Sykes v. Giles, 5 M. & W. 645; Scott 
 «. Irving, 1 B. & Ad. 605; Catterall 
 V. Hindle, L. R. 1 0. P. 187, 
 
 223
 
 § 355. THE LAW OF AGENCY. [Book IL 
 
 arrangement, as well as his vendee, though acting in good faith 
 and in ignorance that the goods did not belong to the agent, 
 acquires no title thereto as against the principal.' 
 
 § 355. No implied Authority to release Principal's Rights or 
 pay his Debts. Neither has such an agent any implied power to 
 release a debt due to his principal ;' nor has a mere clerk em- 
 ployed in his principal's store, any implied authority to com- 
 pound or compromise debts due to his employer;' or to sell goods 
 at wholesale prices for a debt due from his principal ;* or to de- 
 liver goods in payment of, or as security for, a note signed by his 
 employer.* 
 
 § 356. No Authority to pledgd Goods. An authority to sell 
 goods implies no power to pledge them.* 
 
 § 357. No Authority to promise Commissions for Sub-Sales. 
 An agent authorized to sell his principal's goods has no implied 
 authority to bind his principal by a promise to pay commissions 
 to third persons for sales made by them for the principal ;' nor 
 having property to be sold for cash, like railroad tickets, has he 
 implied power to deliver it to a third person to sell, to be paid 
 for when sold, and to bind the principal by promising such third 
 person a commission upon sales made by him.* 
 
 § 358. No Authority to sell at Auction— When. An agent 
 authorized to sell property cannot, without express authority, 
 sell it at auction ; and a purchaser at such a sale, with notice of 
 the agent's powers, or where the circumstances were sufficient to 
 put him upon inquiry, who fails to make inquiry, acquires no 
 title.* So under a power of attorney authorizing a sale only at 
 
 > "Warner v. Martin, 11 How. (U. S.) *Lee v. Tinges, 7 Md. 215; Hamp- 
 
 209 ; Belton Compress Co. v. Belton ton v. Mattliews, 14 Penn. St. 105. 
 
 Brick Mfg. Co., 64 Tex. 337; De »Nash v. Drew, 5 Cush. (Mass.) 
 
 Bouchout V. Goldsmid, 5 Ves. Jun. 423. 
 
 211, and cases above cited. An agent 'Voss v. Robertson, 46 Ala. 483; 
 
 cannot bind bis principal by an agree- "Wheeler & Wilson Mnfg. Co. «. 
 
 ment to pay bis own private debts Givan, 65 Mo. 89. 
 
 out of his principal's property. Rice ^ Atlee v. Fink, 75 Mo. 100, 42 Am. 
 
 V. Lyndborough Glass Co., 60 N. H. Rep. 385. 
 
 195. « Frank v. Ingalls, 41 Ohio St. 560. 
 
 « Smith V. Perry, 29 N. J. L. 74. •Towle v. Loavitt, 23 N. H. 860, 
 
 » Powell's Admr. v. Henry, 27 Ala. 55 Am. Dec. 195. 
 612. 
 
 224
 
 Chap. III.] 00N8TBU0TI0N OF AUTHOEITIES. § 362. 
 
 auction, a private sale is void and confers no title on the pur- 
 chaser. * 
 
 § 359. Authority when to be executed. An authority to 
 sell the property upon a particular day specified confers no power 
 to sell it upon a subsequent or different day ;* neither is there 
 any presumption that an authority to sell goods in a single in- 
 stance continues for several years afterward.* 
 
 § 360. No Authority to rescind the Sale. After the contract 
 of sale made by the agent has become complete, the. agent has no 
 implied authority to rescind or discharge it, or to receive back 
 the goods,* particularly where the sale has been fully executed.^ 
 
 § 361. No Authority to mortgage. Authority to an agent to 
 sell personal property, implies no authority to mortgage it.' 
 
 § 362. Authority to fix Price and Terms of Sale. An agent 
 clothed with general power to sell personal property without re- 
 strictions, has implied authority to fix the price and to agree 
 upon the terms of the sale.' The price so fixed, however, should 
 not be less than the market price, if there be a market price, and 
 in any event should not be less than a reasonable price.' And so 
 as to the terms of the sale ; they should be the usual terms, if 
 there be any usage, and in any case the terms should be reason- 
 able.' 
 
 The principal may lawfully prescribe the price and terms upon 
 which the sale is to be made, and these regulations will be bind- 
 ing upon the agent," and, if they have notice of them, npon third 
 
 • The G. H. Montague, 4 Blatch' time, place, and mode of delivery 
 (U. S. C. C.) 464. and the price of the goods, and the 
 
 • Bliss V. Clark, 16 Gray (Mass.) time and mode of payment, and to 
 60. receive payment of the price, subject 
 
 • Reed v. Baggott, 5 111. App. 257. of course, to be controlled by proof 
 < Diversy v. Kellogg, 44 111. 114, 93 of the mercantile usage in such trade 
 
 Am. Dec. 154; Stilwell «. Mutual or business." Daylight Burner Co. 
 
 Life Ins. Co., 72 N. Y. 385. «. Odlin, supra. 
 » Adrian v. Lane, 13 S. C. 183. • Bigelow v. Walker, 24 Vt 149, 58 
 
 • Switzer v. Wilvera, 24 Kans. 384, Am. Dec. 156. 
 
 86 Am. Rep. 259. • Putnam «, French, tupra. Such 
 
 T Daylight Burner Co. «. Odlin, 51 an agent, it is there held, has appar- 
 
 N. H. 56, 12 Am. Rep. 45; Putnam ent authority " to make terms of pay- 
 
 V. French, 53 Vt. 402, 38 Am. Rep. ment as to time and place, to the 
 
 682. As incident to the general au- extent at least of what was customary 
 
 thority to sell, the agent has " power and not extraordinary," 
 
 to fix the terms of sale, including the «• See Wolf v. Lyster, 1 Hall (N. 
 
 15 225
 
 § 363. THE LAW OF AGENOT. [Book II. 
 
 persons. Private instructions as to price and terms cannot, how- 
 ever, affect those who, with no notice of them, have dealt with 
 the agent in good faith, relying upon an apparent general au- 
 thority.* But such third persons must have exercised reasonable 
 prudence, and if the price or terms fixed by the agent were so 
 unusual or so unreasonable as to fairly put a prudent man upon 
 his guard, they will not be protected.' 
 
 III. 
 
 OF AGENT AUTHORIZED TO PUEOHASE. 
 
 8 363. May not bay on Credit, when furnished with Funds. 
 An agent authorized to purchase goods for his principal, and who 
 is supplied with funds for that purpose, has no implied authority 
 to bind his principal by a purchase on credit ; and in such a case 
 the principal will not be bound by a purchase on credit, although 
 the goods come in fact to his use, unless he has knowledge of the 
 fact and does something in ratification of it, or unless it be 
 shown that it is the custom of the trade to buy on credit.' A 
 mere authority to buy does not imply power to buy on credit.* 
 
 So authority to buy goods and pay for the same with funds 
 furnished by the principal, does not authorize the agent to make 
 advances of the money of his principal, nor to sell and guarantee 
 the payment by the principal of unsettled accounts that have 
 been received in satisfaction of such unauthorized advances.* 
 
 8 364. May buy on Credit when not supplied with Funds. 
 An agent, however, who is directed to purchase goods, but is not 
 supplied with the necessary funds, has implied power to purchase 
 such goods on the credit of his principal. • And it has been held 
 that an agent who has general authority to buy and sell goods 
 
 Y.) 146; Steele c, EUmaker, 11 Serg. (Mass.) 128; Sprague v. Gillett, 9 
 
 & R. (Penn.) 86. Mete. (Mass.) 91; Fraser v. McPher- 
 
 iTowle V. Leavitt, 23 N. H. 360, 65 son, 3 Desau. (S. C.) 393; Parsous e. 
 
 Am. Dec. 195. Armor, 3 Pet. (U. S.) 413, 1 Myers 
 
 sSee ante, § 289. Fed. Dec. § 49. 
 
 •Komorowski v. Krumdick, 66 < Berry «. Barnes, 23 Ark. 411. 
 
 Wis. 23; Jaques «. Todd, 3 Wend. «Bohart e. Oberne, 36 Kans. 284. 
 
 (N. Y.) 83; Adams v. Boies, 24 Iowa, « Sprague «. Gillett, 9 Mete. (Mass.) 
 
 DG; Taber v. Cannon, 8 Mete. (Mass.) 91. 
 456; Temple c. Pomroy, 4 Gray, 
 
 226
 
 Chap. II.] CONSTRUCTION OF THE ATJTHORnT. § 368, 
 
 for his principal, may buy on credit or for cash at his discr©* 
 tion.* 
 
 § 365. Has Power to agree upon Price and Terms of Purchaso. 
 An agent invested with general authority to purchase goods for 
 his principal has, in the absence of contrary limitations upon his 
 authority, implied power to settle upon the usual incidents of the 
 purchase. Thus he may agree upon the price and terms of pay- 
 ment; he may determine upon the time and method of delivery;* 
 he may acknowledge the receipt of the goods and the amount of 
 indebtedness therefor ;• and may in general do those things, not 
 inconsistent with his authority, which are proper and usual to do 
 in such cases. 
 
 In this case, however, as in others, limitations may lawfully be 
 imposed upon the agent's authority, which will be binding upon 
 the agent, and upon third persons having knowledge or charged 
 with notice of them.* 
 
 § 366. May not exceed Limits as to Quantity. An agent 
 commissioned to buy goods to a certain quantity, must confine 
 his purchase within the limits given. And he has no more im- 
 plied power to purchase a smaller than a greater quantity.' If no 
 limits are fixed, a reasonable discretion may be exercised. 
 
 8 367. Must observe Limits as to Quality or Species. An 
 agent authorized generally to buy chattels without limitation as 
 to kind or quality, may undoubtedly exercise a fair and reason- 
 able discretion. But where he is expressly limited to the pur- 
 chase of a specific thing, he cannot purchase another. And where 
 he is instructed to buy goods only of a given quality or of a 
 certain kind, he must observe the limits fixed.* 
 
 § 368. May be restricted as to Persons with whom to deaL 
 The principal may lawfully restrict the agent as to the persons 
 with whom he shall deal in the execution of his authority, and 
 where such restrictions are known, the principal cannot be bound 
 by a purchase of other persons than those designated.' 
 
 iRuffin*. Mebane, 6 Ired. (N. 0.) »01yphaiite. McNair, 41 Barb. (N. 
 
 Eq. 507. T.) 446. 
 
 s Owen t. Brockschmidt, 64 Mo. • See ante, § 288. Davies v. Lyon, 
 
 285. 86 Minn. 427, 31 N. W. Rep. 688. 
 
 •Stothard tj. AuU, 7 Mo. 318. fPeckham v. Lyon, 4 McLean, (U. 
 
 « Bryant v. Moore, 26 Me. 84, 45 8. C. C.) 45, 1 Myers Fed. Dec. §451. 
 Am. Dec. 96. 
 
 227
 
 I 369. THE LAW OF AGENCY. [Book II. 
 
 § 369. May make Representations as to Principal's Credit. 
 An agent expressly authorized to purchase goods upon his prin 
 cipal's credit, has implied authority to make the necessary repre- 
 sentations as to the solvency and credit of his principal, without 
 which the seller would not sell the goods.* This rule is based 
 upon the principle that the agent has implied power to do those 
 things which are necessary and usual to accomplish the object 
 sought to be attained, and must, in reason, be limited by that 
 necessity. Thus if the principal's credit is already established, or 
 if the seller does not require a representation, the principal ought 
 not to be bound by the mere voluntary and gratuitous represen- 
 tations of his agent, nor in any event, for excessive or unusual 
 pledges of responsibility. He cannot pledge his principal's credit 
 for his own personal benefit.* 
 
 §370. May not execute negotiable Paper. Authority to bind 
 his principal by a note or bill for the price of the goods bought 
 is not implied from mere authority to purchase. Such an agent, 
 therefore, has no authority to bind his principal by a promissory 
 note or bill of exchange, unless that authority be expressly 
 given,* or unless the giving of such note or bill is indispensable 
 to the discharge of the duties to be performed.* 
 
 IV. 
 
 OF AGENT AUTHORIZED TO KEOEIVE PAYMENT. 
 
 § 371. What constitutes such Authority. Authority to col- 
 lect or receive payment of a demand may, of course, be conferred 
 in express terms and with more or less of discretionary and inci- 
 dental power. When such is the case, the rules heretofore laid 
 down are sufficient to determine its construction. 
 
 But such power may also be implied from circumstances, and 
 some instances of this nature will illustrate the extent of such 
 implication. 
 
 § 372. When impUed from negotiating the Contract. And in 
 the first place it may be noticed that the mere fact that the agent 
 
 > Hunter v. Hudson River Co. 20 456; Webber v. Williams College, 33 
 Barb. (N. Y.) 493. Pick. (Mass.) 302. 
 
 « Stephenson «. Grim, 100 Penn. St. < Temple v. Pomroy. 4 Gray (M^nsJ 
 
 7Q 128; Bickford f>. Menier, 107 N. Y 
 
 •Tabor v. Cannon, 8 Mete. (Mass.) 490. 
 
 228
 
 Chap. III.] ^OONBTRUOTION OF AUTHORITIES. § 374. 
 
 was employed to make or negotiate the contract will not, as of 
 course, confer upon him the incidental authority to receive a 
 payment which may become due upon such contract.* 
 
 §373. Wlien implied from Possession of the Securities. Au- 
 thority to receive payment on securities may often be implied 
 from their possession by the agent. Thus where a loan upon a 
 note, or bond and mortgage has been negotiated for the principal 
 through an agent, and the security is left in the agent's possession 
 and control, authority to make payments thereon to the agent, 
 may, in the absence of directions to pay it elsewhere, be implied.* 
 But the presumption in these cases is founded upon the agent's 
 possession of the securities, and it ceases when the securities 
 are withdrawn by the creditor; • and it is incumbent upon 
 the debtor to assure himself on each occasion when a payment 
 is made that they still continue in the agent's possession, or the 
 payment will not bind the principal, unless his conduct has been 
 such as to estop him to deny the agency.* 
 
 But authority to receive payment of a note payable to the 
 order of the principal and not endorsed by him, cannot be pre- 
 sumed from the mere possession by the assumed agent.* 
 
 This rule does not conflict with that already noticed • that the 
 mere possession of the bill or statement of an account, though made 
 upon the principal's bill-head and in his handwriting, does not 
 imply authority to receive payment of it. Securities for the 
 payment of money stand obviously upon other ground. 
 
 § 374. When implied from having sold the Goods. The pre- 
 sumption as to the authority to receive payment arising from the 
 fact that the agent sold the goods for which the demand is due, 
 
 1 Thompson v. Elliott, 73 111. 231; « Smith «. Kidd, 68 N. Y. 130, 23 
 
 Smiths. Hall, 19111. App. 17; Cooley Am. Rep. 157; Brown v. Blyden- 
 
 V. Willard, 34 111. 68, 85 Am. Dec. burgh, 7N. Y. 141; Kellogg «. Smith, 
 
 2'J6. 26 N. Y. 18; Purdy v. Huntington, 
 
 » Haines v. Pohlmann, 25 N. J. Eq. 42 N. Y. 339; Williams v. Walker, 
 
 179; Williams v. Walker, 2 Sandf. $upra; Hatfield «. Reynolds, supra; 
 
 (N. Y.) Ch. 825; Hatfield©. Reynolds, VanKeuren v. Corkins, supra; Meg- 
 
 84 Barb. (N. Y.) 612; Van Keuren v. ary v. Funtis, supra; Haines v. Pohl- 
 
 Corkins, 4 Hun (N. Y.) 129. mann, supra; Cooley v. Willard, 
 
 3 Guilford v. Stacer, 53 Ga. 618; supra; Brewster t». Games, 103 N. 
 
 Megary v. Funtis, 5 Sandf. Sup. Ct. Y. 556, 9 North E. Rep. 323, 
 
 (N. Y.) 376; Brown «. Blydenburgh, » Doubleday t). Kress, 50 N. Y. 410, 
 
 7 N. Y. 141; Cooley v. Willard, 34 10 Am. Rep. 502. 
 
 lU. 68, 85 Am. Dec. 296. « See ante, % 337. 
 
 229
 
 §375. 
 
 THE LAW OF AGHNOT. 
 
 [Book II. 
 
 has been considered in treating of the implied powers of an agent 
 authorized to sell goods.* 
 
 § 375. Can receive nothing but Money. An agent authorized 
 merely to collect a demand or to receive payment of a debt, 
 cannot bind his principal by any arrangement short of an actual 
 collection and receipt of the money.* He cannot, therefore, take 
 in payment the note of the debtor payable either to himself • or to 
 his principal ; * or the note or bond of himself, • or of a third 
 person ; • or a draft or order on a stranger, ' or horses, wheat, 
 merchandise or other property of any kind ; * nor can he set off a 
 claim due from himself ; • or take property for his own use in 
 payment." 
 
 i 1 See ante, §§ 338, et seq. 
 
 •Robinson v. Anderson, 108 Ind. 
 152; McCormick t>. Wood, &c., Co., 
 72 Ind. 518; O'Conner v. Arnold, 53 
 Ind. 203; Ward v. Smith, 7 Wall. (U. 
 S.)451; Waterhousew. Citizens' Bank, 
 25 La. Ann. 77; Rodgers v. Bass, 46 
 Tex. 505; Padfleld v. Green, 85 111. 
 529; Woodbury v. Lamed, 5 Minn. 
 839; McCullocht). McKee, 16 Penn. 
 St. 289; Aultman v. Lee, 43 Iowa, 
 404; Graydon v. Patterson, 13 Iowa, 
 256; McCarverr. Nealey, 1 G. Greene 
 (Iowa) 360; Kirk v. Hiatt, 2 Ind. 322; 
 Corning®. Strong, llnd. 329; Bridges 
 V. Garrett, L. R. 5 C. P. 454; Ward 
 V. Evans, 2 Ld. Raym. 928; Powell 
 u. Henry, 27 Ala. 612; Taylor v. Rob- 
 inson, 14 Cal. 396; Mathews c. Ham- 
 ilton, 23 111. 470; Robsonz). Watts, 11 
 Tex 764; British* Amer. Mtg. Co. 
 V. Tibballs, 63 Iowa, 463; Pitkin v. 
 
 Harris, — Mich. , 13 West. Rep. 
 
 719. 
 
 scorning v. Strong, 1 Ind. 329; Mc- 
 CullochD. McKee, 16 Penn. St. 289; 
 Robinson v. Anderson, 106 Ind. 152. 
 
 < Miller «. Edmonston, 8 Blackf. 
 (Ind.) 291. 
 
 • McCarver v. Nealey, supra. 
 
 • Langdont). Potter, 13 Mass. 819; 
 Wilkinson v. Holloway, 7 Leigh (Va.) 
 277; Smock v. Dade. 5 Rand. (Va.) 
 639; Smith v. Lamberts, 7 Gratt. (Va.) 
 
 138; Wiley e. Mahood, 10 W. Va. 
 
 206. 
 
 ' McCarver v. Nealey, 1 G. Greene, 
 (Iowa) 360; Drain v. Doggett, 41 
 Iowa, 682; Goldsborough v. Turner, 
 67 N. C. 403. 
 
 •Rhine v. Blake. 69 Tex. 240; 
 Wright V. Daily, 26 Tex. 730; Kent v. 
 Ricards, 8 Md. Ch. 892; Harper v. 
 Harvey, 4 W. Va. 539; Kirk e. Hiatt, 
 2 Ind. 322; Aultman v. Lee, 43 Iowa, 
 404; Martin v. United States. 2 T. B. 
 Monr. (Ky.) 89, 15 Am. Dec. 129; 
 Reynolds v. Ferree, 86 111. 570; Wil- 
 liams V. Johnston, 92 N. C. 532, 58 
 Am. Rep. 428; Pitkin v. Harris, 
 — Mich. — , 13 West Rep. 719. 
 
 • Whitney v. State Bank, 7 Wis. 
 620; Batts v. Newton, 29 Wis. 632; 
 Stewart v. Woodward, 50 Vt. 78, 
 28 Am. Rep. 488; Rodick v. 
 Coburn, 68 Me. 170; Greenwood 
 V. Burns, 50 Mo. 52; McCor- 
 mick V. Keith, 8 Neb. 143; Irwin 
 V. Workman, 3 Watts, (Penn.) 857; 
 Coffman v. Hampton, 2 Watts & 
 Serg. (Penn.) 377; Bridges ». Garrett, 
 L. R., 5 C. P. 454; Sykes v. Giles, 5 
 M. &. W. 645; Scott V. Irving. 1 B. 
 & Ad. 605; Catterall v. Hindle, L, P. 
 1 C. P. 187; Hurley v. Watson, — 
 Mich. — , 18 West. Rep. 643. 
 
 i» Williams v. Johnston, 92 N. 0. 
 532, 53 Am. Rep. 428. 
 
 230
 
 Chap. III.] OONSTRUOTION OF AUTHORITIES. § 379. 
 
 Where, however, the agent was a bank of deposit, it was lield, 
 while recognizing the general rule, that it might receive in pay- 
 ment one of its own certificates of deposit.' 
 
 And so, it has been held, that an agent authorized to negotiate 
 a note might accept in place of money a certificate of deposit 
 payable on demand, issued by a solvent bank.* 
 
 § 376. No Authority to release or compromise the Debt. It 
 follows, as a corollary of the rule above referred to, that an agent 
 authorized merely to collect or receive payment, has no implied 
 power to release the debt, in whole or in part, or to compromise 
 the claim, without payment ; * nor can he discharge the debtor 
 and assume the debt himself.* 
 
 § 377. May receive part Payment. But authority to collect 
 or receive payment of the whole of a demand implies power to 
 collect or receive a part payment to apply upon it.* 
 
 § 378. But may not extend Time. But although he is thus 
 authorized to receive payment in part, he cannot upon such pay- 
 ment, or in consideration of it, extend the time of payment of 
 the balance.* Nor can he extend the time without express 
 authority in any case.' 
 
 § 379. Authority to receive Interest does not authorize 
 Receipt of Principal. The payee of a promissory note, payable 
 to her order, delivered it, unindorsed, to an agent with authority 
 to receive the interest thereon, and to take a new note in re- 
 newal with an indorser. The maker paid the principal and inter- 
 est to the agent who embezzled the principal. It was held that 
 the payment of the principal was unauthorized and did not dis- 
 charge the liability of the maker to the payee.* 
 
 » British, &c., Mortgage Co. «. bers v. Miller, 7 "Watts (Penn.) 63; 
 
 Tibbals, 63 Iowa, 468. Cooney v. Wade, 4 Humph. (Tenn.) 
 
 i Poorman v. "Woodward, 21 How. 444, 40 Am. Dec. 657. 
 
 (U. S.) 266, 1 Myers Fed. Dec. § 61. * "Whelan «. Reilly. 61 Mo. 565. 
 
 "Herring u. Hottendorf, 74 N. C. • Hutchings v. Munger, 41 N. Y. 
 
 588; McHany*. Schenck, 88 111. 357; 155; Ritch v. Smith, 82 N. Y. 627; 
 
 Mel'vin v. Lamar Ins. Co. 80 111. 446; Gerrish v. Maher, 70 111. 470. 
 
 Bairdu. Randall, 58 Mich. 175; Nolan t Chappell v. Raymond, 20 La. 
 
 V. Jackson, 16 111. 272; "Whittington Ann. 277; Lockhart tj. "Wyatt, 10 Ala. 
 
 V. Ross. 8 111. App. 239. 231, 44 Am. Dec. 481. 
 
 « Miles V. Richwine, 2 Rawle • Doubleday v. Kress, 50 N. Y. 410, 
 
 (Penn.) 199, 19 Am. Dec. 638; Cham- 10 Am. Rep. 502; to same effect 
 
 231
 
 8 380. THE LAW OF AGENCY. [Book II. 
 
 8 380. Not authorized to receive before due. And even 
 
 though an agent have authority to receive payment of an obliga- 
 tion, this does not authorize him to receive it before it is due,' in 
 the absence of 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.* 
 
 § 381. No Authority to take Cheeks. Being authorized to 
 receive nothing but money, the agent had no implied power to 
 accept checks.* Of course if the check is paid it is a good pay- 
 ment,* but if the drawee fails to pay, the agent is liable for a 
 loss resulting.* 
 
 § 382. If authorized to take Check or Note, has no Authority 
 to indorse and collect it. But even if authorized to accept 
 checks in payment of the demand, the agent has no implied 
 authority to indorse them and collect the money thereon, and 
 tlie bank paying the check so indorsed is still liable to the prin- 
 cipal for the amount thereof.' 
 
 So an agent authorized to accept a note in settlement of a debt 
 has no implied power, after delivering it to his principal, to 
 receive payment of the note.' 
 
 § 383. Authority to collect does not authorize Sale. Author- 
 ity to aE agent to collect or receive payment of a note or other 
 demand, does not imply power to sell, transfer, or otherwise dis- 
 pose of it." Nor will authority to an agent to accept a note in 
 
 Smith V. Kldd, 68 N. T. 130, 23 Am. • Graham t». United States Saving 
 
 Rep. 157; Brewster v. Games, 103 N. Inst. 46 Mo. 186; Thompson v. Bank, 
 
 Y. 556, 9 North E. Rep. 323. 82 N. Y. 1; Robinson v. Chemical 
 
 ' Smith V. Kidd, 68 N. Y. 130, 23 Banlj. 86 N. Y. 404; Millard v. Re- 
 Am. Rep. 157; Doubleday v. Kress, public Bank, 3 McArthur (D. C.) 54; 
 50 N. Y. 410, 10 Am. Rep. 502; Fel- McClure v. Evartson, 14 Lea (Tenn.) 
 lows V. Northrup, 39 N. Y. 121; 495; Holtsinger v. National, &c. 
 CampbeU v. Hassel, 1 Stark, 233; Bank, 6 Abb. (N. Y.) Pr. (N. S.) 292; 
 Parnther v. Qaitskell, 13 East, 437. Hogg v. Smith. 1 Taunt. 347. 
 But see Bliss v. Cutter, 19 Barb. (N. ' Draper v. Rice, 56 Iowa, 114, 41 
 Y.) 9. Am. Rep. 88. 
 
 « Thompson ». Elliott, 73 111. 221; 'Smith v. Johnson, 71 Mo. 882; 
 
 Smith V. Hall, 19 111. App. 17. Texada v. Beaman, 6 La. 84, 25 Am, 
 
 » Hall V. Storrs, 7 Wis. 253. Dec. 204; Hardesty v. Newby, 28 Mo. 
 
 * Bridges v. Garrett, L. R., 6 C. P. 567, 75 Am. Dec. 137; Quigley v. 
 
 454. Mexico Southern Bank, 80 Mo. 289, 
 
 » H.irlan v. Ely, 68 Cal. 523. 50 Am. Rep. 503. 
 
 232
 
 Chap. III.] CONSTRUCTION OF AUTHORITIES. § 386. 
 
 settlement of a deinan(i, imply power in the agent to afterward 
 sell the note so taken.' 
 
 § 384. No Authority to deal with Funds collected. An 
 agent authorized to collect and transmit funds to his principal, 
 has no implied authority to enter into any contract concerning 
 the money in his hands or to exchange it for other money with 
 third persons. Such conduct may be treated by the principal as 
 a conversion of the funds.' 
 
 § 385. May give Receipt or Discharge. An agent authorized 
 to collect has implied authority to give to the debtor upon pay- 
 ment such a receipt or discharge as the payment entitles him to 
 receive. Thus if the debt be evidenced by a note or other secur- 
 ity the agent, upon payment, may deliver the security to the 
 debtor.* 
 
 g 386. Implies Authority to sue— When. While mere author- 
 ity to demand or receive payment of a debt would not imply 
 authority to sue for it, yet as every endowment of power carries 
 with it implied authority to do those things which are usual and 
 necessary to accomplish the object sought to be attained, an agent 
 having general instructions to collect may, if it becomes neces- 
 sary, sue upon the claim, cause execution to issue and direct the 
 seizure of property.* He has however no implied authority to 
 instruct the sherifE to levy upon any particular property.' 
 
 Where the principal is a non-resident, an attorney instructed 
 to sue upon a claim, has implied power, when necessary, to in- 
 demnify the sherifE against the results of the seizure,* as other- 
 wise the attorney would not be able to accomplish his undertak- 
 ing. 
 
 For the same reason, if the exigencies of the case demand 
 
 ' Ames V. Drew, 31 K H. 475. Hirshfleld «. Landman, 3 E. D, 
 
 « Darling v. Younker, 37 Ohio St. Smith (N. Y.) 203. 
 487, 41 Am. Rep. 532; Kent v. Born- » Averill v. Williams, 4 Den. (N. 
 
 stein, 12 Allen (Mass.) 342; Green- Y.) 295, 47 Am. Dec. 252; Welsh*, 
 
 wald V. Metcalf, 28 Iowa. 363. Cochran, 63 N. Y. 185; Oestrich ». 
 
 s Padfieldw. Green. 85 111. 529. Gilbert, 9 Hun (N. Y.) 244. 
 
 * Joyce V. Duplessis, 15 La. Ann. • Clark v. Randall, 9 Wis. 135, 76 
 
 242. 77 Am. Dec. 185; McMinn v. Am. Dec. 252; Schoregge v. Gordon, 
 
 Richtmyer, 3 Hill (N. Y.) 236; Bush 29 Minn. 367; but he has no authority 
 
 V. Miller, 13 Barb. (N. Y.) 481; Scott to indemnify after the levy and sale 
 
 V Elmendorf, 13 Johns. (N. Y.) 317; have been made. Snow «. Hix, 54 
 
 Vt. 478. 
 
 233
 
 § 387. THE LAW OF AGENCY. [Book II. 
 
 immediate action, he may make the necessary aflSdavit, cause the 
 issue of a writ of attachment, and execute in his principal's name 
 the statutory bond therefor,* But an attorney has not necessarily 
 the authority to indemnify the surety upon an injunction bond," 
 nor, it has been held, to execute a replevin bond in the name of 
 his principal.* 
 
 § 387. May sue in his own Name— When. An agent author- 
 ized to collect a negotiable note or bill payable to bearer,* or in- 
 dorsed in blank* for the purpose of collection, may sue thereon 
 in his own name. Not so, however, if the note be payable to 
 order and is not indorsed.* 
 
 Such an endorsement and delivery for the purpose of collec- 
 tion passes the legal title in trust ; and the trust is not terminated 
 by the principal's death.' 
 
 § 388. May employ Connsel. Authority to collect not only 
 implies authority to bring suit, but where suit is necessary, the 
 agent may employ appropriate counsel to conduct it.* 
 
 V. 
 
 OF AGENT AUTHORIZED TO MAKE AND IND0K8E NEGOTIABLE PAPER. 
 
 § 389. What oonstitntes such Authority. The power to bind 
 the principal by the making or indorsing of negotiable paper is 
 an important one, not lightly to be inferred. Said a learned 
 judge : " The power of binding by promissory negotiable notes, 
 can be conferred only by the direct authority of the party to be 
 bound, with the single exception where, by necessary impli- 
 cation, the duties to be performed cannot be discharged without 
 the exercise of such a power. To facilitate the business of note 
 
 * DePoret v. Gusman, 80 La. Ann. • On- v. Lacey, 4 McLean (U. 8. C. 
 Part II, 930; Fulton v. Brown, 10 La. C.) 243; Brigham v. Gurney, 1 Mich. 
 Ann. 350; Trowbridge©. Weir, Q Id. 348; Boyd v. Corbitt, 87 Mich. 62; 
 706; Alexander v. Burns, Id. 704. Hazewell v. Coursen, 45 N. Y. Super. 
 
 « White V. Davidson, 8 Md. 169, 63 Ct. 22; Moore v. Hall, 48 Mich, 143. 
 Am. Dec. 699. • Padfield t>. Green, 85 111. 529. 
 
 » Narraguagus Land Proprietors v. '' Moore v. Hall, supra. 
 
 Wentworth, 36 Me. 339. See gener- • Ryan v. Tudor, 31 Kans. 866; 
 
 ally the Chapter on Attorneys at Law. Davis v. Waterman, 10 Vt. 526, 83 
 
 * Hotchkiss V. Thompson, 1 Morris Am. Dec. 216. 
 (Iowa) 150. 
 
 234
 
 Chap. IIL] 00N8TBUCTI0N OF AUTHOKITIKS. § 391. 
 
 making and thus affect the interest and estates of third persons 
 to an indefinite amount, is not within the object and intent of the 
 law regulating the common duties of principal and agent; 
 neither is the power to be implied because occasionally an instance 
 occurs in which a note so made should in equity be paid." * 
 
 § 390. Same Subject— Authority strictly construed. Such a 
 power will be strictly construed, and the authority will be held to 
 be conferred only in those cases where it is clearly given, or where 
 it is a manifestly necessary and customary incident of the charac- 
 ter bestowed upon the agent.' 
 
 §391. When Authority implied. As has been seen, general 
 words made use of in conferring authority must be limited to 
 the legitimate scope of the business in the transaction of which 
 it is to be exercised, and authority to bind the principal by negoti- 
 able paper will only be implied where it is practically indispens- 
 able to accomplish the object.* 
 
 Thus an authority to an agent " to accomplish a complete ad- 
 justment " of all the principal's concerns in a certain State does 
 not anthorizt him to bind the principal by a promissory note ; * 
 nor will authority given by a farmer to his agent to sign his name 
 in tho general transaction of his business, confer power upon the 
 agent to sign the principal's name to a note ; * nor will authority 
 to settle a controversy of itself imply power to bind the princi- 
 pal by a note given in settlement.* 
 
 So an agent authorized to attend to and manage a grocery and 
 provision store ; ^ an agent employed in the manufacture of car- 
 riages ; * a mere clerk employed in a merchant's store; * an agent 
 
 * Hubbard, J. in Paige v. Stone, 10 • Bickford t>. Menier, 107 N. T. 
 Mete. (Mass.) 160. 43 Am. Dec. 420. 390. 
 
 • Turner v. Keller, 66 N. Y. 66; « Rossiter e. Rossiter, 8 Wend. (N, 
 Craighead v. Paterson, 72 N. Y. 279; Y.) 494, 24 Am. Dec. 62. 
 
 28 Am. Rep. 150; Brantley v. South- « Brantley c. Southern Life Ins. Ca 
 
 ern Life Ins. Co. 53 Ala. 554; Hills v. 53 Ala. 554. 
 
 Upfou. 24 La. Ann. 427; Webber v. » Hills v. Upton, 24 La. Ann. 427. 
 
 Williams College. 23 Pick. (Mass.) ' Smith ti. Gibson, 6 Blackf. (Ind.) 
 
 802; Sainback v. Read. 11 Gratt. (Va.) 869; Terry v. Fargo, 10 Johns. (N. Y.) 
 
 281, 63 Am. Dec. 648; Rossiter v. 114; Perkins e. Boothby, 71 Me. 91. 
 
 Rossiter, 8 Wend. (N. Y.) 494, 24 » Paige v. Stone, 10 Mete. (Mass.) 
 
 Am. Dec. 62; Avery v. Lauve, 1 La. 160, 43 Am. Dec. 420. 
 
 Ann. 457; Nugent v. Hickey, 2 Id. • Kerns v. Piper, 4 Watts (Penn.) 
 
 358; Duconge v. Porgay, 15 Id. 37. 223; Terry v. Fargo, tupra. 
 
 235
 
 §392. 
 
 THE LAW OF AGENCY, 
 
 [Book II. 
 
 authorized to manage his principal's farm ; ' an agent authorized 
 to superintend his principal's mine;' and an agent employed 
 generally to manage his principal's business;' has no implied 
 power to bind his principal by the execution of negotiable paper. 
 
 An agent authorized to buy goods and pay for them, is not 
 thereby authorized to give his principal's note, or to accept a bill 
 of exchange drawn for the amount* 
 
 But authority to discount bills confers power to indorse the 
 same when necessary to accomplish the purpose.' 
 
 § 392. Must be confined to Principal's Business. Authority 
 to make or indorse negotiable paper will be confined to the mak- 
 ing or indorsing of such paper in the legitimate business of the 
 principal or for his benefit. Such an agent cannot, therefore, bind 
 his principal by making or indorsing notes for his own benefit or 
 the benefit of third persons.' 
 
 8 393. Execution must be oonflned to Limits specified. Par- 
 ties dealing with an agent assuming to be authorized to draw, 
 accept, or indorse negotiable paper, must see to it that his 
 authority is adequate, and both they and the agent must keep 
 
 » Davidson v. Stanley, 2 M. «& G. 
 721. 
 
 « New York Iron Mine v. Negaunee 
 Bank, 39 Mich. 644; McCullough v. 
 Moss, 5 Den. (N. Y.) 567; Sewanee 
 Mining Co, «. McCall, 3 Head (Tenn.) 
 
 619. 
 
 3 Perkins v. Boothby, supra; New 
 York Iron Mine o. Negaunee Bank, 
 gupra. 
 
 * Brown t». Parker, 7 Allen (Mass.) 
 339; Taber v. Cannon, 8 Mete. (Mass.) 
 456; Webber v. Williams College, 23 
 Pick. (Mass.) 302; Gould v. Norfolk 
 Lead Co. 9 Cush. (Mass.) 388; Emer- 
 son V. Providence Mnfg. Co, 12 Mass. 
 237, 7 Am. Dec. 66. 
 
 5 Merchants' Bank v. Central Bank, 
 1 Ga. 418, 44 Am. Dec. 665. 
 
 • North River Bank v. Aymer, 3 
 Hill (N, Y,) 262; Stainer c. Tysen, 
 Id. 279; Stainback v. Read, 11 Gratt. 
 (Va.) 281, 63 Am. Dec. 648; Camden 
 Safe Dep. Co. v. Abbott, 44 N. J. L. 
 
 257; Duncan «, Gilbert, 29 Id. 521; 
 Hamilton v. Vought, 34 Id. 187; Gu- 
 lick V. Grover, 33 Id. 463; Bird v. 
 Daggett, 97 Mass. 494; Wallace v. 
 Branch Bank, 1 Ala. 565; Brantley v. 
 Southern Life Ins. Co., 53 Ala. 554; 
 Citizens' Savings Bank v. Hart. 32 
 La. Ann. 22; Odiorne «. Maxcy, 13 
 Mass. 178. Even if authorized to 
 indorse, he cannot indorse to himself. 
 Englehart v. Peoria Plow Co. 21 Neb. 
 41, 31 N. W. Rep. 391, A power of 
 attorney to execute, sign, draw and 
 endorse in the name of the principal, 
 will not imply authority to use the 
 principal's name in joint transactions 
 with other persons and for their ben- 
 efit. Mechanics' Bank v. Shaumburg, 
 88 Mo. 228. An agent authorized 
 to sign his principal's name to " any 
 paper" is not justified in signing 
 paper outside of the principal's busi- 
 ness. Camden Safe Deposit Co, •, 
 Abbott, supra. 
 
 36
 
 Chap. III.] CONSTRUCTION OF AUTH0KITIE8. § 393. 
 
 strictly within the limits fixed to the agent's authority or the 
 principal will not be bound. Thus authority to draw and discount 
 a note for a given purpose, implies no power to draw and discount 
 one for another and different purpose;' authority to bind the 
 principal for a given sum will not authorize the binding for a 
 greater sum ; * authority to make deposits, draw, sign and indorse 
 notes, checks and bills of exchange, in the course of business with 
 a particular bank, will not imply power to bind the principal l)y 
 giving notes for borrowed money executed in a business in which 
 the principal never engaged, and with other persons than the 
 bank ; ' authority to do all things at a particular bank, which the 
 principal could do if present, will not authorize the agent to draw 
 money of his principal from another bank where the principal 
 has an account ; * authority to draw checks and notes payable at 
 any bank where the principal has an account, will not justify 
 making a note payable at a bank where the principal has no 
 account ; • authority to draw on a principal's funds will not em- 
 power the agent to draw upon the principal's credit ; • authority 
 to draw checks on a bank for property purchased by the agent, 
 implies no power to borrow money ; '' authority to execute notes 
 gives no power to renew them ; ' authority to make a note for a 
 given time will not authorize the making of a note payable in a 
 different time,* unless from the circumstances it is evident that the 
 principal did not intend to fix an exact limit and the variance be 
 not great; '• authority to issue bonds does not autliorize the 
 issuing of notes ; " authority to draw a bill does not of itself 
 imply power to indorse, " or to accept one ; " nor does authority 
 
 1 Callender v. Golsan, 27 La. Ann. » Mordhurst v. Boies, 24 Iowa, 99. 
 
 311; Nixon v. Palmer, 8 N. Y. 398; ' Ward v. Bank of Kentucky, 7 
 
 Hortons v. Townes, 6 Leigh (Va.) T. B. Mon. (Ky.) 93. 
 59 • Batty v. Carswell, 2 Johns. (N. 
 
 • Blackwell e. Ketcham, 53 Ind. T.)48; Tate ». Evans, 7 Mo. 419. 
 184; King v. Sparks, 77 Ga. 285, 4 '• Adams «. Flanagan, 36 Vt. 400; 
 Am. St. Rep. 85; Batty «. Carswell, Bank «. McWillie, 4 McCord, (8. C.) 
 2 Johns. (N. Y.) 48. 438. 
 
 » Citizens' Savings Bank. v. Hart, " School Directors v. Sippy, 54 
 
 33 La. Ann. 22. 111. 287; Bank of Deer Lodge v. Hope 
 
 * Sims V. United States Trust Co. Mining Co., 3 Montana, 146, 85 Am. 
 — N. Y.— , 9 N. E. Rep. 605. Rep. 458. 
 
 s Craighead v. Peterson, 72 N. Y. '» Robinson v. Yarrow, 7 Taunt, 
 
 279, 28 Am. Rep. 150, 455; Murray v. East India Co., 5 B. 
 
 « Breed v. First Nat. Bank, 4 Colo. & Aid, 204. 
 
 481. " Atwood «. Munnings, 7 B. & 0. 
 
 237
 
 §391. 
 
 THE LAW OF AQENOT. [Book IL 
 
 to indorse empower the agent to accept a bill, or make a joint 
 and several note ; * authority to draw bills of exchange payable 
 on time or at sight does not imply authority to draw post-dated 
 bills;' authority to execute a note does not of itself imply 
 authority to pay it when due, or to receive demand of payment ; * 
 or to receive notice of dishonor;* and authority to draw on A 
 at Portland, or B at New York, does not authorize the agent to 
 draw on A payable at New York.* 
 
 Authority to sign the principal's name to promissory notes will 
 bo limited to notes drawn in the usual form, and will not author- 
 ize the execution of a note containing a provision that if not paid 
 at maturity, an additional sum of ten per cent, would be paid/ 
 Authority to an agent to draw a bill in the principal's name will 
 not authorize a bill drawn in the joint names of the principal 
 and the agent ; nor will authority to draw a bill, authorize an 
 agent to contract to indemnify the acceptor against the conse- 
 quences of his acceptance ; ^ nor will joint authority from several 
 persons to indorse a bill in their names jointly, authorize several 
 and successive indorsements. ' Nor will authority to sign as 
 surety authorize the signing as principal.* Authority to draw 
 checks upon a certain bank will not justify the agent in over- 
 drawing his principal's account." 
 
 S 394. Negotiable Paper or Deeds delivered to Agent in Blank. 
 A principal who delivers to his agent negotiable paper executed 
 in blank, to be filled out by the agent according to certain 
 instructions, will be liable upon the paper as the agent may fill 
 it out, to one who takes it in good faith, for value and without 
 notice, although the agent may have violated his instructions." 
 
 278: Sewanee Mining Co. ». McCall, 'First National Bank «. Gay, 63 
 
 3 Head(Tenn.) 621; Bank e. Hope Mo. 33, 21 Am. Rep. 430. 
 
 Min. Co. supra. ^ Stainback v. Read, 11 Gratt.(Va.) 
 
 ' Cuyler v. Merrifleld, 5 Hun (N. 281, 62 Am. Dec. 648. 
 
 Y \ 559 * Bank of United States •. Beirne, 
 
 » New York Iron Mine v. Citizens' 1 Gratt. (Va.) 234. 42 Am. Dec 551. 
 
 Bank, 44 Mich. 344; Forster t). Mac- » Farmington Savings Bank •. 
 
 reth, L R., 2 Exch. 163. Buzzell, 61 N. H. 612. 
 
 » Luning v. Wise, 64 Cal. 410. " Union Bank v. Mott, 89 Barb. 
 
 ♦ Bank of Mobile v. King, 9 Ala. (N. Y.) 180. 
 
 279 " Davis v. Lee, 26 Mis8.505, 59 Am. 
 
 5 Lanuase v. Barker, 8 Wheat (U. Dec. 267; Johnson v. Blasdale, 1 
 
 g ) 101. Smedes & M. (Miss.) 20, 40 Am. Dec. 
 
 238
 
 Chap, in.] 0ON8TBU0TI0N OF AUTHORITIES. § 39-1. 
 
 But if the third person had notice of the instructions or if hej 
 does not take the paper for value, he will not be protected.*' 
 Whether mere knowledge that the paper was delivered to thei 
 agent in blank is enough to put third persons upon inquiry as toi 
 his instructions, is a question upon which the authorities differ, 
 but the better opinion seems to be that it is not." 
 
 And the same general principle applies to deeds which have 
 been delivered in blank to an agent with authority to fill the 
 blanks. " Although there is some conflict in the decisions " says 
 Lake, C. J. in a recent case, " the current of the more modern of 
 them plainly is to the effect that if the owner of land delivers to 
 his agent a deed thereof executed in blank as to the grantee, with 
 authority, either express or implied, to insert the name of a pur- 
 chaser and perfect the conveyance, and he does so in good faith, 
 the title will be conveyed.* And it follows from this that if the 
 ao-ent with such authority makes a fraudulent use of the deed 
 entrusted to him, as by inserting the name of a grantee and deliv- 
 erinsr it to him without consideration, and for his own benefit, 
 such grantee can convey a good title to an innocent purchaser." * 
 
 85; Putnam e. Sullivan, 4 Mass. 45, 3 (U. S.) 24; Van Etta ». Evenson, 28 
 
 Am. Dec. 206; Roberts ». Adams, 8 Wis. 83, 9 Am. Rep. 486; Schintz c. 
 
 Port. (Ala.) 297, 83 Am. Dec. 291; McManamy, 33 Wis, 299; Field «. 
 
 Hall «. Bank of Commonwealth, Stagg, 52 Mo. 534, 14 Am. Rep. 435; 
 
 5 Dana (Ky.) 258, 30 Am. Bwartz ». Ballou, 47 Iowa, 188, 29 
 
 Dec. 685; Holland*. Hatch, 11 lad. Am. Rep. 470. To same effect 8e« 
 
 497, 71 Am. Dec. 363; Gillaspie t». also Phelps e. Sullivan, 140 Mass. 36, 
 
 Kelley, 41 Ind. 161; Blackwell ». 64 Am. Rep. 442; Campbell t). Smith, 
 
 Ketcham, 53 Ind. 186; Snyder •. 71 N. Y. 26, 27 Am. Rep. 5; Vose «. 
 
 Van Doren, 46 Wis. 610; Bank of Dolan, 108 Mass. 155, 11 Am. Rep. 
 
 Pittsburgh «. Neal, 22 How. (U. 8.) 831. 
 107. Contra, Upton ». Archer, 41 CaL 
 
 > Davidson c. Lanier, 4 Wall. (U. 85, 10 Am. Rep. 266; Preston e. Hull, 
 
 S.) 456; Johnson «. Blasdale, mpra. 23 Gratt. (Va.) 600, 14 Am. Rep, 153; 
 
 Where the note bears evidence on its Williams v. Crutcher, 5 How. (Miss.) 
 
 face that it is being delivered contrary 71,35 Am. Dec. 422; Davenport e. 
 
 to directions, it cannot be enforced Sleight, 2 Dev, «fc Bat, L. (N. C.) 381, 
 
 by person to whom it is so delivered. 31 Am. Dec, 420; Bland c. 0'H&<,'an, 
 
 Mills*. Williams, 16 8. C, 593. 64 N, C. 472. 
 
 a See Daniel Neg. Inst. § 147. * In Garland «. Wellfl, 15 Neb. 29a 
 
 •Citing Drury t>. Foster, 2 Wall. 
 
 239
 
 § 395. THE LAW OF AQENOT. [Book II. 
 
 YL 
 
 OF AGENT AUTHORIZED TO MANAQB BUSINESS. 
 
 8 395. Extent of Authority depends on Nature of Business. 
 
 The extent of the implied or incidental power of an agent who 
 has general authority to manage his principal's business, must be 
 dependent largely upon the nature of the business and the degree 
 to which it is placed under the agent's control. Thus it is ob- 
 vious that the implied powers of the general manager of a great 
 continental insurance company, while they might be of the same 
 kind, would differ greatly in degree from those of a clerk in an 
 inland store who is given general control of the business during 
 his principal's absence. 
 
 In general terms it may be said that such an agent has implied 
 power to do those things which are necessary and proper to be 
 done in carrying out the business in its usual and accustomed 
 way, and which the principal could and would usually do in like 
 cases if present.* 
 
 8 396. When Power implied to pledge Principal's Credit. 
 An agent employed to manage his principal's store has implied 
 authority, for the keeping up of the stock, to make reasonable 
 and proper purchases of goods upon his principal's account on 
 such terms as to credit and time of payment as are cus- 
 tomary in the sale of such goods in like cases.' So an agent au- 
 thorized to take charge of and manage his principal's hotel and 
 to purchase the necessary supplies, may buy suitable and appro- 
 priate goods for use in the hotel upon his principal's credit ;' but 
 he has no implied power to bind his principal for the safe keep- 
 ing and return of carriages furnished by a livery-stable keeper 
 for use by guests of the hotel.* So though an agent authorized 
 to manage a plantation would have implied power to purchase, 
 on his principal's account, the necessary supplies therefor,' he 
 would have no such authority to pledge the credit of his princi- 
 pal for supplies furnished to the "hands" engaged upon the 
 
 'German Fire Ins. Co. «. Grunert, Cummingse. Sargent, 9 Mete (Mass.) 
 
 112 111. 68. 1'72. 
 
 « Banner Tobacco Co. v. Jenison, * Brockway v. Mullin. 46 N. J. L. 
 
 48 Mich 459; Schmidt e. Sandel, 80 448, 50 Am. Rep. 443. 
 
 La. Ann. 353. 'But see Meyer * Baldwin, 62 
 
 •Beecher v. Venn, 85 Mich. 466; Miss. 263. 
 
 240
 
 Chap. III.] CONSTRUCTION OF ATJTHOEITIES. § 396. 
 
 plantation.' Where it is customary in the business for the em- 
 ployer to board the workmen employed, such an agent may law- 
 fully contract in his principal's name for the board of the men 
 employed by him.* 
 
 The general manager of a mining company has implied power 
 to buy and sell personal property for use about the premises,* 
 but such an agent has no implied power to bind his principal for 
 debts of a third person ;* nor has an agent authorized to carry on 
 his principal's farm any implied power to permit a creditor to 
 cut, remove and sell on execution, grass growing on the farm.* 
 
 A railway station agent authorized to receive and forward 
 freiglit has implied authority to contract to furnish a certain 
 number of cattle cars at his station on a specified day, the ship- 
 per being ignorant of any limitation upon his powers;* but such 
 an agent'' or a yardmaster' or a conductor • has no implied au- 
 thority to bind the company by the employment of a physician 
 or surgeon to attend one of the men, employed under him in the 
 service of the company, who had been injured. 
 
 Upon the question of the authority of a general superintendent 
 of a railroad company to employ such a physician, the Supreme 
 Court of Michigan was evenly divided." As to the authority of 
 the president in such cases, see cases cited in the note." 
 
 A surgeon employed by a railroad company to attend upon 
 persons injured by an accident, has no implied authority to bind 
 the company by a promise to pay for meals and services 
 
 « Carter t». Burnham, 31 Ark. 213. the employment and does not object, 
 
 *Burleyi>. Kitchell, 30 N. J. L. but promises to pay the physician. 
 
 805. Cairo, &c. Ry Co. v. Mahoney, 83 
 
 •Scudder «. Anderson, 54 Mich. 111. 73, 25 Am. Rep. 299. 
 
 122. 8 Marquette & Ontonagon R. R. 
 
 «Ruppe «. Edwards, 52 Mich. 411; Co. v. Taft, 28 Mich. 289. 
 
 New York Iron Mine v. Negaunee » Tucker v. St. Louis, «fec. RyCo., 
 
 Bank, 89 Mich. 644; Clayton v. Mar- supra. The conductor of a freight 
 
 tin, 81 Ark. 217; Meyer c. Baldwin, train may employ a person to take 
 
 supra. the place of a sick brakeman. 
 
 5 Benjamin t>. Benjamin, 15 Conn. Georgia Pac. R. Co. v. Probst, — 
 
 847, 39 Am. Dec. 384. Ala. — . 4 South Rep. 711. 
 
 • Harrison e. Missouri Pacific Ry "* Marquette & Ontonagon R. R. Co. 
 
 Co. 74 Mo. 364, 41 Am. Rep. 318. «. Taft, supra. 
 
 'Tucker v. St. Louis, &c. Ry Co., »» Canney c. Railroad Co. 63 Cal. 
 
 64 Mo. 177. But such an employ- 601 ; Trenor v. Railroad Co. 60 CaL 
 
 ment will be deemed to be ratified 223. 
 where the superintendent knows of 
 
 16 241
 
 § 397. THE LAW OF AGENOT. [Book II. 
 
 furnished to those who were in attendance upon a party in- 
 jured.' 
 
 g 397. Implied Power to sell Product of Business. An agent 
 authorized to manage his principal's plantation may sell the 
 product of it and collect the money therefor;" but he has no im- 
 plied power to agree to exchange such product for that of an- 
 other plantation.' An agent having general authority to manage 
 the business of a lumber company may not only employ the 
 necessary workmen, but he may, if it become necessary, make a 
 Bale of lumber to pay them.* 
 
 § 398. None to bind by negotiable Instrument. An agent 
 having general authority to manage his principal's business, has, 
 by virtue of his employment, no implied authority to bind his 
 principal by making, accepting or indorsing negotiable paper. 
 Such an authority must be expressly conferred or be necessarily 
 implied from the peculiar circumstances of each particular case. 
 It may undoubtedly be conferred and by implication, but it will 
 not be presumed from the mere appointment as general agent.' 
 
 § 399. When may borrow Money. In a recent case in the 
 Court of Appeals of New York, it is said, "If the transaction of 
 business absolutely required the exercise of the power to borrow 
 money in order to carry it on, then that power was impliedly 
 conferred as an incident to the employment ; but it does not 
 afford a sufficient ground for the inference of such a power, to 
 eay the act proposed was convenient or advantageous or more 
 effectual in the transaction of the business provided for, but it 
 must be practically indispensable to the execution of the duties 
 really delegated in order to justify its inference from the original 
 employment."* 
 
 » Bushnell v. Chicago, &c. Ry Co., bind it by making promissory notes 
 69 Iowa, 630. in its name. New York Iron Mine v. 
 « Sentell v. Kennedy, 29 La. Ann. Negaunee Bank, supra; McCullough 
 (,79. «. Moss, 5 Denio (N. T.) 567; nor 
 «BaU V. Bender, 23 La. Ann. 493. may he bind it by acceptance of a 
 * Taylor v. Labeaume, 17 Mo. 338. bill of exchange even to avoid the 
 •New York Iron Mine v. Negau- suspension of work of great import- 
 nee Bank, 39 Mich. 644; Perkins c. ance. Sewanee Mining Co. e. Mo- 
 Boothby, 71 Me. 91; Rossiter «. Ross- Call, 8 Head (Tenn.) 619. 
 iter, 8 Wend. (N. Y.) 494, 24 Am. « Bickford «. Menier, 107 N. Y. 490, 
 Dec. 63. Thus the general managing 26 Cent. L. Jour. 236. Authority to 
 agent of a mining company may not wind up a business does not author- 
 
 242
 
 Chap. III.] CONSTRUCTION OF AUTHORITIES. § 405. 
 
 § 400. May not make Accommodation. Paper. A fortiori 
 has he no power to bind his principal by making, accepting or 
 indorsing negotiable paper for the benefit of himself or third 
 persons.* Nor can he pledge his principal's credit for the debt 
 of third persons.* 
 
 § 401. May not pledge or mortgage the Property of his Prin- 
 cipal. An agent authorized to manage and carry on his princi- 
 pal's business has thereby no implied authority to pledge or mort- 
 gage the property in his possession. As is tersely said by a learn- 
 ed judge : " It is not carrying on the business of the company to 
 pledge or mortgage the machinery used by the company and 
 thereby suspend its operations ; or place them at the will and 
 pleasure of a mortgagee." ' 
 
 § 402. May not seU. Principal's Land. Neither has such an 
 agent implied power to sell his principal's land, even though 
 it may have been acquired by him in the execution of the 
 agency.* 
 
 § 403. May not embark in new and different Business. 
 Authority to carry on the principal's business already establish- 
 ed, implies no authority in the agent to embark in a new and 
 different business, or to attempt to use his principal's funds or 
 credit in such a business.' 
 
 § 404. May not sell the Business. So general authority to 
 manage a business implies no power to sell it.* 
 
 VIL 
 
 OF AGENT AUTHORIZED TO SETTLBi 
 
 § 405. May not submit to Arbitration. Authority conferred 
 upon an agent to settle a dispute or demand, will be presumed to 
 be so conferred in reliance upon the judgment and discretion of 
 
 ize the agent to borrow money. Smith < Smith «. Stephenson, 45 Iowa, 
 
 «. McGregor, 96 N. 0. 101. 645 ; Watson ». Hopkins, 27 Tex. 
 
 » Qulick «. Grover, 83 N. J. L. 463, 637. 
 
 97 Am. Dec. 738; Bank v. Johnson, » Campbell «. Hastings, 29 Ark. 513. 
 
 8 Rich. (S. C.) 43. • Holbrook t). Oberne, 66 Iowa, 834; 
 
 »Ruppe «. Edwards, 53 Mich. 411. Vescelius v. Martin, — Colo. — , 18 
 
 8 Despatch Line «. Bellamy Mnfg Pac. Rep. 338. 
 Co. 13 N. H. 305, 37 Am. Dec 203. 
 
 243
 
 R 4,06. THE LAW OF AGENCY. [Book II. 
 
 the agent, and unless there be clear evidence of a contrary inten- 
 tion, the agent will not be permitted to delegate the trust to an- 
 other. He cannot therefore submit the dispute or demand to the 
 judgment of arbitrators, and if he does so, the award will not be 
 binding upon the principal.' Like other unauthorized acts, the 
 submission may of course be ratified by the principal, and such a 
 ratification will be presumed where, for example, with full 
 knowledge of the facts, the principal accepts the award. 
 
 8 406. May not assign the Demand. For the same reasons 
 an agent employed to collect and settle his principal's demands 
 has no implied authority to assign them to another for that pur- 
 pose ; nor can he pledge them to indemnify a surety for hia 
 principal.* 
 
 > Huber «. Zimmerman, 21 Ala. 488, Central R. R. Co. v. Gougar, 55 111. 
 56 Am. Dec. 255; Scarborough e. 503. 
 
 Reynolds, 12 Ala. 252; Michigan "Wood v. McCain, 7 Ala. 800, 43 
 
 Am. Dec. 612. 
 
 244
 
 KXEODTION OF THE AUTHOEITT. 
 
 §408. 
 
 BOOK III. 
 
 OF THE EXECUTION OF THE AUTHORITY. 
 
 CHAPTEE L 
 
 IN GENERAL. 
 
 § 407. Purpose of Book III, 
 
 408. Primary Purpose to bind Prin- 
 
 cipal and not Agent. 
 
 409. Must act ■within Scope of Au- 
 
 thority. 
 
 410. Necessity of proper Execu- 
 
 tion. 
 
 411. How Question determined. 
 
 412. Execution within, and exceed- 
 
 ing Authority. 
 
 § 413. Slight Deviation does not ia- 
 validate. 
 When separable, authorized 
 
 Part may stand. 
 When Execution lacks essen- 
 tial Elements. 
 
 416. Summary of the Rules. 
 
 417. Should act in Name of the 
 
 Principal. 
 
 414. 
 
 415. 
 
 § 407. Purpose of Book III. In the preceding chapters it has 
 been seen how authority may be conferred upon an agent, and by 
 what standards the nature and extent of the authority so con- 
 ferred are to be determined. 
 
 It is the purpose of Book III to ascertain in what manner the 
 authority so conferred and so construed is to be executed. In 
 what is said upon this subject, it is to be borne in mind that the 
 authority of the agent to perform the given act is assumed to 
 be established, and the only question is as to the mode and suffi- 
 ciency of the performance. 
 
 § 408. Primary Purpose to bind Principal and not Agent. 
 It is the primary purpose of the creation of an agency to author- 
 ize the agent to act for and in behalf of the principal. It is, 
 therefore, the primary duty of the agent in executing the author- 
 ity to 80 act as to secure to the principal the benefits to be derived 
 from the performance, and to impose upon him the responsibili- 
 
 245
 
 § 409. THB LAW OF AGENCY. [Book III. 
 
 ties arising therefrom. In other words, it is the primary func- 
 tion of the agent to bind the principal and not himself, to third 
 persons, and likewise to bind such third persons to the principal 
 and not to himself. 
 
 § 409. Agent must act within the Scope of his Authority. 
 The act of the agent, whether he be general or special, within the 
 limits of his authority is binding upon the principal ; his act be- 
 yond those limits, binds himself only, or no one. Hence arises 
 the fundamental necessity that not only the extent, but the man- 
 ner, of the execution be such as the authority conferred will 
 warrant, and no other. Where precise and exact limits have 
 been fixed, the performance of the agent should be kept scrupu- 
 lously within them. When those limits have not so been fixed, 
 it is still imperative that the reasonable and usual limits in such 
 cases be determined, and that the manner and extent of the exe- 
 cution be made to conform to them. 
 
 § 410. Necessity of proper Execution. It is obvious, there- 
 fore, that attention to the proper execution of the authority is 
 highly important, not only as respects the principal himself, but 
 the agent also. Thus the agent in the attempted execution of 
 the authority, may do, (a) exactly what he was authorized to do, 
 or (5) more than he was authorized to do, or (c) less than he was 
 directed to do, and the result of his performance may be that — 
 
 1. He will bind his principal only, or 
 
 2. He will bind himself only, or 
 
 3. His attempted execution will be wholly void ; 
 
 whereas the first result was the only one contemplated by the 
 parties at the time of the creation of the agency. 
 
 § 411. How Question determined. In determining the re 
 suits of an attempted performance, four questions arise : 
 
 1. What authority did the agent possess ? 
 
 2. Is the act assumed to be done by virtue of it, in reality 
 within its scope ? 
 
 3. Who was intended to be bound ? and 
 
 4. Who as a matter of fact is bound ? 
 
 The first two of these questions must be largely determined 
 by the principles laid down in the preceding chapters. The last 
 two are yet to be considered. 
 
 § 412. Execution within, and exceeding Authority. Where 
 
 246
 
 Chap. L] EXECUTION OF THE AUTHOEITT. § 414. 
 
 the agent keeps strictly within the limits of his authority, the 
 only question that will arise will be as to the mode of perform- 
 ance, — whether it is such as to bind the principal, or the agent, 
 or neither. 
 
 "Where, however, the agent exceeds those limits, the question 
 will depend somewhat upon the degree of excess. " It is evi- 
 dent," as is observed by a learned writer, " to anyone who consid- 
 ers the matter, that the variance between the act done by the 
 agent and the act authorized by the principal, may range 
 through every degree of difference. The variance may be infini- 
 tesimal, or it may be so great as to make an absolute departure 
 from the authority conferred. To determine the exact point 
 between those two extremes at which a variance becomes sub- 
 stantial and material often gives rise to difficult questions. The 
 result in each case must depend upon the circumstances of the 
 particular case." * 
 
 § 413. Slight Deviation does not invalidate. No inflexible 
 rule can be laid down by which to determine when the act as 
 performed exceeds the limits of the act as authorized. But 
 keeping in mind the fundamental principle to which reference 
 has so frequently been made, that the authority conferred in- 
 cludes incidental power to employ all the usual modes and means 
 of accomplishing the ends and purposes of the agency, it may be 
 said that a slight deviation from the course of his duty will not 
 vitiate his act, if the variation be immaterial and circumstantial 
 only, and does not in substance exceed the limits fixed.* 
 
 § 414. Wlien separable, authorized Part may stand. Al- 
 though the agent may have exceeded his authority, yet if the 
 act be separable, it may stand so far as it is authorized.' "When 
 
 * Evans' Agency, 168. sell all his lands, and all his goods 
 
 • Huntley v. Mathias, 90 N. C. 101, and chattels; and this was held good. 
 47 Am. Rep. 516; Parker «. Kett, 1 Where the authority is particular the 
 Salk. 95. "Authorities by letter of party must pursue it: if the act varies 
 attorney," says Holt, Ch. J., in this from it, he departs from his authority, 
 case, "are either general or special; and what he does is void; but thiit 
 thus a letter of attorney may be to must be intended of a variance not in 
 sue in omnibus eausismoiisetmovendis, circumstance, but of a variance 
 or to defend a particular suit. Sir material and substantial, as where 
 Philip Sidney, when he went to the person, the thing, or the date is 
 travel, gave a letter of attorney to mistaken." 
 
 Sir Thomas Walsingham to act and » Drumright v. Philpot, 16 Ga. 424, 
 
 247
 
 § 415. THE LAW OF AGENCY. [Book III. 
 
 a man," says Lord Coke, " doth that which he is authorized to 
 do and more, there it is good for that which is warranted, and 
 void for the rest." ' So if the excess be merely superfluous it 
 may be disregarded. Thus if an agent authorized to enter into 
 a contract not under seal, executes it under seal, yet if the con- 
 tract would be good without the seal, the seal may be disregarded 
 and the contract be allowed to stand as written evidence of a 
 simple contract.' 
 
 So if an agent in making an authorized sale, adds unauthorized 
 covenants, the purchaser may enforce so much of the contract as 
 conforms to the authority, or, at his option, may refuse to 
 abide by the contract at all, if the principal repudiates the un- 
 authorized covenants.' 
 
 § 415. When Execution lacks essential Elements. Where, 
 however, the execution is defective by reason of the absence of 
 some element essential to a complete performance, the principal 
 is not bound. "Regularly," says Lord Coke, "it is true, that 
 where a man doth less than the commandment or authority com- 
 mitted unto him, there (the commandment or authority being 
 not pursued) the act is void." * 
 
 I 416. Summary of the Rules. "Where there is a complete 
 execution of the power and something ex abundanti is added 
 which was not authorized, there the execution is good and the 
 excess only is void ; but where there is not a complete execntion 
 of the power, or where the boundaries between the execution 
 and the excess are not distinguishable, the whole must be held 
 bad.» 
 
 § 417. Should act in Name of Principal. It is also a general 
 
 60 Am. Dec. 738; Vanada v. Hop- Worrall ?>. Munn, 5 N. Y. 229, 55 Am. 
 kins, IJ. J. Marsh. (Ky.) 285, 19 Am. Dec. 330; Wood v. Auburn, &c., R. 
 Dec. 92; Dickerman v. Ashton, 21 R. Co. 8 N. Y. 160; Thomas v. Jos- 
 Minn. 538; Stowell v. Eldred, 39 lin, 30 Minn. 388. 
 Wis. 614; Evans v. Wells, 22 Wend. » Vanada v. Hopkins, IJ. J. Marsh. 
 (K Y.) 341; Crozier ®. Carr, 11 Tex. (Ky.) 285, 19 Am. Dec. 92; Smith v. 
 376; Moore v. Thompson, 32 Me. 497; Tracy, 36 N. Y. 79. 
 Jesup T). City Bank, 14 Wis. 331. ♦Coke, Lit. 258. a. Olyphant e. 
 » Coke, Lit. 258, a. McNair, 41 Barb. (N. Y.) 446; Mar- 
 
 « Morrow v. Higgins, 29 Ala. 448 
 
 Baum V. Dubois, 43 Penn. St. 260 
 
 Long V. Hartwell, 34 N. J. L. 116 
 
 Dutton «. Warschauer, 21 Cal. 609 
 
 land V. Stanwood, 101 Mass. 470. 
 
 » Alexander v. Alexander, 2 Ves. 
 Sr. 640; Thomas v. Jodlin, 30 Minn. 
 
 248
 
 Chap. I.] EXECUTION OF THE AUTHORITY. §417. 
 
 rule, subject to certain exceptions to be hereafter noticed, that 
 the act of the agent should purport to be what it is intended 
 to be, — the act of the principal, — and should be performed in 
 his name bv the agent as such.' Where the character in which, 
 and the person for whom, the act is done are clearly expressed 
 and understood at the lime, many of the difficult questions, here- 
 after to be noted, which arise where these matters are left uncer- 
 tain or ambiguous, would be avoided. 
 
 •White V. Cuyler, 6 T. R. 176; 418, 44 Am. Dec. 665; Clealand «. 
 
 Brinley v. Mann, 2 Cush. (Mass.) 337, Walker, 11 Ala. 1058, 46 Am. Dec. 
 
 48 Am. Dec. 669; Hale t>. Woods, 10 238; Wood v. Goodridge, 6 Cush. 
 
 N. H. 470, 34 Am. Dec. 176; Mer- (Mass.) 117, 52 Am. Dec. 771. 
 chants' Bank v. Central Bank, 1 Qa. 
 
 249
 
 §418. 
 
 THE LAW OF AGENCY. 
 
 [Book III. 
 
 CHAPTER IL 
 OF THE EXECUTION OF SEALED INSTRUMENTS. 
 
 418. Purpose of Chapter. 
 
 419. Must purport to be made and 
 
 sealed in the Name of the 
 Principal. 
 
 How Question determined. 
 
 Same Subject — Not enough 
 that the Agent ia described 
 as such. 
 
 Same Subject — Illustrations. 
 
 Same Subject — Further Illus- 
 trations. 
 434. Same Subject— Further Illus- 
 trations — Descriptio Per- 
 BonsB. 
 
 420. 
 421 
 
 422, 
 423 
 
 § 425. Same Subject — What Form 
 sufficient. 
 
 426. Distinction in Case of Public 
 
 Agent. 
 
 427. Whether necessary that Deed 
 
 should purport to be exe- 
 cuted by Agent — Rule of 
 Wood V. Goodridge. 
 
 428. Same Subject — Further of this 
 
 Rule. 
 
 429. Same Subject — How in Rea- 
 
 son. 
 
 430. Parol Evidence not admissible 
 
 to discharge Agent. 
 
 § 418. Purpose of Chapter. The manner of the execution of 
 instruments under seal, such as deeds, bonds and other solemn 
 writings, is of so much importance and has been so frequently 
 discussed, as to merit the more extended treatment, which it is 
 the purpose of this chapter to devote to it. The word " deed " 
 herein is used to describe instruments under seal, and not merely 
 conveyances of land. 
 
 § 419. Must purport to be made and sealed in the Name of the 
 Principal. It is a fundamental rule in the law of agency that in 
 order to bind the principal by a deed executed by an agent, the 
 deed must upon its face purport to be made, signed and sealed in 
 the name of the principal. If, on the contrary, though the agent 
 describes himself an agent, or though he add the word agent to 
 his name, the words of grant, covenant and the like, purport 
 upon the face of the instrument to be his, and the seal purports 
 to be his seal, the deed will bind the agent and not the principal.* 
 
 »Stinchfield v. Little, 1 Greenl. Dec. 529; Lutz v. Linthicum, 8 Pet. 
 (Me.) 231, 10 Am. Dec. 65; Stone v. (U. S.) 165; FuUam e. West Brook- 
 Wood, 7 Cow. (N. Y.) 453, 17 Am. field, 9 Allen (Mass.) 1; Townsend t>. 
 
 250
 
 Chap. II.] EXECUTION OF SEALED INSTKUMENT8. § 421. 
 
 This rule, however, while well settled, is highly technical in its 
 nature, being founded upon the common law theories of the ef- 
 fect of a seal, and like other rules based purely upon these 
 theories, has encountered a strong tendency in recent cases to 
 make the mere presence of a seal subordinate to the evident in- 
 tention of the parties.' 
 
 §420. How Question determined. In determining whether 
 the deed is the deed of the principal, regard may be had, First^ 
 to the party named as grantor. Is the deed stated to be made by 
 the principal or by some other person ? Secondly^ to the grant- 
 ing clause. Is the principal or the agent the person who pur- 
 ports to make the grant? Thirdly, to the covenants, if any. 
 Are these the covenants of the principal ? Fourthly , to the testi- 
 monium clause. Who is it who is to set his name and seal in 
 testimony of the grant? Is it the principal or the agent? And 
 Fifthly, to the signature and seal. Whose signature and seal are 
 these? Are they those of the principal or of the agent? 
 
 If upon such an analysis the deed does not upon its face pur- 
 port to be the deed of the principal, made, signed, sealed aud de- 
 livered in his name and as his deed, it cannot take effect as such. 
 
 § 421. Same Subject— Not enough that the Agent is described 
 as such. It is not enough that the agent was in fact authorized 
 to make the deed, if he has not acted in the name of the princi- 
 pal. Nor is it sufficient that he describes himself in the deed as 
 acting by virtue of a power of attorney or otherwise, for, or in 
 behalf, or as attorney, of the principal, or as a committee, or as 
 trustees of a corporation, etc.; for these expressions are but de- 
 acriptio personcB, and if in fact, he has acted in his own name 
 and set his own hand and seal, he is bound personally and not the 
 principal, despite these recitals.* 
 
 Corning, 23 Wend. (N. Y.) 435; 48 Am. Dec. 669; Combe's Case, 9 
 
 Briggsc. Partridge, 64 N. Y. 357, 21 Co. 76; Fowler v. Shearer, 7 Mass. 
 
 Am. Rep. 617; Grubbs v. "Wiley, 17 14; Carter v. Chaudron, 21 Ala. 73; 
 
 Miss. 29; Hopkins v. Mehaffy, 11 8. Bogart v. De Bussy, 6 Johns. (N. Y.) 
 
 & R. (Penn.) 126; Webster v. Brown, 94; Martin v. Flowers, 8 Leigh (Va.) 
 
 2 Rich. (8. C.) N. 8. 428; Echols v. 158, and see cases cited in following 
 
 Cheney, 28 Cal, 157; Morrison «. sections. 
 
 Bowman, 29 Cal. 337; Hancock e. > See remarks of Henry, J., in Mc- 
 
 Yunker, 83 111., 208; City of Provi- Clure v. Herring, 70 Mo. 18, 35 Am. 
 
 dence ». Miller, 11 R. I. 272; Elwell Rep. 404. 
 
 •. Shaw, 16 Mass. 42, 8 Am. Dec. 126; « Stinchfield e. Little, 1 Greenl. 
 
 Brinley «. Mann, 2 Cush. (Mass.) 337, (Me.) 231, 10 Am. Dec. 65; Fowler ». 
 
 251
 
 § 422. THB LAW OF AGENCY. [Book III. 
 
 But at the same time, no set form of words is necessary. The 
 deed must be in the name, and purport to be the act and deed, of 
 the principal ; but whether such is the purport of the instrument, 
 must be determined from its general tenor, and not from any par- 
 ticular clause. Such construction must be given, in this as well 
 as in other questions arising on conveyances, as shall make every 
 part of the instrument operative as far as possible ; and when 
 the intention of the parties can be discovered, such intention 
 should be carried into effect, if it can be done consistently with 
 the rules of law.' 
 
 Thus in a leading English case, the court says : " There is no 
 particular form of words required , to be used, provided the act 
 be in the name of the principal, for where is the difference be- 
 tween signing J B by M W, his attorney, which must be ad- 
 mitted to be good, and M W f or J B ? In either case, the act 
 of sealing and delivering is done in the name of the principal 
 and by his authority. Whether the attorney put his name first 
 or last cannot affect the validity of the act done." * 
 
 § 422. Same Subject— Illustrations. Thus where a deed was 
 executed by an agent in the following form, " Know all men, etc., 
 that I, Josiah Little, of, etc., by virtue of a vote of the Pejebscot 
 Proprietors, passed, etc., authorizing and appointing me to give 
 and execute deeds for and in behalf of said proprietors, for and 
 
 Shearer. 7 Mass. 14; Tippets ». Walk- 155; 11 Am. Dec. 750; Scott «. Mc- 
 
 er, 4 Mass. 595; Tucker v. Bass, 5 Alpin. N, C. Term Rep. 155, 7 Am. 
 
 Mass. 164; Taft «. Brewster, 9 Johns. Dec. 703; Bellas v. Hays, 5 Serg. & 
 
 (N. Y.)334, 6 Am. Dec. 280; Lutz R. (Penn.) 427, 9 Am. Dec. 385; 
 
 «. Linthicum, 8 Pet. (U. S.) 165; Fisher v. Salmon, 1 Cal. 413, 54 Am. 
 
 Fullam V. West Brookfleld, 9 Allen Dec. 297; Welsh v. Usher, 2 Hill Ch. 
 
 (Mass.)l; Duval v. Craig, 2 Wheat. (S. C.) 167, 29 Am. Dec. 63; Buffalo 
 
 (U.S.) 45; Deming v. Bullitt, 1 Catholic Institute o. Bitter, 87 N. T. 
 
 Black f. (Inil.) 241; White©. Skinner, 250; Willis v. Bellamy, 52 N. Y. 
 
 13 Johns. (N. Y.) 307, 7 Am. Dec. Super. Ct. 373. 
 
 881; Quigley v. DeHaas, 82 Penn. St. > Hale v. Woods, 10 N. H. 470, 34 
 
 267,' Briggs v. Partridge, 64 N. Y. Am. Dec. 176; Jackson v. Blodget, 
 
 357*, 21 Am. Rep. 617; Kiersted v. 16 Johns. (N. Y.) 173; Bridge o. 
 
 Orange, &c. R. R. Co. 69 N. Y. 343, Wellington, 1 Mass. 219; Davis c. 
 
 25 Am. Rep. 199; Sargent C.Webster, Hayden, 9. Mass. 514; Hatch «. 
 
 13 Mete. (Mass.) 497; 46 Am. Dec. Dwight, 17 Mass. 289, 9 Am. Dec. 
 
 743; Endsley «. Strock, 50 Mo. 508; 147; Magill v. Hinsdale, 6 Conn. 464 
 
 Jones V. Morris. 61 Ala. 518; Banks a, 16 Am. Dec. 70; Hovey e. Magill, 
 
 t>. Sharp, 6 J. J. Marsh. (Ky.) 180; 2 Conn. 680. 
 
 Locke «. Alexander, 2 Hawk. (N. C.) « Wilks v. Back, 2 East 142. 
 
 252
 
 Chap. II.] EXECUTION OF SEALED INSTEUMENT8. § 422. 
 
 in consideration of the sum of thirty-seven pounds to me in hand 
 paid by Thomas Stinchtield, of, etc., the receipt whereof I do 
 hereby acknowledge, have given, granted, released, conveyed and 
 confirmed unto him, the said Thomas Stinchfield, his heirs and as- 
 signs, two hundred acres, etc. To have and to hold, etc., hereby 
 covenanting in behalf of said proprietors, their respective heirs, 
 executors and administrators, to and with the said T. S., his heirs 
 and assigns, to warrant, confirm and defend him and them in the 
 possession of the said granted premises, against the lawful claims 
 of all persons whatsoever. In testimony that this instrument 
 shall be forever hereafter acknowledged by the said proprietors 
 as their act and deed and be held good and valid by them, I, the 
 said Josiah Little, by virtue of the aforesaid vote, do hereby set 
 ray hand and seal this day, etc." Signed "Josiah Little, Seal," 
 it was held to be the deed of Josiah Little and that he, and not the 
 Pejebscot Proprietors, was liable upon the covenants.^ 
 
 So where Jonathan Elwell executed to Joshua Elwell a power 
 of attorney to convey the lands in question, and the latter, pur- 
 porting to act in pursuance of it, executed a deed of the land, in 
 which, after reciting the power, he proceeded : " Now know ye 
 that I, the said Joshua, by virtue of the power aforesaid, in con- 
 sideration, etc., do hereby bargain, grant, sell and convey unto 
 the said (grantees) to have and to hold, etc., and I do covenant 
 with the said (grantees) that I am duly empowered to make the 
 grant and conveyance aforesaid ; that the said Jonathan at the 
 time of executing said power was, and now is, lawfully seized of 
 the premises, and that he will warrant and defend the same, etc. 
 In testimony whereof, I have hereunto set the name and seal 
 of the said Jonathan this day, etc.," and signed "Joshua Elwell" 
 and seal, the deed was held not be the deed of Jonathan.* 
 
 And again where one of two deeds which purported to be made 
 by " New England Silk Company, a corporation, by Christopher 
 Colt, Jun., their treasurer," was attested : " In witness whereof, 
 I, the said Christopher Colt, Jun., in behalf of said company, 
 and as their treasurer, have hereunto set ray hand and seal," was 
 signed and sealed " Christopher Colt, Jun., treasurer, New Eng- 
 land Silk Company," and the acknowledgment was to the effect 
 
 ' Stinchfield v. Little, (1821), 1 « Elwell v. Shaw, (1819), 16 Mass. 
 
 Greenl. (Me.) 231, 10 Am. Dec. 65. 42, 8 Am. Dec. 126. 
 
 253
 
 § 422. THE LAW OF AGENCY. [Book III. 
 
 that " Christopher Colt, Jun., treasurer, etc., acknowledged the 
 above instrument to be his free act and deed," and the other deed 
 was like the first except that Colt was therein described as " treas- 
 urer of New England Silk Company, and duly authorized for 
 that purpose," the court held each of them to be inoperative 
 to convey the title of the Silk Company. In both of these deeds, 
 as will be noticed, the principal was properly named as grantor 
 but they were signed and sealed by the agent in his own name. 
 " Both of these deeds," said Judge Metcalf, " were executed by 
 C. Colt, Jun., in his own name, were sealed with his seal, and 
 were acknowledged by him as his acts and deeds. In one 
 of them, it is true, he declared that he acted in behalf of the 
 company, and as their treasurer; and in the other he declared 
 himself to be their treasurer, and to be duly authorized for the 
 purpose of executing it. But this 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 ac- 
 knowledged them to be the deeds of the company."' 
 
 Where, however, although the agent was named in the instru-' 
 ment as the party, the deed was properly signed in the name of 
 the principal, it was given effect as the deed of the principal, and 
 not of the agent.* In this case a lease was made commencing 
 as follows : " This indenture, made this 17th day of April, A. D. 
 1869, between Daniel R. Brant, of the city of Chicago, party of 
 the first part, and Edward F. Lawrence, president of the North- 
 western Distilling Company, of the same place, party of the sec- 
 ond part." Throughout the lease the parties were spoken of as 
 persons and the covenants were personal covenants, and the in- 
 strument concluded as follows : " In testimony whereof, the said 
 parties have hereunto set their hands and seals the day and year 
 first above written. D. R. Brant. [Seal.] Northwestern Dis- 
 tilling Co. [Seal.] By Edward Lawrence, President." 
 
 So where a deed reading, " Know all men by these presents 
 that the West Kansas Land Company, by Solomon Houck, Pres- 
 ident, and Theodore S. Case, Secretary, * * * bas granted," 
 etc., was signed " Solomon Houck, President [Seal], Theodore S. 
 
 » Brinley v. Mann, (1848), 2 Cush. Rep. 631. See also to the same effect, 
 
 (Mass.) 337, 48 Am, Dec. 669. Shanks v. Lancaster, (1848), 5 Gratt. 
 
 2 Northwestern Distilling Co. v. (Va.) 110, 50 Am. Dec. 108; Butter- 
 Brant, (1873), 69 111. 658, 18 Am. field b. Beall (1851), Bind. 203. 
 
 254
 
 Chap. II.] BXEOUTION OF SEALED INSTRUMENTS. § 423. 
 
 Case, Sect'y [Seal], W. K. Land Co. [Seal]," it was held to be 
 the deed of the company.* 
 
 § 423. Same Subject— Further niustrations. So where a 
 manufacturing company by vote had authorized one Arthur "W. 
 Magill to make a deed of the real estate of the company, and he, 
 in pursuance of the authority, executed a deed, of which the 
 granting part was as follows : " Arthur W. Magill, agent for the 
 Middletown Manufacturing Company, being empowered by 
 vote," etc., " for and in behalf of said company," etc., " do give, 
 grant," etc., the covenant being: "I do hereby covenant for and 
 in behalf of the said company," etc., " that said Middletown 
 Manufacturing Company is well seized," etc., "and I do also 
 bind the said Middletown Manufacturing Company to warrant 
 and defend," etc., and the conclusion being as follows : " In wit- 
 ness whereof, I have hereto, for and in behalf of said Middle- 
 town Manufacturing Company, set my hand and seal at Middle- 
 town, this 29th day of March, A. D. 1817. Arthur W. Magill 
 [l. 8.], agent for the Middletown Manufacturing Company," it 
 was held that this was the deed of the company and not of the 
 agent.* 
 
 And again, where the terms of the conveyance were: "I, 
 Daniel King, as well for myself as attorney for Zachariah King, 
 do for myself and the said Zachariah, remise, release and forever 
 quit-claim" the premises, "together with all the estate, right, 
 title, interest, use, property, claim and demand whatsoever, of 
 me, the said Daniel, and said Zachariah, which we now have, or 
 heretofore had at any time, in said premises. And we, the said 
 Daniel and Zachariah, do hereby, for ourselves, our heirs and 
 executors, covenant that the premises are free of all incumbrance 
 and that the grantee may quietly enjoy the same without any 
 claim or hindrance from us or any one claiming under us, or 
 either of us. In witness whereof, we the said Daniel for himself 
 and as attorney aforesaid, have hereunto set our hands and seals," 
 etc., and signed "Daniel King" and " Daniel King, attorney for 
 Zachariah King, being duly authorized as appears of record," 
 
 ' City of Kansas v. Hannibal, &c. « Magill v. Hinsdale (1837), 6 Conn. 
 
 R. R. Co. (1882), 77 Mo. 180. 464 a, 16 Am. Dec. 70. 
 
 255
 
 §424. 
 
 THB LAW OF AGENCY. [Book IIL 
 
 with seals aflSxed to each signature, it was held that the grant 
 conveyed the title of both.* 
 
 So where the deed of the land of T and S, his wife, was 
 drawn as follows : " I, H, for myself, and as attorney for T and 
 S, by their letters of attorney under their hands and seals, in 
 consideration, etc., to us paid by L, do sell and convey to L, etc. 
 And we the said T and S do covenant, etc. In witness whereof, 
 I H, in my own right have hereunto set my hand and seal, and 
 as attorney for said T and S have hereunto set their hands and 
 seals," and was signed " H. [l. s.] T. [l. s.] S. [l. s.] By H, 
 their attorney in fact," it was held that the deed was that of T 
 and his wife S, and not of the agent H.* 
 
 But where A gave to his wife B a power of attorney to exe- 
 cute a deed of land and she made the deed in the following 
 form : " Know ye that I, B, of, etc., as attorney to A, of, etc., in 
 consideration, etc., have granted, etc. In witness whereof I have 
 hereunto set my hand and seal. B. [Seal]," the court held that 
 it was not the deed of A.' 
 
 8 424. Same Subject— Further Illustrations— Descriptio Per- 
 sonse. Where the covenants are clearly personal, the mere addi- 
 tion of the word " agent," " trustee," etc., will not, as has beer 
 stated, change their character. 
 
 Thus where a bond was executed by certain persons, who 
 signed and sealed the same as individuals, but added "Trustees 
 of the Baptist Society of the Town of Richfield," the court 
 said: "The bond must be considered as given by the defendants 
 in their individual capacities. It is not the bond of the Baptist 
 church ; and if the defendants are not bound the church certainly 
 is not, for the church has not contracted either in its corporate 
 name or by its seal. The addition of * Trustees ' to the names 
 of the defendants is, in this case, a mere descriptio perso- 
 narum. 
 
 " 4 
 
 I Hale «. Woods (1839). 10 N. H. Gratt. ( Va. ) 110, 50 Am. Dec. 
 
 470, 34 Am. Dec. 176; citing Wilks 108. 
 
 «. Back (1802), 2 East, 142, and » Fowler v. Shearer (1810), 7 Mass. 
 
 Montgomery t). Dorion (1835), 7 N.H. 15- 
 
 484 « Taft ». Brewster (1812), 9 Johns. 
 
 « McClure e. Herring (1879),70 Mo. (N. T.) 334, 6 Am. Dec. 280. See 
 
 18, 35 Am. Rep. 404. To like effect Fullam v. West Brookfield, (1864), 9 
 
 see Shanks v. Lancaster (1848), 8 Allen, (Mass.) 1. 
 
 256
 
 Ohap. II.] EXECUTION OF SEALED INBTRUMENT8. § 425. 
 
 And for the same reason, where A, B, C and others, " trustees 
 of the Methodist Episcopal Church of Jacksonville, their suc- 
 cessors and assigns," executed a bond, binding themselves, their 
 heirs, executors and administrators, and signed it in their indi- 
 vidual names, they were held personally liable.* 
 
 § 425. Same Subject— What Form sufficient. Where a lease 
 purporting to be made by Mnssey, was signed " John Hammond 
 for B. B. Mussey, (Seal) " it was held that it was well executed 
 as the lease of Mussey. Said the court : " The defendant does 
 not deny Hammond's authority, but takes the ground that the 
 lease is not the deed of Mussey but of Hammond. And the 
 common learning is relied on, to wit, that when a deed is executed 
 by attorney, it must be the act of the principal, done and exe- 
 cuted in the principal's name. The only question is, What is an 
 execution of a deed, by an attorney, in the name of the princi- 
 pal ? We understand the execution of a deed to be the signing, 
 sealing and delivery of it. These must be done in the name of 
 the principal by the hand of the attorney. When the signing 
 and sealing are in the name of the principal, the delivery will 
 be presumed to have been so, unless the contrary is proved. 
 But however clearly the body of the deed may show an intent 
 that it shall be the act of the principal, yet unless it is executed 
 by his attorney for him, it is not his deed, but the deed of the 
 attorney or of no one." The most usual and approved form of 
 executing a deed by attorney is by his writing the name of the 
 principal and adding ' by A B his attorney' or 'by his attorney 
 A B.' But this is not the only form of execution which will 
 make the deed the act of the principal. In Wilks v. Back,' M. 
 Wilks, attorney for J. Browne, executed a deed for himself and 
 Browne in this form: ' Mathias Wilks' (Seal); 'For James 
 Browne, Mathias Wilks ' (Seal). The court of King's bench de- 
 cided that the deed was well executed in the name of Browne. 
 This decision has never been overruled, but has always been re- 
 garded as rightly made." * 
 
 1 Dayton v. Warne (1881), 43 N. J. (Mass.) 215, 54 Am. Dec. 719, citing 
 
 L. 659. Wilburn v. Larkin (1832), 3 Blackf. 
 
 • Lessee of Clarke*. Courtney, (Ind) 55; Hunter®. Miller (1846), 6 B. 
 (1831) 5 Pet. (U. S.) 850. Mon. (Ky.) 612. And to the same 
 
 » 2 East, 142. effect are. Shanks v. Lancaster (1848), 
 
 * Mussey v. Scott (1851), 7 Cush. 5 Gratt. (Va.) 110, 50 Am. Dec. 108; 
 
 17 257
 
 § 426. THE LAW OF AGENCY. [Book III. 
 
 So where the operative clauses of a deed were in the name of 
 the corporation " by William "Wallace, their agent," and the cov- 
 enants were in the name of the corporation, but the signature 
 was "William Wallace, Agent for the Flower Brook Manufac- 
 turing Company," the court held that the deed must be consid- 
 ered the deed of the corporation.* 
 
 And where a contract under seal was made "between the 
 O. I. Co. party of the first part by J. S. B. agent, and J. K. B. 
 and E. 0. B. parties of the second part ;" the stipulations in the 
 contract purporting to be between " the said party of the first 
 part" and " the said parties of the second part," no names being 
 given, and concluded, "In witness whereof the parties have 
 hereunto afl&xed their hands and seals," and was signed " J. S. 
 B. Agent (l. s.), J. K. B. (l. s.), E. C. B. (l. s.)," it was held to 
 be the deed of the company.' 
 
 In the preceding cases cited in this section it will be noticed 
 that the respective instruments purported to be made by and in 
 the name of the principal. But where a bond beginning " I 
 promise to pay," etc., and not mentioning any obligor's name, 
 was signed, " Witness my hand and seal, H. S. Lucas, (Seal) for 
 Charles Callender," the Supreme Court of North Carolina held 
 Lucas personally responsible.' And so where a bond was signed 
 " Thomas Dix, acting for James Dix," Chief Justice Kdffin said 
 it was " unquestionably the bond of Thomas and not of James. 
 The former seals it and bespeaks in it throughout, and the latter 
 not at all." * But the same judge in passing upon the liability of 
 a party to a deed says : " It is not material in what form the 
 deed be signed, whether A B by C D or C D for A B provided 
 it appears in the deed, and by the execution that it is the deed 
 of the principal." • 
 
 § 426. Distinction in Case of Public Agents. But a distinc- 
 tion has been made in the case of public agents, who have en- 
 tered into agreements, not negotiable, for the performance of 
 
 Tucker Mnfg. Co. «. Fairbanks « Bryson v. Lucas (1881), 84 N. 0. 
 
 (1867) 98 Mass. 105. 680, 37 Am. Rep. 634. 
 
 iMcDanielst). Flower Brook Mnfg. « Oliver v. Dix (1835), 1 Dev. & 
 
 Co (1850) 22 Vt. 274; see also Mar- Bat. Eq. (N. C.) 158. 
 
 tin B Almond (1857), 25 Mo. 813. » Redmond v. Coffin (1838), 2 Dev. 
 
 « Bradstreet •. Baker (1884), 14 R. Eq. (N. 0.) 437. 
 L546. 
 
 258
 
 Chap. II.] EXECUTION OF SEALED IN8TKUMBNT8. § 427. 
 
 public duties. In such a case it is to be presumed that they did 
 not undertake personally to assume the public burdens, and 
 although they may have entered into covenants under seal, par- 
 taking of a personal nature, yet where the obligation is known to 
 be a public one, they can only be held personally bound, if at all 
 where the intent is clearly apparent so to bind them.' Said 
 Chief Justice Marshall: "The intent of the officer to bind 
 himself personally, must be very apparent indeed to induce such 
 a construction of the contract ;" * and it is said by another 
 learned judge that : " It is much against public policy to cast 
 the obligations that justly belong to the body politic upon this 
 class of officials." • 
 
 These cases, however, are not to be confounded with the cases 
 where the agents, like the trustees and officers of private corpo- 
 rations and religious bodies, are not public in their nature, nor 
 with cases of negotiable instruments, which stand upon different 
 ground. 
 
 § 427. Whether necessary that Deed should purport to bo 
 executed by an Agent. Whether it is necessary to the validity 
 of the deed that it should on its face purport to be executed by 
 an agent, or whether the agent may act in the principal's name 
 throughout with nothing to disclose the fact of the agency, are 
 questions which have been much discussed. 
 
 * Hodgson «. Dexter, 1 Cranch (U. (Town Commissioners held person- 
 
 B.) 345 (Secretary of War); Knight ally liable because they exceeded their 
 
 V. Clark, 48 N. J. L, 22. 57 Am. Rep. authority); Belknap «. Reinhart, 3 
 
 634 (Township Trustees); Jones v. Wend. (N. Y.) 875, 20 Am. Dec. 621 
 
 LeTombe, 3 Dallas (U. S.) 384 (Con- (Captain U. 8. Army); Stinchfleld v. 
 
 Bul General of France); Fox B.Drake, Little, 1 GreenL (Me.) 281, 10 Am. 
 
 8 Cow. (N. T.) 191 (Court House Dec. 65; Dawes «. Jackson, 9 Mass. 
 
 Commissioners); Tutt r. Hobbs, 17 490 (Superintendent of States Prison); 
 
 Mo. 486 (School Trustees); Miller tt. Freeman v. Otis, 9 Mass. 272, 6 Am. 
 
 Ford, 4 Rich. (S. C.) L. 876, 55 Am. Dec. 66 (U. 8. Collector of Customs); 
 
 Dec. 687 (Commissioners of Roads); Walker tj. Swartwout, 12 Johns. (N. 
 
 Simonds v. Heard, 23 Pick. (Mass.) Y.) 444, 7 Am. Dec. 834 (Quarter- 
 
 120, 34 Am. Dec. 41 (Committee of master general U. S. Army); Wallisc. 
 
 town held to be personally liable on Johnson School Township, 76 Ind. 
 
 the ground that the intent was clear 368 (Trustee of schools), 
 
 to make them so); Brown v. Austin, 1 'In Hodgson v. Dexter, 1 Cranch 
 
 Mass. 208, 2 Am. Dec. 11 (Agent ap- (U. 8.) 345. 
 
 pointed to take depositions by com- • Bbasley, 0. J. in Knight v. 
 
 mittee of Congress); McClenticks v. Clark, 48 N. J. L. 22, 57 Am. Rep. 
 
 Bryant, 1 Mo. 598; 14 Am. Dec. 310 534. 
 
 259
 
 § 428. THE LAW OF AGENCY. [Book IIL 
 
 Thus in "Wood v. Goodridge the agent had executed a mort- 
 gage by simply signing the name of his principal with nothing 
 to show that it was signed by an agent and not by the principal 
 in person. Fletcher, J., was of the opinion that such a form of 
 execution was not authorized, and said : — 
 
 Hule of Wood V. Goodridge. — "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 exer- 
 cise of his delegated authority should be distinctly avowed upon 
 the instruments themselves. Whatever may be the secret in- 
 tent and purpose of the attorney, or whatever may be his 
 oral declaration or profession at the time, he does not in fact 
 execnte 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 attor- 
 ney should intend a deed to be the deed of his principal, yet it 
 will not be the deed of the principal, unless the instrument pur- 
 ports 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." ^ The decision in the case, however, was 
 placed upon other grounds. 
 
 Sow of this Rule. — This rule, certainly, has much to com- 
 mend it, as tending to the due and orderly execution of impor- 
 tant instruments, and as facilitating greatly the proper preserva- 
 tion in the public records of the evidence of the authority and 
 of its exercise. But at most, it was a mere dictum in the case, 
 and its authority has not generally been conceded, even in its own 
 State." 
 
 § 428. Same Subject— Further of this Hule. In Forsyth v. 
 Day,* speaking of this case, Rioe, J, said : " No case, I appre- 
 hend, can be found in the books which will sustain the rule so 
 broadly laid down by the learned judge in the case of Wood v. 
 Goodridge. Nor can the doctrine be sustained on principle. It 
 
 1 (1850) 6 Cuah. (Mass.) 117, 52 Am. * Hunter «. Giddings, 96 Mass. 41, 
 
 Dec. 771. 93 Am. Dec. 54. 
 
 « (1856) 41 Me. 383. 
 
 260
 
 Cliap. II.J EXECUTION OF SEALED LN8TBUMENT8. § 428. 
 
 is diflScult to perceive any sound reason why, if one man may 
 authorize another to act for him and bind him, he may not 
 authorize him thus to act for and bind him in one name as well 
 as in another. As matter of convenience in preserving testimony, 
 it may be well that the names of all the parties who are in any 
 way connected with a written instrument should appear upon the 
 instruments themselves. But the fact that the name of the agent 
 by whom the signature of the principal is affixed to an instru- 
 ment, appears upon the instrument itself, neither proves nor has 
 any tendency to prove, the authority of such agent. That must 
 be established aliunde^ whether his name appears as agent, or 
 whether he simply places the name of his principal to the instru- 
 ment to be executed." This, however, was the case of a promis- 
 sory note and not of a deed. 
 
 Again in Devinney v. Reynolds,* a deed commencing: "To 
 all to whom these presents shall come. Know ye that Michael 
 Hollman by William McAllister, his lawful and regularly deput- 
 ed attorney in fact, etc., grants," etc., concluded, "In witness 
 whereof, the said Michael Hollman, by his attorney aforesaid, 
 hath hereunto set his hand and seal," etc. To this were appended 
 the name and seal of Michael Hollman. Said the court ; " The 
 execution of the deed is in proper form, and, indeed, we seldom 
 see such instruments executed so much in accordance with ap- 
 proved precedents. It would be useless to add the name and seal 
 of the attorney, for it is what it purports to be, the deed of the 
 principal and not the attorney, and therefore does not require 
 his name and seal, but the name and seal of the principal 
 only." 
 
 So in Berkey v. Judd,' a deed reciting that it was made by the 
 principals by their attorney in fact, was signed and sealed in the 
 names of the principals, followed by the words, " By their attor- 
 ney in fact." The court said : "As respects the execution of a 
 deed by an attorney in fact, although it is usual and better for 
 him to sign the name of his principal, and to add thereto his own 
 signature, with proper words indicating that the act is done by 
 him as such attorney, yet it is not in all cases necessary that he 
 should so append his own name. When the deed on its face 
 purports to be the indenture of the principal, made by his attor- 
 
 » (1841) 1 Watts & SerK.(Penn.) 328. » (1875) 22 Minn. 287. 
 
 261
 
 § 429. THE LAW OF AGENCY. [Book IIL 
 
 ney in fact, therein designated by name, it may be properly exe- 
 cuted by such attorney by his subscribing and affixing thereto 
 the name and seal of his principal alone.' In this case the deed 
 purports on its face to be the indenture of the principals, and 
 not that of the agent. It fully discloses that it was made for 
 them and in their name by their attorney in fact who had full 
 authority so to do. Its execution was properly acknowledged by 
 him as such attorney in fact, and for and on behalf of his said 
 principals. The neglect to sign his own name to the words ' by 
 their attorney in fact' was a purely technical omission devoid of 
 any legal effect whatever." 
 
 In both of these cases, however, it will be noticed that the 
 fact that the deed was executed by an agent appeared from the 
 face of the instruments. 
 
 In Wilks V. Back, * heretofore referred to, where the signa- 
 ture to the instrument, which was an arbitration bond, was ; 
 " For James Browne, Mathias Wilks," (Seal). Lawrence, J. 
 said : " Here the bond was executed by Wilks for and in the 
 name of his principal ; and this is distinctly shown by the manner 
 of making the signature. Not even this was necessary to be 
 shown ; for if Wilks had sealed and delivered it in the name of 
 Browne, that would have been enough without stating that he 
 had so done." 
 
 Where the deed is to be signed in the presence and by the 
 direction of the principal, mere parol authority is, as has been 
 seen,' sufficient ; and in such case there need be nothing in the 
 deed to indicate that the signature was set by an agent and not by 
 the principal. 
 
 § 429. Same Subject— How in Reason. While the rule of 
 Wood V. Goodridge is undoubtedly well founded in convenience 
 and propriety, yet it is difficult in reason to perceive why even in 
 those cases where nothing whatever appears upon the face of the 
 instrument to indicate it, it may not be shown by evidence 
 aliunde that it was in fact executed by an agent. It cannot be 
 said that this is to contradict, add to or vary the deed by parol 
 evidence, for its legal effect remains the same, and it is none the 
 
 » Citing Devinney v. Reynolds, 1 "2 East, 142. 
 
 Watts «& Serg. (Penn.) 328; and For- » See ante, § 96. 
 
 BythD. Day, 41 Me. 882. 
 
 262
 
 Cliap. II.] EXECUTION OF SEALED IN8TEUMENT8. § 430. ' 
 
 less afterward what it purported to be before, — the deed of the 
 principal. Neither can it be said that in one case there is, while 
 in the other there is not, evidence of the agency. In either event 
 the agency must be proved as a fact. It cannot be established by 
 mere recitals of authority or by any pretence of acting in that 
 capacity. 
 
 § 430. Parol Evidence not admissible to discharge Agent. 
 Where the deed upon its face is the deed of the agent, parol 
 evidence is not admissible to discharge the agent by showing that 
 it was intended or understood to be the deed of the principal,* 
 but where the deed is ambiguous, parol evidence may be resorted 
 to, to show who was in fact the party intended to be charged.* 
 
 » Willis V. Bellamy, 52 N. T. Super. Y.) 851; Briggs t. Partridge. 64 N. T. 
 
 Ct 873; Higgins v. Senior, 8 M. & W. 357, 21 Am. Rep. 617. See thia sub- 
 
 834; Beckam 0. Drake, 9 M. «&W. 79; ject fully discussed in following 
 
 Leadbitter t». Farrow, 5 M. & 8. 845; chapter. 
 
 Spencer «. Field, 10 Wend. (N. Y.) • Shuetze v. Bailey, 40 Mo. 69; 
 
 88; Townsend v. Hubbard, 4 Hill (N. Smith v. Alexander, 31 Mo. 193. 
 
 263
 
 §431. 
 
 THB LAW OP AGENCY. 
 
 [Book IIL 
 
 OHAPTEK III. 
 
 OF THE EXECUTION OF SIMPLE CONTRACTS. 
 
 § 481. Purpose of this Chapter. 
 
 II. Of the ExBCirriON of Neoo- 
 
 TIABLE PaPBK. 
 
 432. In general — The proper Man- 
 
 ner. 
 
 433. Same Subject— General Rule. 
 
 434. Same Subject — Not necessary 
 
 that Agent's Name appear. 
 
 435. Not enough that Principal be 
 
 named only in Body of In- 
 strument. 
 
 436. Same Subject— Where Intent to 
 
 charge Principal is manifest. 
 
 437. Same Subject— Other Cases. 
 
 438. Where no Principal is disclos- 
 
 ed, Agent is bound notwith- 
 standing he signs as "Agent." 
 
 439. Negotiable Paper drawn pay- 
 
 able to an Agent and in- 
 dorsed by him. 
 
 8 440, 
 
 441. 
 
 443. 
 
 How when made by Public 
 Agents. 
 
 Admissibility of parol Evi- 
 dence to show Intent 
 
 Same Subject — What Rules 
 applied. 
 
 443. Same Subject—The true Rule. 
 
 444. Further of this Rule. 
 
 II. Of the Execution of othbb 
 SIMPLE Contracts. 
 
 445. The proper Manner. 
 
 446. Intention of the Parties the 
 
 true Test. 
 
 447. Agent may bind himself by 
 
 express Words. 
 
 448. Same Subject — Contrary In- 
 
 tention manifest. 
 
 449. The Admissibility of parol 
 
 Evidence to show Intent. 
 
 §431. Piirpcse of this Chapter. It is intended in this chap- 
 ter to discuss the manner of executing contracts not under seal, 
 including therein such contracts whether written or unwritten. 
 And as there are some special rules applicable to the execution 
 of negotiable instruments, that subject will first be separatelj 
 considered. 
 
 OF THE EXECUTION OF ITEOOTIABLE PAPER. 
 
 § 432. In general— The proper Manner. Negotiable paper 
 being intended to circulate in the commercial world as the repre- 
 sentative of money, it is highly important that the character and 
 liability of the parties to it, shall be disclosed with reasonable 
 certainty upon the face of the paper itself. In no class of instru- 
 
 264
 
 Chap. III.] BXKOUTION OF SIMPLE C0NTKACT8. § 432. 
 
 ments is uncertainty, or ambiguity, or the necessity of making 
 outside inquiry, so destructive to its mission, as in this. 
 
 The method approved in the execution of instruments under 
 seal can with great propriety be adopted here. Thus if the bill 
 or note be drawn, accepted or indorsed, " A B, by D, his 
 attorney or agent," or " A B, by his attorney or agent C D," 
 there can be no question as to who is the party to be charged. 
 "A B by C D " is also unequivocal, though not so full.' 
 
 These forms, however, are not imperative. Thus, "CD 
 agent for A B," "CD for A B," and " For A B, C D" are now 
 quite generally regarded as sufficiently indicative of the intent, 
 for although " agent for " a particular person or corporation may 
 either designate the general relation which the person signing 
 holds to another party, or show that the particular act in question is 
 done in behalf of and as the very contract of that other, yet the 
 court, if such is manifestly the intention of the parties will con- 
 strue the words in the latter sense.* 
 
 "Pro A B, C D " is to the same effect and is also sufficient.* 
 " Agent of " however is not the equivalent of " agent for," but 
 is mere descriptio personcB \ * and even the words "agent for" 
 must under some circumstances also be held to be merely a de- 
 scription of the person, as where they are not followed by the 
 proper name of the principal. Thus a note signed "D. H., 
 agent for the Churchman " (the name of the newspaper which 
 the agent carried on in the behalf of his principal), was held to 
 be the note of D. H., and not of his principaL* 
 
 •Tucker Mnf'g Co. t>. Fairbanks, 6a. 86. Contra: Oflfutt t. Ayers, 7 
 98 Mass. 101 ; Bradlee «. Boston Glass T. B. Monr. (Ky.) 856; Dawson ®, Cot- 
 Co., 16 Pick. (Mass.) 847; Weaver «. ton, 26 Ala. 591. But see: Webb v. 
 Carnall, 85 Ark. 198; Ballou v. Tal- Burke, 5 B. Monr. (Ky.) 51; Cook v. 
 bot, 16 Mass. 461; Jefts v. York, 4 Sanford, 3 Dana (Ky.) 237; Shuetze 
 Cush. (Mass.) 372; Page*. Wight, 14 v. Bailey. 40 Mo. 69; Garrison v. 
 Allen (Mass.) 182; Barlow «. Congre- Combs. 7 J. J. Marsh. (Ky.) 84, 22 
 gational Society, 8 Allen (Mass.) 460; Am. Dec. 120. 
 Emerson c. Providence Mnf'g Co., 12 s Long «. Colburn, 11 Mass. 97, 6 
 Mass. 237, 7 Am. Dec. 66. Am. Dec. 160. 
 
 « Ballou V. Talbot, 16 Mass. 461 
 Tucker v. Fairbanks, 98 Mass. 101 
 Rawlings v. Robson, 70 Ga. 595 
 Jefts t. York, 4 Cush. (Mass.) 872 
 
 * Tucker Mnf'g Co. e. Fairbanks, 
 supra-, Haverhill Ins. Co. ». Newhall, 
 1 Allen (Mass.) 130. 
 
 • De Witt V. Walton, 9 N. Y. 671; 
 
 Bartlett v. Tucker, 104 Mass. 336. 6 eee also Shattuck v. Eastman, 12 Al- 
 Am. Rep. 240; Tiller e. Spradley, 39 len (Mass.) 369. 
 
 265
 
 § 433. THE LAW OP AGENCY. [Book III. 
 
 In Colorado, after an exhaustive examination, the sufficiency of 
 the form " C D, agent for A B," was denied altogether.' 
 
 So " A B, C D, agent," has been held to be sufficient. Thus 
 where a note reading " we promise to pay," was signed " Mass- 
 achusetts Steam Heating Company, L. S. Fuller, treasurer," the 
 court said : " The name of the company is signed to the note. 
 This signature could not be made by the corporation itself and 
 must have been written by some officer or agent. It was mani- 
 festly proper that some indication should be given by whom the 
 signature was made, as evidence of its genuineness ; and Fuller 
 added his own name, with the designation of his official charac- 
 ter. And the whole taken together shows it to be the signature 
 of the Massachusetts Steam Heating Company and not of Full- 
 er." • 
 
 § 433. Same Subject— General Rule. It has been said by a 
 learned judge, in dealing with this question, that " In order to 
 exempt an agent from liability upon an instrument executed by 
 him within the scope of his agency, he must not only name his 
 principal, but he must express by some form of words that the 
 writing is the act of the principal though done by the hand of 
 the agent. If he expresses this, the principal is bound, and the 
 agent is not. But a mere description of the general relation or 
 office which the person signing the paper holds to another person 
 or corporation, without indicating that the particular signature is 
 
 • Tannatt e. Rocky Mountain Na- Sawmut Ins. Co., 3 Allen (Maas.) 
 
 tional Bank. 1 Colo. 278, 9 Am. Rep. 215; Atkins v. Brown, 59 Me. 90. 
 jgg But in a recent Iowa case where a 
 
 "Draper v. Massachusetts Steam note read "we promise to pay "and 
 
 Heating Co., 5 AUen (Mass.) 333. So was signed "Independence M'fg 
 
 a note reading "we promise to pay Co., B. J. Brownell, Prea. D. B. 
 
 • • • at office Belfast Foundry Sanford, Sec'y," it '^^as held that 
 
 Co." and signed, "Belfast Foundry Brownell was pnma/ocie liable indi- 
 
 Company, W. W. Castle, President," vidually, but it was intimated that 
 
 binds the company. Castle*. Bel- this result could have been controlled 
 
 fast Foundry Co. 73 Me. 167; so a by parol evidence showing a contrary 
 
 note reading "we promise to pay," intent. Heffner«. Brownell, 70 Iowa, 
 
 and signed " Pioneer Mining Com- 591, 31. N. W. Rep. 947. So a note 
 
 pany, John E. Mason, Supt." may be reading "we promise to pay," and 
 
 shown by parol to have been intended signed, " English S. M. Co., H. Patt- 
 
 to bind the Company. Bean v. berg, Manager," was held not to be 
 
 Pioneer Min. Co., 66 Cal. 451, 56 the note of the company. Chase v. 
 
 Am. Rep. 106. See also the same Pattberg, 12 Daly (N. Y.) 171. 
 effect as the Draper case ; Abbott v. 
 
 266
 
 Chap. III.] EXECUTION OF SIMPLE 0ONTEA0T8. § 435. 
 
 made in the execution of the office and agency, is not sufficient 
 to charge the principal, or to exempt the agent from personal lia- 
 bility." • 
 
 § 434. Same Subject— Not necessary that Agent»s Name appear. 
 Although reasons of convenience and propriety render it highly 
 desirable that the fact that the note or bill is executed in the 
 name of the principal by the agent, should appear on the face of 
 the instrument, it cannot be regarded as indispensable, and the 
 agent may sign the principal's name alone without adding any- 
 thing to disclose the agency.* 
 
 § 435. Not enough that Principal be named only in Body of 
 Instniment. It is not enough to relieve the agent that the per- 
 son, for whom the promise is made or the bill drawn, be named in 
 the body of the instrument alone. In such a case, as a rule, it 
 will be presumed that only the person who signed intended to be 
 charged, unless there is a clear indication to the contrary. 
 
 Thus where the form of the bill was, " Forty days after date, 
 pay to the order of T. L. fifty pounds, value received, which place 
 to the account of the Durham bank, as advised," signed " C. F.," 
 it was held to be the bill of C. F., though he was known at the 
 time to be the agent of the Durham bank. Said Lord Ellenbo- 
 ROUGH : " Is it not an universal rule that a man who puts his name 
 to a bill of exchange thereby makes himself personally liable, un- 
 less he states upon the face of the bill that he subscribes it for 
 another, or by procuration of another, which are words of exclu- 
 sion % Unless he says plainly ' I am the mere scribe,' he becomes 
 liable. Now in the present case, although the plaintiff knew the 
 defendant to be the agent of the Durham bank, he might not know 
 but that he meant to offer his own responsibility. Every person, 
 it is to be presumed, who takes a bill of the drawer, expects that 
 his responsibility is to be pledged to its being accepted. Giving 
 full effect to the circumstance that the plaintiff knew the defen- 
 dant to be agent, still the defendant is liable, like any other 
 drawer who puts bis name to a bill without denoting that he does 
 it in the character of a procurator." * 
 
 • Gray, J., in Tucker Mn'fg Co. » Leadbitter v. Farrow, 5 Maule & 
 
 «. Fairbanks', 98 Mass. 101. 8el. 345. To the same effect see: 
 
 •First National Bank v. Gay, 63 Penkivil v. Connell. 5 Exch. 381; 
 Mo. 33, 21 Am. Rep. 430; Forsyth v. Mayliew v. Prince, 11 Mass. 54. 
 Day, 41 Me. 382. 
 
 267
 
 I 435. THE LAW OF AGENCY. [Book III. 
 
 And acain where a note was executed in these words : " For 
 value received, we, the subscribers, jointly and severally promise 
 to pay Messrs. J. and T. B. or order, for the Boston Glass Manu- 
 factory, thirty-five hundred dollars, on demand, with interest," 
 and was signed, " J. H., S. G., C. F. K.," it was held to be the note 
 of the signers and not of the manufactory. Chief Justice Shaw, 
 in delivering the opinion of the court, said: "The main question 
 in the present case, arises from the form of the contract ; and 
 the question is, whether in this form it binds the persons who 
 signed it, or the company for whose use the money was borrowed. 
 As the form of words in which contracts may be made and 
 executed, are almost infinitely various, the test question is, wheth- 
 er the person signing professes and intends to bind himself, and 
 adds the name of another to indicate the capacity or trust in 
 which he acts, or the person for whose account his promise is 
 made ; or whether the words referring to a principal are intended 
 to indicate that he does a mere ministerial act in giving effect and 
 authenticity to the act, promise and contract of another. Does 
 the person signing apply the executing hand as the instrument 
 of another, or the promising and engaging mind of a contract- 
 ing party?" ' 
 
 And in a subsequent case in the same court, it is said : " It 
 seems to be well settled in this court, and supported by English 
 authority, that the mere insertion of ' for' or 'for and in behalf 
 of ' the principal, in the body of the note does not make it the 
 contract of the principal if signed by the mere name of the agent 
 without addition." * 
 
 In accordance with the same rules, it was held that a note 
 running " we, the trustees of the Methodist Episcopal Church," 
 promise, etc., and signed by the trustees as individuals, with no- 
 thing to indicate that they signed as trustees, was their indivi- 
 dual promise;* and the same ruling was made where a note 
 running " we, the directors of the Big Eagle and Harrison Turn- 
 
 " Bradlee v. Boston Glass Manufac- Am. Rep. 71 ; but see the decision of 
 
 tory, 16 Picli. (Mass.) 347; See also the same court where the trustees 
 
 Morell V. Codding, 4 Allen (Mass.) added that word to their signatures, 
 
 403. Powers «. Briggs, 79 111. 493, 22 Am. 
 
 « Barlow v. Congregational Socle- Rep. 175. See also Burlingame ». 
 
 ty, 8 Allen (Mass.) 460. Brewster, 79 111. 515, 22 Am. Rep. 
 
 '» Hypes f>. Griffin, 89 111, 134, 31 177. 
 
 268
 
 Chap. III.] KXEOunoN of simple oonteaots. § 436. 
 
 pike Company promise," was signed by those officers in their in- 
 dividual names.' 
 
 But a contrary conclusion was reached in Maine, where a note, 
 beofinninff " We, the subscribers, for the Carmel Cheese Manu- 
 facturing Company, promise to pay," etc., was signed by the 
 makers in their individual name.* But this conclusion was based 
 largely upon the provisions of a statute of that State, which as 
 the court say in an earlier case : • " was passed soon after the de- 
 cision of Stinchfield -y. Little (to which reference has been made 
 before), and was undoubtedly intended to modify the technical 
 rule of the common law as declared by the court in that case." 
 That statute provides that " deeds and contracts, executed by an 
 authorized agent of an individual or corporation in the name of 
 the principal, or in his own name for his principal, are to be re- 
 garded as the deeds and contracts of such principal," " 'For his 
 principal,' " says the court, " are the words used in our statute 
 above cited, in regard to the proper execution of a contract by 
 an agent ; and ' for ' when so used, means * in behalf of.' * * 
 The words used in the body of the note, tending to show the 
 meaning of the parties, should have the same force and effect as 
 if following, or written against the defendants' signatures." 
 
 § 436. Same Subject— Where Intent to charge Principal is 
 manifest. But where the body of the instrument discloses that it 
 is evidently executed for or in behalf of a principal therein 
 named, and the person signing adds to his signature such words 
 as indicate that he was acting in a representative and not in a 
 personal capacity, the instrument will be deemed to be the obli- 
 gation of the principal. Thus where the contract ran " We, the 
 undersigned committee for the first school district, promise in 
 behalf of said district," etc., and was signed with the individual 
 names of the committee with the addition of the word " commit- 
 tee," it was held that the intention to bind the district was appar- 
 ent upon the face of the contract and that the members of the 
 committee were not personally bound.* For the same reason, 
 where a check with the words " ^tna Mills" printed on the mar- 
 gin was given in payment of a debt due from the mills and was 
 
 » Pack «. White, 78 Ky. 243. Am. Rep. 23. See also Purinton ». 
 
 « Simpson «. Garland, 72 Me. 40, 89 Insurance Co. 72 Me. 22. 
 Am. Rep. 297. * Andrews o. Estea, 11 Me. 267, 26 
 
 » Nobleboro c. Clark, 68 Me. 87, 28 Am. Dec. 521. 
 
 269
 
 § 436. THE LAW OF AGENCY. [Book III. 
 
 signed "I. D. F., Treasurer," the court held it to be manifestly the 
 check of the mills and not the personal check of F.' And so 
 where a note beginning " We promise" and signed W. B. S., 
 " Sec'y," had impressed upon it the seal of the company containing 
 the words " Neal Manufacturing Co., Madison, Ind.," of which 
 company S. was the secretary, it was held to be the note of the 
 company and not of S.* And the same effect was given to the seal 
 of the company in Oregon and Illinois. Thus a note stating, 
 "We promise to pay" etc., signed " J. I., Prea., J. J. I., Sec. G. 
 M. Co.," which had impressed upon it the seal of the company 
 containing the words, " Granger Market Co.," is the note of the 
 company and not of the officers ;' and so is a note reading " We 
 promise to pay," etc., signed "S. L. K., Pres., Chicago Ready 
 Roofing Co., W. H. K., Sec'y, " impressed with the seal of the 
 " Chicago Ready Roofing Company." * But a different conclu- 
 sion was reached in England.' 
 
 Again, a note reading, " We promise to pay," etc., " on account 
 of the London and Bermingham Iron Hardware Company," and 
 signed " J. M., H. W., J. W., Directors," and countersigned " K 
 G., Secretary," was held to be the note of the company ;• a note 
 beginning " I, the subscriber, treasurer of the Dorchester Turn- 
 pike Corporation promise," etc., signed " A. B., treasurer of the 
 Dorchester Turnpike Corporation," was held to be the note of 
 the corporation and not of the treasurer ; ' a note reading, " the 
 president and directors of the Woodstock Glass Company prom- 
 ise," etc., and signed " W. H., President," binds the company and 
 not the president individually ; ' a note beginning " we as Trus- 
 tees of the Amador and Nevada Wagon Road Company prom- 
 ise," etc., and signed, " J. M. K., L. N., J. T., Trustees, of the 
 Amador and Nevada Wagon Road Company," is the note of the 
 company and not of the trustees ; • and a note beginning " we, 
 as the trustees of the Methodist church, promise to pay," etc.. 
 
 • Carpenter v. Farnsworth, 106 » Button v. Marsh, L. R. 6 Q. B. 
 Mass 561, 8 Am. Rep. 360. 861. 
 
 « Means v. Swormstedt, 32 Ind. 87, • Lindus «. Melrose, 2 Hurl.& Nor. 
 
 3 Am. Rep. 330. 293. 
 
 8 Guthrie «. Imbrie,12 Oregon, 182, 'Mann «. Chandler, 9 Mass. 335. 
 
 53 Am. Rep. 331, 6 Pac. Rep. 664. • Mott v. Hicks, 1 Cow. (N.T.) 513; 
 
 * Scanlan v. Keith, 102 lU. 634, 39 13 Am. Dec. 550. 
 
 Am. Rep. 303. » Blanchard v. KauU, 44 CaL 440. 
 
 270
 
 Chap. III.] EXECUTION OF SIMPLE C0NTKA0T8. § 437. 
 
 and signed, " J. W. K., J. A. P., K. G. 0., Trustees," is the not© 
 of the church and not of the trustees.' 
 
 A note reading, " we, the trustees of the First Free Will Bap- 
 tist Society of Chicago, promise," etc., and signed " Trustees of 
 the First Free "Will Baptist Society, of Chicago, Illinois, A. P. 
 D., P. W. G.," and seven others, was held to be the note of the 
 society ; * while a note reading " we, the trustees of the Seventh 
 Presbyterian Church, promise," etc., and signed " A. H. B., L. 
 B. K., J. C. and F. D. M., Trustees," was held by the same court 
 to be the individual note of the trustees, and not of the society; ' 
 the distinction being based upon the fact that in the first case the 
 exact corporate name of the society, **. e. " The Trustees of the 
 First Free Will Baptist Society, of Chicago," had been used both 
 in the body of the note and in the signature, while in the second 
 case it had not been, the corporate name there being " Trustees 
 of the Society of the Seventh Presbyterian Church, of Chicago." 
 The distinction here made cannot be reconciled with many of 
 the cases cited above. 
 
 § 437. Same Subject— Other Cases. A bill or note drawn by 
 an agent with such directions or expressions upon its face as 
 indicate that it is drawn upon, or is to be charged to, the account 
 of his principal, and which is signed by the agent with such 
 additions as to disclose that he is acting in his character as agent, 
 will be deemed to be a charge upon the principal and not upon 
 the agent. 
 
 And it has been held that it is not necessary that the bill or 
 note itself should unequivocally disclose the name of the princi- 
 pal in order to exonerate the agent ; but that it will be sufficient 
 if enough appears upon the face of the transaction to put a pru- 
 dent man, before taking the bill or note, upon inquiry.* 
 
 Thus a bill drawn by an agent upon his principal concluding 
 "and charge the same to the account of your agency at Natchez," 
 and signed "J. D. H., Agent " sufficiently indicates that the agent 
 was acting in a representative character ; • so a bill headed 
 
 » Leach v. Blow, 8 Smedes & M. 'Powers «. Briggs, 79 DI. 493, 23 
 (Miss. ) 221. Am. Rep. 175. 
 
 > New Market Savings Bank v. * Davis v. Henderson, 25 Miss. 549, 
 
 Gillett, 100 111. 264, 39 Am. Rep. 59 Am. Dec. 229; Mott v. Hicks, 1 
 89. Cow. (N. Y.) 513, 13 Am. Dec. 550. 
 
 ■ Davis «. Henderson, supra. 
 
 271
 
 § 437. THE LAW OF AGENCY. [Book 111. 
 
 " Office of Tioga Navigation Company," concluding, " charge to 
 motive power and account," and signed, J. R. W., " Pres. T. N. 
 Oo.," purports upon its face to be the bill of the corporation and 
 not the individual bill of the signer;' and a draft headed " New 
 England Agency of the Pennsylvania Fire Insurance Company," 
 having the words " Foster & Cole, General Agents for the New 
 England States" printed in the margin, and appearing on its 
 face to be drawn upon said insurance company in payment of a 
 claim against it, is the draft of the company and not of Foster & 
 Cole, although it is signed by them in their own names ; * and a 
 bill headed " Office of Belleville Nail Mill Co.," and concluding, 
 «' charge same to account of Beljeville Nail Mill Co., W. C. B., 
 Pres., J, C. W., Sec'y," is the bill of the company." 
 
 So where a draft was headed " Pompton Iron Works " and 
 directed that the amount should be placed " to the account of 
 Pompton Iron Works," it was held to be clearly the draft of the 
 Iron Works and not of Burtt, though it was signed " W. Burtt, 
 Agt," * and a bill headed "Adams & Co.'s Express and Banking 
 House," drawn on Adams & Co., concluding, "and charge same 
 to account of this office," and signed " C. P. N. per G. W. C, 
 Ag'ts," is the bill of the company.* 
 
 So where a bill headed " Office of Portage Lake Manufactur- 
 ing Company " and concluding, " charge the same to account of 
 the company, I. R. Jackson, Agt.," was drawn upon " E. T. 
 Loring, Agent," and was accepted by him in the same manner, 
 it was held in Massachusetts that so far as the drawer, Jackson, 
 was concerned, there was enough upon the face of the instru- 
 ment to show that the bill was drawn as agent of the company, 
 but it was further held that this conclusion exhausted the opera- 
 tion of the words showing that intent, and that they could not 
 be used again to indicate that the acceptance of Loring was made 
 in the same capacity.* 
 
 But on the other hand, in accordance with cases cited in a pre- 
 
 lOlcott V. Tioga R. R. Co., 27 N. « Fuller «. Hooper, 8 Gray (Mass.) 
 
 Y. 646, 84 Am. Dec. 298. 834. 
 
 • Chipmant). Foster, 119. Mass. 189; 'Sayre v. Nichols, 7 Cal. 635, 68 
 
 to same effect, Tripp v. Swanzey Am. Dec. 280. 
 
 Paper Co., 13 Pick. (Mass.) 291. « Slawson v. Loring, 5 Allen (Mass.) 
 
 •Hitchcock •. Buchanan, 105 U. 8. 840, 81 Am. Dec. 750. 
 416. 
 
 272
 
 Chap. III.] EXECUTION OF SIMPLE 00NTKA0T8. § 438, 
 
 ceding section, a draft concluding, " and charge the same to the 
 account of Proprietors Pembroke Iron Works. Joseph Barrell," 
 was held to be the draft of Barrell because he had not added 
 anything to his signature to indicate that he was acting in a rep- 
 resentative character.' 
 
 § 438. When no Principal is disclosed, Agent is bound not- 
 withstanding he signs as "Agent." Where, however, no princi- 
 pal is disclosed upon the face of the instrument, for whom or in 
 whose behalf it appears to have been made, the agent will be 
 held personally bound notwithstanding the fact that he adds the 
 word " agent," " trustee," " president," etc., to his name. It is 
 to be presumed that he intended to bind some one by the instru- 
 ment, and as he has used no apt words to bind the principal, and 
 no other contracting party appears, he must be held to have in- 
 tended to charge himself, and the words " agent," " trustee," etc., 
 will be regarded as mere descriptio personoB. 
 
 Thus a note in the usual form, " I promise to pay," etc., signed 
 « A. B., Treas. St. Paul's Parish," ' C. H., President of the Dor- 
 chester Avenue Railroad Company ;" » " J. S. E., Trustee of 
 Sullivan Railroad ;" * « A. B., Treasurer of Eagle Lodge ;" ' "W. 
 H. E., Pres. and Treas. Chelsea Iron Foundry Company ;"• " J. 
 B., Agent for Lewis County ;" ' or a draft signed " W. P. C, 
 Treas.," • etc., with nothing in the body of the note to indicate 
 that the promise is not the promise of the signer, will be held to 
 be the personal obligation of him whose name is subscribed, not- 
 withstanding the addition. 
 
 > Bank of North America «. Hooper, Robinson «. Kanawha Valley Bank, 
 
 6 Gray (Mass.) 567, 66 Am. Dec. 390; 44 Ohio St. 441; Barker v. Mechanics' 
 
 and to the same effect, is Newhall v. Fire Ins. Co., 3. "Wend. (N. Y.) 94; 
 
 Dunlap, 14 Me, 180, 31 Am. Dec. 45. Hills v. Bannister, 8 Cow. (N. Y.) 31; 
 
 aStur'divant v. Hull, 59 Me. 173, 8 Pentz v. Stanton, 10 Wend. (N Y.) 
 
 Am. Rep. 409; Mellen v. Moore, 68 271; Savage v. Rix, 9 N, H. 2G3; 
 
 Me. 390, 28 Am. Rep. 77. Chadsey v. McCreery, 27 111. 253; 
 
 3 Haverhill M. F. Ins, Co, «, New- Drake v. Flewellen, 33 Ala. 106; 
 
 hall, 1 Allen (Mass.) 130. Fowler v. Atkinson, 6 Minn. 578; 
 
 <Fiske V. Eldridge, 13 Gray (Mass.) Rand v. Hale, 3 W. Va. 495, 100 Am. 
 
 474, Dec. 761; Collins*. Ins. Co., 17 Ohio 
 
 sSeaver*. Coburn, lOCush. (Mass.) St. 215, 93 Am. Dec. 613; Bickford 
 
 824. «. First Nat. Bank, 43 111. 238, 89 
 
 • Davis V. England, 141 Mass. 587, Am. Dec. 436. 
 
 1 Exchange Bank v. Lewis County, • Bank c. Cook, 38 Ohio St. 443. 
 28 W. Va, 273; to like effect, see, 
 
 18 273
 
 I 439. THE LAW OF AGENCY. [Book 111. 
 
 And, as is said by a learned judge, " Why should it not be 
 80 1 That is the plain and direct import of the language he uses. 
 * I ' is not the language of a corporation or association. It is 
 that of an individual signer. If a signer appends to his signa- 
 ture a description of himself as agent, president, trustee, or treas- 
 urer of a corporation, it may import a declaration on his part 
 that, having funds of such corporation in his possession, he is 
 willing to be responsible, and accordingly makes himself respon- 
 sible for a debt of theirs. And this descriptio jpersonm may aid 
 him in the keeping and adjustment of his accounts with his dif- 
 ferent principals. But without some words in the contract im- 
 porting that he promises for or. on behalf of his principal, he 
 cannot avoid the personal liability he has assumed." ' 
 
 What is true of one individual signer is also true of several, 
 whether the form adopted be " I " or " we " promise. Thus a 
 note in the usual form signed by several with the addition 
 '' vestryman, Grace church " ' or " President and Directors of 
 the P. and S. Cheese Co.," • or " Trustees of First Universalist 
 Society,"* or "Trustees of the A. Lodge," • is the note of the 
 individual signers. 
 
 8 439. Negotiable Paper drawn payable to an Agent and 
 indorsed by him. Where a bill or note is drawn payable to the 
 ao-ent of a private individual, and is indorsed by the agent, the 
 same general rules apply to his liability upon the indorsement, as 
 where he signs the bill or note in the same form as maker. 
 
 But where a bill or note is drawn payable to an individual as 
 an ofl&cer of a corporation, a different rule has generally been 
 applied. In such a case, the note or bill is considered to be in 
 reality payable to the corporation of which he is such officer, and 
 
 »Bakrow8, J., in Sturdivant t). «Burlingame «. Brewster, 79 111. 
 
 Hull iupra. 615, 23 Am. Rep. 177; to like effect, 
 
 « Tilden v. Barnard, 43 Mich. 876, Powers v. Briggs, 79 111. 493, 23 Am. 
 
 83 Am. Rep. 197. Rep. 175; Hypes ». Griffla, 89 111. 
 
 • Rendell v. Harriman, 75 Me. 497, 134, 31 Am. Rep. 71; Barlow t>. Con- 
 
 46 Am. Rep. 431. But contra, see gregational Society. 8 Allen (Mass ) 
 
 Farmers' & Mechanics' Bank B.Colby, 460; Coburn v. Omega Lodge. 71 
 
 61 Cal. 353, where a note reading Iowa, 581; .Hayes v. Brubaker, 65 
 
 " we promise," and signed "G. A. C, Ind. 27. 
 
 Pres. Pac. Peat Coal Co., D. K. T., sMcClellan v. Robe, 93 Ind. 293; 
 
 Sec. pro <CTO." was held to be the note Williams v. Second National Bank, 
 
 of the company, B3 Ind. 237. 
 
 074-
 
 Chap. III.] KXEOunoN of simple contkaots. § 440. 
 
 his indorsement of it in the same way is generally regarded as 
 the indorsement of the corporation, and not of the officer. Thus 
 where the paper is drawn payable to the " cashier " of a bank, or 
 to "A. B., Cashier" or to "A. B., Cas." or to the order of an 
 officer of the corporation, as to " L. M., Pres. M. F. & M. Ins. 
 Co.," the bank or other corporation is, in the judgment of the 
 law, the payee,* and the indorsement of the cashier or officer 
 is regarded as the indorsement of the corporation and not 
 the individual undertaking of the agent' 
 
 And the same rule is reached where paper is drawn upon an offi- 
 cer of a corporation as such, as upon "A. B., Treasurer" or "A. B., 
 Agent," and is accepted by him in the same form,* 
 
 So where a note or bill payable to a corporation by its corporate 
 name has been indorsed by an authorized agent or official, with 
 the title of his office appended, it is regarded as the indorsement 
 of the corporation ; as where a note was payable to the " Globe 
 Mutual Insurance Co. or order," and was indorsed "L, G., 
 President." * 
 
 § 440. How when made by Public Agents. As has been seen, 
 in the preceding chapter," contracts made by public agents while 
 acting in the exercise of their public functions are presumed to 
 be made in behalf of the public, and are not binding upon them 
 personally unless the intent to be so charged is very clear. 
 Whether the same rule applies to the execution of nego- 
 tiable instruments by public agents is not so clear, although 
 
 •First National Bank of Angelica man, 19 Me. 440; Vater v. Lewis, 86 
 
 V. Hall, 44 N. T. 395, 4 Am. Rep. Ind. 288, 10 Am. Rep. 29. 
 
 698; Bank of New York v. Bank of >Hager v. Rice, 4 Colo. 90, 34 Am. 
 
 Ohio, 29 N. T. 619; Nichols v. Froth- Rep. 68; Laflin & Rand Powder Co. v. 
 
 ingham, 45 Me. 220, 71 Am. Dec. Sinsheimer, 48 Md. 411, 30 Am. Rep. 
 
 539 472; Shelton v. Darling, 2 Conn. 435; 
 
 2 Bank of Genesee v. Patchin Bank, Amison v. Ewing, 2 Cold. (Tenn.) 366. 
 
 19 N. Y. 312; Burnham v. Webster, But to the contrary are, Slawson b. 
 
 19 Me. 232; Robb v. Bank, 41 Barb. Loring, 5 Allen (Mass.) 340. 81 Am. 
 
 <N. Y.)586;Mechanics'Bank7?.White Dec. 750; Moss v. Livingston, 4 N. 
 
 Lead Co., 35 N. Y. 505; Bank v. Y. 208. 
 
 Wheeler, 21 Ind. 90; Baldwin©. ♦Elwell «. Dodge, 33 Barb. (N. Y.) 
 
 Bank, 1 Wall. (U. S.) 234; Houghton 336; same point, Northampton Bank 
 
 V. First Nat. Bank of Elkhorn, 26 v. Pepoon, 11 Mass. 288; Nicholas o. 
 
 Wis. 663, 7 Am. Rep, 107; Nave ». Oliver, 36 N. H. 219; Mclntyre e. 
 
 Lebanon Bank, 87 Ind. 204; Russell Preston, 5 Gil. (111.) 4a 
 
 p. Folsom, 72 Me. 436; Farrar v. Gil- » Ante. % 426. 
 
 275
 
 § 440. THE LAW OF AGENOT. [Book IIL 
 
 in reason, it would seem that it should, as between the imme- 
 diate parties where the principal is known or disclosed, and 
 as against third persons where enough is shown to fairly put a 
 prndent man upon his guard. 
 
 The cases upon this subject are not harmonious and in many of 
 them the distinction between public and private agents does not 
 seem to have received attention. Thus where a note reading, " I 
 promise to pay " etc. was signed by G. H. and A. P., " School 
 trustees," it was held that the note was the individual obligation 
 of the signers, and that the words " School trustees " were but 
 descriptive of the persons ; * and a similar ruling was made where 
 the paper was headed " State of Iowa, County of Jones, Town- 
 ship of Hale," and was signed, W. H. G., " Pres. School Board " 
 and I. B. S., " Sec'y School Board." * So where notes were 
 signed J. B., " Agent for Lewis County " it was held that J. B. 
 was personally bound.* So a note reading " For value received 
 as treasurer of the town of Monmouth, I promise to pay " etc., 
 and signed "Wm. G. Brown, Treasurer," was held to be the 
 individual note of Brown.* 
 
 But upon the ground that they were public agents, it was held, 
 where two notes headed " Monticello, Ind." and reading " we 
 promise to pay " etc. were signed, one, H. P. A., W. S. H., C. 
 W. K., " Trustees of Monticello School," and the other H. P. A., 
 C. W. K., " School trustees," that the words " Trustees of Monti- 
 cello School," and " School trustees," were not mere desoriptio 
 personcB, but indicated an intent to charge the school town,* 
 and this doctrine is reaflBrmed in later cases in the same court.* 
 A fortiori would the rule of this case apply where a note read- 
 
 > Village of Cahokiac. Eautenberg, President, J. A. C, Secretary, E. S., 
 
 88 111.219. To same effect, see Fow- Director," was held to be the in di- 
 
 lerTJ. Atkinson, 6 Minn. 579, vidual note of the signers. Amer- 
 
 « Wing «. Glick, 56 Iowa, 473, also lean Insurance Co. v. Stratton, 59 
 
 reported in note to 37 Am. Rep. 143. Iowa, 696. 
 
 See also Bayliss v. Peterson, 15 Iowa, » Exchange Bank of Virginia ». 
 
 279, where persons who signed as Lewis County, 28 W. Va. 273. 
 
 " Committeemen for the erection of a * Ross v. Brown, 74 Me. 352. 
 
 school-house in District No. 1." were » School Town of Monticello ». 
 
 held liable. But see Baker v. Cham- Kendall, 72 Ind. 91, 37 Am. Rep. 139. 
 
 bles, 4 Greene (Iowa) 428. And in • Moral School Tp. ». Harrison, 74 
 
 the same state a note signed " E. G., Ind. 93. 
 
 276
 
 Chap. III.] EXECUTION OF SIMPLE CONTBA0T8. § 441. 
 
 ing " I promise to pay " etc. " to be paid out of the township 
 funds " is signed F. K. M., " Trustee of Johnson Tp." ' 
 
 And where a sealed note reading " we, A. S. C, W. M. C, and 
 J. H. K., members of the township committee of the township 
 of Harrison, * * * and our successors in office promise to 
 pay " was signed by the parties in their individual names, the 
 court applied the doctrine in regard to public agents and held the 
 signers not personally liable." 
 
 § 441. Admissibility of parol Evidence to show Intent. The 
 question of the admissibility of parol evidence to show who was 
 intended to be bound by an instrument executed by an agent 
 is one not free from difficulty, and the decisions are in conflict. 
 
 Thus where an agent drew a bill upon his principal, signing 
 it " T. R. T., agent for S. T.," and there was nothing in the body 
 of the bill to show that it was drawn as the act of the principal, 
 the Supreme Court of Colorado held, 1. That, contrary to the 
 preponderance of authority that the form " C D, agent for 
 A B," is sufficient to bind the principal, it was the individual 
 obligation of T. K T. ; and, 2. That even as between the original 
 parties, parol evidence was not admissible to prove that the bill 
 was drawn in a representative capacity, and not individually, and 
 that the payee had full knowledge of this fact.* 
 
 But this case was practically overruled by a subsequent case 
 in the same court, where it was held that in the case of a bill 
 drawn upon " T. D. H., Treas." and accepted by him in the same 
 form, parol evidence was admissible to show that the accept- 
 ance was in an official capacity and was known by the payee to 
 be so.* And the same ruling was made in a similar case in 
 Maryland.* 
 
 And in accordance with these cases, the Supreme Court of 
 Mississippi held that where a bill was drawn upon an agent and 
 accepted by him, " Accepted, W. S. B., agent of H. W. H.,'' 
 parol evidence was admissible, as between the original parties, to 
 
 • Wallis V. Johnson School Tp., 75 * Eager v. Rice (1877), 4 Colo. 90, 
 Ind. 368. 34 Am. Rep. 68. 
 
 2 Knight V. Clark, 48 N. J. L. 23, » Laflin & Rand Powder Co. v. 
 
 67 Am. Rep. 534. Sinsheimer (1877), 48 Md. 411, 80 Am. 
 
 • Tannatt v. Rocky Mt. Nat. Bank Rep. 473. 
 (1871), 1 Colo. 278, 9 Am. Rep. 156. 
 
 277
 
 § 441. THE LAW OF AGENCY. [Book III. 
 
 show that it was the intent at the time to bind H.^ the princi- 
 pal, only.' 
 
 Again, where a note was drawn " we promise to pay," etc., and 
 was signed by four individuals, adding " President and Directors 
 of the Prospect and Stockton Cheese Company," the Supreme 
 Court of Maine held that evidence was not admissible to show 
 that it was intended to be the obligation of the company ; * but 
 where the note read "we, the president and directors" of a 
 turnpike company " promise to pay" etc., and was signed by C. 
 T. H., " President," J. H. H. and J. G. D., " directors " and E. 
 R. S., "secretary," the Court of Appeals of Maryland held that 
 parol evidence was admissible to show that the signers of the note 
 did so as the agents of the company and not as individuals and 
 that the note was accepted as the note of the company.* 
 
 So, again, where the note ran, " we, the trustees of the Meth- 
 odist Episcopal Church in Lebanon, promise to pay," etc., and 
 was signed with the individual names of the makers, the Su- 
 preme Court of Illinois decided that it was the individual note of 
 the signers and that parol evidence could not be admitted to 
 show "that it was well understood by the payee when the 
 makers executed the note, they were acting in their capacity as 
 trustees of the church ; that they intended to obligate the church 
 corporation, having full authority in that regard, and did not in- 
 tend to bind themselves personally or individually by their 
 writing." * 
 
 But in New York, where the makers of a note designated 
 themselves " Trustees of the First Baptist Society of the Tillage 
 of Brockport," it was held that y^XviiQ j^ima fade they were per- 
 sonally liable, yet that the presumption might be rebutted by 
 parol evidence that the note was, to the knowledge of the payees, 
 given as the obligation of the Society," and this principle was 
 reaflBrmed in later cases.' 
 
 > Hardy e. Pilcher (1879), 57 Miss. < Hypes c. Griffin (1878), 89 111, 134, 
 
 18, 34 Am. Rep. 433. To same effect 81 Am. Rep. 71. 
 
 see Martin t>. Smitli, — Miss. — , 8 » Brockway e. Allen, 17 Wend. (N. 
 
 South. Rep. 33. T.) 40. 
 
 « Rendell v. Harriman (1883),75 Me. • See White t. Skinner, 13 Johns. 
 
 497, 46 Am. Rep. 421. (N. Y.) 307; Barker t. Mechanic Ins. 
 
 •Haile v. Peirce (1869), 32 Md. 327. Co. 3 Wend. (N. Y.) 94; Babcock b. 
 
 3 Am. Rep. 139; and see Laflin »& Beman, 11 N. Y. 200; Bank of Uiica 
 
 Rand Powder Co. «.Sin8heimer,SM/?ra. e. Magher, 18 Johns. (N. Y.) 343; 
 
 278
 
 Chap. III.] EXECUTION OF SIMPLE CONTRACTS. § 441. 
 
 So where a note reading "We promise to pay," etc., was signed 
 "Pioneer Mining Company, John E. Mason, Snpt.," parol evi- 
 dence was held, by the Supreme Court of California, to be ad- 
 missible to show that it was understood by the payee to have 
 been the note of the company alone and to have been given for 
 a consideration passing to the company.^ 
 
 So where a bill was signed " John Kean, President Elizabeth- 
 town & Somerville R. R. Co.," the Court of Errors and Appeals 
 New Jersey held that parol proof was admissible, as against a 
 party who was apprised of that fact when he took it, to show 
 that the bill was the bill of the company, and not of Kean, in- 
 dividually.* 
 
 And the same ruling has been made in Alabama' and Virginia,* 
 but a directly opposite conclusion has been reached in Ohio. 
 Thus where a bill was accepted by J. A. R., " Agent K. & O. 
 C. Co.," parol evidence was rejected to show that he was the 
 duly authorized agent of Kanawha & Ohio Coal Company ; that 
 he accepted the bill for and on account of the company and that 
 the payee knew these facts.* 
 
 In Kentucky, where a due bill was signed " for Thomas D. 
 Owings, James Grubbs," parol evidence was held to be admissi- 
 ble as against the payee, to show that Grubbs was the manager 
 of Owings' works, and that he executed and delivered the due 
 bill as the obligation of Owings ; • and the same ruling was made 
 in Connecticut, where a note was signed A. W. M., " agent for 
 the Middletown Manufacturing Company." ' 
 
 In Missouri, where a note reading "I promise to pay," etc., 
 " for building a school-house in Dist. No. 3," was signed by P. 
 T. R., "Local Director," it was held in an action against the 
 
 Bank of Genesee v. Patchin Bank, 19 * Richmond. &c. R. R. Co. v. 
 
 N. Y. 312; Randall v. Van Vetchen, Snead, 19 Gratt. (Va.) 354. 
 
 19 Johns. (N. Y.) 60; Newman v. * Robinson v. Kanawha Valley 
 
 Greeff, 101 N. Y. 663, 6 North. E. Bank, 44 Ohio St. 441, 8 N. E. Rep. 
 
 Rep. 335. 583; see also to same effect: Collins v. 
 
 ' Bean v. Pioneer Mining Co. Insurance Co. 17 Ohio St. 215; Titus 
 
 (1885), 66 Cal. 451, 56 Am. Rep. 106. v. Kyle. 10 Ohio St. 445. 
 
 « Kean v. Davis (1847), 21 N. J. L. • Owings v. Grubbs, 6 J. J. Marsh. 
 
 683, 47 Am. Dec. 182. (Ky.) 31; Webb v. Burke, 5 B. Mon. 
 
 » Lazarus v. Shearer, 2 Ala. (N. S.) (Ky.) 51. 
 
 718. T Hovey v. Magill, 3 Conn. 680. 
 
 279
 
 § 441. THE LAW OF AGENCY. [Book III. 
 
 director that he might show by parol evidence that it was not 
 intended to be his note but that of the district.^ 
 
 In Illinois, where a bill headed " OfiBce of De Steiger Glass 
 Company " was signed " Phil. K. De Steiger, Pres.," it was held 
 by the Appellate Court, after an exhaustive review of the au- 
 thorities, that parol evidence was admissible to show that it was 
 the draft of the glass company and not of the president individ- 
 ually." « 
 
 Such evidence has also been freely admitted by the Supreme 
 Court of the United States. Thus where a check headed " Me- 
 chanics' Bank of Alexandria," drawn on the cashier of the Bank 
 of Columbia, was signed " Wm. Paton, Jr.," parol evidence was 
 held to be admissible to show that Paton was the cashier of the 
 Mechanics' Bank ; that he drew the check as such cashier and 
 that the Bank of Columbia knew it;' but where a note drawn 
 payable to the order of " Geo. Moebs, Sec. and Treas.," by the 
 "Peninsular Cigar Co., Geo. Moebs, Sec. and Treas.," was indorsed 
 " Geo. Moebs, Sec. and Treas.," it was held that the indorsement 
 was clearly that of the cigar company and that parol evidence 
 was not admissible to show that the indorsement was intended to 
 be that of Moebs personally.* 
 
 'McClellan «. Reynolds, 49 Mo. where it is held that where a check was 
 
 312; and the same ruling was made in signed " W. G. Williams, V. Pres't," 
 
 other cases, Shuetze v. Bailey, 40 Mo. parol evidence was admissible to show 
 
 69 ; Musser v. Johnson, 42 Mo. 74, 97 that the person taking it, took it as the 
 
 Am. Dec. 316; Turner ». Thomas, 10 check of the corporation of which 
 
 Mo. App. 342. Williams was vice-president. 
 
 2 La Salle National Bank v. Tolu « Falk v. Moebs, 127 U. 8. 597. 
 Rock & Rye Co., 14 111. App. 141. '• We conclude, therefore," says Mr. 
 
 3 Mechanics' Bank v. Bank of Justice Lamak, in this case, " that 
 Columbia, 5 Wheat. (U. S.) 326; see the notes involved in this contro- 
 also, Baldwin v. Bank of Newbury, 1 versy, upon their face, are the notes 
 Wall. (U. 8.) 234. where it is held of the corporation. In the language 
 that where negotiable paper is drawn of the court below, they were ' drawn 
 to a person by name, with addition by, payable to and indorsed by. the 
 of "Cashier" to his name, but with corporation.' There is no ambiguity 
 no particular designation of the par- in the indorsement, but, on the con- 
 ticular bank of which he is caghier, trary, such indorsement is, in terms, 
 parol evidence is allowable to show that of the Peninsular Cigar Com- 
 that he was the cashier of a bank pany. This being true, it follows 
 which is plaintiff in the suit, and that that the court below was right in ex- 
 in taking the paper he was acting as eluding from the jury the evidence 
 cashier and agent of that corporation ; offered to explain away and modify 
 and Metcalf v. Williams. 104 U. 8. 93, the terms of such indorsement." 
 
 280
 
 Chap. III.] KXEOunoN of simple contracts. § 442. 
 
 But in Massachusetts, where a draft headed " OflBce of Portage 
 Lake Manufacturing Company," drawn upon "E. T. Loring, 
 Agent," and concluding " and charge the same to the account of 
 the company," was signed by "J. R. Jackson, Agt.," and was 
 accepted as follows, " Accepted June 15, E. T. Loring, Agent," 
 it was held in an action against the acceptor, that parol evidence 
 was not admissible to show that the defendant was in fact the 
 agent of the company named on the face of the draft, that the 
 plaintiff knew that he was so, and that the defendant had no 
 personal interest in the company. In this case, as has been seen, 
 the court construed the words disclosing the name of the com- 
 pany and upon whose account the bill was drawn, as showing that 
 the bill was drawn as the bill of the company, and that they 
 could not be again used to show that it was also accepted in that 
 character ; ' and where a note reading " I promise to pay," etc., 
 was signed by W. H. E., " Pres. and Treas. Chelsea Iron Foun- 
 dry Company," the same court held that it was the individual 
 promise of W. H. E., and that it was erroneous to admit oral 
 testimony to show that at the time the note was given and after- 
 wards, it was understood and agreed by the parties that it was 
 the note of the foundry company.* 
 
 So in Iowa, where a note containing an individual promise was 
 signed "E. G., President, J. A. C, Secretary, E. S., Director," 
 it was held that it was the individual promise of the signers and 
 that parol evidence was not admissible to show that it was in- 
 tended to be the promise of the school district of which the 
 signers were the respective officers indicated.' 
 
 Where, however, the note or bill is signed in the individual 
 name of the maker, with nothing in the body of the instrument 
 or in the signature to show that he acted in a representative 
 capacity, parol evidence is inadmissible to exonerate him and to 
 charge another.* 
 
 § 442. Same Subject— "What Bules applied. The trouble that 
 
 Citing White «. Bank, 102 U. 8. 658; » American Ins. Co. «. Stratton, 59 
 
 Martin v. Cole, 104 U. S. 30; Metcalf Iowa, 696. 
 
 e. "Williams, Id. 93. « Phelps <o. Borland. 30 Hun (N. 
 
 ' Slawson t>. Loring,6 Allen (Mass.) T.) 362; Auburn Bank v. Leonard, 40 
 
 840, 81 Am. Dec. 750. Barb. (N". Y.) 119; Babbett v. Young, 
 
 » Davis c. England, 141 Mass. 587; 51 N. Y. 238. 
 « N. East, Rep. 73. 
 
 281
 
 § 442. THE LAW OF AGENCY. [Book III. 
 
 has been experienced in dealing with this question does not arise 
 so much from a lack of appreciation of the proper principle in- 
 volved, as from the difficulty of applying it, although the courts 
 have not always agreed even upon the principle. 
 
 Thus the rule has been stated by a learned judge in this way : 
 " Ordinarily, no extrinsic testimony of any kind is admissible to 
 vary or explain negotiable instruments. Such paper speaks its 
 own language, and the meaning which the law affixes to it cannot 
 be changed by any evidence aliunde. One of the few exceptions 
 to this rule is where anything on the face of the paper suggests 
 a doubt as to the party bound, or the character in which any of 
 the signers has acted in affixing his name ; in which case, testi- 
 mony may be admitted between the original parties to show the 
 true intent. Thus, where one has signed as agent of another, 
 while \\\Q prima facie presumption is that the words are merely 
 desoriptio personoBy and that the signer is individually bound, yet 
 it may be shown in a suit between the parties that it was not so 
 intended, but that, on the contrary, the true intention was that 
 the payee should look to the principal whose name was disclosed 
 in the signature of his agent, or who was well known to be the 
 true party to be bound. The principle, though not recognized 
 in all the cases, is, we think, a sound one, and supported by the 
 weight of authority." * 
 
 And the principle has been asserted in another case as follows : 
 " The established rule seems to be, that an agent, in making a 
 promise for his principal, is liable on the promise unless it be 
 expressed in terms which show that it was made for and on behalf of 
 the principal ; and where an agent makes a promissory note to a 
 third person, in terms sufficient to bind himself as principal, the 
 mere addition of the word 'agent' or other description of his 
 office or capacity, to his signature, does not change or vary the 
 legal effect of the promise itself.* * * * 
 
 But sometimes the agent may attach to his signature the char- 
 acter in which he signs the instrument without any correspond- 
 
 ' Chalmers, J,, in Hardy ?!.Pilcher, Mechanics' Bank e. Bank of Cohim- 
 57 Miss. 18, 34 Am. Rep. 433, citing bia, 5 Wheat. (U. S.)836, 1 Am. Lead. 
 1 Dan. on Neg. Inst. § 418; Haile v. Cas. 633 
 
 Peirce, 32 Md. 337, 3 Am. Rep. 139 
 McClellan v. Reynolds, 49 Mo. 813 
 Baldwin v. Bank, 1 Wall. (U. S.) 234 
 
 s Citing Sumwalt v. Ridgely, 20 Md. 
 114. 
 
 282
 
 Chap. III.] EXECUTION OF SIMPLE CONTRACTS. § 442. ' 
 
 ent or other description in the body of the note — or he may, in 
 the body of the instrument, disclose the name of his principal 
 and sign his own individual name without any additional descrip- 
 tion whatever, — or he may sign his own name, without apt terms 
 to charge himself, and in the body of the note use doubtful 
 expressions to describe the principal, leaving the precise meaning 
 of the instrument to be gathered from the terms on its face, bo 
 ambiguous or obscure as to render its interpretation, jper se, too 
 difficult and uncertain for just and sound construction. When 
 the note is of this last description, that is where its language or 
 terms are so unintelligible as to admit of no rational interpreta- 
 tion of the meaning, or are not sufficiently decisive of the inten- 
 tion of the parties, but, on the contrary, are equivocal and uncer- 
 tain, extraneous proof, as between the original parties, may be 
 admitted to show the true character of the instrument, and what 
 party, — the principal or the agent, or both, — is liable. 
 
 Where individuals subscribe their proper names to a promis- 
 sory note, prima facie they are personally liable, though they 
 add a description of the character in which the note is given ; 
 but such presumption of liability may be rebutted, as between 
 the original parties, by proof that the note was in fact given by 
 the makers, as agents, with the payee's knowledge." ^ 
 
 And still again it has been said that " The rule is that when 
 words which may be either descriptive of the person, or indica- 
 tive of the character in which he contracts, are affixed to the 
 name of the contracting party, prima facie they are descriptive 
 of the person only , but the fact that they were not intended by 
 the parties as descriptive of the person, but were understood as 
 determining the character in which the party contracted, may be 
 shown by extrinsic evidence; but the burden of proof rests upon 
 the party seeking to change the prima facie character of the con- 
 tract." ' 
 
 In Kean v. Davis," where the form of signature was " John 
 Kean, President Elizabethtown and Somerville R R. Co.," Chief 
 Justice Green said : " It is at best, upon the face of the instru- 
 ments, doubtful by whom they were executed. It is not clear 
 who was the contracting party, whether the obligation was 
 assumed by the agent, or whether he contracted on behalf of his 
 
 •Haile «. Peirce, 82 Md. 827, 8 Am. 'Pratt v. Beaupre, 13 Minn. 187. 
 
 Rep. 139. » 21 N. J. L. 683, 47 Am. Dec. 182, 
 
 283
 
 § 442. THE LAW OF AGENCY. [Book III. 
 
 principal. May extrinsic evidence be resorted to, to remove this 
 donbt? Is parol evidence admissible to show by whom this con- 
 tract was in fact made, — whether it is the contract of the agent 
 or the contract of the principal? 
 
 If this were a verbal and not a written contract, it is not ques- 
 tioned that the evidence offered is both pertinent and competent to 
 discharge the agent, and fix the liability upon the principal. 
 The objection urged to the evidence is, that the contract is in 
 writing ; that the construction of a written agreement is matter 
 of law, to be settled by the court upon the terms of the instru- 
 ment itself; and that evidence aliunde cannot be received to 
 contradict or to vary the terms of. a valid written instrument. 
 
 It is material to observe that the hody of this instrument con- 
 tains not a word indicating by whom the contract was made. 
 The language of the instrument is equally applicable to a con- 
 tract made by the individual or by the corporation. It cannot be 
 said that this evidence will either contradict or vary the terms 
 of the instrument. The whole difficulty lies, not in the con- 
 struction of the instrument, but in the import of the signature. 
 That signature, as we have seen, may import either the act of 
 the company or of the individual. The terms of the instrument 
 are neither varied nor contradicted by proof that it was the con- 
 tract of the one or of the other. 
 
 The question is not what is the true construction of the lan- 
 guage of the contracting party, but who is the contracting party 1 
 Whose language is it? And the evidence is not adduced to dis- 
 charge the agent from a personal liability which he has assumed, 
 but to prove that in fact he never incurred that liability. Not to 
 aid in the construction of the instrument, but to prove whose 
 instrument it is. 
 
 Kow it is true that the construction of a written contract is a 
 question of law, to be settled by the court upon the terms of the 
 instrument. But whether the contract was in point of fact 
 executed, when it was made, where it was made, upon what con. 
 sideration it was made, and by whom it was made, are questions 
 of fact to be settled by a jury, and are provable in many instances 
 by parol even though the proof conflicts with the language of 
 the instrument itself." 
 
 So in the United States Supreme Court, Mr. Justice Bradley 
 said : " The ordinary rule undoubtedly is that if a person merely 
 
 284
 
 Chap. III.] EXECUTION OF SIMPLE 00NTKA0T8. § 442. 
 
 adds to the signature of his name the word * agent,' *■ trustee,' 
 ' treasurer,' etc., without disclosing his principal, he is personally 
 bound. The appendix is regarded as a mere desoriptio personoe. 
 It does not of itself make third persons chargeable with notice of 
 any representative relation of the signer. But if he be in fact a 
 mere agent, trustee or officer of some principal, and is in the 
 habit of expressing in that way his representative character in 
 his dealings with a particular party, who recognizes him in that 
 character, it would be contrary to justice and truth to construe 
 the documents, thus made and used, as his personal obligations 
 contrary to the intent of the parties." * 
 
 The reasons given for the contrary ruling are numerous. 
 Thus in the Colorado case above cited,' the court said : " If the 
 defendant is liable as drawer of this negotiable instrument, that 
 liability must be determined by the instrument itself. Parol 
 evidence can never be admitted for the purpose of exonerating 
 an agent who has entered into a written contract in which he 
 appears as principal, even though he should propose to show, if 
 allowed, that he disclosed his agency and mentioned the name of 
 his principal at the time the contract was executed. When a 
 simple contract, other than a bill or note, is made by an agent, 
 the principal whom he represents may, in general, maintain an 
 action upon it in his own name, and parol evidence is admissible, 
 although the contract is in writing, to show that the person 
 named in the contract was an agent, and that he was acting for 
 liis principal. Such evidence does not deny that the contract 
 binds those whom on its face it purports to bind, but shows that 
 it also binds another." 
 
 In Massachusetts, the court says : " The rule excluding all 
 parol evidence to charge any person as principal, not disclosed 
 on the face of a note or draft, rests on the principle that each 
 person who takes negotiable paper makes a contract with the 
 parties on the face of the instrument, and with no other person." 
 
 ' Metcalf V. Williams, 104 U. S. 93. Robbins. 16 Gray (Mass.) 77; Forster 
 
 sTannatt v. Rocky Mountain Na- e. Fuller, 6 Mass. 58; Thacher u 
 
 tional Bank, 1 Colo. 279, 9 Am. Rep. Dinsmore, 5 Mass. 299; Fuller i\ 
 
 156; see contra: Hager v. Rice, 4 Hooper, 3 Gray, (Mass ) 334; Bank of 
 
 Colo. 90, 34 Am. Rep. 68. British N. A. v. Hooper, 5 Gray, 
 
 •Slawson v. Loring, 5 Allen (Mass.) (Mass.) 567, 66 Am. Dec. 3S0; Draper 
 
 840, 81 Am. Dec. 750; Williams v. v. Mass. Steam Heat. Co., 5 Allen, 
 
 285
 
 ft 443, THE LAW OF AGENCY. [Book III. 
 
 In Maine, the court recognize tlie rule that an ambiguity may 
 be made plain by the use of parol evidence, but deny that where 
 a note beginning " We promise to pay," etc., is signed by several 
 individuals, adding the words " President and Directors of the 
 Prospect and Stockton Cheese Company," any such ambiguity 
 exists.' And the general doctrine in this State as expressed by 
 the court is, " that the liability or non-liability of the parties 
 must be determined by an inspection of the note itself; that 
 resort cannot be had to parol evidence to show an intention 
 other than thafc expressed by the instrument itself." ' 
 
 In Illinois it is said " Whatever may be the decisions elsewhere 
 on analogous questions, the authorities in this State are full to 
 the point that a party will not be permitted to show by oral testi- 
 mony that his written agreement, understandingly entered into, 
 was not in fact to be binding upon him. Accordingly it was held 
 in Hypes v. Griffin,* mainly on the authority of Powers v. 
 Briggs,* that where trustees of a church corporation made a note 
 in their individual names, although they described themselves as 
 trustees of the church, parol evidence was inadmissible to show 
 it was the intention of the parties that it was to be the note of 
 the church corporation and not the note of the trustees execut- 
 ing it. The principle running through that and other cases is 
 that such instruments will be construed as the parties made them 
 without the aid of extrinsic evidence. That rule of interpreta- 
 tion would seem to be as well settled in this State as any rule can 
 be." • 
 
 § 443. Same Subject— The true Rule. To extract general 
 principles from these cases whose conflict is so great as to amount, 
 in the language of a recent case, almost to anarchy, is manifestly 
 difficult. It will be obvious that the question is of importance 
 in two classes of cases : 
 
 1. Those involving the rights of the immediate parties to the 
 instrument only. 
 
 2. Those involving the rights of third persons. 
 
 (Mass.) 338; Davis «. England, 141 8 Am. Rep. 409; Mellen r. Moore, 68 
 
 Ma.s8. 587, 6 N. E. Rep. 731; Bart- Me. 390, 28 Am. Rep. 77. 
 
 lett V. Hawley, 120 Mass. 92. "89 111. 134. 31 Am. Rep. 71. 
 
 ' Rendell v. Harriman. 75 Me. 497, * 79 111. 493, 22 Am. Rep. 175. 
 
 48 Am. Rep. 421. sScanlan v. Keith, 102 111. 634, 40 
 
 sSturdivant v. Hall, 59 Me. 172, Am. Rep. 624. 
 
 286
 
 Chap. III.] EXECUTION OF SIMPLE CONTRACTS. § 443. 
 
 Respecting this question, however, these general rules may be 
 evolved : 
 
 I. Where the paper on its face is the undertaking of the agent 
 only, no reference being made on its face to representative capac- 
 ity,' and where the paper on its face is unmistakably the princi- 
 pal's,' parol evidence will not be received, in the one case to ex- 
 onerate, and in the other to charge the agent. 
 
 II. But where the paper bears on its face some reference to a 
 principal, or some appellation indicating representative charac- 
 ter, while it is undoubtedly true that the mere addition of the 
 word " agent," " trustee," " treasurer " and the like, or the mere 
 recital in the body of the instrument that the person signing is 
 such agent, treasurer, or trustee of a principal named or unnamed, 
 is, as has been seen, to be regarded prima facie^ as descrijptio 
 personoB merely and not as characterizing the act as one done in 
 a representative capacity ; and while it is also true, as a general 
 rule, that parol evidence is not admissible to exonerate an agent 
 from a contract into which he has personally entered, yet it is 
 believed that the preponderance of authority will warrant the 
 statement of the rule that : 
 
 1. Between the immediate parties to a bill or note, parol evi- 
 dence is admissible to show : 
 
 a. That, by a course of dealing between the parties, that form 
 of execution has become to be the recognized and adopted form 
 by which the obligation of the principal is entered into ; ' or 
 
 » Phelps V. Borland, 30 Hun (N. and used as his personal obligations, 
 
 Y.) 362; Auburn Bank v. Leonard, contrary to the intent of the parties." 
 
 40 Barb (N. Y.) 119; Babbett v. Metcalf e. Williams, 104 U. 8. 93, 99; 
 
 Young, 51 N. Y. 238; Hancock v. Hovey v. Magill, 2 Conn. 680; La 
 
 Fairfield, 30 Me. 299; Collins c. Buck- Salle Nat. Bank v. Tolu, &c. Co., 14 
 
 eye State Ins. Co., 17 Ohio St. 215; 111. App. 141; Milligan v. Lyle, 24 
 
 Browne. Parker, 7 Allen (Mass.) 339. La. Ann. 144; Qerber c. Stuart, 1 
 
 «Falk V. Moebs, 127 U. S. 597. Montana, 172. 
 
 » Says Mr. Justice Bradley, "But So it may be shown that the prin- 
 
 if he be in fact a mere agent, trustee cipal was doing business in the agent's 
 
 or officer of some principal, and is in name; Bank of Rochester v. Mon- 
 
 the habit of expressing, in that way, teath, 1 Denio (N. Y.) 402, 43 An\. 
 
 his representative character in his Dec. 681. See also Devendorf c. 
 
 dealings with a particular party, who West Virginia, &c. Co., 17 W. Va. 
 
 recognizes him in that character, it 135; Pease v. Pease, 35 Conn. 131; 
 
 would be contrary to justice and truth Stevenson v. Polk, — Iowa, — , 32 N. 
 
 to construe the documents, thus made W. Rep. 340. 
 
 287
 
 §443. 
 
 THE LAW OF AGENCY. 
 
 [Book III. 
 
 5. That the instrnment was, to the knowledge of the parties, in- 
 tended to be the obligation of the principal and not of the agent, 
 and that it was given and accepted as such ; ' 
 
 c. That an instrument which is so ambiguous upon its face as 
 to render it uncertain who was intended to be bound, was known 
 to be intended to be the obligation of the principal." 
 
 2. Between one of the original parties and a third party, such 
 evidence is admissible to make either of the lines of proof men- 
 tioned above : 
 
 a. Where the third person is not a honafide holder ;* or 
 
 I. Where the instrument bears sufficient evidence upon its face, 
 or is so ambiguous, as to fairly put a reasonably prudent man up- 
 on inquiry.* 
 
 As to this last subdivision it may be said that the mere addi- 
 tion of the word " agent," " trustee," etc, without disclosing the 
 principal is not sufficient to make third persons chargeable with 
 notice of any representative relation of the signer ; • but the form 
 of executing may be such as to well awaken the suspicion of 
 third persons.' Thus where a check was signed " W. G. Wil- 
 
 >Say8 Gray, J.: "As a general 
 proposition, it is undoubtedly true, 
 that one who signs a writing as agent, 
 trustee or president is to be regarded 
 as merely describing himself, and 
 hence is to be held personally liable. 
 But where a writing is thus executed, 
 with full authority from the princi- 
 pal, the party upon whose account it 
 is executed is alone liable." Bank of 
 Genesee v. Patchen Bank, 19 N. Y. 
 312; Brockway v. Allen, 17 Wend. 
 (N. Y.) 40; Owings®. Grubbs, 6 J. J. 
 Marsh. (Ky.) 31; McClellan v. Reyn- 
 olds, 49 Mo. 812; La Salle Nat. Bank 
 V. Tolu, &c. Co., 14 111. App. 141; 
 Markley v. Quay, 14 Phila. 164. 
 
 See also the cases cited in detail in 
 the preceding section. 
 
 See also Whitney v. Wyman, 101 
 U. S. 392. 
 
 * This principle does not seem to be 
 strongly controverted, but, as has 
 been seen, the courts have not always 
 agreed as to what constitutes such an 
 
 ambiguity. It is certainly sustained 
 by the great weight of authority. 
 Kean v. Davis, 21 N. J, L. 683, 47 
 Am. Dec. 182; Haile v. Peirce, 32 
 Md. 327, 3 Am. Rep. 139; Richmond, 
 «fec. R. R. Co. e. Saead, 19 Gratt. 
 (Va.) 354; Early v. Wilkinson, 9 
 Gratt. (Va.) 68; Lazarus v. Shearer, 2 
 Ala. 718; Hardy c. Pilcher. 57 Miss, 
 17. 34 Am. Rep. 433; Martin ». Smith, 
 — Miss. — , 3 South. Rep. 33; Eager 
 «. Rice, 4 Colo. 90, 34 Am. Rep. 68; 
 Lacy V. Dubuque Lumber Co., 43 
 Iowa, 510; Mechanics' Bank v. Bank 
 of Columbia, 5 Wheat. (U. S.)326; 
 Baldwin v. Bank of Newbury, 1 
 Wall. (U. S.)234; Newman u.Greeff, 
 101 N. Y. 663, 5 N. E. Rep. 335. 
 
 •Metcalf n. Williams, 104 U. S. 93; 
 Condon v. Pearce, 43 Md. 83. 
 
 ♦ Metcalf t). Williams, supra. 
 
 » Metcalf V. Williams, supra; Slaw- 
 son V. Loring, 5 Allen (Mass.) 340, 81 
 Am. Dec. 750. 
 
 •Metcalf V. Williams, supra; Davis 
 
 288
 
 Chap. III.] EXECUTION OF SIMPLE CONTKAOTS. § 445. 
 
 liams, V-Pres." and "E. P. Aistrop, Sec'j," t^e Supreme 
 Court of the United States said: "The fact that it bore 
 two official signatures, that of the complainant as vice-president, 
 and of Aistrop as secretary, is so unusual on the hypothesis of 
 its being an individual transaction and points so distinctly to 
 an official origin, that it may very well be doubted whether any 
 holder could claim to be innocently ignorant of its true charac- 
 ter." • 
 
 III. As between the principal and the agent, the more mod- 
 ern cases hold that it is competent for the agent to show that 
 what appears to be the agent's obligation is in fact the princi- 
 pal's." 
 
 § 444. Further of this Stile. Consideration of these rules 
 will show that they are not in conflict with established princi- 
 ples. They are not for the purpose, nor have they the effect, to 
 exonerate the agent from a liability assumed by him. They go 
 deeper than that. They permit the agent to show that what 
 appears upon its face to be his contract never was his contract, 
 but is in reality the contract of another ; and the rule is limited 
 in its operation to those who either had actual knowledge of the 
 true state of the case at the time of its inception, or who have 
 taken the paper under such circumstances as would put a reason- 
 ably prudent man upon inquiry. 
 
 n. 
 
 OF THE EXECUTION OF OTHER SIMPLE CONTRACTS. 
 
 § 445. The proper Manner. Much that has been said in pre- 
 ceding sections in reference to the proper method of executing 
 contracts applies here. 
 
 All considerations of propriety and convenience suggest such a 
 clear and unequivocal statement of the character and purpose of 
 the act that there can be no misunderstanding. Hence a proper 
 and formal execution would require that the relations of the 
 
 9. Henderson, 25 Miss. 549, 69 Am. P. C. 94; Sharp v. Emmet, 5 Whart. 
 
 Dec. 229; Mott v. Hicks, 1 Cow. (N. (Penn.) 288; Lewis e. Brelime. 33 Md. 
 
 T.) 513, 13 Am. Dec. 550. 412. 3 Am. Rep. 190; Miles e. O'Hara, 
 
 »Metcalf «. Williams, supra. 1 Serg. & R. (Penn.) 32; Whitlock «. 
 
 'Castrique v. Buttigieg, 10 Moore, Hicks, 75 Dl. 460. 
 
 19 289
 
 § 446. THE LAW OF AGENCY. [Book IIL. 
 
 [parties be set forth, and that the instrument be declared to be the 
 'contract of the principal executed by his agent. As to the 
 method of signing, the forms found to be sufficient for the 
 execution of negotiable instruments may appropriately be 
 followed. 
 
 Notwithstanding this, however, it is a matter of every-day 
 experience that in the haste and press of business, contracts are 
 drawn not only in inartificial, but frequently in equivocal and 
 ambiguous language, and by persons ignorant not only of the 
 technical meaning of legal phrases, but often of the accepted 
 construction of the vernacular. From the very necessities of the 
 case, therefore, as well as from a desire to give effect to the 
 intention of the parties, courts look with indulgent eyes upon such 
 contracts. The strict rules of the common law which govern the 
 execution of solemn instruments under seal, do not apply here ; 
 neither is there the same necessity that they should tell their own 
 story in that direct and positive manner that has been seen to be 
 required of negotiable paper.' 
 
 § 446. Intention of the Parties the true Test. In determining 
 whether a given form of execution is sufficient to bind the prin- 
 cipal, the primary consideration is. What is the true intention of 
 the parties as expressed in this contract ? In settling this question 
 it must be borne in mind that no particular form of words is 
 required, and that the intention is to be gathered from the 
 whole instrument and not from any isolated portion of it.* The 
 situation of the parties and the circumstances of the case are to 
 be taken into consideration. So, too, a valid usage or custom 
 may be resorted to in the proper cases to aid in arriving at the 
 intention, but not to contradict or vary the terms expressly 
 employed.' 
 
 If upon a survey of the whole instrument, it can be collected 
 
 •See Merchants' Bank v. Central 275; Magill r. Hinsdale, 6 Conn. 464, 
 
 Bank, 1 Ga. 418, 44 Am. Dec. 665; 16 Am. Dec. 70; Hovey v. Magill, 2 
 
 Andrews®. Estes, 11 Me. 267,26Am. Conn. 682; Spencer v. Field, 10 
 
 Dec. 521; New England Insurance Wend. (N. Y.) 87; New England Ins. 
 
 Co. V. De Wolf, 8 Pick. (Mass.) 56; Co. v. De Wolf, 8 Pick. (Mass.) 56; 
 
 Rice V. Gove, 22 Pick. (Mass.) 168, 33 City of Detroit v. Jackson, 1 Doug. 
 
 Am. Dec. 724. (Mich.) 106; Fowle v. Kerchner, 87 
 
 •Rogers v. March, 83 Me. 106; N. C. 49. 
 Whitney*. Wyman, 101 U. S. 392; soelrieksr. Ford, 23 How. (U. 8.) 
 
 Pentzc. Stanton, 10 Wend. (N. Y.) 49. 
 
 290
 
 Chap. III.] EXECUTION OF SIMPLE 00NTEA0T8. 
 
 §447. 
 
 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.' 
 
 § 447. Agent may bind himself by express Words. But 
 
 although where an agent acts within the scope of his authority 
 and professes to act in the name and behalf of his principal, 
 he is not personally liable ; still if by the terms of the contract 
 he binds himself personally, and engages expressly in his own 
 name to pay money or to perform other obligations, he will be 
 personally responsible even though he describes himself as 
 " agent," etc.* As in the case of negotiable paper, the mere 
 recital of the fact of agency, and the mere addition to his signa- 
 ture of the title of his respresentative character, are prima facie 
 to be construed as descriptive of the person only, and not as indi- 
 cating an intention to charge a principal. 
 
 Thus where the committee of a town entered into a contract 
 stated to be made "between Horace Heard, Eli Sherman and 
 Newell Heard, committee of the town of "Wayland, on the one 
 part, and William Simonds and John Chapin on the other part," 
 
 • Merchants' Bank v. Central Bank, 
 1 Ga. 418, 44 Am. Dec, 665; Abbey 
 «. Chase, 6 Gush. (Mass.) 56, and 
 cases cited in note 2, above. 
 
 In Whitney v. Wyman, supra, Mr. 
 Justice S WAYNE says: " Where the 
 question of agency in making a con- 
 tract arises, there is a broad line of 
 distinction between instruments under 
 seal and stipulations in writing not 
 under seal, or by parol. In the for- 
 mer case the contract must be in the 
 name of the principal, must be under 
 seal, and must purport to be his deed 
 and not the deed of the agent cove- 
 nanting for him. Stanton v. Camp, 
 4 Barb. (N. Y.) 274. 
 
 In the latter cases the question is 
 always one of intent; and the court, 
 being untrammeled by any other con- 
 sideration, is bound to give it effect. 
 As the meaning of the law-maker is 
 the law, so the meaning of the con- 
 tracting parties is the agreement. 
 
 Words are merely the symbols they 
 employ to manifest their purpose that 
 it may be carried into execution. If 
 the contract be unsealed and the 
 meaning clear, it matters not how it 
 is phrased, nor how it is signed, 
 whether by the agent for the princi- 
 pal or with the name of the principal 
 by the agent or otherwise. 
 
 The intent developed is alone ma- 
 terial, and when that fs ascertained it 
 is conclusive. Where the principal 
 is disclosed and the agent is known 
 to be acting as such, the latter can- 
 not be made personally liable unless 
 he agreed to be so." 
 
 * Simonds r. Heard,23 Pick. (Mass.) 
 120, 34 Am, Dec. 41; Andrews v. 
 Estes, 11 Me. 267, 26 Am. Dec. 521; 
 Burrell v. Jones, 3 Bam. & Aid. 47; 
 Fiske V. Eldridge, 12 Gray (Mass.) 
 474; Morell v. Codding, 4 Allen 
 (Mass.) 403; Guernsey v. Cook, 117 
 Mass. 548. 
 
 291
 
 § ^S. THE LAW OF AGENCY. [Book III. 
 
 and in and bj which, after a specific description of the work to 
 be done, the committee promised as follows : " Said committee 
 are to pay said Simonds & Chapin the sum of three hundred and 
 seventy-five dollars when said work is completed," etc., and 
 signed it as individuals, it was held that the members of the 
 committee had made themselves personally liable. Said the 
 court, by Shaw, Chief Justice : " Two things are here observable, 
 the first is that they do not profess to act in the name or behalf of 
 the town, otherwise than as such an intention may be implied from 
 describing themselves as a committee. But such description, 
 although it may have some weight, is far from being conclusive ; 
 and in many of the cases a similar designation was used, which 
 was held to be a mere desct'iptio personarum, and designed 
 to show for whose account the contract was made, and to 
 whose acconnt the amount paid under such contract should be 
 charged. 
 
 The second and more decisive circumstance respecting this 
 contract is, that here is an express undertaking on the part of 
 the committee to pay, " Said committee are to pay said Simonds 
 & Chapin," etc. Having described themselves as a committee, 
 this undertaking is as strong and direct as if the names had been 
 repeated, and Heard, Sherman and Heard had promised to pay. 
 The court are therefore of the opinion that by the terms of this 
 contract, the committee intended to bind themselves and did 
 become personally responsible, and that the action is well 
 brought against them." ' 
 
 So where a contract was made "between T. W. Matthews, 
 Secretary of the Mutual Endowment Association of Baltimore, 
 Md., and S. T. Jenkins, of Atlanta, Ga.," and all the agreements 
 were in the form " The said Matthews agrees," etc., and the con- 
 tract was signed " T. W. Matthews, S. T. Jenkins," it was held 
 to be the personal contract of Matthews.* 
 
 § 448. Same Subject— Contrary Intention manifest But 
 where, notwithstanding the failure to use precise and appropriate 
 language, it still can be gathered from the whole instrument that 
 the agent acted in a representative character, the words used will 
 
 • Simonds e. Heard (1839), supra. See also Qrau t>. McVicker, 8 Biss. 
 
 • Matthews •. Jenkins, 80 Va. 463. (U. S. C. C.) 18. 
 
 292
 
 Chap. III.] EXECUTION OF SIMPLE CONTRACTS. § 449. 
 
 be regarded as employed with that intention, and not merely as 
 descriptive of the person.' 
 
 Thus where a lease began " This agreement, made this 25th 
 day of December, 1880, between Randolph Marshall, agent of 
 Oliver Dougherty," etc., and was signed " Randolph V. Mar- 
 shall, agent of O. R. Dougherty," the Supreme Court of Indiana, 
 while recognizing the general rule that such expressions are 
 ordinarily regarded as descriptive of the person, said : " While 
 accepting the general rule to be that stated, the American au- 
 thorities agree that if the contract itself shows that the words 
 were not used as merely descriptive of the person they will not 
 be so regarded, but will be assigned their real meaning. In the 
 instrument before us it clearly appears that Marshall was the 
 agent of the lessor, and acted as such, for we find this recited, 
 ' That the said Marshall, agent as aforesaid, has rented, etc' 
 There are other provisions in the instrument clearly showing that 
 Marshall executed the lease as the agent of Dougherty, and we 
 have no doubt that it should be treated as having been executed 
 by him." * 
 
 And where an order for goods, beginning " our company being 
 so far organized, by direction of the officers, we now order from 
 you," etc., was signed " Charles Wyman, Edward P. Ferry, Carl- 
 ton L. Storrs, Prudential Committee, Grand Haven Fruit Basket 
 Co.," and was accepted by a letter addressed to the " Grand 
 Haven Fruit Basket Company," the Supreme Court of the United 
 States held, in an action brought to charge the members of the 
 committee personally, that it was entirely clear that both parties 
 understood and meant that the contract was to be, and in fact 
 was, with the corporation, and not with the committee.' 
 
 § 449. The Admissibility of parol Evidence to show Intent. 
 Where an agent has entered into a contract which in terms 
 charges himself, parol evidence is not admissible to discharge 
 
 > Rogers v. March, 33 Me. 106; Am. Dec. 429; Hall «. Huntoon, 17 
 
 Goodenough v. Thayer, 132 Mass. Vt. 244; Traynham v. Jackson, 15 
 
 152; Green v. Kopke, 18 C. B. 549 Tex. 170; Texas Land & Cattle Co. v. 
 
 (9 J. Scott); Cook V. Gray, 133 Mass. Carroll, 63 Tex, 48. 
 
 106 ; Lyon ». Williams, 5 Gray (Mass.) « Avery v. Dougherty (1885), 103 
 
 557; McGee «. Larramore, 50 Mo. Ind. 443, 52 Am. Rep. 680. 
 
 425; Smith «. Alexander, 31 Mo. 193; "Whitney v. Wyman, 101 U. S. 
 
 Ogden V. Raymond, 22 Conn. 379, 58 392: Post v. Pearson. 108 Id. 418. 
 
 293
 
 § 449. THB LAW OF AGENCY. [Book III. 
 
 him by showing that he intended to charge the principal,' 
 although it is admissible to show that it was the intention to 
 charge himself personally/ but where the contract bears upon its 
 face evidence that the person signing was in fact an agent,' and 
 where the contract is so framed as to render it uncertain whether 
 the agent or the principal was intended to be bound,* parol evi- 
 dence may be received to show that it was the intention to bind 
 the principal and not the agent. 
 
 But although parol evidence may not be admissible to release 
 the agent, it may be made use of to charge the principal. Thus 
 the principal, as will be seen hereafter, may be charged as such 
 by parol evidence upon a simple contract made by his agent, even 
 though the contract gives no indication on its face of an inten- 
 tion to charge any other person than the signer. And this doc- 
 trine applies as well to those contracts which are required to be 
 in writing as to those to whose validity a writing is not essen- 
 tial.' This rule is not obnoxious to the principle which forbids 
 the contradiction of written instruments by parol testimony, for 
 the effect is not to show that the person appearing to be bound 
 is not bound, but to show that some other person is bound also.* 
 
 « Bryan t>. Brazil, 52 Iowa, 350. open to proof that it was the inten- 
 
 « Black River Lumber Co. v. War- tion to bind hia principal and not 
 
 ner, 93 Mo. 374; Ferris v. Thaw, 72 himself. Bingham v. Stewart, 13 
 
 Mo! 446. Minn. 106, B.C. 14 Minn. 214; Pratt v. 
 
 » Deering t). Thom, 29 Minn. 120; Beaupre, 18 Minn. 187." 
 Pratt V. Beaupre, 13 Minn. 187; Haile * Mechanics' Bank v. Bank of Co- 
 V. Peirce, 82 Md, 827, 3 Am. Rep. lumbia, 5 Wheat. (U. S.) 326; Deer- 
 189. In Deering v. Thom the agent ing v. Thom. supra. 
 gave the purchaser of a machine an • Byington v. Simpson, 184 Mass. 
 instrument as follows: "If the Marsh 169,45 Am. Rep. 314; Briggs «. 
 harvester don't work to his satisfac- Partridge, 64 N. Y. 357, 21 Am. Rep. 
 tion, he, W. Thom, can return the 617; Huntington v. Knox, 7 Cush. 
 machine' to me, and I will return his (Mass.) 371; Eastern Railroad v. Ben- 
 note for the same. A. M Schnell, edict, 5 Gray (Mass.) 561; Lerned ». 
 agent." Gilfillait, C.J. said: "The Johns, 9 Allen (Mass.) 419; Hunter 
 memorandum signed by Schnell is v. Giddings, 97 Mass. 41; Exchange 
 standing alone and without anything Bank v. Rice, 107 Mass. 37, 9 Am. 
 to explain it prima /(xae his contract, Rep. 1; National Ins. Co. v. Allen, 
 and not that of his principal, and the 116 Mass. 398; Texas Land & Cattle 
 word • agent* affixed to his signature Co. v. Carroll, 63 Tex. 48; Higginse. 
 ia prima facie, descriptio persona and Senior, 8 M. & W. 834. 
 not as determining the character in • See Higgins v. Senior, tupra. 
 which he contracted. But it was 
 
 294
 
 Chap. III.] EXECUTION OF SIMPLE CONTRACTS. § 449. 
 
 The fact that the contract was one which the Statute of 
 Frauds requires to be in writing, makes no difference. Such a 
 contract may be signed for the principal by a person thereunto 
 lawfully authorized, and though the agent sign in his own name 
 alone, the principal may still be charged by parol evidence.' The 
 rale is otherwise, however, where the agent has entered into a 
 contract in his own name and under seal.' 
 
 > Neaves ©.North State Mining Co., principal's name, is a sufficient memo- 
 
 90 N. C. 413, 47 Am. Rep. 529. In randum to charge the principal under 
 
 this case it was held that a draft for the Statute of Frauds, 
 
 the purchase money of land, drawn • Briggs v. Partridge, 64 N. Y. 857, 
 
 by an agent without disclosing his 21 Am. Rep. 617. 
 
 295
 
 § 450. THE LAW OF AGENCY. [Book lY. 
 
 BOOK lY. 
 
 OF THE RIGHTS, DUTIES AND LIABILITIES ARISING 
 OUT OF THE RELATION. 
 
 CHAPTER I. 
 IN GENERAL. 
 
 450. Purpose of Book IV. 
 
 451. "What Parties interested. 
 453. How Subject divided. 
 
 I 450. Purpose of Book IV. Having heretofore considered 
 how the relation of principal and agent may be created ; by 
 what rules the nature and extent of the authority conferred shall 
 be determined ; and in what manner the authority so conferred 
 and construed shall be executed, it remains to consider in this 
 Book, what are the rights, duties and liabilities of all of the par- 
 ties concerned, growing out of, or based upon, the actual or 
 attempted execution of the agency. 
 
 § 451. What Parties interested. It will be obvious that the 
 persons who are interested in this inquiry are numerous, involv- 
 ing all of the possible parties to the transaction, and that their 
 several rights, duties and liabilities inter sese will not always be 
 identical or reciprocal, or determined by the same standards. 
 Thus, as has already been seen, the circumstances may be such 
 that a given act of the agent must, in questions arising between 
 the principal and third persons, be deemed to be fully author- 
 ized ; while the same act in questions arising between the prin- 
 cipal and the agent, will be deemed to be wholly unauthorized. 
 So, as has been seen, the acts of one who was before a mere 
 stranger to an assumed principal may become, by the latter'a 
 words or conduct, binding upon him as an actual principal ; while, 
 
 296
 
 Chap. I.] IN GENERAL. § 452. 
 
 the acts of an agent fully authorized, may from defective or ex- 
 cessive execution fail to bind the principal at all, and be binding 
 only upon the agent himself in some cases, and in others, upon 
 no one. 
 
 When the agent has fully and properly executed his authority 
 in the name and for the benefit of his ostensible principal, his 
 mission is performed and his rights and liabilities are determined. 
 Henceforth his principal is entitled to the benefits and is subject 
 to the liabilities arising from the transaction. 
 
 Where, however, he has executed his authority in his own 
 name, or so ambiguously as to render it uncertain upon the face of 
 the transaction in what character and capacity he acted, it will be 
 found in many cases that dual rights and liabilities have been 
 created, and that one or other of the parties is entitled to elect 
 upon whom to fasten the liability. 
 
 § 452. How Subject divided. Such being the general nature 
 of the subject, it will be found convenient to treat it under the 
 following heads : 
 
 1. The duties and liabilities of the agent to his principal. 
 
 2. The duties and liabilities of the agent to third persons. 
 
 3. The duties and liabilities of the principal to the agent. 
 
 4. Tlie duties and liabilities of the principal to third persons. 
 
 5. The duties and liabilities of third persons to the agent. 
 
 6. The duties and liabilities of third persons to the principal. 
 
 No separate consideration of the rights of the parties is in- 
 tended, because, as will be seen, the duties and liabilities of one 
 party are generally reciprocally the rights of the other. 
 
 297
 
 THE LAW OF AGENCY. 
 
 [Book lY. 
 
 CHAPTER II. 
 
 OF THE DUTIES AND LIABILITIES OF THE AGENT TO HIS 
 
 PRINCIPAL. 
 
 § 453. In general — Duty the Measure 
 of Liability. 
 
 I. Agent must bb loyal to his 
 Tkust. 
 
 454. Loyalty to his Trust the first 
 
 Duty of the Agent. 
 
 455. May not put himself in Rela- 
 
 tions antagonistic to his Prin- 
 cipal. 
 
 456. May not deal in Business of 
 
 his Agency for his own Ben- 
 efit. 
 
 457. Agent authorized to purchase 
 
 for his Principal may not 
 purchase for himself. 
 
 458. Same Subject — Same Princi- 
 
 ple applies to Leases. 
 
 459. Same Subject — What Evi- 
 
 dence of Trust sufficient. 
 
 460. Same Subject — When Rule 
 
 does not apply. 
 
 461. Agent authorized to sell may 
 
 not become the Purchaser. 
 
 462. Agent authorized to purchase 
 
 may not purchase of himself. 
 
 463. To what Agents this Rule 
 
 applies. 
 
 464. Further of this Rule — Indirect 
 
 attempts — Ratification . 
 
 465. This Rule cannot be defeated 
 
 by Usage. 
 
 466. Agent may purchase with 
 
 Principal's Consent. 
 
 467. Agent employed to settle 
 
 Claim, may not buy and 
 enforce it against his Princi- 
 pal 
 
 298 
 
 I 468. Agent may not acquire Rights 
 against his Principal based 
 on his own Neglect or De- 
 fault. 
 
 469. Profits made in the Course of 
 
 the Agency belong to the 
 Principal. 
 
 470. Same Subject — Illustrations. 
 
 471. When Principal entitled to 
 
 Agent's Earnings. 
 
 472. Same Subject — Rule does not 
 
 extend to mere Gratuities re- 
 ceived by the Agent. 
 
 II. To OBEY Instructiokb. 
 
 473. Agent's Duty to obey Instruc- 
 
 tions. 
 
 474. Results of Disobedience — 
 
 Agent liable for Losses 
 caused by it. 
 
 475. Same Subject — Illustrations. 
 
 476. Form of Action — When Agent 
 
 liable in Trover. 
 
 477. Same Subject— The Rule sta- 
 
 ted — Intent immaterial. 
 
 478. How when Agency is gratu- 
 
 itous. 
 
 479. Exceptions to this Rule. 
 
 480. Agent not bound to perform 
 
 illegal or immoral Act. 
 
 481. Departure from Instructions 
 
 may be justified by sudden 
 
 Emergency. 
 48'i. Same Subject — Limitations. 
 483. Where the Authority has been 
 
 substantially pursued, Ageut 
 
 not liable for immaterial 
 
 Departure.
 
 Chap. 11.] LIABILITY OF AOENT TO PRINCIPAL. 
 
 § 484. 
 
 485. 
 486. 
 
 487. 
 
 Where Instructions are am- 
 biguous, and Agent acts in 
 good Faith. 
 
 How affected by Custom. 
 
 Same Subject — When Pre- 
 sumption conclusive. 
 
 No Presumption of Disobe- 
 dience. 
 
 III. Not to be Neoligent 
 
 488. In general. 
 
 489. Difficulty of defining Negli- 
 
 gence. 
 
 490. The general Rule. 
 
 491. Consideration of this Rule. 
 
 492. Same Subject. 
 
 493. Same Subject— Agent bound 
 
 to exercise usual Precautions. 
 
 494. Same Subject— Not bound to 
 
 exercise highest Care. 
 
 495. Same Subject— Good Faith- 
 
 Reasonable Diligence. 
 
 496. Same Subject — When Agent 
 
 warrants Possession of Skill. 
 
 497. How when Agency ia gratui- 
 
 tous. 
 
 498. Same Subject— When employ- 
 
 ed in a Capacity which im- 
 plies Skill. 
 
 499. Same Subject— Bound to ex- 
 
 ercise the Skill he possesses. 
 
 500. Reasonable Skill — How de- 
 
 termined. 
 
 601. Agent not liable for unfore- 
 
 seen Dangers. 
 
 602. Agent presumed to have done 
 
 his Duty. 
 
 603. Agent not liable if Principal 
 
 also negligent. 
 
 604. When Agent liable for Neg- 
 
 lect of Subagents. 
 505. Effect of Ratification upon the 
 
 Agent's Liability. 
 606. The Measure of Damages. 
 
 507. Same Subject — Judgments, 
 
 Costs, Counsel Pees. 
 
 508. Illustrations of this Rule. 
 
 1. Neglect of Agent in making Loans. 
 609. Liable for resulting Loss. 
 
 S. Neglect of Agent to Effect Insurance. 
 
 § 510. When liable for Loss. 
 
 S. Neglect of Agent in making Col- 
 lections. 
 
 511. Liable for Loss from Negli- 
 
 gence. 
 
 512. Same Subject — Neglect in 
 
 making Remittances. 
 
 513. Same Subject— Liability for 
 
 Neglect of Correspondent* 
 and Subagents. 
 
 514. Same Subject — Liability of 
 
 Banks. 
 
 515. Same Subject — Liability of 
 
 Attorneys. 
 
 516. Same Subject — Liability of 
 
 Mercantile or Collection 
 Agencies. 
 
 517. Same Subject — Liability of 
 
 Express Companies. 
 
 518. Same Subject — The Measure of 
 
 Damages. 
 
 519. Principal's Right of Action 
 
 against Subagents. 
 
 520. Del Credere Agents— How li- 
 
 able to Principal. 
 
 621. When Agent liable for selling 
 
 to irresponsible Parties. 
 
 IV. To Account for Monet and 
 Property. 
 
 622. In general. 
 
 623. Account only to Principal — 
 
 Joint Principal. 
 
 524. Subagents — Account to 
 
 whom. 
 
 525. Agent may not dispute his 
 
 Principal's Title. 
 
 626. May not allege Illegality of 
 
 Transaction to defeat Prin- 
 cipal's Claim. 
 
 627. When may maintain Inter- 
 
 pleader. 
 
 528. Agent's Duty to keep correct 
 
 Accounts. 
 
 529. Duty to keep Principal's Prop- 
 
 erty and Funds separate 
 from his own — Liability for 
 commingling. 
 
 299
 
 §453. 
 
 THE LAW OF AGENCY. 
 
 [Book iY. 
 
 630. When Agent should account. 
 
 631. Necessity for Demand before 
 
 Action. 
 633. When Agent liable for Interest. 
 
 633. When Liability barred by 
 
 Statute of Limitations. 
 
 634. Form of Action — When equi- 
 
 table. 
 
 § 535. Of the Right of Set-off. 
 536. How far Principal may follow 
 
 trust Funds. 
 637. Same Subject— Illustrations. 
 
 V. To GIVB NOTICB. 
 
 538. Duty to give Notice of Facts 
 material to his Agency. 
 
 § 453. In general— Duty the Measure of Liability. It is evi- 
 dent that the extent of the liability of the agent to his principal 
 is to be determined by ascertaining the nature and scope of the 
 duty owed to him. Liability follows from the non-performance 
 of a legal duty ; and if, in what shall be hereafter said, that fact 
 may not in each instance be mentioned, it must be constantly 
 understood. 
 
 The duties which the agent owes his principal are numerous, 
 and many of them are peculiar. It is scarcely within the limits 
 of an ordinary treatise to enter minutely into all the questions that 
 may arise, but it is possible to so group them under the respective 
 principles that govern them as to furnish a rule, not only for the 
 same states of fact, but also for similar ones. 
 
 AGENT MUST BE LOYAL TO HIS TRUST. 
 
 § 454. Loyalty to his Trust, the first Duty of the Agent, 
 
 Loyalty to his trust is the first duty which the agent owes to his 
 principal. Without it, the perfect relation cannot exist. Reli- 
 ance upon the agent's integrity, fidelity and capacity is the mov- 
 ing consideration in the creation of all agencies ; in some it is so 
 much the inspiring spirit, that the law looks with jealous eyes up- 
 on the manner of their execution, and condemns, not only as in- 
 valid as to the principal, but as repugnant to the public policy, 
 everything which tends to destroy that reliance.' 
 
 8 455. May not put himself in Relations antagonistio to hia 
 Principal. It follows as a necessary conclusion from the princi- 
 ple last stated, that the agent must not put himself into such re- 
 lations that his interests become antagonistic to those of his prin- 
 
 « Keighler v. Savage Mnfg Co. 12 Md. 383, 71 Am. Dec. 600. 
 300
 
 Chap. II.] LIABILITY OF AGENT TO PKINOIPAL. § 457. 
 
 cipal. Indeed, this rule is but a restatement of the previous one, 
 and is based upon the same fundamental principles. The agent 
 will not be permitted to serve two masters, without the intelli- 
 gent consent of both.' As is said by a learned judge : " So care- 
 ful is the law in guarding against the abuse of fiduciary relations, 
 that it will not permit an agent to act for himself and his princi- 
 pal in the same transaction, as to buy of himself, as agent, the 
 property of his principal, or the like. All such transactions are 
 void, as it respects the principal, unless ratified by him with a 
 full knowledge of all the circumstances. To repudiate them, he 
 need not show himself damnified. Whether he has been or not 
 is immaterial. Actual injury is not the principle the law pro- 
 ceeds on in holding such transactions void. Fidelity in the agent 
 is what is aimed at, and as a means of securing it, the law will not 
 permit the agent to place himself in a situation in which he may 
 be tempted by his own private interest to disregard that of his 
 principal.'" " This doctrine," to speak again in the beautiful lan- 
 guage of another, " has its foundation, not so much in the commis- 
 sion of actual fraud, as in that profound knowledge of the human 
 heart which dictated that hallowed petition ' Lead us not into 
 temptation but deliver us from evil,' and that caused the an- 
 nouncement of the infallible truth that ' a man cannot serve two 
 masters.' " " 
 
 § 456. May not deal in Business of his Agency for his own 
 Benefit. Akin to these rules and founded upon the same princi- 
 ples, is the other rule that the agent may not deal in the business 
 of his agency for his own benefit. His duty to his principal re- 
 quires that his efforts shall be in the behalf and for the benefit 
 of his principal. He cannot perform this duty if he is constantly 
 attempting to use his agency for his own purposes.* 
 Following these principles into details, we have : — 
 § 457. Agent authorized to purchase for his Principal may not 
 ptirchase for himself. An agent instructed to purchase property 
 
 * Bentley «. Craven, 18 Beav. 76; dale, 2 Sneed. (Tenn.) 596, 64 Am. 
 European, &c. Ry Co. ». Poor, 59 Dec. 775. 
 
 Me. 277, re-reported in note to 59 * Switzer v. Skiles, 3 Oilman (111.) 
 
 Am. Rep. 468. 529; 44 Am. Dec. 723; Bunker v. 
 
 » Manning, J. in People v. Town- Miles, 30 Me. 431, 50 Am. Dec. 632; 
 
 ship Board, 11 Mich. 222. Miller v. Davidson, 3 Gilman (111.) 
 
 • Cakuthkrs, J. in Tisdale v. Tis 518, 44 Am. Dec. 715. 
 
 301
 
 §45S. 
 
 THE LAW OF AGENCY. 
 
 [Book lY. 
 
 for his principal will not be permitted, without his principal's 
 knowledge and consent, to become the purchaser of the same 
 property for himself ; and if he makes such purchase, he will, al- 
 though he purchased with his own money, be considered as hold- 
 ing the property in trust for his principal, and the latter upon 
 repaying or tendering him the amount of the purchase price and 
 his reasonable compensation, may by proper proceeding in equity 
 compel a conveyance to himself,* or where ejectment is an equi- 
 table remedy, he may maintain that action.' 
 
 And what the agent cannot do directly he will not be permitted 
 to do indirectly, as by causing the property to be purchased osten- 
 sibly by another, but in reality for his own benefit. The court 
 will look behind the appearance sought to be put upon the trans- 
 action, and determine the case according to its true inwardness.* 
 
 § 458. Same Subject. — Same Principle applies to Leases. 
 
 » Rose V. Hayden, 35 Kan. 106, 57 
 Am. Rep. 145; Van Home v. Fonda, 
 5 Johns. (N. Y.) Ch. 388; Sweet t», 
 Jacocks, 6 Paige (N. Y.) 355, 31 Am. 
 Dec. 253; Pinnock v. Clough, 16 Vt. 
 500, 43 Am. Dec. 521; Dennis v. Mc- 
 Cagg, 33 111. 444; Hitchcock v. Wat- 
 son, 18 111. 289 ; McMurry v. Mobley, 
 39 Ark. 309; Ringo v. Binns, 10 Pet. 
 (U. S.) 269; Wolford v. Herrington, 
 74 Penn. St. 311, 15 Am. Rep. 548; 
 Von Hurter v. Spengeman, 17 N. J. 
 Eq. 185; Van Epps v. Van Epps, 9 
 Paige (N. Y.) 237; Torrey «. Bank of 
 Orleans, Id. 649; Eshleman v. Lewis, 
 49 Penn. St. 410; Smith v. Brother- 
 line, 63 Penn. St. 461; Krutz v. 
 Fisher, 8 Kans. 90; Fisher v. Krutz, 9 
 Id. 501; Winn v. Dillon. 27 Miss. 
 494; Wellford v. Chancellor, 5 Gratt. 
 (Va.) 39; Church v. Sterling, 16 Conn. 
 383; Rhea v. Puryear, 26 Ark. 344; 
 Matthews*. Light, 33 Me. 305; Mc- 
 Mahon v. McGraw, 26 Wis. 615; Bar- 
 ziza V. Story, 39 Tex. 354; Chastainc. 
 Smith, 30 Qa. 96; Cameron®. Lewis, 
 56 Miss. 76; Gillenwaters v. Miller, 
 49 Misa. 150; Sanford v. Norris, 4 
 Abb. App. Dec. (N. Y.) 144; Parkist 
 •. Alexander, 1 Johns. (N. Y.) Ch. 
 
 394; Wood v. Rabe, 96 N. Y. 414, 48 
 Am. Rep. 640; Burrell v. Bull, 3 San- 
 ford (N. Y.) Ch. 15; Bennett v. Aus- 
 tin, 81 N. Y. 308; Hargrave v. Kiog, 
 5Ired. (N. C.) Eq. 430; KendalU. 
 Mann. 11 Allen (93 Mass.) 15; Jack- 
 son V. Stevens, 108 Mass. 94; McDon- 
 ough V. O'Neil, 113 Mass. 93; Sand- 
 foss V. Jones, 35 Cal. 481 ; Snyder v. 
 Walford, 33 Minn. 175; Soggins v. 
 Heard, 31 Miss. 426; Seichrist's Ap- 
 peal, 66 Penn. St. 237; Peebles v. 
 Reading, 8 Serg. & R. (Penn.) 484; 
 Onson V. Cown, 22 Wis. 329; Bryant 
 V. Hendricks, 5 Iowa, 256; Judd v. 
 Mosely, 30 Iowa, 424; Jenkins e. Eld- 
 redge, 3 Story, 183; Baker v. Whit- 
 ing, 3 Sumner, 476; Rothwell v. 
 Dewees, 2 Black, 613. 
 
 s Rose V. Hayden, supra ; McKay v 
 Williams (Mich.), 35 N. W. Rep. 159. 
 
 • Cameron v. Lewis, 56 Miss. 76; 
 Eldridge v. Walker, 60 111. 230; 
 Hughes «. Washington, 72 111. 84; 
 Rogers v. Rogers, 1 Hopk. (N. Y.) 
 534; Kruse v. Steflens, 47 111. 112; 
 Forbes v. Halsey, 26 N. Y. 53; Da- 
 voue V. Panning, 3 Johns. (N. Y.) 
 Ch. 257; Beaubien v. Poupard, Harr. 
 (Mich.) Ch. 206. 
 
 302
 
 Ohap. 11. ] LIABILITY OF AGENT TO PKINCIPAL. § 459. 
 
 This principle is of course not confined to transactions involving 
 an absolute purchase ; it includes leasings and other similar ar- 
 rangements as well. And it is immaterial that the agent was not 
 directly authorized to purchase or lease ; he will not be permitted 
 to avail himself of the knowledge that his principal desires or 
 is attempting to negotiate such a transaction in order to forestall 
 him or to make a profit to himself. 
 
 An illustration of this principle is found in a recent case in 
 California. There a warehouseman, occupying premises under a 
 lease about to expire, was negotiating for a renewal. His clerk, 
 who from his access to his principal's books and papers and his 
 knowledge of the business, knew of these facts, secretly obtained 
 a lease of the premises to himself and another person, who was 
 a party to the scheme, by telling the landlord that his principal 
 would probably give up the premises at the expiration of his 
 term. But the court directed a conveyance to the principal, say- 
 ing that an agent should not, any more than a trustee, adopt a 
 course that will operate as an inducement to postpone the princi- 
 pal's interest to his own ; and that an agent or subagent who 
 uses the information he has obtained in the course of his agency 
 as a means of buying or leasing for himself will be compelled to 
 convey to the principal.' 
 
 And the same result was reached in a similar case in Illinois, 
 where a confidential agent of the lessee of a theater, shortly be- 
 fore his principal's lease would expire, secretly procured a lease 
 of the theater for a new term to himself though at a larger rent, 
 denying to his principal that he was trying to secure the 
 lease. The court held that the lease was acquired in violation of 
 the agent's duty and presumably because of his peculiar means 
 of knowledge of the profits of the business, and that a personal 
 benefit thus obtained by an agent would, in equity, inure to the 
 benefit of the principal.' 
 
 §459. Same Subject — What Evidence of Trust sufficient. 
 In order to establish such a trust in real estate, if it be denied, it 
 has been regarded as the settled rule that the evidence of it must, 
 to satisfy the statute of frauds, be in writing, or the principal 
 
 1 Qower v. Andrews (1881), 59 Cal. 39, 48 Am. Rep. 641. See also 
 
 119, 43 Am. Rep. 242. Gnimley v. Webb, 44 Mo. 444, 100 
 
 « Davis V. Hamlin (1883), 108 HI. Am. Dec. 804; Vallette v. Tedens, 
 
 122 111. 607, 3 Am. St. Rep. 502. 
 303
 
 §459. 
 
 THE LAW OF AGENCY. 
 
 [Book lY. 
 
 must have paid or furnished the purchase money." But in a re- 
 cent case in Kansas, it is held after an elaborate resum6 of the 
 authorities that, though the agent was orally employed, and though 
 he purchased with his own money, the trust arose, and that the 
 principal on tendering the amount so paid, and a reasonable com- 
 pensation for his services, could, if the agent refused to convey to 
 
 • "Where a man merely employs an- 
 other person by parol, as an agent to 
 buy an estate, who buys it for him- 
 self and denies the trust, and no part 
 of the purchase money is paid by the 
 principal, and there is no written 
 agreement, he cannot compel the 
 agent to convey the estate to him, as 
 that would be directly in the teeth of 
 the statute of frauds." 3 Sugden on 
 Vendors (14th ed.) 703. Same rule: 
 Burden v. Sheridan, 36 Iowa, 125, 14 
 Am. Rep. 505; BartletttJ. Pickersgill, 
 1 Eden , 515, cited in 1 Cox, 15, 4 East, 
 577. note, 4 Burr, 2255; Botsford v. 
 Burr, a Johns. (N. Y.) Ch. 405; Perry 
 V. McHenry, 13 111. 237; Collins v. 
 Sullivan, laC Mass. 461; Kendall ». 
 Mann, 11 Allen (Mass.) 15; Davis v. 
 Wetherell 11 Allen (Mass.) 19; Par- 
 sons t. Phelan, 134 Mass. 419; Bar- 
 nard 'J. Jewett, 97 Mass, 87; Dodd v, 
 Wakeman, 26 N. J. Eq. 484; Fickett 
 V. Durham. 109 Mass. 419; Firestone 
 V. Firestone, 49 Ala. 128; Allen «. 
 Richard, 88 Mo. 55; Nixon's Appeal, 
 63 Penn. St. 279; Steere v. Steere, 6 
 Johns. (N. T.) Ch. 1, 9 Am Dec. 356; 
 Walter*. Klock, 55 111. 363; Watson 
 V. Erb, 33 Ohio St. 35; Pinnock v. 
 Clough, 16 Vt. 500, 43 Am. Dec. 531; 
 Hidden v. Jordan, 31 Cal. 93. In 
 Fickett V. Durham, supra, Ames, J., 
 says: — 
 
 " There is no doubt of the correct- 
 ness of the doctrine, that, where the 
 purchase money is paid by one per- 
 son and the conveyance taken by an- 
 other, there is a resulting trust created 
 by implication of law in favor of the 
 
 former. And where a part of the 
 purchase money is paid by ono, and 
 the whole title is taken by the other, 
 a resulting trust pro tanto may in like 
 manner, under some circumstances, 
 be created." McGowan v. McGowan, 
 14 Gray (Mass.) 119; Livermore v. 
 Aldrich, 5 Gush. (Mass.) 431. The 
 ordinary case of trusts of this charac- 
 ter is, where the purchase! money is 
 paid by one party and the conveyance 
 is made to another. " The whole 
 foundation of the trust is the pay- 
 ment of the money, and that must be 
 clearly proved. If, therefore, the 
 party who sets up a resulting trust 
 made no payment, he cannot be per- 
 mitted to show by parol proof that 
 the purchase was made for his benefit 
 or on his account." Botsford v. Burr, 
 a Johns. (N. Y.) Ch. 405, 409. He 
 may show that although not paid by 
 his own hand it was substantially his 
 money, by proof that the defendant 
 who made the payment had agreed to 
 lend him the money, to be repaid at 
 an agreed time with interest, and to 
 hold the title in the meantime as 
 security. Page «. Page, 8 N. H. 187. 
 But this has been said to be a danger- 
 ous species of evidence, and the pay- 
 ment by the party setting up such a 
 trust is required to be clearly proved. 
 Getman v. Getman, 1 Barb. Ch. (N. 
 Y.) 499. Kendall v. Mann, 11 Allen, 
 (Mass.) 15. It must clearly appear 
 that it was the plaintiff's money when 
 paid. Davis v. Wetherell, 11 Allen 
 (Mass.) 19. 
 
 S04
 
 Chap. II.] LIABILITY OF AGENT TO PRINCIPAL. 
 
 §459. 
 
 him, recover the land in ejectment, ejectment being in that State 
 an equitable as well as a legal remedy.* 
 
 • Rose V. Hayden, 35 Kans. 106, 57 
 Am. Rep. 145. In this case Valen- 
 tine, J., says: "In this State, the 
 action of ejectment is an equitable 
 remedy as well as a legal remedy, and 
 in such action the party holding the 
 paramount title, whether legal or 
 equitable, or both, or partly one and 
 partly the other, may recover. The 
 only question then for us to consider 
 in this case is, which has the para- 
 mount title to the property in con- 
 troversy — the plaintiff or the defend- 
 ant? That the defendant with his 
 partner Wfis the agent of the plaintiff 
 to carry on negotiations for the pur- 
 chase of the lots in controversy for 
 the plaintiff, there can be no question, 
 and but little question as to the 
 nature and character of the agency. 
 The defendant, with his partner, was 
 simply to carry on negotiations for 
 the purchase of the lots, under the 
 directions and instructions of the 
 plaintiff and for the plaintiff. Under 
 such circumstances could the defend- 
 ant purchase the property for himself, 
 in his own name and with his own 
 money, and take the title to himself 
 without becoming a trustee, for the 
 plaintiff, at the option of the plaintiff, 
 and holding the legal title to the 
 property merely in trust for the plain- 
 tiff, and until the plaintiff should re- 
 pay him the amount which he had 
 expended in the purchase of the 
 property and reasonable compen- 
 sation for his services? Except 
 for the statute of frauds, which 
 we shall hereafter consider, we 
 think he could not. Krutz v. Fisher, 
 8 Kans. 90; Fisher v. Krutz, 9 Kans. 
 501; Lees v. Nutall, IRuss. & M. Ch. 
 63; same case, on appeal, 2 Myl. & 
 K. 819; Taylor v. Salmon, 4 Myl. & 
 Cr. 134; Heard v. Pilley, L. R., 4 
 
 Ch. App. 548; Massie v. Watts, 10 
 U. S. (8 Cranch.) 148; Winn v. Dil- 
 lon, 27 Miss. 494; Wellford v. Chan- 
 cellor, 5 Gratt. (Va.) 39; Church v. 
 Sterling, 16 Conn. 383; Rhea v. Pur- 
 year, 26 Ark. 344; Sweet v. Jacocks, 
 6 Paige (N. Y. Ch.) 355, 464; a. c, 31 
 Am. Dec. 253; Matthews v. Light, 33 
 Me. 305; McMahon v. McGraw, 26 
 Wis. 615; Barziza ». Story, 39 Tex. 
 354. See also the various cases here- 
 after cited. 
 
 "But can the statute of frauds 
 make any difference ? Under the 
 authorities cited by the defendant, 
 plaintiff in error, he claims that it 
 not only can but does. Under such 
 authorities he claims that plaintiff 
 has no remedy and is not entitled to 
 any relief. The following are the 
 principal authorities cited by the 
 defendant:" Citing, 2 Sugd. Ven- 
 dors, 2 Story Eq. Jur. ; Bartlett v. 
 Pickersgill; Burden v. Sheridan; 
 Allen V. Richard; Botsford v. Burr; 
 Nixon's Appeal; Steere v. Steere; 
 Perry©. McHenry; Walter©. Klock; 
 Watson V. Erb; Pinnock v. Clough, 
 Hidden v. Jordan, all supra, note 1. 
 
 " Under the authorities cited by the 
 plaintiff, it is claimed that the statute 
 of frauds makes no difference. It is 
 claimed that with or without tlie 
 statute of frauds, a trust resulted 
 by operation of law in favor of the 
 plaintiff, and that the defendant 
 simply holds the legal title to the 
 property in trust for the plaintiff. 
 The principal authorities cited by the 
 plaintiff, in addition to those which 
 we have already cited for him are the 
 following: Chastain v. Smith. 30 
 Ga. 96; Cameron v. Lewis, 58 Miss. 
 76; Gillenwaters v. Miller, 49 Miss. 
 150; Sanford v. Norris, 4 Abb. App. 
 Dec. 144; Parkist v. Alexander, 1 
 
 20 
 
 305
 
 §460. 
 
 THE LAW OF AGENCY. 
 
 [Book lY. 
 
 § 460. Same Subject— Wlien Eule does not apply. But if 
 the agent be not employed to obtain the conveyance, but for an 
 entirely collateral matter, — as to bring his principal into commu- 
 nication with Bome one who would lend him the money with 
 which to make the purchase, although the agent, with secret in- 
 tention to buy the land himself, dissuades the principal from 
 seeking other assistance in finding the money, — no trust is cre- 
 ated which would be violated if the agent purchases the land 
 
 Johns. Ch. 394; Wood v. Rabe, 96 N. 
 T. 414; 8. c, 48 Am Rep. C40; Bur- 
 rell V. Bull, 3 Sandf. Ch. 15; Bennett 
 V. Austin, 81 N. Y. 308; Hargrave «. 
 King, 5 Ired, (N. 0.) Eq. 430; Ken- 
 dall V. Mann, 11 Allen (93 Mass.) 15; 
 Jackson «. Stevens, 103 Mass. 94; 
 McDonough v. O'Neil, 113 Mass. 92; 
 Sandfoss v. Jones, 35 Cal. 481 ; Sny- 
 der «. Wolford, 33 Minn. 175; Sog- 
 gins V. Heard, 31 Miss. 426; Seichrist's 
 Appeal, 66 Penn. St. 237; Peebles v, 
 Reading, 8 Serg. & R. 484; Onson v. 
 Cown, 23 Wis. 339; Bryant v. Hen- 
 dricks, 5 Iowa, 256; Bannon v. Bean, 
 9 Iowa, 395; Judd v. Mosely, 30 Iowa, 
 424; Jenkins v. Eldredge, 3 Story 
 (U. S C. C.) 183, 283 to 290; Baker v. 
 Whiting. 3 Sumner (U. S. C. C.) 476. 
 482 et seq. ; Rothwell v. Dewees, 67 U. 
 S. (2 Black,) 613; Cave v. McKenzie, 
 48 L. J. Ch. Div. 564; 37 L. T., N. S 
 218; Fisher Dig. 1877, 400; McCor- 
 mick V. Grogan, 4 Eng. & Irish. 
 Appeals, L. R. 97; Bond v. Hopkins, 
 1 Sch. & Lef. 433; Dale v. Hamilton, 
 5 Hare Ch. 369. 
 
 Tlie statute of frauds upon which 
 the defendant relies will be found in 
 sections 5 and 8 of the act of the leg- 
 islature of Kansas relating to frauds 
 and perjuries. The statute, so far as 
 it is necessary to quote it, reads as 
 follows: 
 
 'Section 5. No leases, estates or 
 interests of. In or out of lands, ex- 
 ceeding one year in duration, shall at 
 any time hereafter be assigned or 
 granted, unless it be by deed or note, 
 
 in writing signed by the party so 
 assigning or granting the same, or 
 their agents thereunto lawfully au- 
 thorized, by writing or by act and 
 •operation of law.' 
 
 'Section 6. No action shall be 
 brought whereby to charge a party, 
 
 • * * upon any contract for the 
 sale of lands, tenements or hereditar 
 ments, or any interest in or concern- 
 ing them, * * * unless the agree- 
 ment upon which such action shall 
 be brought, or some memorandum or 
 note thereof, shall be in writing and 
 signed by the party to be charged 
 therewith, or some other person 
 thereunto by him or her lawfully au- 
 thorized.' 
 
 The statute relating to trusts and 
 powers, so far as it is necessary to 
 quote it, reads as follows: 
 
 ' Section 1. No trust concerning 
 lands, except such as may arise by 
 implication of law, shall be created, 
 unless in writing, signed by the party 
 creating the same, or by his attorney 
 thereto lawfully authorized in writ- 
 ing. ' 
 
 The statute relating to convey- 
 ances, so far as it is necessary to 
 quote it, reads as follows; 
 
 ' Section 8. Declarations or crea- 
 tions of trusts or powers, in relation 
 of real estate, must be executed in 
 the same manner as deeds of convey- 
 ance; but this provision does not 
 apply to trusts resulting from thd 
 operation or construction of law.' 
 
 • » » The controlling question 
 
 306
 
 Chap. II.] LIABIJ.ITY OF AGENT TO PRINCIPAL. 
 
 §461. 
 
 himself with his own money ; ' and if the agent first expressly 
 relinquishes his agency and afterwards buys with his own funds 
 no trust can arise.* 
 
 So where three parties agreed to make a purchase for their 
 joint benefit, but one of them when called upon to furnish his 
 «hare of the necessary funds declined to do so, and the two oth- 
 ers went on and made the purchase, it was held that no trust 
 could arise in favor of the one who had not joined.* 
 
 § 461. Agent authorized to sell may not become the Pur- 
 chaser. For the same reasons, an agent authorized to sell or let 
 his principal's property, cannot without the latter's consent, be- 
 come the purchaser or lessee.* If he does so, the principal may 
 
 in this case is not whether the princi- 
 pal advanced the purchase money or 
 not, but it is whether in equity and 
 good conscience the agent who in 
 fact purchased the property with his 
 own money in his own name, in vio- 
 lation of his agreement with his prin- 
 cipal and in abuse of the confidence 
 reposed in him by his principal, can 
 be allowed to retain the fruits of his 
 perfidy. The weight of authority 
 is, we think, that he cannot. Sand- 
 ford V. Norris, 4 Abb. N. Y. Ct. App. 
 144; Wellford v. Chancellor, 5 Gratt. 
 (Va.) 39; Onson v. Cown, 32 Wis. 329; 
 Winn V. Dillon. 27 Miss. 494; Cam- 
 eron V. Lewis, 56 Miss. 76; Gillen- 
 waters v. Miller, 49 Miss. 150; Chas- 
 taiu V. Smith, 30 Ga. 96; Heard v. 
 Pilley, L. R., 4 Ch. App. 548; Lees v. 
 Nuttall, 1 Russ. & M. Ch. 53; same 
 cases affirmed on appeal, 2 Myl. & 
 K. Ch. 819; Taylor v. Salmon, 4 Myl. 
 & C. Ch. 134; Cave v. Mackenzie, 
 Fisher Ann. Dig. (1877), 400, Bakers. 
 Whiting, 3 Sumner (U. S. C. C.) 476; 
 Bnyder v. Wolford, 33 Minn. 175; 
 Peebles v. Reading, 8 Serg. & R. 
 (Peun.) 484, Burrell v. Bull, 3 Sandf. 
 Ch. (N. Y.) 15; and other cases here- 
 tofore cited." 
 
 • Collins V. Sullivan, 135 Mass. 461, 
 distinguishing Lees v. Nuttall, 1 Russ. 
 & Myl. 53, B. c, 2 Myl. & K. 819, 
 
 and Parkist «. Alexander, 1 Johns. 
 (N. Y.) Ch. 394, on the ground that 
 there the principal had a previous 
 interest in the land, at least honor- 
 ary, as by oral agreement with the 
 owner, and the agent was employed 
 for the very purpose of procuring or 
 completing the title. 
 
 « First Nat. Bank v. Bissell, 2 Mc- 
 Crary (U. S. C. C.) 73. 
 
 3 Yeager's Appeal, 100 Penn. St. 
 88. 
 
 * People «. Township Board, 11 
 Mich. 233; Clute v. Barron, 2 Mich. 
 194; D wight v. BIackmar,2 Mich. 330, 
 57 Am. Dec. 130; Moore v. Mandle- 
 baum, 8 Mich. 433; Powell v. Conant, 
 33 Mich. 396; Merryman «. David, 31 
 111. 404; Kerfoot v. Hyman, 53 111. 
 512; Coltom v. Holliday, 59 111. 170; 
 Mason v. Bauman, 63 111. 70; Stone v. 
 Daggett, 73 111. 367; Tcwksbury v. 
 Spruance, 75 111. 187; Hughes v. 
 Washington, 72 111. 84; Ruckman v. 
 Bergholz, 37 N. J. L. 437; Bain o. 
 Brown, 56 N. Y. 285; Tynes v. Grim- 
 stead, 1 Tenn. Ch. 503; Cumberland 
 Coal Co. V. Sherman, 30 Barb. (N. Y.) 
 553; Copeland v. Mercantile lus. Co. 
 6 Pick. (Mass.) 193; Parker v. Vose, 
 45 Me. 54; White e. Ward, 26 Ark. 
 445; Stewart©. Mather, i]3 Wis. 344; 
 Marsh v. Whitmore, 21 Wall. (U. S.) 
 178; Scott 9. Mann, 36 Tex. 157 j 
 
 307
 
 § 462. THE LAW OF AGENCY. [Book lY. 
 
 repudiate it and recover back Ins property.' Here, too, as in the 
 ^preceding cases, the law looks at the natural and legitimate ten- 
 dency of such transactions, and not at the motive of the agent in 
 /any given case. This tendency is demoralizing, and the fact that 
 'in a certain case the agent's motive was honorable, or that the 
 result is more beneficial to the principal, will make no difference 
 lif the latter chooses to repudiate it." Said a learned judge : " If 
 such contracts were to be held valid, until shown to be fraudu- 
 lent or corrupt, the result, as a general rule, would be that they 
 ,must be enforced in spite of fraud or corruption. Hence the 
 |only safe rule in such cases is to treat the contract as void, with- 
 out reference to the question of .fraud in fact, unless aflBrmed by 
 the opposite party. This rule appears to me so manifestly in 
 accordance with sound public policy as to require no authority 
 for its support." ' 
 
 § 462. Agent authorized to purchase may not purchase of 
 himself. An agent authorized to purchase or hire property foi 
 his principal, will not, without the intelligent consent of his 
 principal, be permitted to purchase or hire of himself; and if he 
 'does so, the principal is not bound, but may repudiate the trans- 
 action. This rule is founded upon the same principles as the 
 preceding ones. The law will not permit the agent to put him- 
 self in a position where there is such abundant opportunity, if 
 not temptation, to take advantage of his relations for his own 
 benefit.*' 
 
 And it makes no difference that the intention of the agent was 
 honest and the result of his action might be to the advantage of 
 
 Francis e. Kerker, 85 111. 190; Gram- » Louisville Bank «. Gray, 84 Ky. 
 
 ley V. Webb, 44 Mo. 444; Robertson 665. 
 
 V. Western F. «& M. Ins. Co., 19 La. * People v. Township Board, 11 
 
 227, 86 Am. Dec. 673; Florance «. Mich. 222. 
 
 Adams, 2 Rob. (La.) 556, 38 Am. » Chkistianct, J. in People •. 
 
 Dec. 226; Butcher e. Krauth, 14 Township Board, stfpra. 
 
 Bush (Ky.) 713; Mosley v. Buck, 3 « Taussig v. Hart, 68 N. T. 426; 
 
 Munf. (Va.) 232, 5 Am. Dec. 503; Mc- Tewksbury e. Spruance, 75 111. 187; 
 
 Kinleyt). Irvine, 13 Ala. 681; Banks Harrison t>. McHenry, 9 Ga. 164, 52 
 
 t). Judah, 8 Conn. 145; Church t>. Am. Dec. 435; Florance v. Adams, 3 
 
 Sterling, 16 Conn. 388; Sturdevant v. Rob. (La.) 556, 38 Am. Dec. 226; Ely 
 
 Pike, llnd. 277; Matthews «. Light, 33 «. Hanford, 65 111. 267; Conkey v. 
 
 Me. 305; Moore t». Moore, 5 N.Y. 256; Bond, 36 N. Y. 427; Beal v. McKier- 
 
 Shannon c. Marmaduke, 14 Tex. 217; nan, 6 La. (O. S.) 407; Keighler v. 
 
 8egar». Edwards, 11 Leigh (Va.) 213. Savage Mnfg. Co. 12 Md. 883, 71 
 
 Am. Dec. 600. 
 
 ao8
 
 Chap. II.] LIABILITY OF AGENT TO PRINCIPAL. 
 
 §463. 
 
 his principal ; the latter may still repudiate it. The tendency of 
 Buch transactions is bad, and a good intention in a particular 
 case will not save it, unless the principal sees fit to affirm it.* 
 
 And what was said in a preceding section applies here also. 
 The agent may not accomplish by indirect and covert means 
 what he could not do directly and openly. 
 
 § 463. To what Agents this RtiIo applies.— This rule is of 
 frequent application, not only to agencies which are strictly pri- 
 vate in their nature, but to those which are public or quasi-public 
 as well. 
 
 Thus an administrator,* executor,' guardian,* sheriff,* deputy 
 
 1 Taussig «. Hart, 58 N. Y. 425; 
 Harrison v. McHenry, 9 Ga. 164, 53 
 Am. Dec. 435; People v. Townsliip 
 Board, 11 Micli. 222. 
 
 " Tlie general rule stands upon our 
 great moral obligation to refrain from 
 placing ourselves in relations which 
 ordinarily excite a conflict between 
 self-interest and integrity. It re- 
 strains all agents, public and private; 
 but the value of the prohibition is 
 most felt, and its application is most 
 frequent, in the private relations in 
 which the vendor and purchaser may 
 stand toward each other. The disa- 
 bility to purchase is a consequence of 
 that relation between them which im- 
 poses on one a duty to protect the 
 interest of the other, from the faith- 
 ful discharge of which duty his own 
 personal interests may withdraw him. 
 la this conflict of interest the law 
 wisely interposes. It acts not on the 
 possibility that, in some cases, the 
 sense of that duty may prevail over 
 the motives of self-interest, but it 
 provides against the probability in 
 many cases, and the danger in all 
 cases, that the dictates of self-interest 
 will exercise a predominant influence, 
 and supersede that of duty. It there- 
 fore prohibits a party from purchas- 
 ing on his own account that which 
 his duty or trust requires him to sell 
 on account of another; and from pur- 
 
 chasing on account of another, that 
 which he sells on his own account. 
 In effect he is not allowed to unite 
 the two opposite characters of buyer 
 and seller, because his interests, when 
 he is the seller or buyer on his own 
 account, are directly conflicting with 
 those of the person on whose account 
 he buys or sells." Mr. Justice 
 Wayne, in Michoud v. Girod, 4 How. 
 (U. S.) 503. 
 
 2D wight V. Blackmar, 2 Mich. 330, 
 57 Am. Dec. 130; Pearson v. More- 
 land, 7 Smedes & M. (Miss.) 609, 45 
 Am. Dec. 319; Scott v. Freeland, 7 
 Smedes & M. (Miss.) 409, 45 Am. 
 Dec. 310; Planters' Bank v. Neely, 7 
 How. (Miss.) 80, 40 Am. Dec. 51; Mc- 
 Gowan v. McGowan, 48 Miss. 553; 
 Hoffman v. Harrington, 28 Mich. 106; 
 Obert V. Hammel, 8 Har. (N. J. L.) 
 74; Coat v. Coat, 63 111. 73; Kruse v. 
 Steffens, 47 111. 112; Smith v. Drake, 
 23 N. J. Eq. 302. 
 
 8 Rogers v. Rogers, 1 Hopk. (N. Y.) 
 524; Schenckc. Dart, 22 N. Y. 420; 
 Winter*. Geroe, 5 N. J. Ch. 319; 
 Duulap V. Mitchell, 10 Ohio, 117; 
 Worthy v. Johnson, 8 Ga. 236; 53 
 Am. Dec. 399; Scott v. Gorton, 14 
 La. 115, 33 Am. Dec. 578. 
 
 < Ward V. Smith, 3 Sandf. (N. Y.) 
 Ch. 592. 
 
 « Harrison v. McHenry, 9 Ga. 164, 
 52 Am. Dec. 435; Carr «. Houser, 46 
 
 309
 
 § 4:6i. THE LAW OF AGENOT. [Book lY.i 
 
 sheriff,' trustee,' assignee,' or commissioner in bankruptcy,* Judge 
 of probate,' county treasurer,' commissioner to sell land,^ etc., 
 will not be permitted, either directly or indirectly, to purchase 
 of himself the rights or property which he is authorized in that 
 capacity to sell.' A public or private agent • authorized to let 
 a contract will not be permitted to let it to himself. A railroad 
 agent authorized to furnish an excursion train to third persons, 
 will not be permitted to furnish one ostensibly to a third person 
 but ill reality for his own benefit.'" 
 
 These rules alao apply to the directors and officers of corpora- 
 tions. The former arc regarded in equity as trustees, and the 
 ministerial officers occupy the relation of agents." 
 
 And thft principle is applied not only to the agent himself, but 
 to 8ubag3Et8, clerks and assistants appointed by him ; '* and it 
 extends also to his partner in business.'* Whatever disabilities 
 the agen^ labors under attach equally to those whom he employf 
 under him. 
 
 § 464. Further of this Rule— Indirect attempts— Ratiflcatiou. 
 It seems scarcely necessary to repeat here, what has already been 
 emphasized, that what the agent cannot do directly, he will not be 
 permitted to do indirectly, as by having the property acquired 
 ostensibly by another, but in reality for his own benefit." 
 
 Qa. 477; Flury*. Grimes, 52 Ga. 843; »• Pegram c. Charlotte, &c. R. R 
 
 Mayor of Macon v. Hufl, 60 Ga. 228. Co., 84 N. C. 696, 37 Am. Rep. 639. 
 
 I Perkins e, Thompson, 3 N. H. 144. " Cook v. Berlin Woolen Mills Co., 
 
 "Robertson e. Western F. & M. 43 Wis. 433; Cumberland Coal Co. «. 
 
 Ins. Co., 19 La. 227, 86 Am. Dec. Hoffman Steam Coal Co., 30 Barb. 
 
 673; Greene. Winter, 1 Johns, (N. (N. Y.) 159; Hodges ». New England 
 
 Y.) Ch. 26; Davoue v. Fanning, 2 Screw Co., 1 R. I. 321; Jackson «. 
 
 Johns. (N. Y.) Cb. 257. Ludeling, 21 Wall (U. S.) 610; Wil- 
 
 » ^a; ^arre Lacey, 6 Ves. Jr. 626. bur ». Lynde, 49 Cal. 290; City of 
 
 • Ex pa/rte Bennett, 10 Ves. Jr. 884. San Diego v. San Diego, &c. R. R. 
 
 • Walton V. Torrey, Har. (Mich.) Co., 44 Cal. 106; Commissioners, &c. 
 Ch. 259. V. Reynolds, 44 Ind. 509; Greenfield 
 
 • Clute «. Barron, 2 Mich. 192; Savings Bank «. Simons, 133 Mass. 
 Pierce v. Boughman, 14 Pick. (Mass.) 415. 
 
 356. '2 Gardner v. Ogden, 22 N. Y. 327, 
 
 T Ingerson e. Starkweather, Walk. 78 Am. Dec. 192. 
 
 fMich.) Ch. 346. isNew York Cent. Ins. Co. v. Na 
 
 •People 9. Township Board, 11 tional Protection Ins. Co. 14 N. Y. 85. 
 
 Mich. 222. "Eldridge v. Walker, 60 111. 230; 
 
 • Flint, &c. R R. Co. e. Dewey, or by a third person for the joint 
 14 Mich. 477. benefit of himself and such third per- 
 
 310
 
 Chap. II.] LIABILITY OF AGBNT TO PRINCIPAL. § 466. 
 
 But the law does not in the case of private agencies, regard 
 snch transactions as so far absolutely void as to bo incapable of 
 ratification bj the principal. If he is satisfied with it, after full 
 knowledge, no one else can complain ; and here, as in other cases, 
 ratification may be presumed if the principal does not repudiate 
 it within a reasonable time after the facts come to his knowledge.* 
 And the same principle has been extended to trustees, adminis- 
 trators, executors and guardians.* 
 
 § 465. This Eiile cannot be defeated by Usage. The law will 
 not permit these important safeguards to be easily defeated. 
 Hence it has been held that the rule that an agent who under- 
 takes to act for his principal cannot, without the latter's consent, 
 in the same matter act for himself, cannot be avoided upon the 
 authority of any local or temporary usage.' 
 
 § 466. Agent may purchase with Principal's Consent. It is 
 not to be inferred, however, that there is any inherent incapacity 
 in an agent to purchase from his principal or to sell to him. 
 Where the facts are fully disclosed, and the agent acts in good 
 faith, taking no advantage of his situation, the principal 
 may, if he sees fit, deal with the agent as with any other 
 person.* 
 
 But, as is said in a recent case,' " while a transaction of the 
 character disclosed is not necessarily voidable at the election of 
 the principal, a court of equity, upon grounds of public policy, 
 will nevertheless subject it to the severest scrutiny. Its purpose 
 will be to see that the agent, by reason of the confidence reposed 
 in him by the principal, secures to himself no advantage from 
 
 son, Hughes v. Washington, 72 111. Rep. (Moak) 177; reversing same 
 
 84; mere fact that purchaser is case, L. R., 5 C. P. 646, and L. R., 7 
 
 brother-in-law of the agent will not C. P. 84, 1 Eng. Rep. .835. 
 
 of itself invalidate the sale. Walker * Rochester v. Levering, 104 Ind. 
 
 V. Carrington, 74 111. 446. 663, 23 Cent. L. Jour. 130; Fisher's 
 
 * Marsh «. Whitmore, 21 Wall. (U. Appeal, 34 Penn. St. 29; Uhlich ». 
 
 S.) ITS; Eastern Bank v. Taylor, 41 Muhlke, 61 111. 499. 
 
 Ala. 72; Bassett t). Brown, 105 Mass. "Rochester v. Levering, supra, 
 
 551. citing: McCormick®. Malin, SBIackf. 
 
 » Worthy t». Johnson, 8 Ga. 236, 52 (Ind.) 509. 522; Cook v. Burlin, &c. 
 
 Am. Dec. 899. Co., 43 Wis. 433; Porter v. Wood- 
 
 •Butcher r. Krauth, 14 Bush(Ky.) ruff, 36 N. J. Eq. 174; Youag «. 
 
 713; see a very exhaustive discussion Hughes, 32 N. J. Eq. 372; Faruum v. 
 
 of this question in Robinson v. Mol- Brooks, 9 Pick. (Mass.) 212; Moore 
 
 lett, L. R., 7 H. of L, 802, 14 Eng. v. Mandlebaum, 8 Mich. 433. 
 
 311
 
 § 467. THE LAW OF AGENCY. [Book lY. 
 
 the contract. When the transaction is seasonably challenged, a 
 presumption of its invalidity arises, and the agent then assumes 
 the burden of making it affirmatively appear that he dealt fairly, 
 and in the strictest of faith imparted to his principal all the infor- 
 mation concerning the property possessed by him. The confiden- 
 tial relation and the transaction having been shown, the onus is 
 upon the agent to show that the bargain was fair and equitable ; 
 that he gave all the advice within his knowledge pertaining to 
 the subject of the sale and the value of the property ; and that 
 there was no suppression or concealment which might have in- 
 fluenced the conduct of the principal." 
 
 § 467. Agent employed to settle Claim, may not buy and 
 enforce it against his Principal. The principles now being con- 
 sidered find further illustration in the rule that an agent who is 
 employed to settle or compromise a claim against his principal, 
 will not be permitted to avail himself of the benefit of a favora- 
 ble settlement by purchasing the claim himself at a discount 
 and enforcing it against his principal for the full amount* 
 
 Said Lord Cottenham : " Why is the agent precluded from 
 taking the benefit of purchasing a debt which his principal is 
 bound to discharge 1 Because it is his duty, on behalf of his 
 employer, to settle the debt on the best terms he can obtain ; and 
 if he is employed for that purpose, and is enabled to procure a 
 settlement of the debt for anything less than the whole amount, 
 it would be a violation of his duty to his employer, or at least 
 hold out a temptation to violate that duty, if he might take an 
 assiornment of the debt and so make himself a creditor of his 
 employer to the full amount of the debt he was employed to 
 settle." * 
 
 Thus where two partners who were financially embarrassed 
 employed an agent to assist them in settling with their creditors 
 and the agent while so employed, purchased an outstanding claim 
 against the firm, at a large discount, but did not disclose the fact 
 of the discount to his employers, who gave him their note for 
 the full amount of the claim, it was held that the benefit of the 
 discount inured to the principals and that there was a failure of 
 consideration of the notes to that extent. ' 
 
 » Davis «. Smith, 43 Vt. 269; Case 'Noyea f. Landon, 59 Vt. 569, 10 
 
 c. Carroll, 35 N. Y. 385. All. Rep. 342. 
 
 « In Reed v. Norm, 2 Myl. & C. 361. 
 
 312
 
 Ohap. II.] LIABILITY OF AGENT TO PBINOIPAL. §408. 
 
 § 468. Agent may not acquire Rights against his Principal 
 based on his own Neglect or DefaiQt. It is the duty of the agent 
 to protect the interests of his principal confided to his care. He 
 will not therefore, be permitted to build up in himself rights and 
 interests against his principal based upon his own neglect or 
 default in the performance of his duty. 
 
 Thus an agent whose duty it is to pay the taxes upon his prin- 
 cipal's lands, cannot by neglecting to pay such taxes, acquire a 
 valid title to the lands upon a sale of them for the non-payment 
 thereof, and if such purchase be made, the agent will be deemed 
 to hold it in trust for his principal.* This rule applies althougli 
 the duty of paying the taxes is not directly imposed. It is 
 enough that such a course puts the interests of the agent, in the 
 course of his agency, in conflict with those of the principal, — a 
 result which it is his duty to avoid. Thus an agent authorized to 
 care for, or to manage, or to sell his principal's real estate, will 
 not be permitted to acquire adverse interests by purchasing the 
 same at a tax sale." 
 
 The mere fact that the principal has not furnished the agent 
 with money with which to pay the taxes, makes no difference,' 
 nor will the neglect of the principal to reimburse the agent for 
 money expended in such a purchase, authorize him to acquire and 
 hold the title, unless he has first made to the principal a full and 
 fair statement of the amount required.* So an agent authorized 
 to manage and sell lands will not be permitted to acquire a title 
 to them by bidding them in at a mortgage sale.' Nor will an 
 agent whose duty it is to buy up and remove an outstanding 
 claim against his principal's title, be permitted to buy it in his 
 own name and enforce it against his principal.' Nor can an 
 agent employed to settle a debt against his principal, be permitted 
 
 'Curtst). Cisna, 7 Biss. (U. 8. C. » Bowman*. Officer, 53 Iowa, 640; 
 
 C.) 260; Franks v. Morris, 9 W. Va. Page®, Webb, — Ky., — 7 S. W. Rep.' 
 
 664; Barton®. Moss, 32 111. 50; Old- 308. 
 
 hams ®. Jones, 5 B. Mon. (Ky.) 458; * Bowman v. Officer, supra; Mc- 
 
 Zrutz V. Fisher, 8 Kans. 90; Mat- Mahon v. McGraw, 26 Wis. 614; 
 
 thews 0. Light, 83 Me. 305; Huzzard Krutz«. Fisher, 8 Kans. 90. 
 
 «. Trego, 36 Penn. St. 9; Bartholeraew » Adams v. Sayre, 70 Ala. 318. 
 
 V. Leech, 7 Watts (Penn.) 472. • Smith v. Brotherline, 63 Penn. 
 
 2 Ellsworth V. Cordrey, 63 Iowa, St. 461; Case v. Carroll, 35 N. T. 
 
 675; Collins®. Rainey, 43 Ark, 531; 885. 
 Woodman v. Davis, 32 Kans. 344. 
 
 313
 
 §469. 
 
 THE LAW OF AGENCY. [Book IV. 
 
 to take an assignment of it to himself and enforce it against liia 
 principal.' 
 
 So if an agent discovers a defect in his principal's title he 
 cannot use it to acquire a title for himself ; and if he does so, he 
 will be held to be a trustee holding for his principal.' 
 
 If an agent wishes to acquire such a title, he must first make an 
 unambiguous relinquishment of his agency," and if any doubt 
 exists as to whether he had done so, it will be solved in the prin- 
 cipal's favor.* 
 
 S 469. Profits made in the Course of the Agency belong to the 
 Principal. The well settled and salutary principle that a person 
 who undertakes to act for another shall not, in the same matter, 
 act for himself, results also in the other rule, that all profits made 
 and advantage gained by the agent in the execution of the agency 
 belong to the principal. And it matters not whether such profit 
 or advantage be the result of the performance or of the violation 
 of the duty of the agent. If his duty be strictly performed, the 
 resulting profit accrues to the principal as the legitimate conse- 
 quence of the relation ; if profit accrues from his violation of 
 duty, that likewise belongs to the principal, not only because the 
 principal has to assume the responsibility of the transaction, but 
 also because the agent cannot be permitted to derive advantage 
 from his own default. 
 
 It is only by rigid adherence to this rule that all temptation 
 can be removed from one acting in a fiduciary capacity, to abuse 
 his trust or seek his own advantage in the position which it 
 affords him. 
 
 It matters not how fair the conduct of the agent may have 
 been in the particular case, nor that the principal would have 
 been no better off if the agent had strictly pursued his power, nor 
 that the principal was not in fact injured by the intervention of 
 the ao-ent for his own benefit. The result is still the same. If the 
 agent dealing legitimately with the subject-matter of his agency, 
 acquires a profit ; or if by departing from his instructions, he 
 obtains a better result than would have been obtained by follow- 
 in*' them, the principal may claim the advantage thus obtained, 
 
 I Reed v. Norris, 2 My. & C. 374. » Continental L. Ins. Co. v. Perry, 
 
 «Ringo V. Binns, 10 Pet. (U. S.) 65 Iowa, 709. 
 2g9 * Fountain Coal Co. v. Phelps, 95 
 
 Ind. 271. 
 814
 
 Chap. II.] LIABILITY OF AGENT TO PKINCIPAL. § 469. 
 
 even though the agent may have contributed liis own funds or 
 responsibility in producing the result. All profits and every 
 advantage beyond lawful compensation, made by the agent in the 
 business, or by dealing or speculating with the effects of his 
 principal, though in violation of his duty as agent, and though 
 the loss, if one had occurred, would have fallen on the agent, are 
 for the benefit of the principal.* 
 
 In such a case the principal may at his option compel the 
 agent to account for or convey to him the profits thus acquired.* 
 And even though the transaction was outside of the actual pur- 
 view of the agency, yet if the agent at the time professed to act 
 for the principal and in his behalf, the benefit of the transaction 
 ■will inure to the principal.' 
 
 This principle is of universal application in the case of all 
 agencies involving fiduciary relations. Thus it is well settled 
 that where a trustee speculates with the trust funds he may be 
 held liable for profits or interest, at the option of the cestui que 
 trust — profits if the investment has been a successful one, and 
 interest if it has been disastrous. In no event will the trustee 
 be allowed to make a profit out of the trust fund. The law 
 holds out no inducement to trustees so to misapply the estate. The 
 trustee may lose, but he cannot make by so doing. It is equally 
 clear that when the trust funds can be traced into the purchase of 
 any particular property the latter will be held to belong to the 
 estate, if the cestui que trust so elect.* 
 
 ' Dutton V. Willner, 53 N. Y. 812; Y. 378; Moinett v. Days, 1 Baxter 
 
 Dodd e. Wakemau, 26 N. J. Eq. 484; (56 Tenn.) 431. 
 
 Lafferty v. Jelley, 23 Ind. 471 ; Ack- 9 Gardner v. Ogden, 22 N. Y. 327, 
 
 burg V. McCool, 36 Ind. 473; Moore 78 Am. Dec. 192; Holman». Holman, 
 
 V. Moore, 5 N. Y. 250; Gardner v. 66 Barb. (N. Y.)222; T>\i{Um v. Will- 
 
 Ogden, 22 N. Y. 327, 78 Am. Dec. uer, 52 TST. Y. 312; Greenfield Sav- 
 
 192; York Buildings Co. e. McKen- ingsBanku Simons, 133 Mass. 415. 
 
 zie, 3 Paton, 378; Keecli p. Sand- 3 Watson ». Union Iron & Stsel Oo., 
 
 ford, 3Eq. Gas. Abr. 741; Ringo «. 15 IlLApp. 509. 
 
 Binns, 10 Pet. (U. S.) 269; Barthole- < Norris' Appeal, 71 Penn. St. 106; 
 
 mew V. Leech, 7 Watts (Penn.) 472; Hall's Appeal, 4 Wright, (40 Penn.) 
 
 Davoue B. Fanning, 2 Johns. (N. Y.) 409; Miller's Appeal, 6 Casey, (30 
 
 Ch. 252; Hall ©. W eyes, 2 Bro. Ch. Penn.) 478; Robinett's Appeal, 12 
 
 483; Crowe v. Ballard, Idem, 117; Casey, (06 Penn.) 191; Oliver v. Pi- 
 
 Coursin's Appeal, 79 Penn. St. 220; att, 3 How. (U. S.) 333; Callagban c. 
 
 Wilson V. Wilson, 4 Abb. (N. Y.) Hall, 1 Serg. & R. (Peun.) 241; Wi- 
 
 App. Dec. 621; Leake b. Sutherland, ley's Appeal, 8 Watts & S. (Penn.) 
 
 25 Ark, 219; Price e. Keyes, 62 K 244; Docker v. Somes, 2 Myl. & K 
 
 315
 
 § 470. THE LAW OF AGENOT. [Book IT. 
 
 § 470. Same Subject— Illustrations. In accordance with this 
 rule, where one who while pretending to act as the agent of the 
 purchaser of certain real estate, was in reality acting as the agent 
 of the seller, and received as his compensation from the seller a 
 note given by the purchaser as part of the purchase price, it 
 was held that he should be restrained from enforcing payment of 
 the note, and that it should be delivered up and cancelled.' 
 
 And if the agent, while secretly negotiating a sale of his prin- 
 cipal's land or other property to third persons for a large sura, by 
 concealment of the facts as to the value and demand of the prop- 
 erty, obtains from his principal a conveyance of it to himself for 
 less than it is worth, and then conveys it to third persons, he 
 will be held to account to his principal for the excess so re- 
 ceived.* 
 
 So if an agent who is authorized to sell land or other property 
 at a given price, succeeds in realizing more than that price for it, 
 the excess belongs to his principal ; * or if, being authorized to 
 purchase at a given price, he makes the purchase for less ; * or if 
 being employed to settle a claim at a given sura, he obtains a 
 reduction,' the amount saved belongs to the principal. 
 
 And one who employs another to pursue and capture a horse 
 thief and pays the person so employed for his services and ex- 
 penses, will be entitled to receive a reward offered for the appre- 
 hension of the thief, which the agent earns by such apprehen- 
 sion.* 
 
 So where the treasurer of a savings bank who was directed to sell 
 certain rights for not less than a certain price and buy shares in 
 a national bank with the proceeds, bought the rights for himself 
 and others at the minimum price, although they could easily have 
 
 655; Attorney- General «. Alford, 4 Thompson «. Hallet, 26 Me. 141; 
 
 DeG. M. & G. 843; Hartu. Ten Eyck, Moseley t». Buck, 3 Munf. (Va.) 232, 
 
 2 Johns. (N. Y.) Ch. 62. Lupton v. 5 Am. Dec. 608; Bell v. BeU, 3 W. 
 
 White, 15Ve3. Jr. 432; Chedworth v. Va. 183. 
 
 Edwards, 8 Vea. Jr. 46. » Merry man v. David, 31 HI. 404; 
 
 » Moinett «. Days, 1 Baxt. (Tenn.) Kerfoot v. Hyman, 52 111. 512. 
 
 431. « Bunker v. Miles, 30 Me. 431, 50 
 
 « Stoner «, Weiser, 24 Iowa. 434; Am. Dec. 632; Kanada v. North, 14 
 
 Bee also Bain v. Brown, 56 N. Y. Mo. 615. 
 
 285; Savage v. Savage, 12 Oregon, » J.rt<«, § 466, and cases cited. 
 
 459; Northern Pacific R R. Co. • Montgomery County e. Robinson, 
 
 «. Kindred, 14 Fed. Rep. 77; 85111. 174. 
 
 316
 
 Chap. II.] LIABILITY OF AGENT TO PRINCIPAL. § 473. 
 
 been sold for more, it was held that he must account to the bank 
 for the difference between the minimum price and what they 
 might have been sold for.* 
 
 § 471. When Principal entitled to Agent's Earnings. Where 
 an agent contracts his entire time to his principal for a fixed salary, 
 the principal is entitled to receive money earned by the agent in 
 performing services for third persons.* 
 
 § 472. Same Subject — Rule does not extend to mere Gratuities 
 received by the Agent. The rule that all profits and advantage 
 made by the agent in the course of his agency belong to the prin- 
 cipal, does not apply to mere gratuities or gifts from third parties 
 tc the agent, which neither he nor the principal had any right to 
 expect, although they were made in consideration of benefits in- 
 cidentally derived from the performance of the agent. 
 
 Thie principle was applied where the agent of an insurance 
 company had been presented with a sum of money by another 
 company in recognition of the benefit the latter company had 
 derived from an adjustment of a loss by the agent for his own 
 company.* 
 
 II. 
 
 TO OBEY IN8TRU0TIO3TS. 
 
 § 473. Agentte Duty to obey Instructions. It is also a funda- 
 mentrJ duty of the agent to obey all of the reasonable and law- 
 ful instructions givea him by his principal. That the agent shall, 
 for the- time being put his own will under the direction of an- 
 other, is one of the primary elements in the relation. Ii is the 
 idet.. the desire, the purpose, perhaps the mere whim or caprice of 
 the print'.iprJ, and not of the agent, that is to be executed ; and 
 il, is ordinarily to be executed in the manner, although perhaps 
 capricious, which the principal directs. 
 
 § 474. Results of Disobedience — Agent liable for Losses 
 caused by it. It is obvious that the results of disobedience may 
 be dependent largely upon the nature of it. As has been seen, 
 
 • Greenfield Savings Bank v. Sim- R. R Co., 86 Mo, 27, 56 Am. Rep. 
 
 ens, 133 Mass. 415. 408. 
 
 « Stansbury v. United States, 1 Ct. s ^tna Ins. Co. v. Church, 21 Ohio 
 
 of CI. 123; Leach v. Hannibal &c. St. 492. 
 
 317
 
 § 474. THE LAW OF AGENCT. [Book IV. 
 
 the principal has, in general, an undoubted legal right to have the 
 agency executed in his own way, if it be not an unlawful way, 
 and it is the duty of the agent to pursue that mode even though 
 he may think or know that a very much better way is open to 
 him.' 
 
 If the agent refuses or neglects to follow the instructions given, 
 one, or either, or both of two remedies may be open to the prin- 
 cipal, as the peculiar circumstances of the case may determine. 
 Thus if the disobedience be such as affects merely the manner of 
 the execution but does not affect the result^ and causes the prin- 
 cipal no loss or injury, no substantial damages could be recovered 
 from the agent, though he might be liable to nominal damages 
 as in the case of any other breach of duty, unless the departure 
 from the line marked out were so insignificant as to fall within 
 the domain of the maxim de minimis non curat lex. The prin- 
 cipal might, however, very properly refuse to longer continue the 
 relation with an agent who habitually disregarded his instructions 
 even though no actual loss or injury had ensued.* 
 
 But if the disobedience be not such as affects the manner only, 
 but results in actual loss or injury to the principal, the latter may, 
 subject to the exceptions to be hereafter named, recover from 
 the agent such substantial damages as he can show he has sus- 
 tained by reason of such disobedience.' He may also remove 
 the agent from his trust* The general rules applicable to the 
 recovery of damages in other cases obtain here. Thus the dam- 
 a'-'es must not be too remote nor of a purely speculative or prob- 
 lematical character. They must, in other words, be the natural, 
 proximate and legitimate result of the act complained of." x\.a 
 is said by a learned judge : " It is the first duty of an agent 
 
 1 (Se* an^, Chapter VII., Book L 103; Harvey e. Turner, 4 Rawle 
 « See idem. (Pcnn.) 233; Brown v. Arrott, 6 Watts 
 » Whitney v. Merchants Union Ex- & S. (Penn.) 402; Blot e. Boiceau, 3 
 press Co., 104 Mass. 152; 6 Am. Rep. N. Y. 78; 51 Am. Dec. 345; see also 
 207; Scott "0. Rogers, 81 N. Y. G7G; poii, Chapters on Attorneys, Auction- 
 Wilts XI. Morrell, 66 Barb. (N. Y.) eers. Brokers and Factors; and see 
 611; Adams v. Robinson, 65 Ala. 58 cases cited in notes to following sec- 
 Dodge c. Tileston, 12 Pick. (Mass.) tion. 
 
 833; Dickson t>. Screven, 23 S. C. 213; * See anU, Chapter on Termination 
 
 Magnin v. Dinsmore, 63 N. Y. 35; of the Relation. 
 
 FrothiDgham v. Everton, 12 N. H. » 8 Sutherland on Damages, 6. 
 239; Amory v. Hamilton, 17 Maes. 
 
 318
 
 Chap. II.] LIABILITY OF AGENT TO FBINOIPAL. § 475. 
 
 whose authority is limited, to adhere faithfully to his instructions, 
 in all cases to which they can be properly applied, If he exceeds, 
 or violates, or neglects them, he is responsible for all losses 
 which are the natural consequence of his act." ' That ho acted 
 in good faith or with the intention of benefiting the principal 
 does not relieve him from the responsibility.* 
 
 § 475. Same Subject— Illustrations. Thus if an agent who 
 was instructed to collect a claim by the employment of certain 
 methods, elects to pursue other methods and the claim is lost 
 thereby, he will be liable for the loss, and it will be no defense 
 that he used reasonable diligence in the prosecution of the claim 
 according to the method of his own selection.^ 
 
 So if, being instructed to ship goods at a certain time, or by a 
 designated carrier, the agent ships at another time or by a dif- 
 ferent carrier, and loss thereby results, the agent will be liable. 
 By pursuing his own notions in opposition to the express instruc- 
 tions of his principal, the agent will be held to have assumed 
 the risks incident thereto and will be treated as an insurer of the 
 goods.* 
 
 And the same result follows where an agent being instructed 
 to insure his principal's goods, fails to do so. The risk is his 
 own." 
 
 So if being expressly instructed to sell only to persons of un- 
 doubted responsibility, the agent sells to persons notoriously in- 
 solvent, the principal may recover of the agent for the loss there- 
 by occasioned. And in such a case it will be no defense to the 
 agent that he acted in pursuance of an alleged custom among 
 similar agents to rely upon the purchaser's statements as to his 
 own responsibility, without making further inquiry.* But where 
 the principal with knowledge of the facts has retained the notes 
 taken by the agent for an unreasonable period, as for instance for 
 two years, without complaint, he will not then be permitted to 
 
 > Colt, J., in Whitney v. Merch- Dec. 416; Ackley «. Kellogg, 8 Cow. 
 
 ants Union Exp. Co. supra. (N. Y.) 223. 
 
 « Rechtsherd v. Bank. 47 Mo. 181 ; » Sawyer v. Mayhew, 51 IVIe. 898. 
 
 Dickson v. Screven, 23 S. C. 212. • Robinson Machine Works v. 
 
 » Butts ». Phelps, 79 Mo. 802, Vorse, 53 Iowa, 207; Osborne v. Ri- 
 
 < Johnson v. New York Cent. der, 62 Wis. 285; Clark p. Roberts, 
 
 Transp. Co. 33 N. Y. 610, 88 Am. 26 Mich. 506; See also ^w,'** § 519. 
 
 319
 
 §476; 
 
 THE LAW OF AGENCY. [Book lY. 
 
 allege that the agent violated his instructions by selling to irre- 
 Bponsible parties.* 
 
 So where an agent authorized to collect at a distant place, was 
 instructed to remit the proceeds to his principal by express, but 
 made the remittance by check of a third person who failed be- 
 fore payment, it was held that the loss must fall upon the agent ; * 
 and the same result was reached where such an agent, being in- 
 structed to send the money in fifty or one hundred dollar bills 
 sent it in smaller bills, which were lost ; • and where, being in- 
 structed to remit by draft, the agent sent the money in a letter 
 which was lost.* 
 
 An agent instructed to insure property, who neglects without 
 sufficient reason to do so or to give his principal timely inform- 
 ation of his inability to effect the insurance, will be liable if a 
 loss occurs, for the full insurable value of the property less the 
 amount of the premiums, unless the amount of insurance was 
 limited to a less sum." And where the agent of an insurance 
 company was instructed by his principal to cancel a certain policy 
 of insurance, but, without sufficient reason, delayed for a number 
 of days to do so, in which time the property was destroyed by 
 fire and the company was compelled to pay the loss, it was held 
 that the company could recover from the agent the amount so 
 
 paid.' 
 
 An agent instructed to sell for cash, who accepts a check pay- 
 able the next,^ or ten days' after the sale, will be liable for the 
 loss, if the drawer fails before the check can be paid. And a 
 local custom to treat such checks as cash will not avail him.» 
 
 8 476. Form of Action— When Agent liable in Trover. The 
 form of action in which the liability of the agent is determined 
 
 I Piano Mnfg Co. e. Buxton, 86 Cow. (N. Y.) 645; De Tastett v. 
 
 Minn. 203. 30 N. W. Rep. 668. Crousillat, 2 Wash. (U. S. C. C.) 133; 
 
 « Walker v. Walker, 5 Heisk. Thome v. Deas, 4 Johns. (N. Y.) 84; 
 
 (Tenn ) 425. Shoenfeld v. Fleischer, 73 111. 404. 
 
 » Wilson V. Wilson, 26 Penn. St. « Phoenix Ins. Co. v. Frissell. — 
 
 ggg Mass. — , 8 North E. Rep. 348. See 
 
 ♦ Foster v. Preston, 8 Cow. (N. Y.) also to same effect, Franklin Ins. Co. 
 198- Kerr e. Cotton, 23 Tex 411; e. Sears, 21 Fed. Rep. 230. 
 
 eee Buell «. Chapin, 99 Mass. 594, 97 t Hall v. Storrs, 7 Wis. 253. 
 
 Am. Dec. 58. • Harlan v. Ely. 68 Cal. 523. 
 
 • Park V. Hamond, 4 Camp. 344; • Hall ». Storrs. supra. 
 Perkins c. Washington Ins. Co., 4 
 
 320
 
 Ohap. II.] LIABILITT OF AGENT TO PRINCIPAL. § 476. 
 
 is usually assumpsit or a special action on the case, but there are 
 cases in which trover is the proper remedy, as where the conduct 
 of the agent amounts to a conversion. 
 
 Conversion is defined to be an unauthorized assumption and 
 exercise of the right of ownership over goods belonging to an- 
 other, to the exclusion of the owner's rights.* A constructive 
 conversion takes place when a person does such acts in reference 
 to the goods of another as to amount in law to an appropria- 
 tion of the property to himself. Every unauthorized taking 
 of personal property, and all intermeddling with it beyond the 
 extent of the authority conferred, in case a limited author- 
 ity has been given, with intent so to apply and dispose of it as 
 to alter its condition or to interfere with the owner's dominion, is 
 a conversion.' 
 
 In many cases it becomes difficult to determine whether the 
 misconduct of the agent consists in a mere breach of instructions 
 or amounts in law to a conversion ; and the distinctions made in 
 many cases seem to be exceedingly technical. A distinction is, 
 nevertheless, to be made. Thus it has been held that if property 
 be delivered to an agent with instructions to sell it at a certain 
 price, and he sells it for less than that price, he is not liable in 
 trover as for conversion. In such a case the agent had a right to 
 sell and deliver, and in that respect did no more than he was 
 authorized to do. He disobeyed instructions as to price only, and 
 was liable for misconduct but not for conversion of the prop- 
 erty.* So where an agent was authorized to deliver goods on 
 receiving sufficient security, but delivered them on inadequate 
 security, it was held that trover would not lie.* 
 
 On the other hand, where a factor in Buffalo was directed to 
 sell wheat at a certain specified price on a particular day, or if not 
 so sold to ship to New York, and did not sell or ship it on that 
 day, but sold it the next day at the price named, it was held to 
 be a conversion." So where the plaintiff delivered to the defend- 
 ant a promissory note to get it discounted, but with instructions 
 
 • Adams ». Robinson, 65 Ala. 586; T.) 74; Dufresne v. Hutchinpon, 8 
 
 Myers v. Gilbert, 18 Ala. 467. Taunt. 117; Palmer v. Jarmain, 2 M. 
 
 «Bouv. Law Diet. "Conversion;" & W. 283. 
 
 laverty v. Snethen, 68 N. Y. 532, 23 ^Cairnes v. Bleecker, 12 Johns. (N. 
 
 Am. Rep. 184. T.) 300. 
 
 •Sarjeant v. Blunt, 16 Johns. (N. » Scott v. Rogers, 81 N. Y. 676. 
 
 21 321
 
 § 477. THE LAW OF AGENCY. [Book iV. 
 
 not to let it go out of his hands without receiving the money ; 
 and the defendant, without wrongful intent, delivered it to F, 
 who promised to get and return the money on it, but who, hav- 
 ing obtained the money, appropriated it to his own use, it was 
 held that the defendant was liable for the conversion of the note. 
 The court said that the defendant had a right to sell the note, 
 and if he had sold it for less than the price stipulated, he would 
 not have been liable in trover, but he had no right to deliver it 
 to F, to take away, any more than he had to pay his own debt 
 with it.» 
 
 § 477. Same Subject — The Hule stated— Intent immaterial. 
 The result of the authorities may be said to be, that if the agent 
 parts with the property in any way or for any purpose not auth- 
 orized, he is liable for a conversion ; but if he parts with it in 
 accordance with his authority, but sells it at a less price, or mis- 
 applies the proceeds, or takes inadequate security, he is not liable 
 for a conversion of the property, but only in an action for dam- 
 ages on account of the misconduct.' 
 
 In such cases the question of good faith is not involved. A 
 wrongful intent is not an essential element of the conversion. 
 It is enough if the owner has been deprived of his property by 
 the act of another assuming an unauthorized dominion and con- 
 trol over it.' 
 
 § 478. How when Agency is gratuitous. The rules hereto- 
 fore laid down are those which apply to cases where the service 
 is to be performed for a reward. Where, however, the service 
 
 ' Laverty v. Snethen, supra. " If or that the agent has without neces- 
 
 one man who is intrusted with the sity sold or otherwise disposed of the 
 
 goods of another, put them into the property contrary to his instructions, 
 
 hands of a third person contrary to Where an agent wrongfully refuses 
 
 orders, it is a conversion." Syeds v. to surrender the goods of his princi- 
 
 Ha3% 4 T. R. 260. Same point, pal, or wholly departs from his au- 
 
 Spencer v. Blackman, 9 Wend. (N. thority in disposing of them, he 
 
 Y.) 167. makes the property his own and may 
 
 2 Laverty v. Snethen, 68 N. Y. 523, be treated as a tort feasor." Mc]\Ior- 
 
 23 Am. Rep, 184. " Trover," says ris v. Simpson, 21 Wend. (N. Y.) 610; 
 
 Bronson, J., " may be maintained Galbreath «. Epperson, — Tenn, — , 
 
 when the agent has wrongfully con- 1 S. W. Rep. 157. 
 verted the property of his principal • Laverty t>. Snethen, 68 N. Y. 522; 
 
 to his own use, and the fact of the 23 Am. Rep. 184; Scott v. Rogers, 81 
 
 conversion may be made out by N. Y. 676. 
 showing either a demand and refusal, 
 
 322
 
 Chap. II.] LIABILITY OF AGENT TO PRINCIPAL. 
 
 §478. 
 
 is to be gratuitous, certain other considerations become import 
 tant. 
 
 If in such a case the agent refuses to enter upon and perform 
 the service at all ; if his default consists in the mere not doing 
 of a thing which he had promised to perform, and it be not a case 
 "where the law imposes upon him the duty to perform it, the fact 
 that the performance was to be gratuitous, that the promise to 
 perform was entirely without consideration, will furnish a com- 
 plete defense to a claim for damages on account of such default.' 
 
 > Balfe V. West, 13 0. B. 466, 23 
 Eng. L. & Eq. 506 ; Elsee v. Gatward, 
 6 T. R. (Eng.) 143; Thome v. Deas, 4 
 Johns. (N. Y.) 84; Spencer c. Towles, 
 18 Mich. 9. 
 
 See Nixon v. Bogin, 26 S. 0. 611, 2 
 S. E. Rep. 302. 
 
 Thome «. Deas, supra, was an ac- 
 tion on the case for a non-feasance in 
 not effecting insurance as the defend- 
 ant had gratuitously undertaken to 
 do. Chief Justice Kent, in deliver- 
 ing the opinion of the court, said: 
 "The chief objection raised to the 
 right of recovery in this case is the 
 •want of consideration for the promise. 
 The offer on the part of the defend- 
 ant to cause insurance to be effected 
 was perfectly voluntary. Will, then, 
 an action lie, when one party intrusts 
 the performance of a business to 
 another who undertakes to do it grat- 
 uitously and wholly omits to do it? 
 If the party who makes this engage- 
 ment, enters upon the execution of 
 the business,and does it amiss through 
 the want of due care, by which dam- 
 age ensues to the other party, an ac- 
 tion will lie for this misfeasance. But 
 the defendant never entered upon the 
 execution of his undertaking, and the 
 action is brought for the non-feasance. 
 Sir William Jones, in his ' Essay on 
 the Law of Bailments,' considers 
 this species of undertaking to be as 
 extensively binding in the English 
 law as the contract of mandatum in 
 
 the Roman law ; and that an action 
 will lie for damage occasioned by 
 the non-performance of a promise to 
 become a mandatary, though the 
 promise be purely gratuitous. This 
 treatise stands high with the profes- 
 sion as a learned and classical per- 
 formance, and I regret that on this 
 point I find so much reason to ques- 
 tion its accuracy. I have carefully 
 examined all the authorities to which 
 he refers. He has not produced a 
 single adjudged case; but only some 
 dicta (and those equivocal) from the 
 Tear Books, in support of his opin- 
 ion; and were it not for the weight 
 which the authority of so respectable 
 a name imposes, I should have sup- 
 posed the question too well settled to 
 admit of an argument. A short re- 
 view of the leading cases will show 
 that, by the common law, a marv- 
 daiary, or one who undertakes to do 
 an act for another without reward, is 
 not answerable for omitting to do the 
 act, and is only responsible when he 
 attempts to do it, and does it amiss. 
 In other words he is responsible for a 
 misfeasance, but not for a non-feasance 
 even though special damages are 
 averred. Those who are conversant 
 with the doctrine of mandatum in 
 the civil law, and have perceived the 
 equity which supports it and the good 
 faith which it enforces may, perhaps, 
 feel a portion of regret that Sir Wil- 
 liam Jones was not successful in his 
 
 323
 
 § 479. THE LAW OF AGENCY. [Book lY. 
 
 This is upon the familiar ground that the non-performance of a 
 gratuitous executory contract constitutes no cause of action. 
 
 But where, on the other hand, the agent has undertaken or 
 entered upon the performance of the service, although it be 
 gratuitous, it then becomes his duty to conform to the instruc- 
 tions given. If he were not willing to do so, he should have 
 declined to serve; but having assumed the performance of the 
 service, the trust and confidence reposed furnish a sufficient con- 
 sideration for the undertaking to obey instructions, and a failure 
 to do so, will subject him to liability for the loss or damage 
 occasioned thereby.* 
 
 § 479. Exceptions to this Rule. This rule which requires 
 adherence to the instructions of the principal is subject to cer- 
 tain exceptions, growing out of the nature of the duty to be 
 performed, or the necessities or circumstances of the case. 
 Thus— 
 
 S 480. Agent not bound to perform illegal or immoral Act, 
 The law will not lend its sanction to the commission of an illegal 
 or immoral act. An agent therefore cannot be held responsible 
 for the disobedience of instructions which required the perform- 
 ance of an act illegal or immoral in itself, or whose natural and 
 legitimate result would be of that nature.' 
 
 attempt to ingraft this doctrine, in all Am. Dec. 470; Williams v. Higgins, 
 
 its extent, into the English law. I 80 Md. 404; Short v. Skipwitb, 1 
 
 have no doubt of the perfect justice Brock. (U. S. C. C.) 104; Walker v. 
 
 of the Roman rule, on the ground Smith, 1 Wash. (U. 8. C. C.) 152; 
 
 that good faith ought to be observed, Spencer «. Towles, 18 Mich. 9. 
 
 because the employer placing reliance Thus if a person undertakes, even 
 
 upon that good faith in the mandatary voluntarily and gratuitously, to invest 
 
 was thereby prevented from doing money for another, and disregards 
 
 the act himself or employing another positive instructions given as to the 
 
 to do it. * * * But there are specific character of the security to 
 
 many rights of moral obligation be taken, he is liable if the invest- 
 
 which civil laws do not enforce, and ment should fail on that account, 
 
 are therefore left to the conscience of Williams v. Higgins, 30 Md. 404. 
 
 the individual as rights of imperfect But where agency is gratuitous, an 
 
 obligation ; and the promise before agent is not liable for not collecting 
 
 us seems to have been so left by the without proof of negligence. Nixon 
 
 common law which we cannot alter v. Bogin, 26 S. C. 611, 2 S. E. Rep. 
 
 and which we are bound to pro- 302. 
 
 nounce." See also Benden v. Mann- a Brown ri. Howard, 14 Johns (N. 
 
 ing, 2 N. H. 289. Y.) 119; Davis v. Barger, 57 Ind. 54; 
 
 > Passano v. Acosta, 4 La 26, 23 Elmore t. Brooks, 6 Heisk. (Tenn.) 45. 
 
 324
 
 Chap. II.] LIABILITY OF AGENT TO PRINCIPAL. § 483. 
 
 § 481. Departure from Instructions may be justified by sud- 
 den Emergency. Another exception to this rule is based upon 
 the necessities of the case, as where, without the agent's fault or 
 neglect, some sudden emergency or supervening necessity arises, 
 or some unexpected event happens, which will not admit of delay 
 for communication or consultation with the principal, and a lit- 
 eral adherence to instructions becomes impossible or would 
 defeat the very object sought to be attained. In such a case if 
 the agent, exercising prudence and sound discretion, in good faith 
 adopts the course which seems best under the circumstances as 
 then existing, he will be justified although subsequent events 
 may demonstrate that some other course would have been better.' 
 
 § 482. Same Subject— Limitations. But while extraordinary 
 circumstances may thus justify the assumption of extraordinary 
 powers, it does not necessarily follow that an agent may assume 
 any or all extraordinary powers, and bind his principal by acts 
 done under such assumed powers. The same general princi- 
 ples apply here that govern the implication of authority from 
 circumstances in other cases. The powers assumed must not 
 exceed the exigencies of the occasion. They must be limited 
 both in nature and extent by the necessities of the case, and must 
 bear as close relationship as possible to the authority actually 
 conferred.' 
 
 § 483. Wliere the Authority has been substantially pursued, 
 Agent not liable for immaterial Departure. As has been already 
 stated, no substantial damages can be recovered from the agent 
 for a purely circumstantial departure from instructions, not affect- 
 ing the result.' Where it is shown that the instructions have not 
 been followed and that a loss has ensued, the burden of proving 
 that the departure from the course prescribed was immaterial and 
 did not cause the loss, is upon the agent.* The very fact that 
 
 > Greenleaf «. Moody, 13 Allen Drummoad e. Wood, 2 Cai. (N. Y. 
 
 (Mass.) 363; Forrestier v. Bordman, 1 810; Liotard «. Graves, 3 Cai. (N. Y.) 
 
 Story CD. S. C. C.) 43; Judson v. Stur- 226; Bartlett c. Sparkman, 95 Mo» 
 
 ges, 5 Day (Conn.) 556; Milbank «. 136, 6 Am. St, Rep. 35. 
 
 Dennistoun. 21 N. Y. 386;Qoodwillie 'Foster v. Smith, 3 Cold. (Tenn.) 
 
 c. McCarthy, 45 111. 186; Catlin «. 474, 88 Am. Dec. 604. 
 
 Bell, 4 Camp. 183; Jervis v. Hoyt, 2 'See ante, § 413. 
 
 Hun (N. Y.)637; Foster «. Smith, 2 < Wilson v. Wilson, 28 Penn. St. 
 
 Cold. (Tenn.) 474, 88 Am. Dec. 604; 393; Walker v. Walker, 5 Heisk. 
 
 Dusarv. Pent, 4 Binn (Penn.) 361; (Tenn.) 425. 
 
 325
 
 I 484. THE LAW OF AGENCY. [Book IV. 
 
 tho principal gave directions is evidence that he regarded them 
 as material, and if the agent, except in the case of sudden emer- 
 gency before referred to, voluntarily elects to disregard them and 
 pursue a course of his own election, he must be prepared to 
 show that the instructions were not in fact material. And it is 
 evident from the very nature of the case that such proof is often 
 difficult to make. 
 
 Thus in a case above referred to, if the agent had made his 
 remittance in large bills as directed, the letter containing them 
 might have been lost in the same manner that the more bulky 
 package containing the larger number of small bills was lost ; but 
 it was obviously impossible to ' prove that as a matter of fact it 
 would have been lost ; and the court properly held that the agent 
 was the insurer of the safety of the method which he adopted.' 
 In such cases, it has been said, that every doubtful circumstance 
 will be construed against the agent." In short, instructions are 
 followed at the principal's risk ; they are violated at the risk of 
 the agent. 
 
 § 484. Where Instructions are ambiguous, and Agent acts in 
 good Faith. If the principal desires his instructions to be pur- 
 sued, it is obviously necessary that he should make them intelli- 
 gible and clear. If however they are so ambiguous as to be capa- 
 ble of two interpretations, and the agent in good faith and with 
 due diligence adopts one of them, he cannot be held liable to the 
 principal for a loss that may result, upon the latter's claim that 
 he meant the other. * 
 
 This subject has been discussed in a preceding section, and what 
 is there said is applicable here. * 
 
 § 485. How affected by Custom. As has been already seen, 
 it is not only within the agent's power, but it is also his duty, in 
 the absence of countervailing circumstances, to conform to such 
 valid and established usages and customs as apply to the snbject- 
 
 > Wilson e. Wilson, supra. Roy v. Beard, 8 How. (U. S.) 451, 1 
 
 • Adams 0. Robinson, 65 Ala. 588; Myers Fed. Dec. § 458; Loraine ». 
 
 Dodge V. Tileston, 13 Pick, (Mass.) Cartwright, 3 Wash. (U. S. C. C.) 
 
 333^ 151; De Taslett «. Crousillat, 2 Wash. 
 
 3 Bessent v. Harris, 63 N. C. 642; (U. S, C. C.) 132; Pickett 7). Pearsons, 
 
 National Bank ». Merchants Bank, 91 17 Vt. 470; Minnesota Linseed Oil 
 
 U. S. 92; Shelton v. Merchants Dis- Co. v. Montague, 65 Iowa, 67. 
 
 patch Transp. Co. 59 N. Y. 258; Le « Ante, §§ 314. 815. 
 
 326
 
 Cliap. II.] LIABILITY OF AGENT TO PKINCIPAL. § 486, 
 
 matter or the performance of his agency. One who makes a 
 contract in the face of an established custom relating to the mat- 
 ter, will, in the absence of anything to the contrary, be presumed 
 to have made it subject to the custom. So a person who employs 
 another to act for him in a particular place or market, will be 
 presumed, when nothing appears to indicate a different intent, as 
 intending that the business to be done, will be done according to 
 the usage or custom of that place or market.^ 
 
 Custom cannot however, as between the principal and his agent, 
 override positive instructions to the contrary." If, in such a case, 
 the agent is not able, or does not wish, to conform to the in- 
 structions, he should refuse to accept, or should renounce the 
 trust. 
 
 So, as has been seen, a custom, unless shown to have been 
 known and assented to, will not justify the changing of the essen- 
 tial character of the relation between the principal and his agent,' 
 nor can it operate to authorize the making of an invalid instead 
 of a valid contract, or to bind the principal to take one thing 
 when he has ordered another.* 
 
 But, as has already been stated, where no contrary instructions 
 are given, it is the duty of the agent to conform to the custom, 
 and failure to do so will subject him to liability for such losses 
 as may result therefrom.' 
 
 § 486. Same Subject— When Presumption conclusive. How 
 far the presumption, that the parties had the custom in contem- 
 plation, is conclusive, is a question not always easy of determina- 
 tion. Some customs are so well established and so universally 
 
 » Bailey v. Bensley. 87 111. 556; Storrs, 7 Wis. 253; Bliss «. Arnold, 8 
 Lyon V. Culbertson, 83 111. 33; United Vt. 252, 30 Am. Dec. 467; Hutchings 
 Stales L. Ins. Co. v. Advance Co., 80 v. Ladd, 16 Mich. 493; Leland v. 
 111. 549; Byrne v. Schwing, 6B. Mon, Douglass, 1 Wend. (N. T.)490; Clark 
 (Ky.) 199; De Lazardi u. Hewitt, 7 B. «. Van Northwick, 1 Pick. (Mass.) 
 Mon. (Ky.) 697; White v. Fuller, 67 343;Catlin v. Smith. 24 Vt.85; Day ©. 
 Barb. (N. Y.) 267; Smythec. Parsons, Holmes. 103 Mass. 306; Parsons t>. 
 Kan. — , 14 Pac. Rep. 444. Martin, 11 Gray (Mass.) 112; Ledyard 
 
 » Wanless v. McCandless, 38 Iowa, v. Hibbard, 48 Mich. 421. 
 
 20; Robinson Machine Works v. » Robinson v. Mollett, L. R. 7 H. 
 
 Vorse, 52 Iowa, 207; Osborne v. L. 802, 14 Eng. Rep 177. 
 
 Rider, 62 Wis. 235; Greenstine v. « Perry v. Barnett, 15 Q. B, Div. 
 
 Borchard, 50 Mich. 434, 45 Am. Rep. 388. 
 
 51 ; Barksdale v. Brown, 1 Nott. & M, » Grcely v. Bartlett, 1 Greenl. (Me.) 
 
 (S. C.) 517, 9 Am. Dec. 720; Hall v. 172, 10 Am. Dec. 54. 
 
 327
 
 § 487. THE LAW OF AQENOT. [Book lY. 
 
 recognized as to have become a part of the law of the land and 
 a party will not be heard to allege his ignorance of them. Others 
 however, are so restricted as to locality or trade or business, that 
 ignorance of thera is a valid reason why a party may not be held 
 to have contracted in reference to them. 
 
 Not only the existence of such a custom, but whether knowl- 
 edge of it exists in any particular case, are questions of fact for 
 the jury. It is for them to determine, under proper instructions 
 from the court, whether from the evidence as to the existence, 
 duration and other characteristics of the custom, and as to the 
 knowledge thereof by the parties, there is shown a custom of 
 Buch age and character that the law will presume that the parties 
 knew of, and contracted in reference to, it ; or whether the cus- 
 tom is so local and particular that knowledge in the party to be 
 charged must be aflSrmatively shown and may be negatived.* 
 
 § 487. No Presaimption of Disobedience. The law does not 
 presume that the agent has not obeyed his instructions or that he 
 does not intend to obey them. It matters not what the intent or 
 supposition of the principal may be, the law will presume that 
 the agent obeyed the instructions that were given and as they 
 were given, and if the contrary is alleged, it must be proved.* 
 
 III. 
 
 NOT TO BE NEGLIGENT. 
 
 § 488. In general. Many of the questions that might fall 
 under this head would also properly be classed under the preced- 
 ing. That is, the negligence complained of may be the result of 
 a failure to observe positive instructions, as well as of a failure 
 
 1 Walls V. Bailey, 49 N. T. 464, 10 Reeves. 9 Pick. (Mass.) 200; Citizens 
 
 Am. Rep. 407; "Williams v. Gilman, 3 Bank v. Grafflin, 31 Md. 507; 1 Am. 
 
 Greenl. (Me.) 276; Bradley v. Whee- Rep. 66; McMasters v. Pennsylvania 
 
 ler, 44 N. Y. 500: Higgins ». Moore, R. R. Co., 69 Penn, St. 374, 8 Am. 
 
 84 N. Y. 425; Dawson v. Kittle, 4 Rep. 264; Farns worth «. Cliase, 19 N. 
 
 Hill (N. Y.) 107; Caldwell c. Dawson, H. 584, 51 Am. Dec. 206; Randall v. 
 
 4 Mete. (Ky.) 121 ; Barnard «. Kellogg, Smith, 63 Me. 105, 18 Am. Rep. 200. 
 
 10 Wall. (U. S.) 383; Martin v. May- « Bangs v. Hornick, 30 Fed, Rep. 
 
 nard, 16 N. H, 166; Dodge v. Favor. 97; Bartlett v. Smith, 13 Fed. Rep. 
 
 15 Gray (Mass.) 82; Fisher t). Sargent, 263; Kirkpatrick c. Adams, 20 Fed. 
 
 10 Gush. (Mass.) 250; Stevens v. Rep. 287. 
 
 328
 
 Chap. II.] LIABILITY OF AGENT TO PEINOIPAL. § 491. 
 
 to perform the general duties, which pertain to the undertaking, 
 but which were not the object of express directions. Ko harm 
 can come, however, if strict lines of demarkation be not always 
 drawn. 
 
 § 489. Diflaculty of defining Negligence. No general defini- 
 tion of negligence can be given which shall be at once so expan- 
 sive as to cover all of the questions that may arise, and so close- 
 fitting as to meet the infinite variety of individual cases. None 
 therefore will be attempted. Neither is it believed that there is 
 any advantage to be derived from an attempt to adhere to the 
 former arbitrary divisions into slight^ ordinary and gross negli- 
 gence, sufficient to compensate for the misleading and unsatisfac- 
 tory results that are often experienced where these distinctions 
 are made the conclusive tests.* 
 
 § 490. The general Rule. It is the duty of every agent to 
 bring to the performance of his undertaking, and to exercise in 
 such performance, that degree of skill, care and diligence which 
 the nature of the undertaking and the time, place and circum- 
 stances of the performance justly and reasonably demand. A 
 failure to do this, whereby the principal suffers loss or injury, 
 jonstitutes negligence for which the agent is responsible." 
 
 § 491. Consideration of this Rule. It is obvious that the de- 
 gree of skill, care and diligence required in any given case is not 
 a fixed quantity, but depends upon time, place and circumstances. 
 That degree which would meet the requirements of the case of 
 an agent sent to sell a horse at a country fair might be entirely 
 insufficient in the case of a broker authorized to sell valuable 
 securities upon the stock exchange. So a different degree might 
 be expected in the case of one casually employed in a single in- 
 stance and professing no peculiar skill, from that which might 
 reasonably be demanded in the case of one employed in the line 
 of his business or profession in which he held himself out as 
 possessing peculiar skill. And again, even in the same general 
 line, it might be reasonable to expect a higher degree in the case 
 
 » See Gill «. Middleton, 105 Mass. t. Boston Gaslight Co., 8 Gray (Mass.) 
 
 477, 7 Am. Rep. 548. 123, 69 Am. Dec. 233; Gaither v. 
 
 8 Leighton v. Sargent, 27 N. H. 460. Myrick, 9 Md. 118. 66 Am. Dec. 816; 
 
 69 Am. Dec. 888; Gill v. Middleton, Whitney t>. Martine, 88 N. Y. 535; 
 
 105 Mass. 477, 7 Am. Rep. 548; Holly Heinemann v. Heard, 50 N. Y. 35. 
 
 329
 
 I 492. THE LAW OF AGENCY. [Book IV. 
 
 of one who pursued his calling in a great city than in the case of 
 him whose field of action was in a country village.* 
 
 But the difference is a difference of degree only and not in 
 kind. The test still remains: Given an employment of this 
 nature, to be performed at this time and place and under these 
 circumstances, what degree of skill, care and diligence may justly 
 and reasonably be demanded ? 
 
 § 492. Same Subject. These considerations lead to still oth- 
 ers. Is it the case of one employed in a learned profession ? If 
 80, what rules of procedure in such cases have been established 
 by authority or custom ? What standards of performance have 
 been agreed upon ? What means of accomplishing the given 
 purpose have been provided and how have they been used ? 
 
 Or is it the case of one employed in some particular depart- 
 ment of business? If so, have any local rules or customs been 
 established in such cases? Are there particular places or peculiar 
 times at which such duties are to be performed? Has common 
 experience taught that any special method should be pursued or 
 any peculiar precaution observed in such transactions ? 
 
 And so, in every case. The how depends in large degree upon 
 the what^ the where and the v^hen. 
 
 % 493. Same Subject— Agent bound to exercise usual Precau- 
 tions. These considerations lead still further to the restatement 
 of one aspect of the general rule above given. The agent is 
 bound to exercise and observe all the precautions ordinarily pur- 
 sued in relation to the particular business in which he is em- 
 ployed, and according to the usages of the place and the 
 circumstances of the times within which the business is to be 
 transacted.* 
 
 8 494. Same Subject— Not bound to exercise highest Care. 
 Except in those cases in which he voluntarily and without suffi- 
 cient reason, violates express instructions, the agent is not ordi- 
 narily an insurer. Unless he expressly agrees to do so, he is not 
 bound to exercise the highest possible degree of care. Unless he 
 professes to be an expert, he is not ordinarily bound to bring his 
 performance up to the standard of an expert. If he be, for ex- 
 ample, a general practitioner in the country, he cannot be 
 
 * Small V. Howard, 128 Mass. 131, » Wright «. Central R R. Co. 16 
 
 35 Am. Rep. 3G3. Ga. 88. 
 
 330
 
 Chap. II.] LIABILITY OF AGENT TO PRINCIPAL. § 495. 
 
 required to have and exercise that high degree of skill to which 
 the specialist of the metropolis attains.* 
 
 § 495. Same Subject— Good Faith — Reasonable Diligence. 
 But the agent is, in all cases, bound to act in good faith, and to 
 exercise reasonable diligence, and such care and skill as are ordi- 
 narily possessed by persons of common capacity engaged in 
 the same business.* As is said by Judge Cooley : " Whoever 
 bargains to render services for another undertakes for good faith 
 and integrity, but he does not agree that he will commit no errors. 
 For negligence, bad faith or dishonesty, he would be liable to his 
 employer ; but if he is guilty of neither of these, the master or 
 employer must submit to such incidental losses as may occur in 
 the course of the employment, because these are incident to all 
 avocations, and no one, by any implication of law, ever under- 
 takes to protect another against them." • 
 
 Further than this, general statements of the principle cannot 
 usefully go. The principle is not an uncertain one, though the 
 question of what is reasonable in any given case is not one which 
 can ordinarily be measured by any pre-established inflexible stand- 
 ard. There are cases, it is true, where a limit must be fixed, and 
 one so fixed, though purely arbitrary, is to be observed. But there 
 is a growing tendency on the part of courts, and it is in further- 
 ance of justice, to measure each case by the more flexible standard 
 of its own facts and circumstances. " Care and diligence should 
 vary according to the exigencies which require vigilance and 
 
 I Small V. Howard, 128 Mass. 131, Conn. 209, 23 Am. Dec. 333; How- 
 
 35 Am. Rep. 363; Leigh ton v. Sar- ard v. Grover, 28 Me. 97; 48 Am. 
 
 gent, 27 N. H. 460, 59 Am. Dec. 388. Dec. 478; Myles v. Myles, 6 Bush. 
 
 sLeighton v. Sargent, 27 N, H. (Ky.) 237; Kempker v. Roblyer, 29 
 
 460, 59 Am. Dec. 388; Whitney v. Iowa, 274; Stevens v. Walker, 55 111. 
 
 Marline, 88 N. Y. 535; Heinemann®. 151; Chandler®. Hogle, 58 111.46; 
 
 Heard, 50 N. Y. 35; Gaither ®. My- Deshler ». Beers, 33 111. 368; Phillips 
 
 rick, 9 Md. 118, 66 Am. Dec. 316; v. Moir, 69 111. 155; Babcuck v. Orbi- 
 
 Fletcher v. Boston & Maine R. R. 1 son, 25 Ind. 75; Leverick v. Meigs, 1 
 
 Allen (Mass.) 9, 79 Am. Dec. 695; Cow. (N. Y.) 645; Van Alen v. Van- 
 
 Varnura v. Martin, 15 Pick. (Mass.) derpool, 6 Johns. (N. Y.) 69, 5 Am. 
 
 440; Stimpson v. Sprague, 6 Greenl. Dec. 192; Howatt v. Davis, 5 Munf. 
 
 (Me.) 470; Crooker v. Hutchinson, 1 (Va.) 34, 7 Am. Dec. 681; Greely v. 
 
 Vt. 73; Holmes v. Peck. 1 R. I. 243; Bartlett, 1 Greenl. (Me.) 173, 10 Am. 
 
 Wilson V. Russ, 20 Me. 421; Grannis Dec. 54; Folsom v. Mussey, 8 GreenL 
 
 ». Branden, 5 Day (Conn.) 260, 5 Am. (Me.) 400, 23 Am. Dec. 622. 
 Dec. 143; Landon v. Humphrey, 9 » In Page v. Wells, 31 Mich. 415. 
 
 331
 
 § 496. THE LAW OF AGENCY. [Book lY. 
 
 attention, conforming in amount and degree to the particular cir- 
 cumstances under wliich they are to be exerted." * 
 
 § 496. Same Subject— When Agent warrants Possession of 
 Skill. Wherever the undertaking of the agent is one which in 
 its nature requires the possession and exercise of professional 
 gkill, the law will presume, in the absence of anything to the 
 contrary, a warranty on tlie part of the agent that he possesses 
 and will exercise a reasonable and competent degree of the skill 
 required,* 
 
 And the same rule applies to any other case requiring special 
 or peculiar skill. If the agent undertakes, for a reward, the per- 
 formance of such a duty, without possessing a reasonable and 
 competent degree of skill, of which fact the principal is ignorant, 
 he will be liable to the principal for the loss or injury resulting 
 therefrom.* If, however, the principal had notice or knowledge 
 of the deficiency at the time of the employment, the agent will 
 not be so liable.* No warranty of skill will be implied when the 
 principal knows that no such skill is possessed. If he sees fit 
 to employ an unskilled person, he must be content with unskillful 
 performance. And the same thing is true where the agent is 
 employed out of the line of his employment. If the principal 
 sees tit to employ an auctioneer to conduct his case in court, he 
 cannot complain of his attorney's want of skill, unless the latter 
 expressly warranted that he possessed it. 
 
 § 497. How when Agency is gratuitoiia. "Where the duty to 
 be performed by the agent is purely voluntary in its nature, a 
 somewhat different rule applies. Friends and neighbors are 
 every day rendering mutual services for the accommodation and 
 
 • Merrick. J. in Holly c. Boston Grover, 28 Me. 97, 48 Am. Dec. 478, 
 Gaslight Co. 8 Gray (Mass.) 131, 69 and see cases cited in preceding see- 
 Am. Dec. 233. tion. 
 
 » Wilson V. Brett, 11 M. «& W. 113; 'Kirtland v. Montgomery, 1 Swan 
 
 Stanton v. Bell. 2 Hawks (N. C.) 145, (Tenn.) 453; McDonald v. Simpson, 4 
 
 11 Am. Dec. 744; Leighton v. Sargent, Ark. 523; Wilson v. Brett, 11 M. & 
 
 27 N. H. 460, 59 Am. Dec. 388; Var- W. 113; Moneypenny v. Hartland, 1 
 
 num V. Martin, 15 Pick. (Mass.) 440; Car. & P. 352, s. c. 2 Id. 378; McFar- 
 
 Stimpson v. Sprague, 6 Greenl. (Me.) land v. McClees, — Penn. St. — , 5 
 
 470; Crooker v. Hutchinson, 1 Vt. Atl. Rep. 50, and see generally cases 
 
 73; Holmes©. Peck, 1 R. I. 242; cited in preceding section. 
 
 Grannis v. Brandea, 5 Day (Conn.) * Story on Bailments, § 435; Felt «t 
 
 260, 6 Am. Dec. 143; Howard v. School District, 24 Vt. 297. 
 
 332
 
 Chap. II.] LIABILITY OP AGENT TO PRINCIPAU § 497. 
 
 convenience of each other, with no thought of exacting or receiv- 
 ing a reward. These services, too, are often of such a nature that 
 professional or skilled agents might well have been employed if 
 they were accessible or within the means of the parties ; as where, 
 in rural di£>tricts, neighbors render for each other simple medical 
 aid or give each other assistance, counsel or advice, in the trans- 
 action of their affairs. 
 
 In these cases it is evident that it is not contemplated that the 
 party so acting possesses any peculiar skill or that he undertakes 
 to exercise any. The reasonable degree of skill which such an 
 agent could be held accountable for, is obviously very small, and 
 the negligence which would make him liable must be of that 
 degree which is often, for want of a better term, characterized 
 as gross.* 
 
 Thus where B, a general merchant, who was about to export a 
 case of leather, being applied to by A to ship a case for him at 
 the same time, voluntarily and without any compensation, and by 
 agreement with A, made one entry of both cases at the custom 
 house, but under an improper designation, by reason of which 
 both cases were seized, it was held that he was not liable for the 
 loss sustained by A. 
 
 Heath, J., said : " The defendant in this case was not guilty 
 either of gross negligence or fraud ; he acted hona fide. If a 
 man applies to a surgeon to attend him in a disorder, for a reward, 
 and the surgeon treats him improperly, there is gross negligence 
 and the surgeon is liable to an action ; the surgeon would also be 
 liable for such negligence, if he undertook gratia to attend a 
 sick person, because his situation implies skill in surgery ; but if 
 the patient applies to a man of a different employment or occu- 
 pation, for his gratuitous assistance, who either does not exert 
 all his skill, or administers improper remedies to the best of his 
 ability, such person is not liable. It would be attended with 
 
 » Hammond «. Hussey, 51 N. H. 40, Ala. 265; Skelley v. Kahn, 17 111. 171; 
 
 12 Am. Rep. 41; Shiells t>. Black- Lampley t). Scott, 24 Miss. 533; Eddy 
 
 burne, 1 H. Bl. 158; Beardslee v. v. Livingston, 85 Mo. 493. Bissell v. 
 
 Richardson, 11 Wend. (N. Y.) 25, 25 New York, &c. R. R. Co, 29 Barb. 
 
 Am. Dec. 596; Foster v. Essex Bank, (N. Y.) 615; Needles v. Howard, 1 E. 
 
 17 Mass. 479, 9 Am. Dec. 168; Stan- D. Smith (N. Y.) 63; Grant c. Lud- 
 
 tone. Bell. 2 Hawks (N. C.) 145, 11 low, 8 Ohio St. 48. 
 Am. Dec. 744; Haynio v. Waring, 29 
 
 333
 
 fi 498. THE LAW OF AGENCY. [Book lY. 
 
 injurious consequences, if a gratuitous undertaking of this sort 
 fibould subject the person who made it, and who acted to the best 
 of his knowledge, to an action." And Lord Loughborough said : 
 "If in this case a ship-broker, or a clerk in the custom house, had 
 undertaken to enter the goods, a wrong entry would in them be 
 gross negligence, because their situation and employment neces- 
 sarily imply a competent degree of knowledge in making such 
 entries ; but when an application, under the circumstances of this 
 case, is made to a general merchant to make an entry at the 
 custom house, such a mistake is not to be imputed to him as 
 gross negligence." ' 
 
 Such an agent would, however, be liable if bis negligence was 
 of such a nature and degree that it might justly be characterized 
 as wilful or malicious.* 
 
 So even though the agent be possessed of professional skill, 
 yet if under the circumstances, there was no express or implied 
 undertaking to exercise it, he cannot be held liable. Thus if an 
 attorney, in reply to a casual inquiry made upon the street or 
 elsewhere, without any intention to mislead, gives erroneous 
 advice to one to whom he sustains no professional relations, he 
 cannot be held liable.* 
 
 8 498. Same SubJQct— When employed in a Capacity which 
 implies Skill. But where a person holds himself out to the 
 public as possessing professional, peculiar or competent skill ; or 
 offers his services in a profession, occupation or capacity, which 
 from its nature implies the possession of such skill, he will be 
 liable to those who employ or rely upon him in that capacity and 
 upon that supposition, to the same extent as though the services 
 were to be rendered for a reward.* 
 
 This principle is of constant application to the cases of attor- 
 neys and physicians,' but it is not confined to the so-called 
 learned professions. 
 
 » Shiells V. Blackburne, iupra. Grimea, 13 B. Mon. (Ky.) 188; Car- 
 
 « Hammond v. Hussey, supra. penter v. Blake, 60 Barb. (N. Y.) 488; 
 
 » Fish c. Kelly, 17 Com. Bench (N. s. C. 50 N. Y. 696; Howard c. Grover, 
 
 g.) 194. 28 Maine, 97; Craig v. Chambers, 17 
 
 * Shiells «. Blackbume, 1 H. Black- Ohio St. 253; Bendea v. Manning, 2 
 
 Btone, 158; Williams u. McKay, 40 N. N. H. 289; Thorne v. Deas, 4 Johns. 
 
 J. Eq. 189, 53 Am. Rep. 775; McNev- (N. Y.) 84. 
 
 Ins V. Lowe, 40 111. 209; Hord v. » McNevins t). Lowe, «ttj3ra. 
 
 334
 
 Chap. II.] LIABILITY OF AGENT TO PBINCIPAL. § 499. 
 
 Thus if a bank has undertaken the collection of a note or other 
 demand and through its negligence the claim is lost, it is no 
 defense that the collection was to be made gratuitously.* Nor 
 can the managers of a bank escape responsibility for their mis- 
 management on the ground that they received no compensation. 
 In such a case, the court said : " It is true that the defendants 
 were unpaid servants, but the duty of bringing to their office 
 ordinary skill and vigilance was none the less on that account. 
 
 * * * These defendants held themselves out to the public as 
 the managers of this bank, and by so doing they severally engaged 
 to carry it on in the same way that men of common prudence 
 and skill conduct a similar business for themselves." * 
 
 And so where a landlord had undertaken gratuitously to make 
 certain repairs upon the premises of his tenant, but so negligently 
 and unskilfully performed the work that the tenant's wife was 
 injured, the court in Massachusetts said : " It is argued that 
 upon a gratuitous undertaking of this nature, the defendant 
 could only be held resposible for bad faith or for gross negligence, 
 and that it was, therefore, an error to instruct the jury that he 
 was liable for want of ordinary care and skill. But in assumino- 
 to make the repairs at the request of the tenant, he must be con- 
 Bidered as professing to have the requisite skill as a mechanic, 
 and as undertaking to select and furnish the kind and quality of 
 materials appropriate to the accomplishment of the desired object. 
 
 * * * The true question for the jury was whether the defen- 
 dant had discharged the duty which he had assumed, with that 
 due regard to the rights of the other party which might reason- 
 ably have been expected of him under all the circumstances. 
 His undertaking required at least the skill of an ordinary 
 mechanic, and his failure to furnish it, either because he did not 
 possess, or neglected to use it, would be gross negligence." • 
 
 § 499. Same Subject— Bound to exercise the Skill he possesses. 
 So where an agent possesses a competent degree of skill and en- 
 ters upon the performance of an undertaking requiring its exer- 
 cise, he will be liable if he neglects to use it, although the ser- 
 vice is to be gratuitous. 
 
 » Durnford t>. Patterson, 7 Martin « Williams v. McKay, supra. 
 
 (La.) 460, 12 Am. Dec. 514; SmedesiJ. » Gill v. Middleton, 105 Mass. 477, 
 
 Bank of Utica, 20 Johns. (N. Y.) 372, 7 Am. Rep. 548. See also Steamboat 
 
 8. o. 8 Cow. 662. tj. King, 16 How. (U. S.) 469. 
 
 335
 
 § 499. THE LAW OF AGENOT. [Book IV. 
 
 Thus in a case which has been often cited ' it appeared upon 
 the trial before Rolfe, B., that the plaintiff had intrusted his horse 
 to the defendant, requesting him to ride it for the purpose of 
 showing it to a prospective purchaser. The defendant accord- 
 ingly rode the horse and for the purpose of showing it, took it 
 into a race ground, where in consequence of the slippery nature 
 of the ground, the horse slipped and fell several times, and in 
 falling broke one of its knees. It was proved that the defendant 
 was a person conversant with and skilled in the use of horses. 
 The learned judge left it to the jury to say whether the nature of 
 the ground was such as to render it a matter of culpable negli- 
 gence in the defendant to ride the horse there ; and instructed 
 them, that under the circumstances the defendant, being shown 
 to be a person skilled in the management of horses, was bound 
 to take as much care of the horse as if he had borrowed it, and 
 that if they found that the defendant had been negligent in 
 going upon the ground where the injury was done, or had ridden 
 the horse carelessly while there, they should find for the plaintiff 
 which they accordingly did. 
 
 Upon appeal, this direction was approved. Lord Abingee 
 said that the defendant was bound to use such skill in the man- 
 agement of the horse as he really possessed, and that whether he 
 did so or not, was a proper question for the jury. Parke B. was 
 of the same opinion. "The defendant," said he, "was shown to 
 be a person conversant with horses, and was therefore bound to 
 use such care and skill as a person conversant with horses might 
 reasonably be expected to use ; if he did not, he was guilty of 
 negligence. The whole effect of what was said by the learned 
 judge as to the distinction between this case and that of a bor- 
 rower was this ; — that this particular defendant, being in fact a 
 person of competent skill, was in effect in the same situation as 
 that of a borrower, who in point of law represents to the lender 
 that he is a person of competent skill. In the case of a gratuit- 
 ous bailee where his profession or situation is such as to imply 
 the possession of competent skill, he is equally liable for the 
 neglect to use it." 
 
 Rolfe, B., before whom the case had been tried, said : " The dis- 
 tinction I intended to make was, that a gratuitous bailee is only 
 
 « WUson V. Brett, 11 Mees. & Wels. lia 
 836
 
 Chap. II.] LIABILITY OF AGENT TO PRINCIPAL. § 50 2. 
 
 bound to exercise such skill as he possesses, whereas a hirer or 
 borrower may reasonably be taken to represent to the party who 
 lets, or from whom he borrows, that he is a person of competent 
 skill. If a person more skilled knows that to be dangerous, 
 which another not so skilled as he does not, surely that makes a 
 difference in the liability. I said I could see no difference be- 
 tween negligence and gi'oss negligence — that it was the same thing 
 with the addition of a vituperative epithet ; and I intended to 
 leave it to the jury to say whether the defendant, being as ap- 
 peared by the evidence, a person accustomed to the management 
 of horses, was guilty of culpable negligence." 
 
 § 500. Eeasonable Skill— How determined. How this reason- 
 able degree of skill is to be determined is a question of import- 
 ance. There are cases where its presence or absence is so palpa- 
 ble and unquestionable that the court may so declare as matter of 
 law. But in cases where the facts are controverted, and the ex- 
 istence or non-existence of certain of them may fairly be pre- 
 sumed to affect the mind in any given exigency, there the whole 
 question of the existence of the facts and the conclusions to be 
 deduced from them, is one of fact to be determined by the jury 
 or other tribunal by reference to all the circumstances of the case, 
 including the subject-matter and objects of the agency, and the 
 known character, qualifications and relations of the parties.^ 
 
 § 501. Agent not liable for unforeseen Dangers. It follows 
 as a corollary from the principles above stated, that while the agent 
 is bound to exercise, for the protection of the principal, a reason- 
 able degree of care and skill, and would be liable for any loss or 
 damage which he might sustain on account of a failure so to do, 
 yet the agent can not be held responsible for unforeseen and un- 
 expected losses or damage out of the ordinary course of business 
 or of natural events and not to be guarded against by reasonable 
 diligence or foresight.* 
 
 § 502. Agent presumed to have done his Duty, The law does 
 not presume negligence on the part of the agent. On the other 
 hand, it presumes that the agent has done his duty, until the con- 
 
 ' Pennsylvania R. R. Co. ®. Ogier, 35 Mo. 493; Grant v. Ludlow, 8 Ohio 
 
 85Penn. St. 60, 78 Am. Dec. 333; St. 1. 
 
 Gill V. Middleton, 105 Mass. 477, 7 2 Johnson v. Martin, 11 La. Ann. 
 
 Am. Rep. 548; Eddy t>. Livingston, 27, 66 Am. Dec. 193. 
 
 22 337
 
 § 503. THE LAW OF AGENCY. [Book lY. 
 
 trary appears, and the burden of proof is upon him who alleges 
 a misfeasance, to establish it.' 
 
 § 503. Agent not liable if Principal also negligent. The or- 
 dinary rule of contributory negligence applies to the question 
 under consideration. Thus if the principal has by his own negli- 
 gence, contributed to cause the injury, or if, by use of reasonable 
 diligence on his own part, he could have prevented the injury, 
 the agent can not be held responsible for it.* 
 
 § 504r. When Agent liable for Neglect of Subagent. The 
 question of the liability of the agent for the misconduct of a 
 subagent, has already been considered in an earlier portion of the 
 work to which the reader is referred.' 
 
 § 505. Effect of Ratification upon the Agent's Liability. 
 This question also has been already discussed, and nothing need 
 be added here in reference to it.* 
 
 § 506. The Measure of Damages. The question of the meas- 
 ure of the damages to be recovered for the agent's neglect is 
 substantially the same that arises where an injury has been sus- 
 tained by reason of a violation of instructions. The principal is 
 entitled to full compensation ; to be put into that situation in 
 which he would have been if the agent had performed his duty. 
 In other words, he is entitled to recover such damages as natur- 
 ally, proximately and legitimately result from the wrongful act 
 complained of. Profits which are possible or speculative merely, 
 are not to be recovered, but at the same time, it is not necessary 
 that the loss or damage should be directly or immediately caused 
 by the default, if such loss or damage can fairly be considered as 
 the natural result or just consequence of it.» 
 
 § 507. Same Subject— Judgments, Costs, Coujisel Fees. The 
 principal may often be made liable in actions brought against 
 him by third persons to recover damages for some wrong or injury 
 sustained by them solely by reason of the agent's neglect or default 
 in the performance of his duty to his principal, in which actions 
 the principal may not only be charged in damages, but may be 
 
 > Gaither v. Myrick, 9 Md. 118, 66 ^Ante, § 197; St. Louis, &c. Ry v. 
 
 Am. Dec. 316; Lampley v. Scott, 24 Smith, — Ark. — , 3 S. W. Rep. 364. 
 
 Miss. 533. *Ante, % 170 et seq. 
 
 » Sioux City, &c. R. R. Co. «. Wal- « Bell v. Cunningham, 3 Peters (U. 
 
 ker, 49 Iowa, 278. 8.) 69; Gilson v. Collins, 68 111. 136. 
 
 338
 
 Ciiap. IL] LIABILITY OF AGENT TO PRINCIPAL. § 509. 
 
 compelled to pay costs and counsel fees incurred in the defense. 
 The question thereupon arises how far such judgment, costs and 
 expenses can be regarded as proper elements of damage in an 
 action by the principal against the agent based upon the same 
 neglect and default. 
 
 Of course where the act which caused the injury or damage 
 was done with the express or implied consent or direction of the 
 principal, or has been subsequently ratified by him, or if it was 
 contributed to by some neglect or default on the part of the prin- 
 cipal himself, no recovery can be had by him against the agent. 
 
 Where, however, the act was purely and wholly the result of a 
 violation by the agent of his duty to his principal, the latter upon 
 being sued therefor, may notify the agent of the pendency of the 
 action and call upon him to defend it, and if he fails to defend, 
 he may be held liable to the principal not only for the amount of 
 damages and costs recovered, but for all reasonable and necessary 
 counsel fees and other expenses incurred in such defense.^ 
 
 § 508. Illustrations of this Rule. It is not within the limits 
 of the present work to exhibit in detail all of the various cases 
 in which these principles have been applied. Enough may, how- 
 ever, be given to suflSciently illustrate their application to the law 
 of agency. 
 
 1. Neglect of Agents in making Loans. 
 
 § 509. Liable for resulting Loss. It is the duty of an agent 
 who undertakes to loan money for his principal to exercise rea- 
 sonable care and prudence in the selection of the security ; in the 
 examination of the title ; in the procuring of proper convey- 
 ances; in making the necessary records, and in the performance 
 of those other acts which may be necessary under the circum- 
 stances to perfect and protect the security. If he fails in the 
 performance of this duty, and loss thereby results to his princi- 
 pal, the agent is responsible for the amount of the loss.' 
 
 •Wilson??. Greensboro, 54 Vt. 533; «McFarland v. McClees, — Penu. 
 
 Inhabitants of Westfield v. Mayo, St. — , 5 Atl. Rep. 50; Bank of 
 
 122 Mass. 100, 23 Am. Rep. 292; Owensboro ®. Western Bank, 13 
 
 Chesapeake, &c. Co. t>. County Com- Bush (Ky.) 536, 26 Am. Rep. 211; 
 
 missioners, 57 Md. 201, 40 Am. Rep. Banuon d. Warfield, 42 Md. 22. 
 430; Brooklyn v. Railway Co. 47 N. 
 Y. 475, 7 Am. Rep. 469. 
 
 339
 
 § 510. THB LAW OF AGENCY. [Book IV. 
 
 2. Neglect of Agent to effect Insurance. 
 
 § 510. When liable for Loss. The same rule applies to the 
 case of an agent whose duty it is to insure the property of his 
 principal. This duty may arise as has been seen,^ from express 
 instructions, but while in other cases the duty does not arise from 
 the mere fact of agency, it will arise wherever the agent has in 
 his possession property of his principal of a kind which it is the 
 usage to insure,* or which it has been the agent's habit to insure,' 
 or which reasonable care and prudence requires shall be protected 
 against loss.* 
 
 The duty of the agent when not otherwise limited by express 
 instructions, requires the exercise on his part of reasonable 
 care and prudence in the selection of the insurer ; » in the deter- 
 mination of the duration and amount of the risk; in pro- 
 curing proper and sufficient policies or contracts and in insert- 
 ino- such special stipulations and provisions as the circum- 
 stances of the case reasonably require.' But unless expressly 
 instructed so to do, he would not be bound to insure against 
 unusual and unforeseen dangers, but only against such as an or- 
 dinarily prudent man would select under the circumstances. If 
 the agent is unable to procure the insurance,' or if after having 
 been in the habit of insuring upon his own motion, he deter- 
 mines no longer to do so," he should promptly notify his princi- 
 pal in order to give the latter an opportunity to insure. Failing 
 in the performance of his duty, the agent is liable for the full 
 amount of the insurance which he should have effected, less the 
 premium.' His duty is not performed if he selects underwriters 
 
 X § 474. « AnU, §§ 493, 495. 
 
 « Kingston «. Wilson, 4 Wash. (U. •'Strong o. High, 2 Rob. (La.) 103, 
 
 8. C. C.) 310; Sbirtllfl v. Whitfield, 88 A.m. Dec. 195. 
 
 2 Brev. (8. C.) 71, 3 Am. Dec. 701 ; • Mallough «. Barber, 4 Camp. 150. 
 
 Berthoudc. Gordon, 6 La. 579, 538; t Callander «. Oelrichs, 5 Bing. N. 
 
 Ralston «. Barclay, 6 Id. 653; Lee v. C. 58; Smith c. Lascelles, 2 T. R. 
 
 Adsit, 37 N. Y. 78; Shoenfeld «. 187. 
 
 Fleisher, 73 111. 404; Schaeffer «. "Area c. Milliken, 35 La. Ann. 
 
 Kirk, 49 111. 251; Brisban v. Boyd, 4 1150. 
 
 Paif'e (N. Y.) Ch. 17. »Storert>. Eaton, 50 Me. 219, 79 
 
 • Shoenfeld «. Fleisher, mpra ; Am. Dec. 611 ; Mallough u. Barber, 4 
 
 Schaeffer e. Kirk, mvra\ Lee t>. Adsit, Camp. 150; Park u. Hamond 4 Camp. 
 
 ra-pra; Brisban ©. Boyd, supra; IJals- 844; Perkins v. Washington Ins. Co., 
 
 tontj. Barclay, mpra; Berthoud v. 4 Cow. (N. Y.) 645; DeTastett v. 
 
 Gordon, supra. Crousillat, 2 Wash. (U. 8. C. C.) 132; 
 
 340
 
 Chap. II.] LIABILITY OF AGENT TO PKINCIPAL. § 511. 
 
 notoriously in bad credit or insolvent ; ' or if he accepts of mani- 
 festly insufficient or invalid policies.* If the principal has by 
 express instructions fixed the amount of the insurance and such 
 amount might, by reasonable diligence, have been obtained, the 
 agent who neglects to insure is liable for that amount as on a 
 valued policy.' Where no amount is so fixed, the agent should 
 ordinarily procure insurance to the full insurable value.* 
 
 3. Neglect of Agent in making Collections, 
 
 % 511. Liable for Loss from Negligence. The liability of an 
 agent employed to collect a demand, depends largely upon the 
 nature of his undertaking. Such an agent may, undoubtedly, by 
 express contract, impose upon himself the absolute duty to col- 
 lect the demand in any event. In such a case he becomes, prac- 
 tically, a guarantor of the debt and is liable as such. 
 
 Where no such express contract is made, however, the agent 
 by assuming the collection of the claim, undertakes that he will 
 exercise reasonable care, skill and diligence in making the money. 
 If he does this, and is unable to collect the demand, he is not 
 liable ; but if from his neglect to exercise this degree of care, 
 skill and diligence, the claim or any part of it is lost, the agent 
 is liable for the loss." 
 
 This rule imposes upon the agent the duty to take all the pre- 
 cautions and avail himself of all the remedies, which are reason- 
 able and proper under the circumstances, — which a reasonably 
 prudent and careful man would avail himself of under like cir- 
 cumstances.* 
 
 If certain proceedings are, by law, required to be taken, for 
 
 Thome «. Deas, 4 Johns. (N. Y.) 84; » Allen v. Suydam. 20 Wend. (N. 
 
 Shoenfeld v. Fleisher, 73 111. 404; T) 321, 33 Am. Dec. 555; Buell «. 
 
 Callander t>. Oelrichs, 5 Bing. (N. C.) Chapin, 99 Mass. 594; Reed «. North- 
 
 58; Gray o. Murray, 3 Johns. (N. Y.) rup, 50 Mich. 442; Fick v. Runnels, 
 
 Ch. 167. ^^ Mich. 303. In order to recover 
 
 » Strong 0. High, 3 Rob. (La.) 103, against the agent for failure to collect 
 
 88 Am. Dec. 195. it is sufficient to show that debtor 
 
 « Mallough ». Barber, mpra. was solvent, and that with proper 
 
 • Miner o.Tagert,3Binn.(Penn.) 204. exertion, claim could have been col- 
 
 ♦ Beardsley c. Davis, 52 Barb. (K lected. Wiley v. Logan, 95 N. 0. 
 Y.) 159; Betteley «. Stainsby, 12 C. 858. 
 
 B. (N. 8.) 499; Douglass t>. Murphy, • Allen t>. Suydam, m^a. 
 
 16 U. C. Q. B. 113. 
 
 341
 
 § 511. THE LAW OF AGENCY. [Book lY. 
 
 the protection of his principal, the agent must see that these 
 requirements are complied with. Thus it is the duty of an 
 agent who receives negotiable paper to collect, to so act as to 
 secure and preserve the liability thereon of all parties prior to 
 his principal ; and if he fails in this duty, and thereby causes 
 loss to his principal, he becomes liable for such loss.* Such an 
 agent must therefore present the bill or note for acceptance with- 
 out delay and present it for payment at maturity. If the bill or 
 note be not duly accepted or paid, he must cause it to be imme- 
 diately protested, where protest is necessary, and cause notice to 
 be duly given of its dishonor. 
 
 Whether the agent shall give notice of the dishonor to prior 
 parties directly, or to his principal only, but in time to enable 
 him to give such notice to prior parties, is a question upon which 
 the authorities are not harmonious. The weight of authority, 
 however, seems to be that the agent is only bound to notify his 
 principal.* 
 
 For the purposes of notice, a bank or other agent to whom a 
 note or bill has been transmitted for collection is to be consid- 
 ered as though he were the real holder, and his principal a prior 
 endorser. The agent may therefore notify his principal only, 
 and the latter has the same time to notify prior parties.' 
 
 But this is not the utmost limit of the agent's duty and liabil- 
 ity. He may so act as to charge all of the parties to the paper, 
 and yet become liable to his principal for a loss occasioned by 
 his negligence. The rule which will measure the diligence 
 which is exacted of a holder of such paper in order to charge 
 the prior parties, will not always measure the diligence which is 
 
 • First National Bank of Meadville Engs, 5 Cow. (N. T.) 303; Phipps «. 
 
 «. Fourth National Bank of N. Y. 77 Millbury Bank, 8 Mete. (Mass.) 79; 
 
 N. Y. 320, 33 Am. Rep. 618; Allen v. Howard « Ives, 1 Hill (N. Y.) 203. 
 
 Merchants' Bank, 23 Wend. (N. Y.) Contra, Thompson v. Bank of South 
 
 215, 34 Am. Dec. 289; Chapman ». Carolina, 3 Hill (S. Car.) Law, 77, 30 
 
 McCrea, 63 Ind. 360. Am. Dec. 354; Smedes t. Bank of 
 
 8 Colt 0. Noble, 5 Mass. 167: Burn- Utica, 20 Johns. (N. Y.) 372; Mer- 
 
 harnt). Webster, 19 Me. 233; United chants' Bank «. Stafford Bank, 44 
 
 States Bank ». Goddard, 5 Mason (U. Conn. 565; McKinster ». B:ink of 
 
 8. C. C.) 366; Farmers' Bank v. Vail, Utica, 9 Wend. (N. Y.) 46; Chapman 
 
 21 N. Y. 485; Bank of Mobile e. t>. McCrea, 63 Ind. 360. 
 
 Huggins, 3 Ala. (N. S.) 206; Mead ». » Seaton «. Scovill. 18 Kan. 438. 
 
 342
 
 Cliap. n.] LIABILITT OF AGENT TO PRINCIPAL. § 511.' 
 
 required of a collecting agent in the discharge of his duty to his 
 principal.' 
 
 Thus it is said by a learned judge : " Suppose an agent re- 
 ceives for collection from the payee, a sight draft. No circum- 
 stance can make it his duty, in order to charge the drawer, to 
 present it for payment until the next day. He has entered into 
 no contract with the drawer, is not employed or paid by him to 
 render him any service, and owes him no duty to protect him 
 from loss. What is required to be done to charge the drawer is 
 simply a compliance with the condition attached to the draft, as 
 if written therein ; and that condition is in all cases complied 
 with by presentation, demand and notice on the next day after 
 receipt of the draft. But suppose the agent, on the day he 
 receives the draft, obtains reliable information that the drawee 
 must fail the next day, and that the draft will not be paid unless 
 immediately presented ; what then is the duty he owes his prin- 
 cipal whose interests, for a compensation, he has agreed with 
 proper diligence and skill, to serve, in and about the collection 
 of the draft? Clearly, all would say, to present the draft at 
 once ; and if he fails to do this, and loss ensues, he incurs re- 
 sponsibility to his principal ; and yet the drawer would be charged 
 if it was not presented until the next day. Where an agent 
 receives a bill for collection, payable some days or months after 
 date, in order to charge tlie drawer, he need not present it for 
 acceptance until it falls due; and if he then presents it and 
 demands pnyinent, and protests it and gives the notice, the 
 drawer is li-.J; and yet in such a case he owes his principal the 
 duty to present the bill for acceptance at once, and if he fails in 
 such duty and loss ensues to his principal he becomes liable for 
 such loss." ' 
 
 And so it was said by Chancellor Walworth : " If the re- 
 ceiving a bill by an agent to collect implies an obligation on his 
 part to take the necessary steps to charge the drawer and indors- 
 ers by protest and notices, in case it is not accepted and paid by 
 the drawee, I do not see why due diligence on the part of the 
 agent in procuring the acceptance of the drawee without delay, 
 
 > First National Bank v. Fourth Am. Rep. 690, again reported ia 53 
 Nat. Bank, 77 N. Y. 320, 33 Am. Rep. N. Y. 545. 
 
 618; Smith*. Miller, 43 N. Y. 172, 3 'First Nat. Bank v. Fourth Nat 
 
 Bank, supra. 
 
 343
 
 § 511. THE LAW OF AGENCY. [Book IV. 
 
 when it may be necessary or beneficial to the interests of the 
 principal, should not also be implied, as it is the duty of a faith- 
 ful agent to do for his principal whatever the principal himself 
 would probably have done, if he was a discreet and prudent man. 
 Even where the principal is habitually negligent in attending to 
 his own interests, it forms no excuse for similar negligence on 
 the part of his agent.'" 
 
 In accordance with these principles it was held that an agent 
 intrusted, for collection, with a draft or bill payable on a partic- 
 ular day, is liable for any unnecessary delay in presenting it for 
 acceptance, although it may not be yet due.' So the defendant, 
 a bank in New York, received for collection a draft upon a firm 
 in that city upon the morning of a certain day and, upon presen- 
 tation, received in payment the drawee's check upon another 
 bank in the same city, and delivered up the draft. The check, 
 however, was not presented until the next day, and then through 
 the clearing house. On that day, and before it was presented for 
 payment, the drawers of the check failed and payment was 
 refused. The defendant thereupon returned the check to the 
 drawers, got back the draft, made a formal demand for its pay- 
 ment, caused it to be protested, and, on the next day, gave due 
 notice of its dishonor. It appeared that the bank upon which 
 the check was drawn paid all of the drawer's checks down to the 
 time of the failure, and that the check would have been paid if 
 presented, as it might easily have been, for payment upon the 
 day it was given. Upon this state of facts it was held that, 
 though the action of the defendant bank might have been suffi- 
 cient to charge prior parties, it was negligent in not securing pay- 
 ment of the check on the day that it was drawn, and hence was 
 liable for the loss.' Indeed, as has been seen,* there is no im. 
 plied authority, in an agent to collect, to receive a check in pay. 
 ment at all. It is, undoubtedly, a common practice among busi- 
 ness men in their own transactions, to give and receive checks in 
 payment of demands. This is, however, a matter of convenience 
 only, and the check does not constitute payment unless expressly 
 received as such. But this practice falls short of a usage apply- 
 ing to the collection of drafts for absent parties. And it is not 
 
 » Allen v. Suydam, 20 Wend. (N, • First Nat. Bank «. Fourth Nat. 
 
 Y.) 321, 32 Am. Dec. 555. Bank, supra. 
 
 * Allen V. Suydam, supra. * Ante, % 381. 
 
 344
 
 Chap, n.] LIABILITY OF AGENT TO PRINCIPAL. § 513. 
 
 a reasonable usage that one who undertakes to collect a draft for 
 an absent party should be allowed to give it up to the drawee, 
 and sacrifice the claim which the owner may have on prior par- 
 ties upon the mere receipt of a check which may turn out to be 
 worthless/ 
 
 § 512. Same Subject — Neglect in making Remittances. 
 Where, as has been seen, the principal directs his agent to send 
 the money in a certain way or through a particular channel, trans- 
 mitting it in a different mode is evidence of negligence.* But 
 unless so bound by express instructions, the agent is held only 
 for reasonable skill and diligence in sending the money.' 
 
 Thus where the principal sent a claim of about sixty dollars 
 to his agent by mail, with instructions to the agent to " forward" 
 the proceeds, it was held that the agent was warranted in be- 
 lieving that he was authorized to transmit the proceeds in the 
 same way. * Said Gray, J. : " There is no rule of law that the 
 postoffice established by the government for the purpose of carry- 
 ing letters is a less safe or appropriate means of forwarding 
 money than a private carrier or banker. "Whether it is so in any 
 particular case is a question of fact, depending upon the amount 
 to be sent, the proportionate expense of different modes of trans 
 mission, the time and distance intervening, the prevailing usage 
 in similar cases, and other circumstances surrounding ohe trans- 
 action, all of which are proper for the consideration of the 
 jury.'" 
 
 § 513. Same Subject— Liability for Neglect of Correspondents 
 and Subagents. As has been already stated, the principle which 
 runs through the cases, is that if an agent employs a subagent for 
 his principal and by his authority, express or implied, then the 
 Bubagent is the agent of the principal and is responsible directly 
 to the principal for his conduct. In such a case the agent is not 
 liable for the negligence of the subagent, unless he has failed to 
 exercise due care in the selection of £uch subagent. But where 
 the agent, having undertaken to do the business for his principal, 
 
 » Whitney v. Essoa, 99 Mass. 308, Bank v. Merchants' Bank, 6 Mete. 
 
 96 Am. Dec. 763. (Mass.) 26. 
 
 • Ante, § 474. * Buell v. Chapin, supra; Morgan «, 
 
 3 Buell V. Chapin, 99 Mass. 594. 97 Richardson, 13 Allen (Mass.) 410. 
 
 Am. Dec. 58; Kingston v. Kincaid, 1 » In Buell*. Chapin, supra. 
 
 Wash. (U. S. C. C.) 457; Mechanics 
 
 345
 
 8 514. THE LAW OF AGENCY. [Book lY. 
 
 employs a servant or subagent on his own account to assist him 
 in what he has undertaken, then the subagent or servant is the 
 representative of the agent only, and is responsible to him for 
 his conduct, and the agent is responsible to the principal for the 
 maimer in which the business has been done, whether by himself 
 or by his servant or agent.* In the latter case, the agent stands 
 in the position of an independent contractor, at liberty to per- 
 form the undertaking by the agencies of his own selection, and is 
 responsible to his principal for the due execution of the enter- 
 prise by the means he has selected. As has been seen, the author- 
 ity of the agent to employ a subagent on his principal's account, 
 may, in certain cases, be implied:* The application of these prin- 
 ciples to the case of collecting agents has not been altogether har- 
 monious, yet the preponderance of authority is believed to be in 
 accordance with thera. 
 
 § 514 Same Subject— Liability of Banks. There can be no 
 question of course, that the bank is liable for the neglect of its 
 own immediate officers and servants ; these are the direct execu- 
 tive actors of the bank through whom all of its transactions must 
 necessarily be performed. 
 
 But when it becomes necessary to employ an independent 
 ao-ency, such as a notary public to protest the paper, or another 
 bank when the demand is payable in a distant town, other ques- 
 tions arise. 
 
 For the Neglect of the Notary. The doctrine was established 
 in New York at an early period and has since been maintained, 
 that a bank receiving negotiable paper for collection, in the ab- 
 sence of an express agreement or recognized custom limiting its 
 liability, stands in the attitude of an independent contractor, and 
 that if, in the course of the performance, it employs a notary to 
 present the paper for payment and give the proper notice to 
 charge the parties, the notary is the agent of the bank and not 
 of the depositor or owner of the paper." The bank is therefore 
 liable for his negligence. The same rule formerly prevailed in 
 Louisiana * and South Carolina,* but has since been overruled. 
 
 1 See ante, § 197. 26 Am. Dec. 493. overruled in Hyde 
 
 « See anU, §§ 102-196. «. Planters' Bank, 17 La. 560: Bald- 
 
 » Ayrault v. Pacific Bank, 47 N. T. win -o. Bank of Louisiana, 1 La. Ann. 13. 
 670, 7 Am. Rep. 489. ' Thompson -o. Bank of South Caro- 
 
 « Miranda v. City Bank, 6 La. 740, Una, 3 Hill L. 77. 30 Am. Dec. 354. 
 
 346
 
 Chap. II.] LIABILITY OP AGENT TO PEINOIPAL. 
 
 §5M. 
 
 It appears to be approved in Indiana' and is unqualifiedly in- 
 dorsed in New Jersey." It is also approved in Kansas.* 
 
 But the weight of authority is believed to be that if the bank 
 exercises due care in the selection of a competent notary, it is not 
 liable for his neglect in the performance of the duty entrusted 
 to him.* Where, however, the bank employs a notary by the 
 year, and takes from him a bond for the faithful discharge of 
 his duties, he is to be regarded as an officer of the bank, and the 
 bank will be liable for his negligence or default.' 
 
 For the Neglect of a Correspondent Bank. The same conflict 
 of authority exists as to the liability of a bank which receives, 
 in the ordinary manner, a note or bill payable at a distant place, 
 and sends it to its correspondent there for collection. It is well 
 established in New York' that in such a case the correspondent 
 bank is the agent of the bank from which it received the paper, 
 and not of the depositor or owner of the paper. The transmit- 
 ting bank is, therefore, liable for the neglect or default of the 
 correspondent bank in making the collection and transmitting 
 the proceeds. This rule prevails also in Michigan,' Ohio,' New 
 
 1 American Express Co. «. Haire, 
 21 Ind. 4, 83 Am. Dec. 334. The 
 point was not directly involved, but 
 the court seem to approve the doc- 
 trine of the New York cases. The 
 question at issue was the liability of 
 an express company, which, having 
 undertaken the collection of a bill of 
 exchange caused it to be protested 
 too soon. It was held to be liable. 
 See Tyson v. State Bank, 6 Blackf. 
 and.) 235. 
 
 » Davey «. Jones, 13 Vroom. (N. J.) 
 28, 36 Am. Rep. 505. 
 
 ' Bank of Lindsborg v. Ober, 81 
 Kans 599. 
 
 * Tiernan «. Commercial Bank, 7 
 How. (Miss.) 648; Agricultural Bank 
 V. Commercial Bank, 7 Smedes & Mo. 
 (Miss.) 592: Bowling «. Arthur, 34 
 Miss. 41; Third National Bank v. 
 Vicksburg Bank, 61 Miss. 113, 48 
 Am. Rep. 78; Belle mire «k Bank of 
 U. S., 4 Whart. 105, 38 Am Dec. 46; 
 
 Warren Bank v. Suffolk Bank, 10 
 Cush, (Mass.) 583; Stacy v. Dane 
 County Bank, 13 Wis. 629; Britton v. 
 Nichols, 104 U. S. 757; Bank v. But- 
 ler, 41 Ohio St. 519, 52 Am. Rep. 94. 
 
 • Gerhardt v. Boatmen's Savings 
 Inst. 38 Mo. 60, 90 Am. Dec. 407. 
 
 « Ayrault v. Pacific Bank, 47 N. Y. 
 570, 7 Am. Rep. 489; Bank of Orleans 
 V. Smith, 3 Hill (N. Y.) 5G0; Mont- 
 gomery County Bank v. Albany City 
 Bank, 7 N. Y. 459; Commercial Bank 
 V. Union Bank, 11 N. Y. 213; Allen «. 
 Suydam, 22 Wend. (N. Y.) 321, 33 
 Am. Dec. 555; Allen v. Merchants' 
 Bank, 23 Wend. (N. Y.)315, 34 Am. 
 Dec. 289. 
 
 t Simpson v. Waldby, — Mich. — , 
 80 N. W. Rep. 199. 
 
 « Reeves v. State Bank, 8 Ohio St. 
 465. See this case discussed and ex- 
 plained in Bank v. Butler, 41 Ohio 
 St. 519, 52 Am. Rep. 94. 
 
 347
 
 §614. 
 
 THE LAW OF AGENCY. 
 
 [Book IV. 
 
 Jersey,* Montana,' Indiana,* the Supreme Court of the United 
 States* and in England." It is based upon the principle that the 
 home bank having undertaken the collection of the paper stands 
 in the attitude of an independent contractor who is left at lib- 
 erty to select and does select his own agents and correspondents, 
 and is, therefore, liable for their default.* 
 
 I Titus V. Mechanics' Nat. Bank, 35 
 N. J. L. 588. 
 
 « Power v. First Nat. Bank, 6 
 Mont. 251, 12 Pac. Rep. 697, This 
 case contains a very full resume of 
 the cases. 
 
 • Abbott V. Smith, 4 Ind. 452; Ty- 
 son V. State Bank, 6 Blackf. (Ind.) 
 235. 
 
 « Exchange Nat. Bank v. Third 
 Nat. Bank, 112 U. S. 276, limiting 
 Britton v. Niccolls, 104 U. S. 757; 
 Hoover «. Wise, 91 U. S. 308. At 
 the Circuits see Kent v. Dawson Bank, 
 13 Blatchf. 237; Taber v. Perrot, 2 
 Gall. 565; Bank of Trinidad v. First 
 Nat. Bank, 4 Dill. 290; Hyde v. Bank, 
 7Biss. 156. 
 
 » Mackersy v. Ramsays, 9 Clark «& 
 F. 818 (House of Lords); Van Wart 
 «. Woolley. 8 B. & C. 439. 
 
 • In Exchange National Bank v. 
 Third National Bank, 112 U. S. at p. 
 289, Mr. Justice Blatchford says: 
 •'The distinction between the liability 
 of one who contracts to do a thing, 
 and that of one who merely receives 
 a delegation of authority to act for 
 another, is a fundamental one, appli- 
 cable to the present case. If the 
 agency is an undertaking to do the 
 business, the original principal may 
 look to the immediate contractor with 
 himself, and is not obliged to look to 
 inferior or distant undercontractors 
 or subagents, when defaults occur 
 injurious to his interest. 
 
 Whether a draft is payable in the 
 place where the bank receiving it for 
 collection is situated, or in another 
 place, the holder is aware that the 
 
 collection must be made by a com- 
 petent agent. In either case there is 
 an implied contract of the bank that 
 the proper measures shall be used to 
 collect the draft, and a right, on the 
 pajt of its owner, to presume that 
 proper agents will be employed, he 
 having no knowledge of the agents. 
 There is, therefore, no reason for 
 liability, or exemption from liability 
 in the one case which does not apply 
 to the other. And, while the rule at 
 law is thus general, the liability of 
 the bank may be varied by consent, 
 or the bank may refuse to undertake 
 the collection. It may agree to re- 
 ceive the paper only for transmission 
 to its correspondent, and thus make 
 a different contract, and become re- 
 sponsible only for good faith and due 
 discretion in the choice of an agent. 
 If this is not done, or there is no im- 
 plied understanding to that effect, the 
 same responsibility is assumed in the 
 undertaking to collect foreign paper 
 and in that to collect paper payable 
 at home. On any other rule, no prin- 
 cipal contractor would be liable for 
 the default of his own agent, where 
 from the nature of the business, it 
 was evident he must employ sub- 
 agents. The distinction recurs, be- 
 tween the rule of merely personal 
 representative agency, and the re- 
 sponsibility imposed by the law of 
 commercial contracts. This solves 
 the difficulty and reconciles the 
 apparent conflict of decision in many 
 cases. The nature of the contract is 
 the test. If the contract be only for 
 the immediate services of the agent, 
 
 348
 
 Ohap. II.] LIA.BILITT OF AGENT TO PRINCIPAL. 
 
 §614. 
 
 But in the majority of the States, however, a different rule 
 prevails, and it is held that the liability of the home bank, in the 
 absence of instructions or an agreement to the contrary, extends 
 merely to the selection of a suitable and competent agent at the 
 place of payment and the transmission of the paper to such agent 
 with proper instructions. This rule prevails in Massachusetts,' 
 Connecticut,'' Maryland,' Illinois,* Wisconsin," Iowa,' Missis- 
 fiippi,^ Missouri,* Tennessee," Pennsylvania," and Louisiana." 
 
 This rule is based upon the theory that from the nature of the 
 case there is implied authority, upon the ground of necessity, for 
 the appointment of a subagent, and that in this, as in other cases, 
 the agent fulfils his duty when he uses due care in the selection of 
 the subagent." 
 
 and for his faithful conduct as repre- 
 eenting his principal, the responsibil- 
 ity ceases with the limits of the per- 
 sonal services undertalien. But 
 where the contract looks mainly to 
 the thing to be done, and the under- 
 taking is for the due use of all proper 
 means to performance, the responsi- 
 bility extends to all necessary and 
 proper means to accomplish the 
 object by whomsoever used." 
 
 1 Dorchester, &c. Bank v. New 
 England Bank, 1 Cush. (Mass.) 177; 
 Fabens v. Mercantile Bank, 23 Pick. 
 (Mass.) 330, 34 Am. Dec. 59. 
 
 « Lawrence v. Stonington Bank, 6 
 Conn. 521; East Haddam Bank ». 
 Bcovil, 12 Conn. 303. 
 
 • Jackson v. Union Bank, 6 Har. & 
 J. (Md.) 146; Citizens' Bank v. How- 
 ell, 8 Md. 530. 
 
 • ^tna Ins. Co. •. Alton City 
 Bank, 25 111. 243. 
 
 » Stacy V. Dane County Bank, 13 
 Wis. 629. 
 
 • Quelich v. National State Bank, 
 66 Iowa, 434, 41 Am. Rep. 110, 9 N. 
 W. Rep. 328, 12 Rep. 237. 
 
 T Tiernan v. Commercial Bank, 7 
 How. (Miss.) 648; Agricultural Bank 
 e. Commercial Bank, 7 Sm. & M. 
 (Miss.) 592; Bowling v. Arthur, 84 
 
 Miss. 41; Third National Bank v. 
 Vicksburg Bank, 61 Miss. 112, 48 
 Am. Rep. 78. 
 
 » Daly V. Butchers' & Drovers' 
 Bank, 56 Mo. 94, 17 Am. Rep. 663. 
 
 • Bank of Louisville v. First Na- 
 tional Bank, 8 Baxt. (Tenn.) 101, 35 
 Am. Rep. 691. 
 
 '" Merchants' National Bank v. 
 Goodman, 109 Penn. St. 422, 58 Am. 
 Rep. 728; Bank v. Earp, 4 Rawle 
 (Pa.) 386; Bellemire v. Bank of U. S. 
 4 Whart. (Penn.) 105, 33 Am. Dec. 46, 
 Wingate v. Mechanics' Bank, 10 
 Penn. St. 104. 
 
 »> Hyde v. Planters' Bank, 17 La. 
 560; Baldwin v. Bank of Louisiana, 1 
 La. Ann. 13 
 
 lain Guelich e. National State 
 Bank, 56 Iowa 434, 41 Am. Rep. 110, 
 Beck, J., states the reasons for this 
 view as follows: "The course of 
 business of defendant, and all other 
 banks, is, in such cases, to make col- 
 lections through correspondents. 
 They do not undertake themselves to 
 collect the bills, but to intrust them 
 to other banks at the place payment 
 is to be made. The holder of the 
 paper, having full notice of the course 
 of business, must be held to assent 
 thereto. He therefore authorizes the 
 
 349
 
 §514. 
 
 THE LAW OF AGENCY. 
 
 [Book IV. 
 
 A bank, however, does not exercise due care in the selection 
 of its correspondent when it sends the paper for collection to the 
 debtor himself, as, for example, to the very bank upon which the 
 check or draft is drawn. In such a case the bank is liable for a 
 loss occasioned by the failure of the drawee.^ 
 
 bank with whom he deals to do the 
 work of collection through another 
 bank. 
 
 We will now inquire as to the rela- 
 tions existing between the bank 
 charged with the collection of the 
 paper and the holder depositing it 
 with the first bank. The bank re- 
 ceiving the paper becomes an agent 
 of the depositor with authority to 
 employ another bank to collect it. 
 The second bank becomes the sub- 
 agent of the customer of the first, for 
 the reason that the customer author- 
 izes the employment of such an agent 
 to make the collection. 
 
 The paper remains the property of 
 the customer, and is collected for 
 him; the party employed, with his 
 assent, to make the collection, must 
 therefore be regarded as his agent. 
 
 A subagent is accountable ordin- 
 arily only to his superior agent when 
 employed without the assent or direc- 
 tion of the principal. But if he be 
 employed with the express or implied 
 assent of the principal, the superior 
 agent will not be responsible for his 
 acts. There is, in such a case, a 
 privity between the subagent and 
 the principal, who must therefore 
 seek a remedy directly against the 
 subagent for his negligence or mis- 
 conduct. Story on Agency, §§ 317, 
 813. These familiar rules of the law 
 applied to the case relieve it of all 
 doubt, when considered in the light 
 of legal principles." 
 
 > Drovers National Bank v. Anglo- 
 American, &c. Co. 117 111. 100. 57 
 Am. Rep. 855, 23 Cent. L. Jour. 183; 
 Merchants' National Bank v. Good- 
 
 man, 109 Penn. St. 432, 58 Am. Rep. 
 728, 2 Atl. Rep. 687; Parwell v. Cur- 
 tis, 7 Biss. 0. 0. 162. The case of 
 Indig®. National City Bank, 80 N. T. 
 100, as interpreted by Judge ScnoL- 
 FIELD in Drovers' National Bank v. 
 Anglo-American, «&c. Co. supra is not 
 in conflict with the statement in the 
 text; nor as interpreted by the judge 
 who wrote the opinion and by the 
 court which pronounced it, in the 
 later case of Briggs v. Central National 
 Bank, 89 N. Y. 182, 43 Am. Rep. 
 285, does it conflict. 
 
 Said the courts in the Pennsylvania 
 and Illinois cases: "We think the 
 principle may be stated as a true one 
 • * * that no firm, bank, corpo- 
 ration or individual can be deemed a 
 suitable agent, in contemplation of 
 law, to enforce in behalf of another, 
 a claim against itself. The only safe 
 rule is to hold that an agent, with 
 whom a check or bill is deposited for 
 collection must transmit it to a suitable 
 subagent. to demand payment, in such 
 manner that no loss can happen to 
 any party, whether he be depositor 
 and indorser, or the indorsee and 
 holder. * * ♦ We interpret the 
 cases to which we have referred as 
 establishing the rule of transmission 
 to a suitable correspondent or agent, 
 to mean that such suitable agent 
 must, from the nature of the case, be 
 some one other than the party who is 
 to make the payment. By no other 
 rule can the rights of indorsers be 
 protected, if it is the interest of the 
 party who is to make payment to 
 hinder, postpone or defeat payment. 
 This imposes no hardship on the in- 
 
 350
 
 Chap. II.] LIABILITY OF AGENT TO PKINOIFAL. 
 
 §515. 
 
 § 515. Same Subject— LiabiHty of Attorneys. The liability 
 of an attorney for the neglect or default of other attorneys or 
 agents employed by him in the collection of claims, depends upon 
 the nature of his undertaking. He is, of course, liable for the 
 neglect or default of his own immediate clerks or agents, em- 
 ployed by him to assist him in the collection. So where he un- 
 dertakes the collection of a claim at a place distant from that in 
 which he does business, his liability extends to the neglect or de- 
 fault of another attorney or agent to whom he transmits the 
 claim for collection, and is not limited to the selection of, and 
 transmission to, a suitable and proper agent. In this respect his 
 
 stitution undertaking to transmit for 
 collection, which can always protect 
 itself by stipulating that special in- 
 structions by the depositor shall be 
 given which will save the collecting 
 bank from all risk or peril. " 
 
 Said Rapallo, J., in Briggs v. 
 Central National Bank, gupi'a: "In 
 the case of Indig v. National City 
 Bank, 80 N. Y. 100, it was decided 
 that where a bank receives from one 
 of its customers, for collection, a 
 check or draft drawn upon another 
 bank at a distant place, and for the 
 purpose of collecting the paper, sends 
 it by mail to the bank upon which it 
 is drawn, with a request to remit the 
 amount, the collecting bank by so 
 sending the paper to the drawee di- 
 rectly, for payment, does not consti- 
 tute the drawee its agent to receive 
 the proceeds, and consequently does 
 not become guarantor of the solvency 
 of the drawee; and that in such a 
 case, though the drawee has funds of 
 the drawer of the paper and charges 
 it to his account as paid, but fails to 
 pay over to the collecting bank, the 
 latter is not responsible to its custom- 
 ers for the amount, unless there has 
 been some negligence. The point of 
 the decision is that the mere act of 
 presenting the paper for payment by 
 mail, instead of employing a messen- 
 ger to present it, does not constitute 
 
 the drawee &gent of the sender to 
 receive or hold the proceeds." The 
 difficulty, as it seems to the author, 
 is that Judge Scholfield misappre- 
 hended the actual effect of the Indig 
 case. In that case the collecting bank 
 sent to its correspondent bank a note 
 made by one of the latter's deposit- 
 ors and payable at its banking house. 
 A note so payable says Rapallo, J., in 
 that case, "is equivalent to a check 
 drawn by him upon that bank, except 
 that in the case of a note, the failure 
 to present for payment does not dis- 
 charge the maker," So interpreted, 
 it will be seen that the Illinois and 
 New York cases are not in conflict 
 upon the question of liablity where 
 the paying bank is made the agent to 
 'collect. The conflict arises from the 
 fact that the Illinois and Pennsyl- 
 vania cases hold that the sending of 
 the check to the paying bank makes 
 that bank the agent to receive and 
 transmit the money, while the New 
 York case, as interpreted in Briggs a 
 Central National Bank, holds, as will 
 be seen from the quotation r.bove, 
 that the sending of the check ty mail 
 does not constitute the drawee agent 
 of the sender to receive or hold the 
 proceeds. But whatever view is to 
 be taken of the transaction, the result 
 reached in Illinois and Pennsylvania 
 seems, to the author, to be correct. 
 
 351
 
 §515. 
 
 THE LAW OF AQENOT. 
 
 [Book IV. 
 
 liability differs from that which, as has been seen, is, by a major- 
 ity of the courts, imposed upon banks under like circumstances. 
 He may, of course, in such a case limit his liability by express 
 agreement, but in the absence of such an agreement, an attorney 
 taking a claim " for collection " is looked upon as an independent 
 contractor, and is therefore liable for the default of his corre- 
 spondent.^ 
 
 > Cummins v. Heald,24 Kan. 600, 36 
 Am. Rep. 264; Walker ■». Stevens, 79 
 111. 193; Abbott t>. Smith, 4 Ind. 452; 
 Lewis V. Peck, 10 Ala. 142; Riddle v. 
 Poorman, 3 Penn. 224; Cox v. Liv- 
 ingston, 2 "Watts & Serg. (Penn.) 103, 
 87 Am. Dec. 486 ; Krause v. Dorrance, 
 10 Penn. St. 462, 51 Am. Dec, 496; 
 Rhines v. Evans, 66 Penn. St. 192, 5 
 Am Rep. 364; Pollard v. Rowland, 2 
 Blackf (Ind.) 22; Cummins v. Mo- 
 Lain, 2 Pike (Ark.) 402; Wilkinson v. 
 Griswold, 12 Smedes & Marsh. (Miss.) 
 669 See also Bradstreet «. Everson, 
 72 Penn. St. 124, 13 Am. Rep. 665, 
 and Sanger v. Dun, 47 Wis. 615, 32 
 Am. Rep. 789, cited in the following 
 section. 
 
 In Bradstreet v. Everson, 72 
 Penn. St. 124, 13 Am. Rep. 665, 
 Aqnew, J. said. " Recurring to the 
 analogy of attorneys at law, the first 
 point to be considered is the interpre- 
 tation given by the courts to the 
 terms of a receipt for collection." 
 In our own State, we have several 
 decisions in point. In Riddle v. 
 Hoffman's Exr, 3 Penn. 224; Riddle, 
 an attorney in Franklin County, gave 
 a receipt in these words: "Lodged 
 in my hands a judgment bill granted 
 by Henry H. Morwitz to Henry Hoff- 
 man for the sum of $1,200, due with 
 Interest since the 15th of May, 1811, 
 which is entered up in Bedford 
 county, which I am to have recov- 
 ered if it can be accomplished." 
 Riddle sent this bill to his brother, a 
 practicing lawyer in Bedford. The 
 money was made by the sheriff, but 
 
 by the neglect of the Bedford Riddle 
 was not received from the sheriff, 
 who became insolvent, and the money 
 was thus lost. Hoffman sued the 
 Franklin county Riddle on his receipt 
 and recovered. On a writ of error it 
 was contended that the words of the 
 receipt, " which I am to have recov- 
 ered if it can be accomplished," im- 
 ported only a limited undertaking to 
 have it collected by another, and not 
 to collect it himself. But this court 
 held that the receipt contained an ex- 
 press and positive undertaking for the 
 collection of the money, if practi- 
 cable, and not merely for the employ- 
 ment of another to that end; and that 
 the defendant was bound by every 
 principle of moral and legal obliga- 
 tion to make good the collection of 
 the judgment by the application of 
 reasonable diligence, skill and atten- 
 tion. 
 
 The next case is Cox v. Livingston, 
 2 W. & S. 103. This was the receipt : 
 " Received of Mr. Thomas Cox, of 
 Lancaster, Pa., for collection, a note 
 drawn in his favor by Mr. Dubbs, 
 calling for $497.65, payable three 
 months after date." The note was 
 left with an instruction to bring suit. 
 The receipt was dated August 30, 
 1837, and Livingston died in January 
 following without having brought 
 suit. Dubbs became insolvent. It 
 was held that Livingston was liable 
 for the collection, though only two 
 terms intervened between the receipt 
 and his death. 
 
 Krause v. Dorrance, 10 Barr, 462, 
 
 352
 
 Chap. II.] LIABILITY OF AGENT TO PEINCIPAL. 
 
 §516. 
 
 § 516. Same Subject— Liability of Mercantile or Collection 
 Agencies. The same rules which have been applied to attorneys 
 who undertake the collection of claims, apply to the so-called 
 commercial or collection agencies, through which a large portion 
 
 was assumpsit against two attorneys 
 for money collected and not paid by 
 another attorney to whom they sent 
 the note for collection. The liability 
 of the original attorneys for the col- 
 lection was admitted, but the point 
 was made and succeeded, that a de- 
 mand before suit was necessary. 
 Rogers, J., says expressly they were 
 liable for the acts of the agent whom 
 they employed, but being without 
 fault themselves, a demand was neces- 
 sary before a resort to an action. 
 
 In Rhines v. Evans, 16 P. F. Smith, 
 192; S. C, 5 Am. Rep. 365, the 
 receipt was: "Received for collec- 
 tion of A. Rhines one note on Lukens 
 & Beeson.of Rochester, dated October 
 30, 1857, for $365." The liability of 
 Evans, the attorney, was conceded 
 and the question was on the statute 
 of limitations, and it was held the 
 action was barred by the lapse of 
 seven years and five months from the 
 date of the receipt. 
 
 These cases show the understand- 
 ing of the bench and bar of this State 
 upon a receipt of claims for collec- 
 tion. It imports an undertaking by 
 the attorney himself to collect, and 
 not merely that he receives it for 
 transmission to another for collection, 
 for whose negligence he is not to be 
 responsible. He is therefore liable 
 by the very terms of his receipt for 
 the negligence of the distant attorney, 
 who is his agent, and he cannot shift 
 responsibility from himself upon his 
 client. There is no hardship in this, 
 for it is in his power to limit his res- 
 ponsibility by the terms of his 
 receipt, when he knows he must 
 employ another to make the collec- 
 tion. Bullitt V. Baird, tupra. 
 
 We find cases in other states hold- 
 ing the same doctrine. In Lewis & 
 Wallace ®. Peck & Clark, 10 Ala. 142, 
 both firms were attorneys. The de- 
 fendants gave their receipt to the 
 plaintiffs for certain notes for collec- 
 tion, and after collecting the money, 
 transmitted it to the payees in the 
 notes instead of the attorneys who 
 had employed them, the payees hav- 
 ing, however, indorsed the notes. 
 
 Held, that Peck & Clark were lia- 
 ble to their immediate principals, the 
 plaintiffs, there being no evidence that 
 the payees had given them notice not 
 to pay over to Lewis & Wallace, the 
 original attorneys. This is a direct 
 recognition of the liability of the col- 
 lecting attorney to the transmitting 
 attorney. The case of Pollard v. 
 Rowland, 3 Blackf. (Ind.) 23, is more 
 directly in point. Rowland received 
 from Pollard claims for collection, 
 and sent them to Stephen, an attor- 
 ney in another county. Stephen 
 obtained judgment, and collected the 
 money. Held, that Rowland was 
 accountable to Pollard for the acts of 
 Stephen to the same extent that 
 Stephen was, and could make no 
 defense that Stephen could not; and 
 that Rowland was liable to Pollard 
 for the money. Cummins v. McLain 
 etal., 2 Pike (Ark.) 402, was a case 
 nearly similar to the Pennsylvania 
 case of Krause v. Dorrance, supra. 
 The attorney sent the claim to another 
 attorney at a distance, and was held 
 liable, but for the omission of the 
 plaintiff to make a demand, he failed 
 to recover. The court say the attor- 
 ney is liable for the acts of the attor- 
 ney he employs. In a Mississippi 
 case, two attorneys, Wilkinson and 
 
 23 
 
 353
 
 § 516. THE LAW OF AGENCY. [Book IV. 
 
 of the collection business is now transacted. In a leading case' 
 upon this subject the defendants gave the plaintiffs the following 
 receipt : 
 
 " J. M. Bradstreet & Son, Improved Mercantile Agency, Pitts- 
 burg, June 2d, 1865. — Keceived from Messrs. Everson, Preston 
 & Co. four duplicate acceptances, for collection, against Watt C. 
 Bradford, Memphis, Tennessee, amounting in all to $1,726.37. 
 
 "J. M. JBeadstreet & Son." 
 
 Defendants sent the claims to their agent in Memphis, who 
 collected the money but failed to pay over the proceeds. The 
 court held the defendants liable, saying, " It is argued, notwith- 
 standing the express receipt ' for ' collection,' that the defendants 
 did not undertake for themselves to collect, but only to remit to 
 a proper and responsible attorney, and made themselves liable 
 only for diligence in correspondence, and giving the necessary 
 information to the plaintiffs ; or in briefer terms, that the attor- 
 ney in Memphis was not their agent for the collection, but that 
 of the plaintiffs only. The current of decision, however, is 
 otherwise as to attorneys at law sending claims to correspondents 
 for collection, and the reasons for applying the same rule to col- 
 lection agencies are even stronger. They have their selected 
 ao^ents in every part of the country. From the nature of such 
 ramified institutions we must conclude that the public impression 
 will be, that the agency invited customers on the very ground of 
 its facilities for making distant collections. It must be pre- 
 sumed, from its business connections at remote points, and its 
 knowledge of the agents chosen, the agency intends to under- 
 take the performance of the service which the individual cus- 
 tomer is unable to perform for himself. There is good reason, 
 therefore, to hold that such an agency is liable for collections 
 made by its own agents, when it undertakes the collection by the 
 
 Willison, received of plaintiff a claim held liable for the receipt of the 
 
 for collection, and brought suit and money by Jennings. Wilkinson v. 
 
 obtained judgment. They dissolved Griswold, 12 Smedes & Marsh, 669." 
 
 partnership, Wilkinson retiring from i Bradstreet v. Everson, 72 Penn. 
 
 the practice; and Willison took St. 124; 13 Am. Rep. 665. To same 
 
 another partner, Jennings, who re- effect see Hoover v. Wise, 91 U. S. 
 
 ceived the money from the sheriff. 308; Weyerhauser v. Dun, 100 N. Y. 
 
 In a suit against Wilkinson as sur- 150, 2 N. E. Rep. 274. 
 viying partner of Willison, he was 
 
 354
 
 Chap. II.] LIABILITY OF AGENT TO PKINGIPAL. § 516. 
 
 express terms of the receipt. If it does not so intend, it has it 
 in its power to limit responsibility by the terras of the receipt." 
 Limitations of the kind indicated by the court in the passage 
 just cited are valid. Thus in an action ' brought against a similar 
 agency it appeared that the defendants had given and the plain- 
 tiffs had accepted a receipt for the claim, stating that it was to be 
 transmitted to an attorney by mail for collection or adjustment, 
 at the risk and on the account of the plaintiffs. Plaintiffs had 
 also signed a memorandum to the same effect upon the defend- 
 ants' books. It was contended on behalf of the plaintiffs not 
 only that the receipt was not sufficient in terms to limit the de- 
 fendant's liability to a mere transmitter of the claim, but that 
 even if it would bear this construction it would permit the de- 
 fendants to take advantage of their own wrong and was void as 
 opposed to public policy, and that therefore the defendants were 
 liable for the negligence or misconduct of the attorney whom 
 they employed and who had collected the money and appropri- 
 ated it to his own use. In answer to this contention the court 
 said : " It well may be that such would be the responsibility of 
 the defendants, were it not for the restrictive clause in the re- 
 ceipts. But that clause, if any effect is given to it, clearly limits 
 that liability ; for it provides that the account is to be transmit- 
 ted to an attorney for collection at the risk of the plaintiffs. Such 
 being the case, we think the defendants are not liable for the acts 
 or default of the attorney employed by them, unless in the selec- 
 tion of such attorney they were guilty of gross negligence ; for 
 it seems to us it was competent for the parties, by express con- 
 tract, to limit the liability which the law would otherwise impose 
 upon the defendants for the acts of the attorney employed by 
 them to make the collection. We are not aware of any principle 
 of law or public policy which condemns such a contract." 
 
 But where the agency retains the right to control the means 
 and methods of collection, it will be held liable for the faithful 
 performance of the subagencies it employs, in the absence of 
 8uch a stipulation to the contrary. Thus where the claim was 
 taken " to be forwarded by us for collection by suit or otherwise, 
 at our discretion," the agency was held liable for the default of 
 its subagent.' 
 
 > Banger v. Dun, 47 Wis, 615; 33 « Morgan v. Tener, 83 Penn. St. 
 Am. Rep. 789; 3 N. W. Rep. 388. 305. 
 
 .355
 
 § 517. THE LAW OF AGENCY. [Book IV. 
 
 § 517. Same Subject— Liability of Express Companies. The 
 same general principles are applied to express companies which 
 undertake the collection of demands. Thus where the plaintiff 
 at Brockport, New York, delivered to the American Express Co. 
 a note made by a resident of San Francisco, with instructions to 
 take it to San Francisco, demand payment, and, if not paid, to 
 have suit instituted at once for its collection, (the plaintiff sup- 
 posing the company's line to extend to San Francisco, although 
 in fact it did not), and the express company carried the note to 
 the termination of its line and there delivered it to another com- 
 pany, whose line extended the remainder of the distance, with the 
 instructions, to be by the latter company carried out, it was held 
 that the first company was responsible for a loss occurring from 
 the negligence of the latter company in making the collection.' 
 
 So where an express company having undertaken the collec- 
 tion of a bill, delivered it to a notary for protest, it was held 
 that the company was responsible for a loss occasioned by the 
 notary's protesting it too soon.' 
 
 § 518. Same Subject— The Measure of Damages. The meas- 
 ure of damages in an action against an agent for negligence in 
 collection is the actual loss sustained. The negligence being 
 established, that loss ^rtma yaci6 is the amount of the claim,* 
 but the agent may show that, notwithstanding his negligence, 
 the principal has suffered no loss, and the recovery can then be 
 for nominal damages only. Thus he may show in reduction of 
 damages that if he had used the greatest diligence, the debt 
 could not have been collected ; * or that the principal's claim 
 against the debtor is delayed only and not lost,' or that he is 
 wholly or partially protected by securities which he holds,' or 
 that though the principal's claim against certain of the parties is 
 
 > Palmer v. Holland, 51 N. Y. 416, Washington*. Triplett, 1 Pet. (U. 8.) 
 
 10 Am. Rep. 616. 25; First National Bank v. Fourth 
 
 2 American Express Co. v. Haire,21 National Bank, 77 N. Y. 320, 33 Am. 
 Ind. 4, 83 Am. Dec. 334 Rep. 618. 
 
 3 Allen V. Suj'dara, 20 Wend. (N. * First National Bank «. Fourth 
 Y.) 321, 32 Am. Dec. 555; Durnford National Bank, supra. 
 
 V. Patterson, 7 Mart. (La.) 460; 12 Am. • Van Wart v. WooUey, 3 Barn. & 
 
 Dec. 514; Miranda v. City Bank, 6 Cress. 439. 
 
 La. 740; 26 Am. Dec. 493; Bank of « Borup t>. Nininger, 5 Minn. 523, 
 
 356
 
 Chap. II.] LIABILITY OP AGENT TO PBINOIPAL. § 519. 
 
 lost, there are still others liable who are amplj responsible, from 
 whom the debt can be collected.' 
 
 § 519. Same Subject— Principal's Right of Action against 
 Subagent. Whether the principal may hold the subagent 
 directly responsible is a question upon which there is also much 
 conflict of authority. Tlie question may present itself in two 
 forms : 1. Whether the principal may hold the subagent directly 
 liable for his negligence, and 2. Whether the principal may 
 recover from the subagent the proceeds of the collection then in 
 his hands. 
 
 I. The determination of first form must depend largely upon 
 the view which shall be taken of the general relations of the 
 parties as discussed in the preceding sections. If the sub- 
 agent is to be treated as the agent of the agent only, then there 
 is no privity between them upon which such an action can be 
 based ;* but if on the other hand the subagent is to be treated as 
 the agent of the principal, the principal may proceed against him 
 directly for his default.' This conclusion is in accordance with 
 the general principles governing the appointment of subagents 
 which have been heretofore stated. 
 
 II. The determination of the second form must also rest upon 
 the same general principles, but the decisions of the courts have 
 not been harmonious, nor have the decisions of the same court 
 always been in harmony upon both forms of the question. It is 
 therefore difficult to extract uniform principles from them, but 
 the following may be said to be supported by a preponderance 
 of authority : — 
 
 1. That where by special arrangement or custom of dealing 
 between the owner of the paper and the bank or the agent under- 
 taking the collection, the latter at once places the amount thereof 
 to the credit of the owner, upon which he thereupon draws or is 
 entitled to draw as cash, this works a transfer of the title to the 
 paper in such a way as to prevent the owner from following the 
 paper or its proceeds into the hands of a third party who has 
 received the paper in good faith and due course of business from 
 the agent for collection.* 
 
 ' First National Bank •. Fourth * Ayres v. Farmers' and Merchants' 
 
 National Bank, supra. Bank, 79 Mo. 421, 4!) Am. Rep. 235. 
 
 "See ante, % 197. In this case the plaintiff deposited 
 
 'See ante, § 197. with the Mastin Bank for collection 
 
 357
 
 §519. 
 
 THE LAW OF AOENOT. 
 
 [Book IV. 
 
 2. That, except as above, the bank or agent actually making 
 the collection may be held responsible directly to the true owner, 
 unless, before receiving notice of the owner's claim, it has paid 
 over the proceeds to the bank or agent from which it received 
 the paper, or unless it has made advances or given credit to the 
 bank or agent from which it received the paper in such a way as 
 to make it a bona fide holder of the paper for value.' Unless it 
 
 and credit on his account a check 
 drawn on defendant in favor of a 
 third person. Under an express ar- 
 rangement the amount of the check 
 was immediately passed to the credit 
 of the plaintiff, who drew upon it the 
 same day The Mastin Bank sent 
 the check to defendant who charged 
 it to the maker and credited the 
 MastiL Bank. The Mastin Bank in 
 the meantime had failed, but defend- 
 ant did not know It. Plaintiff then 
 sued defendant to recover the amount 
 of the check, but was held not enti- 
 tled to recover. The arrangement 
 between the plaintiff and the Mastin 
 Bank was held by the court to amount 
 to a purchase of the paper by the lat- 
 ter. 
 
 >Thus bank A, the owner of a 
 check drawn on bank D, indorsed 
 and transmitted it for collection and 
 credit on its account to bank B. 
 Bank B did not however give bank 
 A credit for the check, but entered it 
 on its collection register merely, and 
 indorsed and transmitted it for col- 
 lection to bank C, with directions to 
 credit bank B with the proceeds. 
 Bank B on the same day failed in 
 debt to bank A. Bank C collected 
 the check and credited the proceeds 
 to bank B, which was in debt to bank 
 C. Before the collection the cashier 
 of bank C had heard of bank B's 
 failure, but did not inform bank D, 
 which was ignorant of it. The 
 United States bank examiner having 
 taken charge of tlie affairs of bank 
 B, without the knowledge of bank A, 
 
 credited bank A and charged bank B 
 with the amount on the books of 
 bank B. Bank A sued bank C to re- 
 cover the amount of the check. 
 . Upon this state of facts it was held 
 that bank C was the agent of bank B 
 for the purposes of the collection; 
 that the form of the indorsement 
 from bank A to bank B was sufficient 
 to apprise bank C that bank B was 
 not the owner of the check, but an 
 agent for collection merely; that the 
 insolvency of bank B, of which bank 
 C had notice, was sufficient to revoke 
 the authority conferred by bank A 
 upon bank B, to mingle the proceeds 
 with the general funds of bank B, by 
 entering the amount to the credit of 
 bank A, even if it did not revoke 
 bank B's authority to collect 
 altogether; that bank A was therefore 
 entitled to recover the proceeds from 
 bank C, and that the fact that bank 
 C had credited the amount on its 
 books to bank B did not defeat the 
 recovery. "No objection," said the 
 court, " can be successfully made on 
 the ground of want of privity. There 
 is some discrepancy in the decisions 
 as to whether the collecting asent, or 
 the subagent, should be sued by the 
 holder of paper for the failure of the 
 subagent to perform some duty, or 
 for some negligence whereby the 
 debt is lost. See 1 Dan. Neg. Inst 
 §344 and notes. But the rule scarcely 
 admits of an exception that where 
 one has in his hands money which 
 rightfully belongs to another, the lat- 
 ter may sue for and recover it." 
 
 358
 
 Chap. II.] LIABILITY OF AGENT TO PRINCIPAL. 
 
 §619. 
 
 be a bona fide purchaser of it for value or for advances made upon 
 it in good faith without notice of any defect in the title, the bank 
 or agent actually making the collection acquires no better title 
 to the paper or its proceeds than was possessed by the bank or 
 agent from whom it was received.* 
 
 3. That in the last mentioned case, the subagent cannot be 
 
 First National Bank of Crown Point 
 V. First National Bank of Richmond, 
 76 Ind. 561. 40 Am. Rep. 261, citing 
 Hall V. Marston, 17 Mass. 574. In 
 Hyde v. First Nat. Bank. 7 Biss. 0. 
 C. 156, the rule laid down in subdivi- 
 sion 3 of the text is thought to be 
 overruled by Hoover v. Wise, 91 U. 
 S. 308, but in First National Bank of 
 Chicago V. Reno County Bank, 3 Fed. 
 Rep. 257, Judge McCrary reaches 
 the opposite conclusion as to the 
 effect of Hoover v. Wise, and an- 
 nounces the same rule as is laid down 
 in Indiana, saying, *' I fully approve 
 the doctrine announced by the Su- 
 preme Court of Massachusetts in Hall 
 V. Marston, 17 Mass. 574, as follows: 
 * Whenever one man has in his hands 
 the money of another which he ought 
 to pay over, he is liable in this action 
 (assumpsit) although he has never 
 seen or heard of the party who has 
 the right. When the fact is proved 
 that he has the money, if he cannot 
 show that he has legal or equitable 
 grounds for retaining it, the law cre- 
 ates the privity and the promise.' 
 This doctrine is not in conflict with 
 the decision of the Supreme Court in 
 Hoover v. Wise." See also Wallis v. 
 Shelly, 30 Fed. Rep. 747; Elliott v. 
 Swartwout, 10 Pet. (U.S.) 137; Gaines 
 V. Miller, 111 U. S. 395. 
 
 ' Dickerson v. Wason, 47 N. Y. 
 439, 7 Am. Rep. 455; McBride v. 
 Farmers' Bank, 26 N. Y. 450. 
 
 In New York an antecedent debt is 
 not a good consideration. " The de- 
 cisions of our courts have been uni- 
 form from the time Coddington v. 
 
 Bay (20 Johns 637) was determined, 
 that before the holder of a note can 
 acquire a better title to it than the 
 person had from whom he received it, 
 he must pay a present valuable con- 
 sideration therefor; and that re- 
 ceiving it in payment of, or as secur- 
 ity for, an antecedent debt, is not 
 such a consideration. Rosa v. Broth- 
 erson, 10 Wend. 86; Stalker ». Mc- 
 Donald, 6 Hill 93; Youngs v. Lee, 2 
 Kern. 551." Balcom, J., in McBride 
 V. Farmers' Bank, supra. 
 
 The contrary doctrine as to consid- 
 eration prevails in Massachusetts. 
 One who takes a negotiable promis- 
 sory note before maturity, as security 
 for a pre-existing debt, is by the law 
 of that State, a holder for value. 
 Culver V. Benedict, 13 Gray (Mass.) 
 7; Wood V. Boylston National Bank, 
 129 Mass. 358, 37 Am. Rep. 366. 
 Thus the plaintiff who was the owner 
 of a negotiable promissory note en- 
 dorsed it in blank and delivered it to 
 an attorney for collection. The at- 
 torney deposited it in the defendant 
 bank, without his own indorsement, 
 to be collected. The bank collected 
 the money and not knowing that the 
 attorney was not the owner applied 
 it upon a debt which the attorney 
 owed the bank. The attorney be- 
 came bankrupt and the bank settled 
 with his assignee, crediting the pro- 
 ceeds of the note and receiving but a 
 portion of its claim against the attor- 
 ney. Afterwards the plaintiff learned 
 that the bank had collected the money, 
 informed it of his claim, and upon 
 the bank's refusal to pay it to him, 
 
 359
 
 § 520. THE LAW OF AGENCY. [Book lY. 
 
 deemed to be such a bona fide holder where the paper bears upon 
 its face evidence that the bank or agent from which it was 
 received was an agent for collection merely.' 
 
 4. That the bankruptcy of the bank or agent which has taken 
 the paper for collection and credit when collected, before it has 
 received the funds from the subagent, terminates the authority 
 to so receive the proceeds and credit them to the account of the 
 owner.* 
 
 § 520. Del Credere Agents. How liable to Principal. When- 
 ever an agent, in consideration of additional compensation, 
 guarantees to his principal the payment of the debts that become 
 due through his agency, he is said to act under a del credere 
 commission. 
 
 Whether the legal effect of such a commission is to make the 
 agent primarily liable in all events for the proceeds of the goods 
 as for goods sold to him, or whether he is a mere surety for the 
 vendee to pay for the goods if the latter does not, is a question 
 upon which there has been great conflict of authority. After 
 much vacillation, the doctrine is settled in the English courts 
 that he is not liable to his principal in the first instance, but is 
 only to answer for the solvency of the vendee and to pay the 
 money if the vendee does not.' 
 
 But the prevailing doctrine in the United States seems to be in 
 accordance with the more stringent rule, that he is absolutely 
 liable in the first instance for the payment of the price of 
 the goods sold by him, to the same extent and in the same man- 
 ner as if he were himself the purchaser.* His liability is thus 
 
 brought suit, but he was held not en- Peele «. Northcote, 7 Taunt. 558. See 
 titled to recover. Wood ». Boylston earlier cases, contra. Grove e. Dubois, 
 Nat. Bank, supra. IT. R. 112; Mackenzie v. Scott, 6 
 1 First National Bank of Crown Bro. P. C. 280; Houghton v. Mat- 
 Point V. First National Bank of thews, 3 Bos. & Pul. 489. 
 Richmond, 76 Ind. 561, 40 Am. Rep. * Lewis v. Brehme, 33 Md. 412, 3 
 261; City Bank B. Weiss, 67 Tex. 333, Am. Rep. 190; Wolfif v. Koppel, 2 
 60 Am. Rep. 29; First National Denio (N. Y.) 368; 43 Am. Dec. 751; 
 Bank v. Bank of Monroe, 33 Fed. Swan «. Nesmith, 7 Pick. (Mass.) 
 Rep. 408; In re Armstrong, 33 Fed. 220, 19 Am. Dec. 282; Cartwright ». 
 Rep. 405. Greene, 47 Barb. (N. Y.) 16; Sher- 
 s See cases cited in preceding note. wood u. Stone, 14 N. Y. 268; Lever- 
 » Hornby b. Lacy, 6 Maul & Sel. ick v. Meigs, 1 Cow. (N. Y.) 645; 
 166; Morris «. Cleasby, 4 Maul. & Blakely «. Jacobson, 9 Bosw. (N. Y.) 
 Sel. 566; Couturier®. Hastie, 8 Ex. 40; 140. 
 
 360
 
 Chap. II.] LIABILITY OP AGENT TO PKINCIPAU § 522. 
 
 made an original and not a collateral one, and his undertaking is 
 not, therefore, a promise to answer for tlie debt of another within 
 the contemplation of the Statute of Frauds and void if not in 
 writing:.* 
 
 § 521. When Agents liable for selling to irresponsible Parties. 
 It is the duty of an agent, intrusted with goods to be sold, 
 to sell them, in the absence of a usage or of authority to the 
 contrary, for cash only ;' and even when authorized to sell upon 
 credit, he is bound to exercise reasonable care and prudence in 
 selling only to responsible purchasers. For a loss occurrino- from 
 his failure to observe his duty in this regard, the agent is liable.' 
 
 So if under the agent's contract it is his duty to sell for cash 
 if possible, but if he gives credit at all, to do so only to those 
 who are good and responsible, and to take no paper but that 
 which is good and collectible, he will be liable if he negligently 
 takes the notes of purchasers who are not responsible.* 
 
 In such a case, however, if the principal would take advantao-e 
 of the agent's negligence or disobedience, he must act within 
 a reasonable time, and if he does not, he cannot afterwards 
 complain.* 
 
 lY. 
 
 TO ACCOITNT FOK MONEY AND PROPERTY. 
 
 § 522. In general. It may be stated as a general rule that the 
 agent is bound to account to his principal for all money and 
 property which may come into his hands during, and by virtue 
 of, the agency.* This rule embraces not only such money and 
 
 Contra, Thompson v. Perkins, 3 pal who had for two years retained 
 
 Mason (U. S. C. C.) 232. notes taken by the agent could not 
 
 * Wolff V. Koppel, 5 Hill (N. Y.) complain that he had sold to irre- 
 468; Swan v. Nesmith, supra; Sher- sponsible parties. 
 
 wood V. Stone, supra; Bradley v. 'Baldwin v. Potter, 46 Vt. 403; 
 
 Richardson, 23 Vt. 720. Taul v. Edmondson, 87 Tex. 556; 
 
 2 See orate, § 353. Bedell c. Janney, 4 Gilm. (111.) 193; 
 
 8Tate V. Marco, — S. C. — 4 S. E. Armstrong v. Smith, 3 Blackf. (Ind.) 
 
 Rep. 71. See ante, § 474, note 4. 251 ; Heddens v. Younglove, 46 Ind. 
 
 * Clark V. Roberts, 26 Mich. 506. 212; Jett ». Hempstead, 25 Ark. 462; 
 See ante, § 474, note 4. Whitehead v. Wells, 29 Ark. 99; 
 
 5 Piano Mnfg Co. v. Buxton, 36 Haas p. Damon, 9 Iowa 589; Robson 
 Minu. 203, 30 N. W. Rep. 668. In v. Sanders, 25 S. C. 116. 
 this case it was held that the princi- 
 
 361
 
 § 523. THE LAW OF AGENCY. [Book IV. 
 
 property as maybe received directly from the principal, but also 
 that which comes into the agent's hands as the results of his 
 agency. As has been seen in a previous section,' to the principal 
 belong all profits and advantages made by the agent, beyond 
 lawful compensation, whether such profit or advantage be the 
 fruit of the performance or the violation of the agent's duty, or 
 whether they are the result of transactions within or beyond 
 the scope of his authority, provided the acts from which they 
 accrue were assumed to be done in the behalf and for the benefit 
 of the principal. 
 
 § 523. Account only to Principal— Joint Principal. As a 
 rule, the agent is bound to acpount to his principal only,* and 
 where there are several common principals he will not be held to 
 account to each separately.' 
 
 § 524:. Subagents— Account to whom. The principles gov- 
 erning in this case have already been referred to in preceding 
 sections. "Wherever the appointment of the subagent is by the 
 express or implied consent of the principal, such a privity 
 exists between them as makes the subagent liable directly to the 
 principal.* Where, however, the subagent is to be regarded as 
 the ao-ent only of one who stood in the relation of independent 
 contractor to the principal, there, as has been said, there is ordi- 
 narily no privity by virtue of which the subagent can be held 
 accountable to the principal.* Yet even in this case, as has also 
 been seen, where funds of the principal come into the hands of 
 a subagent or other third person who has no duty in respect to 
 them but to pay them over to the person to whom they belong, 
 the principal, by timely information as to his claim, may recover 
 them directly from such subagent or other third party.* 
 
 S 525. Agent may not dispute his Principal's Title. It is a 
 general principle in the law of agency that the agent may not 
 dispute his principal's title.* Having assumed the performance 
 
 ^Ante, %% 469-472. 'Ante, % 197. Guelich v. National 
 
 • Attorney-General©. Chesterfield, State Bank, supra. 
 18Beav. 596. 'Ante, % 519. 
 
 8 Trustees, &c. t. Dupuy, 81 La. ' Collins ». Tillou, 26 Conn. 368, 68 
 
 Ann. 305. ^^- ^^(^- 398; Holbrook v. Wight, 
 
 * Ante, % 197. Guelich v. National 24 Wend. (N. Y.) 169, 35 Am. Dec. 
 State Bank, 56 Iowa 434, 41 Am. 607; Marvin 5. Ell wood, 11 Paige (N. 
 Rep. 110. Y.) 365; Roberts v. Ogilby, 9 Price 
 
 362
 
 Chap. II.] LIABILITY OF AGENT TO PKINCIPAL. § 520. 
 
 of the agency by virtue of which he has received the property or 
 money of his principal, he will not be permitted, when called 
 upon by his principal to account for the property or money so 
 received, to deny his principal's title to it. This general princi- 
 ple, however, is subject to certain exceptions as well settled as the 
 principle itself. It is always competent for the agent to show in 
 his own defense that he has been divested of the property by a 
 title paramount to that of his principal.' He may also show that 
 since the delivery to him the title of his principal has been ter- 
 minated * or that the principal has transferred his interest or 
 title to another under whom the agent claims.' 
 
 § 526. May not allege Illegality of Transaction to defeat 
 Principal's Claim. An agent who has received money from, or 
 in behalf of, his principal, can not defeat an action brought by 
 the principal to recover it, upon the ground that the contract 
 under which the money was paid, or the transaction from which 
 It was realized, or the purpose to which it was to be devoted, was 
 illegal.'* 
 
 Thus a collector of taxes cannot deny the right of his principal to 
 receive them on the ground that they were illegally levied ; ' an 
 agent who in unlawful speculations has received money belong- 
 ing to his principal can not refuse, on that ground, to pay it to 
 him ; • nor can an agent who has received money from his prin- 
 cipal to be employed for an unlawful purpose, but who has not 
 
 269; Kieran v. Sandars, 6 Ad. & El. Kiewert v. Rindskopf, 46 Wis. 481, 
 
 515, 33 Am. Rep. 731 ; Brooks o. Martin, 
 
 •Western Transportation Co. v. 2 Wall. (U. S.) 70; Gilliam t>. Brown, 
 
 Barber, 56 N. Y. 552; Biddle v. Bond, 43 Miss. 641 ; Reed v. Dougan, 54 Ind. 
 
 6 Best & Smith 234; Bliven v. Hud- 307; Baldwin©. Potter, 46 Vt. 403; 
 
 son River R. R. Co., 36 N. T. 406; First National Bank v. Leppel, 9 Col. 
 
 Doty V. Hawkins, 6 N. H. 247, 25 594; Souhegan Bank v. Wallace, 61 
 
 Am. Dec. 459; Burton v. Wilkinson, N. H. 24. 
 
 18 Vt. 186. See also DeLeon •. Trevino, 49 
 
 2 Marvin t>. Ellwood, 11 Paige (N. Tex. 88, 30 Am. Rep. 101. with crit- 
 Y.) 365. icisms in the note. 
 
 3 Duncan v. Spear, 11 Wend. (K See also the cases next cited. 
 
 Y.) 56; Barker v. Dement, 9 Gill 8 Placer County b. Astin, 8 Cal. 303; 
 
 (Md.) 7, 52 Am. Dec. 670; Snodgrass Clark v. Moody, 17 Mass. 145; Ham- 
 
 f». Butlei, 54 Miss. 45. mond v. Christie, 5 Robt. (N. Y.) 160; 
 
 «Snellt). Pells, 113 111. 145; Chinn Galbaith v. Gaines, 10 Lea. (Teun.) 
 
 V. Chinn, 33 La. Ann. 599; Murray v. 568. 
 
 Vanderbilt, 39 Barb. (N. Y.) 140; « Norton c. Blinn, 39 Ohio St. 145. 
 Daniels v. Barney, 32 Ind. 307; 
 
 363
 
 § 527. THE LAW OF AGENCY. [Book lY. 
 
 80 employed it, refuse to return the money to his principal be- 
 cause of the illegality of the purpose contemplated.* 
 
 § 527. When may maintain Interpleader. An agent being 
 bound to recognize and respect his principal's title can not, in 
 general, compel his principal to interplead with a stranger who 
 claims, by a paramount and adverse title, the property or funds 
 intrusted to the agent by the principal.* Where, however, the 
 third person claims under a title derived from the principal and 
 created by the latter's own act subsequently to the time the agent 
 was intrusted with the possession — as through an assignment. 
 Bale, mortgage or lien made or given by the principal — the agent 
 may compel the parties to interplead.* 
 
 § 528. Agent's Duty to keep correct Accounts. As a neces- 
 flary consequence of the agent's duty to account, it is his duty to 
 keep and preserve true and correct accounts and statements of 
 the business with which he is intrusted, together with all such 
 receipts, vouchers and evidences of dealing as may be necessary 
 to fully and fairly disclose the details of the transaction and pro- 
 tect the principal from future liability.* 
 
 Technical nicety of bookkeeping is not, of course, in general 
 to be expected. What is a reasonable fulfillment of the agent's 
 duty in this case as in others, depends upon the particular cir- 
 cumstances requiring care and diligence.' 
 
 So while it is thus the agent's duty to keep correct accounts 
 yet if the principal himself has by his own interference created, 
 or so contributed to, such confusion as to render an absolutely 
 
 >Kiewert v. Rindskopf, supra. mond, 6 Sim. 10; Wright v. Ward, 4 
 
 *Craw8hay v. Thornton, 3 My. & Russ. 215; Crawford v. Fisher, 1 
 
 Cr. 1; Smith v. Hammond, 6 Sim. 10; Hare. 436; Tanner*. European Bank, 
 
 Atkinson «. Manks, 1 Cow. (N. Y.) L. R. 1 Exch. 261. 
 
 691 ; United States Trust Co. «. Wiley, * Haas v. Damon, 9 Iowa 589; 
 
 41 Barb. (N. Y.) 477; Lund v. Sea- Clark v. Moody, 17 Mass. 145; Ker- 
 man's Bank, 37 Id. 129; Vosburgh foots. Hyman, 53 111.512; Matthews 
 V. Huntington, 15 Abb. (N. Y.) Pr. v. Wilson, 27 Mo. 155: Dunwidie v. 
 254; Bank v. Bininger, 26 N. J. Eq. Kerley, 6 J. J. Marsh. (Ky.) 501; 
 345 ; Tyus v. Rust, 37 Ga. 574, 95 Am. Schedda t>. Sawyer, 4 McLean (U. S. 
 Dec. 365; Hatfield ». McWhorter, 40 C. C.) 181; Ridder v. Whitlock, 12 
 Ga. 269; Crane t). Burntrager, 1 Ind. How. (N. Y.) Pr. 208; Chinn v. 
 165. Chinn, 23 La. Ann. 599. 
 
 •Gibson v. Goldliiwaite, 7 Ala. 281, » Makepeace v. Rogers, 34 L. J. Ch. 
 
 42 Am. Dec. 592; Smith v. Ham- 367. 
 
 364
 
 Chap. II.] LIABILITY OF AGENT TO PRINCIPAL. § 530. 
 
 eatisfactorj accounting impossible, the agent ought not to be held 
 to the most rigid rule.' 
 
 § 629. Duty to keep Principal's Property and Fxmds separate 
 fromhisown— Liability for Commingling. It is the duty of the 
 agent to keep the property and funds of his principal separate 
 from his own. If, without necessity, he has so commingled the 
 goods of his principal with his own that he cannot discriminate 
 between the two, the whole mass so undistinguishable must be 
 held to belong to the principal.* So if he mingles the funds of 
 his principal with his own and the whole is lost, ihe loss must 
 fall upon the agent.' 
 
 This rule is of frequent application in cases where the agent 
 has deposited money of his principal in a bank. In ease it be- 
 comes necessary to make such a deposit, the agent will escape 
 personal liability if he deposits it in the name of his principal in 
 a bank of good credit, or if he so distinguishes it on the books of 
 the bank as to indicate in some way that it is the money of his 
 principal.* If on the contrary he deposits it in his own name, 
 or with his own funds, he will, in case of a failure of the bank, 
 be liable to the principal for his money.* 
 
 This rule was carried to the extent in a recent case to hold 
 that an attorney who deposits his client's money in a solvent 
 bank in his own name, though in a separate account, but :vith no 
 indication of the trust, is liable for a loss occasioned by the sub- 
 sequent failure of the bank, notwithstanding he was prevented 
 from transmitting the money by garnishment proceedings against 
 him.« 
 
 § 530. When Agent should account. Where at the creation 
 of the agency the time of accounting is expressly agreed apon, 
 
 * Robbins v. Robbing, — N. J. Eq. • Williams v. Williams, 55 Wis. 
 — 8 Atl. Rep. 264. 300. 43 Am. Rep. 708; Norris v. Hero, 
 
 «Hart«. Ten Eyck, 2 Johns. (N. 23 La. Ann. 605; Mason v. Whitt- 
 
 T.) Ch. 63; Edwards e. Bailments, home, 3 Cold. (Tenn.) 242; Jenkins u, 
 
 § 271. Walter, 8 Gill & J. (Md.) 218, 29 Am. 
 
 8 Bartlett ». Hamilton, 46 Me. 435 ; Dec. 539; State v. Greensdale, 106 
 
 Cartmell v. Allard, 7 Bush. (Ky.) 483; Ind. 364, 55 Am. Rep. 753; Naltner 
 
 Graver's Appeal, 50 Penn. St. 189, v. Dolan, 103 Ind. 500, 58 Am. Rep. 
 
 and cases cited in following notes. 61; Cartmell v. Allard, 7 Bush (Ky.) 
 
 * Norwood V. Harness, 98 Ind. 134, 482. 
 
 49 Am. Rep. 739; Slate ». Greensdale, • Naltner v. Dolan, 108 Ind. 500, 58 
 106 Ind. 364, 55 Am. Rep. 753. Am. Rep. 61. 
 
 365
 
 g 530. THE LAW OF AGENCY. [Book IV. 
 
 or where, from the circumstances of the case, an agreement to ac- 
 count at a particular time is to be implied, such agreement will 
 of course govern. In the absence of such an express or implied 
 agreement, the time when an accounting should be made will 
 depend largely upon the facts of each case. In general terms, 
 however, it may be said that an agent is ordinarily bound to 
 account upon demand, and in all events within a reasonable 
 time.^ 
 
 It is the duty of an agent who has received goods to sell for 
 his principal, to account for the proceeds within a reasonable 
 time, and without demand in cases where a demand would be 
 impracticable or extremely inconvenient,] so that factors 
 abroad who have received goods to sell, without special in- 
 structions as to the mode of remittance, are held according to the 
 course of business, to render an account of their sales or pay 
 over the proceeds thereof within a reasonable time, and if 
 they neglect to do this, such negligence is a breach of contract 
 and subjects them to an action. So, likewise, after the lapse of 
 a reasonable time from the receipt of goods and a neglect to ac- 
 count for them, the fair presumption is that the goods have been 
 sold and the money received for them, and an action for money 
 had and received may be maintained.* 
 
 It is the duty of an agent who has collected money for his 
 principal to give him notice thereof within a reasonable time after 
 its receipt.' This affords the principal opportunity to give such 
 directions in regard to its transmission as he may desire. Such 
 direction?^ are, indeed, usually given at the time of the employ- 
 ment of the agent, and whenever they are given, it is the duty 
 of the agent, as has been seen, to observe them. 
 
 Where no such instructions are given, it has been said that 
 good faith on the part of the agent requires that he should, after 
 deducting his commission, remit the money to his principal by 
 some safe and appropriate means within a reasonable time ;* but 
 
 ' Leake v. Sutherland, 25 Ark. 219. » Jett v. Hempstead, 25 Ark. 463; 
 
 2 Eaton u Welton, 33 N. H. 353; Whitehead v. Wells, 29 Ark. 99; 
 
 Clark V. Moody, 17 Mass. 145; Haas Dodge v. Perkins, supra; Williams v. 
 
 V. Damon, 9 Iowa. 589; Torrey v. Storrs. 6 Johns. (N. Y.) Ch. 353, 10 
 
 Bryant, 16 Pick. (Mass.) 528; Langley Am. Dec. 340. 
 
 «. Sturtevant, 7 Pick. (Mass.) 214; * Bedell v. Janney, 9 111. (4 Gilm.) 
 
 Cockhill V. Kirkpatrick, 9 Mo. 697; 193; Lillie v. Hoyt, 5 Hill (N. Y.) 
 
 Dodge V. Perkins, 9 Pick. (Mass.) 363. 395, 40 Am. Dec. 3G0. 
 
 366
 
 Chap. II.] LIABILITY OF AGENT TO PRINCIPAL. § 531. 
 
 where he acts for a foreign principal, he is not bound to take the 
 risk of the remittance by methods of his own selection, but hav- 
 ing advised the principal of the collection, the agent may await 
 the principal's directions as to the manner in which the remit- 
 tance shall be made.* 
 
 § 531. Necessity for Demand before Action. No action can, 
 ordinarily, be maintained against an agent for money received by 
 him for his principal until after a demand has been made upon 
 him for its payment, with which he has refused or neglected to 
 comply.* Such a demand and refusal or neglect to pay are essen- 
 tial averments in the declaration or complaint, without which 
 the action cannot ordinarily be sustained.' 
 
 As a general rule in such cases, it may be presumed, as it has 
 been said, that payment has been delayed by reason of the want 
 of safe and convenient means of transmission or of some other 
 good and suflBcient cause, and that the recipient of the money, 
 still considering himself entitled to no more than enough to rea- 
 sonably compensate him for his services in collecting, will pay it 
 over on demand.* This rule, however, presupposes that the agent 
 has duly performed his duty of notifying the principal of the 
 receipt of the money.' 
 
 * Ferris ». Paris, 10 John. (N. Y.) brook, 2 N. Y. 130: Williams «. 
 
 285, 286; Lyle v. Murray, 4 Sandf. Storrs, 6 Johns. (N. Y.) Ch. 353, 10 
 
 (N. Y.) 590. Am. Dec. 340; Haas v. Damon, 9 
 
 2 Armstrong ». Smith, 3 Blackf. Iowa, 589; Burton v. Collin, 3 Mo. 
 
 (Ind.) 251; Judah v. Dyott, Id. 324, 315; Waring v. Richardson, 11 Ired. 
 
 25 Am. Dec. 112; English v. Devarro, (N. C.) L. 77; Cockrilli). Kirkpatrick, 
 
 5 Id. 588; Hannum v. Curtis, 13 Ind. 9 Mo. 688; Pierse v. Thornton, 44 Ind. 
 
 206; Jones v. Gregg, 17 Ind. 84; 235; Terrell o. Butterfield, 92 Ind. 1; 
 
 Black V. Hersch, 18 Ind. 343, 81 Am. Claypool v. Gish, — Ind. — , 9 N. E. 
 
 Dec. 362; Catterlin v. Somerville, 22 Rep. 382. But see contra, Lillie v. 
 
 Ind. 482; Boughert). Scobey, 23 Ind. Hoyt. 5 Hill (N. Y.) 895, 40 Am. 
 
 583; Nutzenholster v. State, 37 Ind. Dec. 360. 
 
 457; Heddens v. Youuglove, 46 Ind. * Claypool v. Gish, supra. This 
 
 212; Cummins v. McLain, 2 Ark. 412; averment is so essential that a motion 
 
 Sevier v. Holliday, 2 Ark. 512; to arrest will be sustained on account 
 
 Palmer v. Ashley, 3 Ark. 75; Taylor of its absence. Pierce v. Thornton, 
 
 p. Spears, 6 Ark. 381, 44 Am. Dec. supra; Eberhart v. Reister, 96 Ind. 
 
 519; Warner v. Bridges, Id. 385; 478. 
 
 Roberts v. Armstrong, 1 Bush (Ky.) * Bedell v. Janney, 9 111. 193. 
 
 263, 89 Am. Dec. 624; 'State v. Sims, » Jett v. Hempstead, 25 Ark. 463; 
 
 76 Ind. 339; Baird v. Walker, 13 Haas v. Damon, 9 Iowa 589; Ferris 
 
 Barb. (N. Y.) 298, 301; Col vintJ. Hoi- v. Paris, 10 Johns. (N. Y.) 285; 
 
 367
 
 ft 532. THE LAW OF AGENOT. [Book lY. 
 
 But where he has not given such notice, and so long a time 
 has elapsed since the collection of the money as to rebut the pre- 
 sumption above referred to, he may well be considered as having 
 appropriated it to his own use, and then neither law nor reason 
 requires that before he can be sued for his non-feasance, he should 
 be requested to do what his conduct sufficiently indicates his 
 determination not to do.' 
 
 This rule is also subject to the exception that no demand is 
 necessary where it would be impracticable or extremely incon- 
 venient, as in the case above referred to, of a factor resident 
 abroad.' So, of course, no demand is necessary where the law 
 makes it the duty of the agent to -account without a demand.' 
 
 So no demand is required where the agency is denied, or a 
 claim is set up exceeding the amount collected, or the agent's 
 responsibility is disputed.* 
 
 Although the death of the principal, as has been seen, ordi- 
 narily terminates the relation, yet if after his death the agent 
 collects money and converts it to his own use, the personal rep- 
 resentative of the principal may recover it.' The mere fact that 
 the agent has once tendered the money will not relieve him if, 
 upon a subsequent proper demand, he refuses or neglects to pay 
 it over.' 
 
 § 532. Wlien Agent liable for Interest. An agent may be- 
 come liable to his principal for interest upon moneys in his 
 hands by virtue of an express or implied promise to pay such 
 interest. But he will also be chargeable with interest upon all 
 moneys in his possession which he has neglected or refused to 
 pay over, or to apply to the purpose for which he received it, 
 and such interest will be computed from the time of such neglect 
 or refusah Interest in these cases is allowed upon the ground 
 that the agent has retained in his possession money, of which it 
 was his duty to make some other disposition.^ 
 
 Thus, as has been seen, it is the duty of an agent who has col- 
 
 Cooley t». Betts, 24 Wend. (N. Y.) * Waddell v. Swann, 91 N. C. 108; 
 
 203. Wiley «. Logan, 95 N. C, 358. 
 » Bedell v. Janney, supra. ^ Clegg v. Bamberger, — Ind. — , 9 
 
 9 Clark ». Moody, 17 Mass. 145; North E. Rep. 700. 
 
 Eaton V. Welton, 33 N. H. 353. • Clegg v. Bamberger, supra. 
 
 » Dodge V. Perkins, 9 Pick. (Mass.) » See cases following. 
 
 868. 
 
 868
 
 Chap. II,] LIABILITY OF AGENT TO PRINCIPAL. § 533. 
 
 lected money for his principal, to give him notice of that fact 
 within a reasonable time. Failing in this duty, he is properly 
 chargeable with interest from the time when such notice should 
 have been given, even though he has acted in good faith.' A 
 fortiori is he chargeable with interest where, having collected 
 money, he neglects or refuses upon proper demand to pay it over, 
 or converts it to his own use.* 
 
 So if he has received money to be devoted to a specific pur- 
 pose, as to make an investment, and, contrary to his duty, retains 
 and applies it to his own use, he will be charged with interest 
 from the time of its receipt.* 
 
 Where, however, the agent is entitled to retain bho money, as 
 by virtue of some lien or charge upon it, he can not be chargeable 
 with interest during the period of such retention.* So if the 
 principal voluntarily permits the money to remain in the hands 
 of his agent, who holds himself in readiness to pay over upon 
 demand, the agent will not be chargeable with interest,' unless 
 he has been able to so invest or use the money as to mako it oarn 
 interest, for which he would be chargeable.* 
 
 § 533. When Liability barred by Statute of Limitations. 
 Statutes of limitation begin to operate only when a right of 
 action has accrued. The determination therefore of the question 
 when the statute begins to run against the principiil depends 
 upon the other question of the time when his right of ncdon 
 accrued. As has been seen, the general rule, subject to cei tain 
 exceptions already noted, is that the right of action does not 
 
 I Dodge t>. Perkins, 9 Pick. (Mass.) Wheeler «. Haskins, 41 Me. 482; Hy- 
 
 868; Clark*. Moody, 17 Mass, 145. man «. Gray, 4 Jones (N. Car,) L. 
 
 » Anderson t). State, 2 Ga, 370; Be- 155; Rowland v. Martindale, 1 Bailey 
 
 dell «. Janney, 9 111. 193; Board of (S. Car.) Ch. 226; Hauxhurst «. 
 
 Justices v. Fennimore, 1 N. J. L. 242; Hovey, 26 Vt. 544. 
 
 People v. Gtisherie, 9 Johns. (N. Y.) • Bassett «. Kinney, 24 Conn. 267; 
 
 71; Harrison «. Long, 4 Desau. (S. Williams ». Storrs, 6 Johns. (N. Y.) 
 
 Car.) 110; Hill t>. Williams, 6 Jones Ch. 353, 10 Am. Dec. 340; Landis c. 
 
 (N. Car.) Eq. 243. " Scott, 32 Penn. St, 495. 
 
 3 Hill n. Hunt, 9 Gray (Mass.) 66. Where agent mixes principal's 
 
 ♦Thompson t». Stewart, 3 Conn. money with his own by depositing 
 
 171, 8 Am. Dec. 168. it in a general bank account, he may 
 
 « Gunn «. Howell, 35 Ala. 144; be charged with interest. Blodgett's 
 
 Nisbet v. Lawson, 1 Ga. 275; Hackle- Estate », Converse's Estate, — Vt. — , 
 
 man v. Moat, 4 Blackf. (Ind.) 164; 15 Atl. Rep, 109. 
 Gordon t. Zacharie, 15 La. Ann. 17; 
 
 24 369
 
 § 533. THE LAW OF AGENOY. [Book lY. 
 
 accrue until a demand has been made with which the agent has 
 refused or neglected to comply. It is therefore the general rule 
 that the statute of limitations begins to operate upon a claim 
 against an agent for money or property received by him, only 
 from the time when he has rendered an account showing a bal- 
 ance due from him, or when a demand has been made upon him 
 and he has refused or neglected to account.' 
 
 As has already been observed, this rule is subject to a variety 
 of exceptions growing out of the peculiar circumstances of indi- 
 vidual cases. Thus where the necessity for a demand is nega- 
 tived by the arrangement between the parties, or where, as is the 
 case of a foreign factor, a demand might be impracticable or 
 highly inconvenient.* no demand is necessary. So if a collecting 
 agent has neglected to give his principal notice of the fact of the 
 collection in order that the latter may give him instructions as 
 to the disposition of the money, he can not complain if the stat- 
 ute does not begin to run, unless he can show affirmatively that 
 by the exercise of reasonable diligence the principal could have 
 ascertained the fact of collection and made a demand accordingly.' 
 
 Upon receiving notice of the receipt of the money, it is the 
 duty of the principal to demand it or give instructions as to the 
 disposition of it within a reasonable time, and if he omits to do 
 so, he will put the statute in motion, from the time of such 
 omission. * 
 
 » Judah 9. Dyott, 8 Blackf. (Ind.) den t>. Crafts, 4 E. D. Smith (N. Y.) 
 
 324. 25 Am. Dec. 112; Jett v. Hemp- 490; Sawyer v. Tappan, 14 N. H. 
 
 stead, 25 Ark. 463; Whitehead v. 353; Hutchins v. Oilman, 9 K H. 
 
 Wells, 29 Ark, 99; Dodds v. Vamioy, 360; Taylor v. Bates, 5 Cow. (N. T.) 
 
 61 Ind. 89; Lynch v. Jennings, 43 379; Hays v. Stone, 7 Hill (N. Y.) 
 
 Ind. 276; Green v. Williams, 21 Kan. 128; Krause v. Dorrance, 10 Penn St. 
 
 64; Taylor v. Spears, 8 Ark. 429; 463, 51 Am. Dec. 496; Staples t>. 
 
 Hyman v. Gray, 4 Jones (N. Car.) L. Staples, 4 Me. 532. 
 
 155; Merle tJ. Andrews, 4 Tex. 200; 'Clark v. Moody, 17 Mass, 145; 
 
 Baker v. Joseph, 16 Cal, 173; Lever Eaton v. Welton, 32 N. H. 352; Haas 
 
 V. Lever, 1 Hill (S. Car.) Ch. 62; Rob- t. Damon, 9 Iowa 589. 
 
 ertac, Armstrong, 1 Bush (Ky.) 263; »Jett v. Hempstead, 25 Ark. 463; 
 
 VossB. Bachop, 5 Kan. 59; Krutz z). Whitehead©. Wells, 29 Ark. 99; 
 
 Fisher, 8 Kan. 90; Egerton v. Logan, Drexel v. Raimond, 23 Penn. St. 21, 
 
 61 N. Car, 172; Jayne v. Mickey, 55 See Rhines v. Evans, 66 Penn. St. 
 
 Penn. St. 2G0; Stiles v. Donaldson, 2 192; Campbell v. Boggs, 48 Penn, St. 
 
 Yates (Penn.) 105; Mandeville v. 524. 
 
 Welch, 5 Wheaton (U. S.) 277; Baird * Jett v. Hempstead, tupra. 
 V. Walker, 12 Barb. (JS. Y.) 298; Hal- 
 
 370
 
 Chap. II.] LIABILITY OF AGENT TO PRINCIPAL. § 535. 
 
 § 534. Form of Action— When equitable. It seems to be 
 well settled that the mere relation of principal and agent is not 
 sufficient to authorize the principal to come into a court of equity 
 for an accounting. For very many of the questions arising be- 
 tween them, the ordinary legal remedies are entirely adequate ; 
 and where this is the case, resort cannot be had to equity.' 
 When, however, the agency is one of a strictly fiduciary charac- 
 ter, involving a question of confidence between the parties, and 
 fraud is alleged or a discovery sought, or where the account is so 
 complicated that it cannot be settled at law without great diffi- 
 culty, a bill in equity may be maintained,' 
 
 § 535. Of the Agent's Right of Set-off. The right of set-off, 
 recoupment and counter claim in actions at law between principal 
 and agent is governed ordinarily by the same rules that apply 
 in other cases. This right, however, may be waived by contract, 
 express or implied, and it cannot be insisted upon where its en- 
 forcement would result in a violation of the agent's duty to his 
 principal.' The receipt of money by an agent to be applied to a 
 specific purpose, imposes upon him the duty not to apply it to an- 
 other and different purpose. He cannot therefore apply it to his 
 own use, by using as a set-off against it, a demand due him from 
 his principal.* 
 
 Thus where the principal authorized his agent to collect cer- 
 tain rents, and apply them first to the payment of debts due to 
 third persons and then to the payment of a debt due the agent, 
 but the agent applied the whole amount upon his own debt, it 
 was held, in an action by the principal to recover the amount col- 
 lected, that the agent could not set off the debt due to himself. 
 
 •Knotts V. Tarver, 8 Ala. 743; supra; Moxon v. Bright, supra; 
 
 Crothers v. Lee, 29 Ala. 337; Kirk- Makepeace v. Rogers, 4 DeG. J. & S. 
 
 man v. Vanlier, 7 Ala. 224; Paulding 649. 
 
 «. Lee, 20 Ala. 768; Halsted v. Rabb, 'Tagg v. Bowman, 108 Penn. St 
 
 8 Porter, (Ala.) 63; Russell v. Little, 273, 56 Am. Rep. 204. 
 
 28 Ala. 160; Coquillard v. Suydam, 8 * Tagg v. Bowman, supra; Tagg «. 
 
 Blackf. (Ind.) 24; Powers v. Cray, 7 Bowman, 99 Penn. St. 376; Smuller 
 
 Ga. 206; Moxon v. Bright, L. R 4 e. Union Canal Co., 37 Penn. St. 68; 
 
 Oh. Ap. 292; Navulshaw v. Brown- Bank v. Macalester, 9 Penn. St. 475; 
 
 rigg, 2 DeGex. M. & G. 441. Ardesco Oil Co. v. North American 
 
 » Thornton D. Thornton, 31 Gratt. Co., 66 Penn. St. 375; Middletown, 
 
 (Va.) 212; Taylor®. Tompkins, 2 &c. Road o. Watson, 1 Rawle (Penn.) 
 
 Heisk. (Tenn.) 89; Halsted v. Rabb, 330. 
 
 371
 
 § 536. THE LA.W OF AQENOT. [Book lY. 
 
 The money collected bj the agent, said the court, belonged to the 
 principal, and as it came into the agent's hands, it was impressed 
 with a trust in favor of the principal which required its applica- 
 tion to the objects specified in their order. So long as there was 
 anything due upon the preferred objects, the agent had no right 
 to appropriate any of the money to the payment of his own 
 claim. If he did so, it was a manifest breach of the trust under 
 which it was received.' 
 
 And the same principle applies wherever the agent has received 
 money of his principal by virtue of any special authority. Thus 
 an agent employed to collect a claim, when he has received the 
 money, has no right to set off against it an antecedent debt or 
 claim owing to him by the principal, without first showing that 
 the latter has agreed that he might so apply it.* 
 
 § 536. How far Principal may follow Trust Funds. It may be 
 stated as a general principle that, wherever property or funds have 
 come into the hands of the agent impressed with a trust in favor 
 of the principal, such property or funds may be followed by the 
 principal as long as they can be identified until they come into 
 the possession of a bona fide purchaser for value without notice 
 of the trust.' So if the property or funds have been disposed of 
 or reinvested, the trust will in equity adhere to the proceeds in 
 the same manner and to the same extent as to the original estate, 
 that is as long as they can be traced and until they are acquired 
 
 • Tagg V. Bowman, mpra. Hallett, 18 Ch. D. 696, 86 Eng. Rep. 
 
 • Simpson v. Pinkerton, Penn. 10 779; Rolfe e. Gregory, 4 DeQ. J. &. 
 W. N. C. 423; Middletown, &c. Road 8. 576; Leigh v. Macaulay, 1 Y. «& 
 «. Watson, gupra. C. Ex. 260; Smith «. Barnes, L. R. 1 
 
 3 National Bank «. Insurance Co. Eq. 65 Boursot v. Savage, L. R. 2 Eq. 
 
 104 U. S. 54; McLeod v. Evans, 66 134; Newton v. Newton, L. R. 6 Eq. 
 
 Wis. 401, 57 Am. Rep. 287; Peak v. 135; Heath©. Crealock, L. R. 18 Eq. 
 
 Ellicott, 80 Kan. 158, 46 Am. Rep. 215; Griffin v. Blanchar. 17 Cal. 70; 
 
 90; Farmers' & Mechanics' Bank t>. Sharp v. Goodwin, 51 Cal. 219; Scott 
 
 King, 57 Penn. St. 202, 98 Am. Dec. v. Umbarger, 41 Cal. 410; Price «. 
 
 215; VanAlen «, American National Reeves, 38 Cal. 457; Siemon e. 
 
 Bank, 53 N. T. 1; Riehl r. Evansville Schurck, 29 N Y. 598; Swinburne «. 
 
 Foundry Assn, 104 Ind. 70, 3 N. East Swinburne, 28 N. Y. 568 ; Stephens 
 
 Rep. 633; Pugh v. Pugh, 9 lad. 133; v. Board of Education, 79 N. Y. 183; 
 
 Baker v. New York National Bank, Holden v. Bank, 73 N. Y. 286; New- 
 
 100 N, Y. 31, 53 Am. Rep. 150. ton v. Porter, 69 N. Y. 133; Dotterer, 
 
 /n r« District Bank, 11 Ch. D. 773, e. Pike, 60 Ga. 29; Phelps v Jack- 
 
 82 Eng. Rep. 810; Knatchbull t». son, 31 Ark, 272; Planters' Bank «. 
 
 372
 
 Chap. II.] LIABILIIY OF AGENT TO FKINCIPAL. 
 
 530. 
 
 by a hona fide purchaser without notice.' It does not matter that 
 the legal title to the fund may have changed. Equity will follow 
 it through any number of transmutations and preserve it for the 
 owner so long as it can be identified.' And if it can not be iden- 
 tified by reason of being mingled with the funds or property of 
 the agent, then the principal will be entitled to a charge upon 
 the whole mass to the extent that the trust fund is traceable into it' 
 It is not necessary to trace the trust fund into any specific prop- 
 erty. If it can be traced into the estate of the defaulting agent 
 it is sufficient.* 
 
 In case of the bankruptcy of the agent, neither the property 
 nor the money would pass to his assignees for general administra- 
 tion, but would be subject to the paramount claim of the prin- 
 cipal.' 
 
 The fact that the agent may be prosecuted criminally does not 
 prevent the principal from following and recovering his money.* 
 
 Prater, 64 Ga. 609; Veile v. Blodgett, 
 49 Vt. 270; Mercier v. Herame, 50 
 Cal. 606. Boyd v. Briackin, 55 Cal. 
 427; Burnetts. Gustafson, 54 Iowa 86. 
 
 * National Bank v. Insurance Co., 
 104 U. S. 54; Pennell v. Deffell, 4 
 DeG. M. & G. 372; Frith v. Cartlaad, 
 2 Hem. & M. 417; Taylor v. Plumer, 
 8 M. «& S. 562; KnatchbuU v. Ilallett, 
 13 Ch. Div. 696, 36 Eng. Rep. 779. 
 
 8 Farmers' &c. Bank v. King, 57 
 Penn. St. 202, 98 Am. Dec. 215. 
 
 3 Peak V. EUicott, 30 Kans. 158, 46 
 Am. Rep. 90; In re. District Bank, 
 11 Ch. Div. 772, 32 Eag. Rep. 810; 
 KnatchbuU v. Hallett, L. R. 13 Ch. 
 Div. 696, 36 Eng. Rep. 779. 
 
 « McLeod V. Evans, 66 Wis. 401, 57 
 Am. Rep. 287; Francis v. Evans, 69 
 Wis. 115, 33 N. W. Rep. 93; Bowers 
 V. Evans, — Wis. - , 36 N. W. Rep. 
 629; Frith «. Cartland, 2 Hem. & M. 
 417; Pennell v. Deflfeh. 4 DeG. M. & 
 G. 372; KnatchbuU v. Hallett, L. R. 
 13 Ch. Div. 696, 36 Eng. Rep. 779; 
 National Bank v. Insurance Co. 104 
 U. S. 54; Van Alen v. American Nat. 
 Bank, 52N. Y. 1; Peak «. EUicott, 
 
 30 Kans. 158, 46 Am. Rep. 90; People 
 V. City Bank, 96 N. Y. 32; Rielil v. 
 Evansville Foundry Assn. 104 Ind. 
 70, 3 N. East. Rep. 633. But see 
 Cavin v. Gleason, 105 N. Y. 256; 
 Hopkins' Appeal, — Penn. — , 9 Atl. 
 Rep. 867; Continental Nat. Bank «. 
 Weems, 69 Tex. 489, 5 A. St. Rep. 85. 
 
 • Baker t5. New York National Bank, 
 100 N. Y.31,53Am. Rep. 150; McLeod 
 V. Evans, 66 Wis. 401, 57 Am. Rep. 
 287; Peak v. EUicott, 30 Kans. 158, 
 46 Am. Rep. 90; Chesterfield Mnfg. 
 Co. V. Dehon, 5 Pick. (Mass.) 7, 16 
 Am. Dec. 367; Merrill v. Bank of 
 Norfolk, 19 Pick. (Mass.) 32. Thomp- 
 son V. Perkins, 3 Mason (U. S. C. C.) 
 232; Duguid v. Edwards, 50 Barb. 
 (N, Y.) 388; Harrison v. Smith, 83 
 Mo. 210; Stoller v. Coates, 8S Mo. 
 514; Thompson v. Gloucester City 
 Sav. Inst. — N. J.,— 8 Atl. Rep. 97. 
 
 • Riehl V. Evansville Foundry Assn. 
 104 Ind. 70, 3 North E. Rep. 633, 
 disapproving Campbell v. Drake, 4 
 Ired. (N. C.) Eq. 94, and Pascoag 
 Bank V. Hunt, 3 Edw. (N. Y.) Ch. 
 583, 
 
 373
 
 g 537. THE LAW OF AGENCY. [Book IV". 
 
 The principal cannot, of course, both compel payment from the 
 ao-ent of the amount misappropriated, and also have a decree in- 
 vesting him with the title to the property acquired with it by the 
 agent, but he may have a judgment against the agent for the 
 amount of the trust money, less the sum so recovered.' 
 
 § 537. Same Subject— Illustrations. These principles have 
 found frequent illustration. Thus in a recent case in Kansas, it 
 appeared that the maker of a note, originally given to bank A, 
 but then held by bank B, had left with bank A sufficient funds 
 for the purpose of paying the note when due, and that bank A 
 had accepted the money for that purpose. Instead of paying the 
 note, however, bank A appropriated the money to its own uses, 
 and shortly afterward made an assignment for the benefit of its 
 creditors. The maker of the note then brought an action to re- 
 cover the money from the assignee. The assignee defended upon 
 the ground that the result of the transaction was merely to create 
 the relation of debtor and creditor between the bank and the 
 maker of the note, and that the latter must therefore stand in the 
 same situation as other creditors. But the court said : " On the 
 other hand, as respects this specific sum, the relation between the 
 plaintiff and the bank must be regarded as that of principal and 
 a^^ent. After the bank received this sum to satisfy the note of 
 the plaintiff, the bank held the money in a fiduciary capacity ; if 
 the money was not applied according to the understanding of the 
 parties to the satisfaction of the note, it should have been re- 
 turned to the plaintiff. It was not deposited to be checked out 
 or to be loaned, or otherwise used by the bank ; in law the bank 
 held it as a trust fund, and not as the assets of the bank. The 
 defendant as assignee of the bank, succeeds to all the rights of 
 the bank, but as such assignee, he has no lawful authority to re- 
 tain a trust fund in his hands, belonging to the plaintiff, and 
 which the bank, at the time of receiving the same, promised and 
 ac^reed to apply in payment of plaintiff's note. As the money 
 was a trust fund, and never belonged to the bank, its cred 
 iters will not be injured if it is turned over by the assignee to 
 its owner. Even if the trust fund has been mixed with other 
 funds of the bank, this cannot prevent the plaintiff from foUow- 
 
 iRiebl V. Evansville Foundry Wis. 131; Murray v. Lydburn, 3 
 Assa. supra; Barker e. Barker, 14 Johns. (N. Y.) Ch. 441. 
 
 374
 
 Chap. II.] LIABILITY OF AGENT TO PRINCIPAL. § 588. 
 
 ing and reclaiming the fund ; because if a trust fund is mixed 
 with other funds, the person equitably entitled thereto may fol- 
 low it, and has a charge on the whole fund for the amount due." ' 
 So where the owner of a draft delivered it to a banker for the 
 purpose of collecting it, and the banker, having appropriated it 
 to his own use, made an assignment, it was held that the owner 
 of the draft might recover the amount of it from the assignee. 
 It is not necessary, said the court in this case, to trace the trust 
 fund into some specific property in order to enforce the trust, but 
 it is sufficient if it can be traced into the estate of the defaulting 
 agent. And it was further held that the fact that the plaintiff, 
 believing the estate to be solvent, had filed his claim as a general 
 creditor and received a dividend which he still retained, did not 
 prevent him, when he subsequently found that the estate was in- 
 solvent, from insisting upon the trust character of his claim and 
 recovering the balance." 
 
 V. 
 
 TO GIVE NOTIOB. 
 
 § 538. Duty to give Notice of Pacts material to Acency. 
 It is the duty of the agent to give to his principal reasonable and 
 timely notice of every fact coming to his knowledge in reference 
 to his agency, and which it may be material for the principal to 
 know in order for the protection or preservation of his interests.' 
 
 Thus if property of the principal in the agent's possession is 
 attached * or seized ' as the property of another, or if it is exposed 
 to danger, or if having undertaken to insure it, he finds himself 
 unable to do so,* or if claims and demirnds in his hands to re- 
 ceive payment are not paid when due ; ' in these and other ob- 
 
 ' Peak*. Ellicott, 80 Kans. 158, 46 (Penn.) 323; Moore v. Thompson, 9 
 
 Am. Rep. 90. Phila. 164; Devall v. Burbridge, 4 
 
 sMcLeod^. Evans, 66 Wis. 401, 57 Watts «fc Serg. (Penn.) 305; Hegen- 
 
 Am. Rep. 257, followed in Francis v. ' myer v. Marks, 87 Minn. 6, 5 Am, St. 
 
 Evans, 69 Wis. 115, 83 N. W. Rep. Rep. 808. 
 
 93; Bowers v. Evans, — Wis. — , 36 * Moore v. Thompson, eupra. 
 
 N. W. Rep. 629. But see Cavin v. * Devall v. Burbridge, $upra. 
 
 Gleason. 105 N. T. 256. • Callander «. Oelrichs, 5 Bing. 
 
 » Arrott «. Brown, 6 Whart. N. 58. 
 
 (Penn.) 9; Harvey v. Turner. 4Rawle ^ Harvey v. Turner, tupra; Arrott 
 
 V. Brown, supra. 
 
 375
 
 §533. THE LAW OF AGENCY. [Book IV. 
 
 vious cases, it is the duty of the agent to give his principal notice 
 tliat he may take such steps as he deems desirable for his protec- 
 tion, and if the agent fails in the performance of this duty to 
 the injury of the principal, he must respond to the latter in 
 damages. 
 
 This duty as will be seen hereafter is made the basis of the rule 
 that notice to the agent of facts material to the agency, shall be 
 deemed constructive notice to the principal.' 
 
 » See post, % 718, et ieq. 
 
 876
 
 Oiiap. ill.] LIABILIXr OF AQUHT TO THIKD f JfiiidO^. 
 
 CHAPTER III. 
 
 THE DUTIES AND LIABILITIES OF THE AGENT TO THIRD 
 
 PERSONS. 
 
 643. 
 
 644. 
 
 A. PRIVATE AGENTS. 
 
 g 639. Agent not liable to third 
 Person for Non-feasance. 
 640. Liable when he binds himself 
 Liable for Misfeasance. 
 
 I. In Contract. 
 1 Where he acts without Autharity. 
 
 541. In general. 
 
 542. Where Agent erroneously be- 
 
 lieving himself authorized 
 makes express Representa- 
 tions as to his Authority, 
 
 Where agent makes express 
 Representations known to 
 him to be false. 
 
 Where Agent knowing he has 
 no Authority, makes a Con- 
 tract implying its Possession. 
 645. Where Agent erroneously be- 
 lieving himself authorized 
 makes no express Represen- 
 tations. 
 
 Where Agent discloses all the 
 Pacts relating to his Author- 
 ity. 
 
 How in Case of Public Agent. 
 
 Contract must have been one 
 enforceable against Principal 
 if authorized. 
 
 In what Form of Action is 
 Agent liable. 
 
 When Agent liable on Con- 
 tract itself. 
 
 . Where though Authorized he fails to 
 
 bind his Principal. 
 651. In general. 
 
 646. 
 
 647. 
 648. 
 
 649. 
 
 550. 
 
 § 553. Where Agent intending to 
 bind Principal uses apt 
 Words to bind himself. 
 
 553. Where Agent intending to 
 
 bind Principal binds no one. 
 
 554. Where Agent conceals Fact of 
 
 Agency or Name of Princi- 
 pal. 
 655. Where Agent makes full Dis- 
 closure. 
 
 556. When Agent acts for a for- 
 
 eign Principal. 
 
 557. Where there is no responsible 
 
 Principal. 
 
 558. Where Agent contracts per- 
 
 sonally. 
 
 559. Same Subject — Public Agent. 
 
 S. Where the Agent has received 
 Money, 
 
 560. In general. 
 
 a. Where Money has been paid to 
 him for Principal. 
 
 661. Not liable for Money paid 
 over to Principal before 
 notice. 
 
 562. Not liable where before Notice 
 his Situation has been 
 changed. 
 
 663. Agent liable for Money mis- 
 paid though paid over, if 
 Agency was not known. 
 
 564. Agent liable without Notice 
 
 for Money illegally obtained. 
 
 565. Agent not liable for Money 
 
 voluntarily paid. 
 
 566. Where Agent is a mere Stake- 
 
 holder. 
 
 377
 
 § 539. 
 
 THE LAW OF AGENCY. 
 
 [Book lY. 
 
 b. Where Money has been paid to 
 Agent for third Person. 
 
 § 567. When Ageat liable to such 
 third Person. 
 668. Same Subject — What consti- 
 tutes Assent — Consideration. 
 
 II. In Tort. 
 1. For Non-feasance. 
 
 569. In general — Not liable. 
 
 570. Same Subject — Illustrations. 
 
 t. For Misfeasance. 
 
 671. Agency no Excuse for Mis- 
 feasance. 
 
 572. Same Subject — Distinction 
 between Non-feasance and 
 Misfeasance. 
 
 67B. Same Subject — Principal's 
 Knowledge or Direction no 
 Defense. 
 
 574. Same Subject — Illustrations. 
 
 675. Liability in respect to Sub- 
 agents. 
 
 576. Same Subject — Agent who 
 conceals Principal liable as 
 Principal to Subagents. 
 
 B. PUBLIC AGENTS. 
 I. Liability for their own Torts. 
 
 677. In general — Classification. 
 
 678. No Action by Individual for 
 
 Breach of Duty owing solely 
 to the Public. 
 579. Liable for Wrongs committed 
 in private Capacity. 
 
 1. Judicial Officers. 
 
 680. Judicial Officers not liable 
 
 when acting within their 
 Jurisdiction. 
 
 681. Liability not affected by 
 
 Motive. 
 
 § 583. This Immunity extends to 
 Judicial Officers of all 
 grades. 
 
 Jurisdiction essential. 
 
 Act must be confined withio 
 his Jurisdiction. 
 585. Same Subject — When Juris- 
 diction presumed — Superior 
 and inferior courts 
 
 Same Subject — Limitations of 
 this Rule. 
 
 Not liable when Jurisdiction 
 assumed through Mistake of 
 Fact. 
 
 583 
 
 584, 
 
 686. 
 
 587. 
 
 f . Quasi-Judicial Officers. 
 
 588. What Duties are Judicial and 
 
 Quasi-Judicial. 
 
 S. Legislative Officers. 
 
 589. Same Immunity extends to 
 
 legislative Action. 
 
 4. Ministerial Officers. 
 
 590. In general— Liable to Party 
 
 specially injured. 
 691. Same Subject — Nature of 
 
 Duty governs Liability, 
 592. Same Subject— What Duties 
 
 are ministerial. 
 
 II. Liability for Torts of thkib 
 
 Official Subordinates. 
 
 693. Public officers of Government 
 not liable for Acts of official 
 Subordinates. 
 
 594. Same Subject— To what Offi- 
 cers this Rule applies. 
 
 III. For Torts of his privatb Sbb- 
 
 vant or Agent. 
 
 695. Liable for Torts of his private 
 Servant or Agent. 
 
 A. PRIVATE AGENTS. 
 § 539. Agent not liable to third Person for Non-feasance. 
 The agent's primary duty is to his principal. To him alone does 
 he stand in the relation of privity and confidence. To him alono 
 
 379
 
 Chap. III.] LIABILITY OF AGENT TO THIRD PERSON. § 540. 
 
 does he owe the performance of those duties which are implied 
 from that relation, or which he has expressly assumed, and to him 
 alone is the agent responsible for a failure to perform them. 
 
 It is therefore the general rule that no action can be main- 
 tained bj third persons against the agent to recover damages for 
 any injury which they may have sustained by reason of the non- 
 performance or neglect of a duty which the agent owes to his 
 principal.^ 
 
 § 540. Liable when lie binds himself— Liable for Misfeasance. 
 An agent, however, like every other person, is bound in the 
 course of the discharge of his duty to his principal, to exercise a 
 due regard for the rights and privileges of others. If he fails in 
 this duty and by his wilful act or by his negligent conduct in- 
 flicts an injury upon a third person, he is liable to that third per- 
 son in the same manner as though he were not an agent. This 
 obligation is not one which grows out of his relation as an agent 
 but one which the law imposes upon every responsible member 
 of society. 
 
 So, notwithstanding the fact of his agency, the agent may so 
 contract as to bind himself to third persons. This may be the 
 result of a direct intention so to do, or it may be the result of an 
 ineffectual attempt to bind his principal. So, also, as will be 
 seen, the agent may make himself liable to third persons by 
 assuming to have and to exercise an authority which he does not 
 in fact possess. 
 
 These various forms of liability will be considered in this 
 Chapter, under the two subdivisions : The agent's liability to 
 third persons, I. On contracts. II. For his torts. 
 
 • Carey v. Rochereau, 16 Fed. Rep. 12 Mod. 488; Feltusc. Swan, 63 Miss. 
 
 87; Delaney v. Rochereau, 34 La. 415; Stephens©. Bacon, 7N. J. L. 1; 
 
 Ann. 1123, 44 Am. Rep. 456; Reid v. Labadie v. Hawley. 61 Tex. 177, 48 
 
 Humber, 49 Ga. 207; Denny «. Man- Am. Rep. 278: Fish v. Dodge, 4 
 
 hattan Co., 2 Den. (N. Y.) 115 s. c. 5 Denio (N. Y.) 317, 47 Am. Dec. 254; 
 
 Id. 639; Henshaw v. Noble, 7 Ohio Brown v. Dean, 123 Mass. 269; Brown 
 
 St. 231; Colvin v. Holbrook, 2 N. Y. v. Lent, 20 Vt. 533; Bell v. Josselyn, 
 
 126; Montgomery Bank v. Albany 3 Gray (Mass.) 311. 
 Bank, 7 N. Y. 459; Lane v. Cotton, 
 
 379
 
 I 541, THE LAW OF AGEKOT. [Book IV. 
 
 I. 
 
 IN CONTRACT. 
 
 1. Where he Acta without Authority. 
 
 § 541. In general. The question of the liability of the 
 agent to third persons upon contracts made or attempted to be 
 made by him as agent, but without authority, presents many 
 phases. Thus an agent in dealing with third persons may make 
 an express assertion of his authority to perform the act in ques- 
 tion, (a) knowing at the time that he has no such authority ; or 
 (b) believing in good faith, though Erroneously, that he has such 
 authority. So under the same circumstances, he may deal with 
 third persons making no express assertion of authority, but that 
 only, if any, which arises from his assuming to act as agent, and 
 as before, either knowing that he has not the requisite authority, 
 or believing in good faith, but erroneously, that he is competent. 
 Or again believing himself to be or not to be authorized, but 
 the question not being free from doubt, he may fully and fairly 
 disclose to the other party the facts in regard to his authority and 
 leave the other party to determine for himself whether he will 
 rely upon it or not. 
 
 This absence or want of authority in any given case may result 
 either, 1. Because he never possessed it ; 2. Because once having 
 it, it has since expired, or 3. Because while having some authority, 
 or authority to perform this act in another way, he has exceeded 
 his authority, or failed to observe the methods prescribed for him. 
 8 542. Where Agent erroneously believing himself authorized, 
 makes express Representations as to his Authority. Where the 
 agent believing himself authorized to perform the act in question, 
 in good faith makes an express representation that he is duly 
 authorized, when in fact he is not, he is liable to the party with 
 whom he deals for any damages which the latter may sustain by 
 reason of such want of authority. The fact that he acted in good 
 faith, does not relieve him from liability. If he expressly agrees 
 for authority, he must make the agreement good or be responsible 
 for the consequences.* 
 
 1 Kroeger «. Pitcairn. 101 Penn. St. er,104 Mass. 336,6 Am. Rep. 240; Jefta 
 811, 47 Am.Rep. 718; Bartlett c.Tuck- «. York, 10 Cush. (Mass.) 392, s. c. 4 
 
 380
 
 Chap. Ill,] LIABILITY OF AGENT TO THIRD PERSON. § 515. 
 
 § 543. Where Agent makes express Representations known to 
 him to be false. There can be no question tliat where an agent 
 makes an express representation as to his authority which he 
 knows to be untrue, with the intention to deceive or mislead the 
 other party, and thereby does so deceive or mislead him to his 
 damage, he is liable to such other party for the damage so in- 
 curred. This rule rests upon the plainest and most familiar princi- 
 ples of justice and requires no extended discussion.^ 
 
 § 544. Where Agent knowing he has no Authority, makes a 
 Contract implying its Possession. Where an agent who knows 
 that he has no authority, although he makes no express represen- 
 tation as to it, yet deals with the other party as one possessing 
 competent authority, and does not disclose his lack of it, whereby 
 the other party suffers injury, the agent will be liable for the 
 injury so occasioned. This rule rests upon the same principles 
 as the preceding one. For the agent 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, and as insuring the other party 
 against the consequences arising from the want of such authority.* 
 
 § 545. Where Agent erroneously believing himself authorized, 
 makes no express Representations. And the same result is 
 reached where the agent in good faith, but erroneously, believing 
 himself authorized, assumes to deal with third persons as one 
 authorized to act for a certain principal, although he makes no 
 express representation as to his authority. By undertaking to 
 act as agent for another in any given capacity, he tacitly and 
 impliedly represents himself to be authorized as a matter of 
 fact to act in that capacity, and is liable to those who have relied 
 thereon in good faith for such injury as they may sustain, if it 
 appears that he assumed as true what he did not know to be so.* 
 
 Cush. 371, 50 Am. Dec. 791; Bank of « Kroeger v. Pitcairn, supra; Dale 
 
 Hamburg v. Wray, 4 Strob. (8. C.) 87, e. Donaldson Lumber Co. 48 Ark. 
 
 51 Am. Dec. 659. 188, 3 Am. St. Rep. 224. 
 
 » Kroeger v. Pitcairn, 101 Penn. St. " Kroeger v. Pitcairn, 101 Penn. St. 
 
 311, 47 Am. Rep. 718; Smout v. 811, 47 Am. Rep. 718; Bartlett v. 
 
 Ilbery, 10 Mees. & Wels. 1; Bank of Tucker,104 Mass. 336,6 Am. Rep.240; 
 
 Hamburg v. Wray, 4 Strob. (S. C.) Jefts v. York, 10 Cush. (Mass.) 392, s. 
 
 87, 51 Am. Dec. 659. c. 4 Id. 371, 50 Am. Dec. 791; Bank 
 
 381
 
 ft 545, THB LAW OV AGENCY. [Book lY. 
 
 In such a case the loss must fall somewhere, and as between 
 the third person and the agent both equally innocent, it must be 
 borne by him by whose act it was made possible. Of course, if 
 the other party knew, or by the exercise of reasonable care 
 might have discovered the want of authority, he cannot recover.^ 
 
 This implied warranty by the agent of his authority must ordi- 
 narily be limited to its existence as a matter of fact, and not be 
 held to include a warranty of its adequacy or sufficiency in point 
 of law." 
 
 § 546. Where Agent discloses all the Facts relating to his 
 Authority. Where, however, the agent, acting in good faith, 
 fully discloses to the other party, at the time, all the facts and 
 circumstances touching the authority under which he assumes to 
 act, 80 that the other party from such information or otherwise, 
 is fully informed as to the existence and extent of his authority, 
 he cannot be held liable.' 
 
 It is material in these cases that the party complaining of a want 
 of authority in the agent should be ignorant of the truth touching 
 the agency. If he has full knowledge of the facts, or of 
 such facts as are sufficient to put him upon inquiry, and he fails 
 to avail himself of such knowledge or of the means of knowledge 
 reasonably accessible to him, he cannot say that he was misled 
 simply on the ground that the other assumed to act as agent 
 without authority.* 
 
 of Hamburg v. Wray. 4 Strob. (S.C.) learned judge in Missouri as follows: 
 
 L. 87, 51 A.m. Dec. 659; McCurdy t». "Where all the facts are known to 
 
 Rogers, 21 Wis. 197, 91 Am. Dec. both parties, and the mistake is one 
 
 468; Randall v. Trimen, 16 C. B. 786; of law as to the liability of the prin- 
 
 CoUen V. Wright, 8 E. & B. 647; cipal, the fact that the principal can 
 
 Richardson v. Williamson, L. R. 6 Q. not be bound is no ground for charg- 
 
 B. 276; Weeks v. Propert, L. R. 8 C. ing the agent." Michael v. Jones, 84 
 
 P. 427, 6 Eng. Rep. 193; Beattie «. Mo. 578. To same effect are Western 
 
 Lord Ebury, L. R. 7 H. L. 102, 9 Cement Co. v. Jones, 8 Mo. App. 
 
 Eng. Rep. 64. 373; Humphrey v. Jones, 71 Mo. 62; 
 
 ' Newman v. Sylvester, 42 Ind. 112; Ware v. Morgan, 67 Ala. 461; Hall v. 
 
 Jenkins v. Atkins, 1 Humph, (Tenn.) Lauderdale, 46 N. Y. 70. 
 
 294, 34 Am. Dec. 648. <Ogden v. Raymond, 22 Conn. 379, 
 
 » See remarks of Mellish, L. J, in 58 Am. Dec. 429 ; Newman v. Sylvea- 
 
 Beattie v. Lord Ebury, L. R. 7 Ch. ter, 42 Ind. 112; Hall v. Huntoon, 17 
 
 Ap. 777; 3 Eng. Rep 625, cited in Vt. 244, 44 Am. Dec. 332; McCurdy 
 
 full in note to § 553, post. v. Rogers, 21 Wis. 197, 91 Am. Dec. 
 
 •The rule has been stated by a 468; New York, &c. Co. ©.Harbison, 
 
 382
 
 Chap. III.] LIABILITY OP AGENT TO THIRD PERSON. § 549. 
 
 Of course if the agent conceals or misrepresents material facts 
 to the detriment of the other party, he cannot claim exemption.* 
 
 § 547. How in Case of PubUo Agent. Wliere tlie agent is a 
 public agent and that fact is known to the other party, the latter 
 will be presumed to have knowledge of the nature and extent of 
 the agent's authority, it being determined by law of which every 
 person is bound to take notice. Where such an agent, there- 
 fore, discloses the source of the authority under which he 
 assumes to act, and practices no fraud or misrepresentation, he 
 will not be held liable upon the ground of an implied warranty 
 of authority.' 
 
 § 548. Contract must have been one enforceable against 
 Prinoipal if authorized. In order, however, to make an agent 
 liable who has assumed without authority to make a contract in 
 the name of his principal, the unauthorized contract must have 
 been one which the law would enforce against the principal if it 
 had been authorized by him. Otherwise, the anomaly would 
 exist of giving a right of action against an assumed agent for an 
 unauthorized representation of his power to make the contract, 
 when a breach of the contract itself, if it had been authorized, 
 would have furnished no ground of action against the principal.^ 
 
 § 549. In what Form of Action is Agent liable. Much ques- 
 tion has been raised as to the form of action in which the agent 
 who acts without authority is to be held liable ; wliether assump- 
 sit can be maintained or only a special action on the case. It 
 would seem that this is a question to be determined largely by 
 the particular facts of each case.* 
 
 Where an agent who knows that he has no authority, makes 
 express assertions that he possesses it or so acts as to amount to 
 
 16 Fed. Rep. 688; Murray v. Car- »McCurdyo. Rogers, 21 Wis. 197, 
 
 others, 1 Mete. (Ky.) 71: Curtis v. 91 Am. Dec. 468; New York, &c. Co. 
 
 United States, 2 Nott & H. (Ct. CI.) e. Harbison, 16 Fed, Rep. 638; Perry 
 
 144; Baltimore v. Reynolds, 20 Md. v. Hyde. 10 Conn. 329; Murray v. 
 
 1; State v. Hastings, 10 Wis. 518; Carothers, 1 Mete. (Ky.) 71. See also 
 
 Hull «. Marshall County, 12 Iowa Sanborn v. Neal, 4 Minn. 126, 77 Am. 
 
 142. Dec. 502. 
 
 'Newman ». Sylvester, 42 Ind. 112; "Dung v. Parker, 52 N. Y. 494; 
 
 Ogden V. Raymond, 22 Conn. 379, 53 Baltzen v. Nicolay, 53 N. Y. 467. 
 Am. Dee. 439; Walker t). Bank 9 N. * Patterson c. Lippincott, 47 N. J. 
 
 Y. 582; Jeftsu. York, 10 Cush. (Mass.) L. 457, 1 Atl. Rep. 508, 64 Am. Rep, 
 
 893. 178. 
 
 383
 
 §549. 
 
 THE LAW OF AGENCY. 
 
 [Book IV. 
 
 an assertion of authority, and by so doing deceives and injures 
 the other party who has relied thereon, it can not be doubted 
 that an action on the case for the deceit is an appropriate rem- 
 edy.* At the same time, an action of assumpsit upon the ex- 
 press or implied warranty of authority might also be maintained 
 instead of the action on the case.' 
 
 "Where, however, the agent acting in good faith and supposing 
 himself authorized, has made express or implied assertions of 
 authority, an action of assumpsit seems the more appropriate 
 remedy. Yet in this case, also, an action on the case might be 
 maintained. 
 
 * " The remedy against one who 
 fraudulently represents himself as the 
 agent of another, and in that capacity 
 undertakes to make a contract bind- 
 ing upon his priucipal, is an action on 
 the case for the deceit and not an 
 action of assumpsit upon the con- 
 tract." Walton, J., in Noyes v. 
 Loring, 55 Me. 408. citing Long v. 
 Colburn, 11 Mass. 97, 6 Am. Dec. 
 160; Ballou v. Talbot, 16 Mass. 461, 
 8 Am. Dec. 146; Jefts v. York, 4 
 Cush. (Mass.) 371, 50 Am. Dec. 791, 
 8. c. 10 Cush. (Mass.) 393; Abbey*. 
 Chase, 6 Cush. (Mass.) 54; Smout «. 
 Ibery, 10 Mees. & Wels. 1; Jenkins 
 V. Hutchinson, 13 Ad. & El. N. S. 
 744. 
 
 It is evident, however, from the 
 context and from the cases cited, that 
 "the contract" referred to by the 
 learned judge is the contract assumed 
 to be made by the agent for his al- 
 leged principal, and not an express 
 or implied contract or warranty of 
 authority. 
 
 ' "When an agent makes a con- 
 tract beyond his authority, by which 
 the principal is not bound by reason 
 of the fact that it was unauthorized, 
 the agent is liable in damages to the 
 person dealing with him upon the 
 faith that he possessed the authority 
 which he assumed. The ground and 
 form of his liability in such a case 
 
 have been the subject of discussion, 
 and there are conflicting decisions up- 
 on the point; but the later and better 
 considered opinion seems to be that his 
 liability, when the contract is made 
 in the name of his principal, rests 
 upon an implied warranty of his 
 authority to make it, and the remedy 
 is by an action for its breach. (Col- 
 len V. Wright, 8 E. & B. 647; White 
 V. Madison, 26 N. Y. 117; Dung o. 
 Parker, 53 N.Y. 494.) The reason why 
 the agent is liable in damages to the 
 person with whom he contracts, when 
 he exceeds his authority, is that the 
 partydealing with him is deprived of 
 any remedy upon the contract against 
 the principal. The contract, though 
 in form the contract of the principal, 
 is not his in fact, and it is but just 
 that the loss occasioned by there 
 being no valid contract with him 
 should be borne by the agent who 
 contracted for him without author- 
 ity." Andrews, J., in Baltzen v. 
 Nicolay, 53 N. Y. 467. "Later 
 cases," says Scudder, J., in Patter- 
 son V. Lippincott supra, "have held 
 » * * that he may be sued either 
 for breach of warranty or for deceit, 
 according to the facts of each case," 
 citing Jeukins v. Hutchinson, 13 Ad. 
 & El. (Q. B.) N. S. 744; Lewis «. 
 Nicholson, 18 Ad. & El. (Q. B.) N. S. 
 503. 
 
 38i
 
 Chap. III.] LIABILITT OF AGENT TO THIRD PERSON. 
 
 §550. 
 
 § 550. When Agent liable on Contraot itself. Whether the 
 agent can be held liable upon the contract itself which he has, 
 without authority, assumed to make, is also a question which has 
 been much discussed. It would seem, however, that this ques- 
 tion, like the last one, is to be determined largely by the circum- 
 stances of each case. Where the promise is made in the name 
 of the principal and as his contract, the better opinion is that 
 the agent can not be held liable upon it, but only for the deceit 
 or breach of warranty, even in the case of a written contract, 
 where the assumed relation of agency appears upon the face of 
 it.' Some courts have, indeed, manifested a disposition in this 
 latter case to reject the words referring to the alleged principal 
 as mere surplusage, and to hold the agent liable upon the remain- 
 der as upon his own contract.* This, however, as has been well 
 said,* is rather to make a new contract for the parties than to 
 construe the one which they have made for themselves. Where, 
 however, the agent, in undertaking, without authority, to bind 
 
 « Jefts e. York, 4 Cush. (Mass.) 
 371, 50 Am. Dec. 791; Long v. Col- 
 burn, 11 Mass. 97, 6 Am. Dec. 160; 
 Ballou V. Talbot. 16 Mass. 461, 8 Am. 
 Dec. 146; Jefts v. York, 10 Cush. 
 (Mass.) 395; Trowbridge v. Scudder, 
 11 Cush. (Mass.) 83, 87; Draper ». 
 Massachusetts, &c. Co. 5 Allen 
 (Mass.) 339; Sherman v. Fitch, 98 
 Mass. 68; Bartlett «. Tucker, 104 
 Mass. 840, 6 Am. Rep. 240; Tucker 
 Mnfg. Co. «. Fairbanks, 98 Mass. 
 105; McCurdy v. Rogers, 21 Wis. 197, 
 81 Am. Dec. 468; Noyes v. Loring, 55 
 Me. 408; Johnson v. Smith, 21 Conn. 
 637; Patterson v. Lippincott, 47 N. J. 
 L. 457, 1 Atl. Rep. 506, 54 Am. Rep. 
 178; Tayloru. Shelton, 30 Conn. 122; 
 Duncan v. Niles, 32 111. 533, 534. 
 " That an agent may bind himself 
 personally," said Church, Ch. J., in 
 Johnson v. Smith, 21 Conn. 627, even 
 when acting really or professedly as 
 agent, is not denied; and in the exe- 
 cution of a simple contract as well as 
 a specialty; and this will be so, in all 
 cases, where, by language already 
 expressive of such an intent, he has 
 
 substituted his own responsibility for 
 that of his principal. So, also, if he 
 use language of personal obligation 
 in the body of the contract, although 
 he may sign as agent, he will bind 
 himself if he had no authority to 
 bind, and has not bound, his princi- 
 pal by his act. But in case of a 
 defective power to bind the principal, 
 if the agent speaks only in the lan- 
 guage of the principal and does not 
 use apt language to bind himself, he 
 will not be liable on the contract 
 thus made, but collaterally only for a 
 false assumption of authority to act 
 for another," citing Jones v. Down- 
 man, 4 Ad. & El. N. S. 235, 45 Eng. 
 Com. Law, 234. 
 
 * See Richie v. Bass, 15 La. Ann. 
 668; Keener v. Harrod, 2 Md. 63; 
 Weare v. Gove, 44 N. H. 196; Sin- 
 clair®. Jackson, 8 Cow. (N. Y.) 543; 
 Meech v. Smith, 7 Wend. (N. Y.) 
 315; Palmer v. Stephens, 1 Den. (N. 
 Y.) 741. 
 
 • Hall V. Crandall, 29 Cal. 667, 89 
 Am. Dec. 64. 
 
 25 
 
 385
 
 §550. 
 
 THE LAW OF AGENCY. 
 
 [Book IT. 
 
 another, has used apt words to bind himself, there is abundant 
 reason and justice in holding him liable upon the contract itself 
 as made.' So if, notwithstanding the fact of his assumed 
 agency, the credit was given to him personally, or if he has 
 expressly pledged his own responsibility, he may undoubtedly be 
 held liable, upon the contract made by him.* 
 
 The rule sometimes asserted that wherever the agent fails to 
 create a right of action against his principal upon the contract, 
 he makes himself liable thereon, cannot therefore be sustained 
 as a general rule,' The agent is only liable on the contract in 
 those cases in which he has used apt words to bind himself, or 
 has expressly pledged his personal responsibility, or in which the 
 credit was given to him personally.* 
 
 qualification and can not be said to be 
 universally true or correct. * » » 
 If the form of the contract is such 
 that the agent personally covenants 
 and then adds his representative char- 
 acter, which he does not in truth sus- 
 tain, his covenant remains personal 
 and in force, and binds him as an in- 
 dividual; but if the form of the con- 
 tract is otherwise, and the language 
 when fairly interpreted, does not con- 
 tain a personal undertaking or prom- 
 ise, he is not personally liable, for it 
 is not his contract, and the law will 
 not force it upon him. He may be 
 liable, it is true, for tortious conduct 
 if he has knowingly or carelessly 
 assumed to bind another without au- 
 thority; or, when making the con- 
 tract, has concealed the true state of 
 his authority, and falsely led others 
 to repose in his authority; but as we 
 have said, he is not of course liable on 
 the contract itself nor in any form of 
 action whatever." 
 
 " The authorities are somewhat 
 conflicting as to the liability of 
 an agent in action ex contractu; 
 but the weight of authority, we 
 think is, that to charge an agent 
 in such action, the credit must have 
 been given to him, or there must be 
 an express contract, and if there is a 
 
 » Hall V. Crandall, supra. 
 
 * See post, § 558. 
 
 » Dusenbury v. Ellis, 3 Johns. Cas. 
 (N. Y.) 70, 2 Am. Dec. 144; White v. 
 Skinner, 13 Johns. (N. Y.)307, 7 Am. 
 Dec. 381; Rossi ter v, Rossiter, 8 
 Wend. (K Y.) 494, 24 Am. Dec. 62; 
 Collins V. Allen, 12 Wend. (N. Y.) 
 356, 27 Am. Dec. 130; Mott v. Hicks, 
 1 Cow. (N. Y.)513, 13 Am. Dec. 550. 
 These early New York cases which 
 are the foundation of most of the 
 similar rulings in other States have 
 been very much modified if not 
 entirely overruled by the later cases 
 in the Court of Appeals. Dung v. 
 Parker, 52 N. Y. 494; Baltzen v. 
 Nicolay, 53 N. Y. 467; White v. 
 Madison, 26 N. Y. 117. Thus Gil- 
 laspie V. Wesson, 7 Port. (Ala.) 454, 
 81 Am. Dec. 715, is based upon the 
 early New York cases. See also 
 Clark «. Foster, 8 Vt. 98; Savage v. 
 Rix, 9 N. H. 263; Hatch v. Smith, 5 
 Mass. 42; Byars v. Doores, 20 Mo. 
 284; Coffman c. Harrison, 24 Mo. 524. 
 4 Ogden 9. Raymond, 22 Conn. 
 379, 58 Am. Dec. 429. " We are 
 aware." said Ellsworth, J. in this 
 case, " that it is not unfrequently 
 laid down as a rule of law that if an 
 agent does not bind his principal he 
 binds himself; but this rule needs 
 
 386
 
 Chap. III.] LIABILITY OF AGENT TO THIRD PERSON. § 651. 
 
 It may be said that this rule will result in many cases in bind- 
 ing neither the assumed agent nor his alleged principal upon the 
 contract. But if the other party fails to have a remedy either 
 upon the contract itself, or upon the express or implied undertak- 
 ing for authority, it will be in those cases in which he was fully 
 informed by the agent of the source and nature of the authority 
 under which he assumed to act, and was put in a situation to 
 determine for himself whether to rely upon it or not. 
 
 2. Where, though Authorized, he fails to hind his Principal. 
 
 § 551. In general. But it is not alone in those cases in which 
 he acts without authority, that the agent makes himself liable to 
 tliird persons. This result may ensue, under a variety of circum- 
 stances, even though the agent were fully authorized to bind his 
 principal. 
 
 Thus the agent intending to bind his principal may, from the 
 failure to use apt words for that purpose, not only not bind his 
 principal, but pledge his personal responsibility. So he may con- 
 ceal the fact of his agency and contract as the ostensible principal. 
 
 So, though disclosing the fact of his agency, he may volunta- 
 rily enter into personal obligations. 
 
 written contract, there must be apt another without authority. If an 
 
 words in it to charge him." Downer agent, in executing a contract, em- 
 
 J. in McCurdy v. Rogers, 21 Wis. ploy terms which, in legal effect, 
 
 197,91 Am. Dec. 468. To same effect, charge himself he may be sued upon 
 
 see Newman v. Sylvester, 43 Ind. the instrument itself as a contracting 
 
 106; Duncan v. Niles, 33 111. 533, 83 party. This is so because, by the 
 
 Am. Dec. 293; Abbey v. Chase, 6 use of such terms, he has made the 
 
 Cush. (Mass.) 56; Harper©. Little, 3 contract his own. But if the instru- 
 
 Me. 14, 11 Am. Dec. 25; Stetson v. ment does not contain such terms, or. 
 
 Patten, 2 Me. 358. 11 Am. Dec. Ill; In other words, contains language 
 
 McHenry v. Duffleld, 7 Blackf. (Ind.) which in legal effect binds the princi- 
 
 41. So in a leading case in Califor- pal only, the agent can not be sued 
 
 nia, the rule is well stated thus: "In on the instrument itself, for the obvi- 
 
 all such cases the remedy against the ous reason that the contract is not his. 
 
 agent is an action to recover the If, then, the contract is not binding 
 
 money, if any has been paid him, upon the principal because the agent 
 
 or the value of the work or labor, had no authority to make it, and is 
 
 if any has been performed for not binding on the agent because it 
 
 him, under the supposed contract, does not contain apt words to charge 
 
 or special damages resulting to the him personally, it is wholly void." 
 
 plaintiff by reason of the defendant's Sanderson, J. in Hall v. Crandall, 29 
 
 wrong in undertaking to act for Cal. 567, 89 Am. Dec. 64. 
 
 387
 
 § 552. THK LAW OF AGENCY. [Book IV. 
 
 S 552. Where Agent intending to bind Principal, uses apt 
 Words to bind himself. It often happens that an agent seeking 
 and intending to bind his principal upon a contract, so defectively 
 executes it that he fails to accomplish that purpose. In such 
 cases it is not unfrequently the result that no one is bound ; but, 
 more often, it is found that the agent has so executed as to bind 
 himself. 
 
 This whole subject has been fully discussed under the head of 
 the Execution of the Authority,' and nothing further needs to 
 be added to it here, than that where by those rules of construc- 
 tion it is determined that the agent has contracted in his personal 
 capacity, he is, of course, bound, upon the contract to the person 
 with whom it was made. 
 
 S 553. Where Agent intending to bind Principal, binds no one. 
 Where the agent intending to bind his principal uses such lan- 
 guage that neither the principal nor the agent is bound upon the 
 contract, there has been said, in many cases, to be no liability attach- 
 ing to the agent. He can not be held liable upon the contract it- 
 self, because he has used no language sufficient to charge him. 
 He cannot be held liable upon any express or implied warranty 
 of authority, because there is no failure or lack of authority. It 
 is simply a case of defective execution. If, however, the agent 
 has expressly warranted the sufficiency of his method of execu- 
 tion, he could undoubtedly be held liable upon such warranty. 
 
 Whether there is in every case from the mere fact that the 
 agent assumes to execute in a certain manner, an implied war 
 ranty of the sufficiency of that manner to bind the principal, is 
 a question not settled by the authorities. Upon reason, it would 
 seem that this question is to be determined by substantially the 
 same considerations that apply to the case of a warranty of au- 
 thority. It is, indeed, simply a question of a warranty of author- 
 ity to execute in that form. 
 
 If the agent knowing a certain form to be insufficient in point of 
 fact, yet assumes to adopt it, to the damage of an innocent third 
 party who has relied thereon, he should certainly be held liable 
 for the deceit. And so where no deceit is practiced, unless the 
 a<yent fully discloses the nature and limitations of his authority 
 80 that the other party may judge for himself as to the proper 
 
 » Bee ante, § 408, et uq. 
 
 388
 
 Chap. III.] LIABILITY OF AGENT TO THIRD PERSON. 
 
 §553. 
 
 method, it would seem that he is still to be held liable for a de- 
 fect in fact as upon as implied warranty. But for a defect in 
 point of law only, the agent would not ordinarily be bound.* 
 
 • In reversing the judgment of the 
 Vice Chancellor in Beattie v. Lord 
 Ebury, L. R. 7 Ch. Ap. 777, 3 Eng. 
 Rep. 625, involving the liability of 
 the directors of a corporation for 
 making a representation to the man- 
 ager of a bank to the effect that they 
 had power to overdraw the account 
 of the corporation, Sir G. Mellish, 
 L. J, said: "The Vice- Chancellor 
 has decided that they are so liable on 
 the authority of three cases, which 
 are all cases in the Courts of Law, 
 and which come to this, that where 
 an agent makes a contract on behalf 
 of his principal, he impliedly war- 
 rants that he has authority to bind 
 that principal, and if it turns out that 
 he has no authority to bind his prin- 
 cipal and the principal repudiates the 
 obligation, and loss is thereby occa- 
 sioned, then an action on that war- 
 ranty can be maintained. But if 
 those cases are examined it will be 
 found in all of them, that there was a 
 misrepresentation in point of facts as 
 to the agent having power to bind 
 his principal, and though I have not 
 found any case in the Courts of Law 
 on the question, I have no doubt my- 
 self that it would be held that if there 
 is no misrepresentation in point of 
 fact, but merely a mistake or mis- 
 representation in point of law, that is 
 to say, if the person who deals with 
 the agent is fully aware in point of 
 fact what the extent of the authority 
 of the agent is to bind his principal, 
 but makes a mistake as to whether 
 that authority is sufficient in point of 
 law or not, under those circumstances 
 I have no doubt that the agent would 
 not be liable. For instance, suppos- 
 ing when an agent comes and pro- 
 poses to make a contract on behalf of 
 
 his principal, instead of trusting his 
 representation that he has power to 
 bind his principal, the person dealing 
 with the agent were to ask to see his 
 authority, and a power of attorney 
 executed by the principal was shown 
 to him, and he took the opinion of 
 his lawyer as to whether the power of 
 attorney was sufficient to bind the 
 principal, and was advised that it was 
 sufficient to bind the principal, and 
 then after that, a contract was made, 
 and it turned out when the point was 
 raised in a court of law that the 
 power of attorney was insufficient, — 
 under such circumstances I am 
 clearly of opinion that there would 
 be no warranty on the part of the 
 agent that the power of attorney was 
 good in point of law. 
 
 I will shortly state the three cases 
 which were relied upon before the 
 Vice-Chancellor to show that they all 
 involve a misrepresentation in point 
 of fact. The first case mentioned on 
 the subject was CoUen v. Wright, 8 
 E. & B. 647. That was a simple case, 
 where the steward of a gentleman 
 executed an agreement for a lease in 
 his name, and when a suit was 
 brought for specific performance, it 
 turned out that a gentleman had 
 never given any authority to the 
 steward to make an agreement for a 
 lease in his name. Specific perform- 
 ance was therefore refused. The 
 plaintiff then brought an action 
 against the steward to recover 
 damages, and was held entitled to 
 recover. There it is perfectly plain 
 that the defendant had made a mis- 
 representation in point of fact. 
 
 The next case was the case of Rich- 
 ardson t>. Williamson, Law Rep. 6Q. 
 B., 276. There the plaintiff len> £70 
 
 389
 
 §554. 
 
 THE LAW OF AGENCY. 
 
 [Book TV. 
 
 § 554. Where Agent conceals Pact of Agency or Name of Prin- 
 cipal. An agent who conceals the fact of his agency and con- 
 tracts as the ostensible principal is undoubtedly liable in the same 
 manner and to the same extent as though he were the real prin- 
 cipal in interest.' So though the agent discloses the fact that he 
 is an agent, but conceals the name of his principal, he may be 
 held personally liable as principal.* 
 
 In these cases, the other party may also, at his option, ordina- 
 rily hold the real principal liable when discovered, — a subject to 
 be hereafter considered." 
 
 to a benefit building society, and re- 
 ceived a receipt signed by the defend- 
 ants, as two of the directors, certify- 
 ing that the money had been lent, 
 and then it turned out that in point 
 of law Ihey had no power to borrow 
 money. But, then, their power to 
 borrow money depended upon 
 whether they had made a rule to bor- 
 row money, because a benefit build- 
 ing society may receive money, at any 
 rate to a certain amount, on deposit, 
 if it has a rule enabling it so to 
 receive money. Therefore that was 
 taken as a representation by the 
 directors that they had such a rule, 
 and that the borrowing was within 
 the rule when, in point of fact, there 
 was no such rule at all. 
 
 Then the third case, and the one 
 which I think has been principally 
 relied upon in the argument before 
 us, was Cherry v. Colonial Bank of 
 Australasia, Law Rep., 3 P. C, 24. 
 There the directors of a joint stock 
 company gave authority to their 
 manager to overdraw the account. 
 If the facts of the case are examined 
 it will be found that the directors 
 had power to borrow money, pro- 
 vided they got the consent of a meet- 
 ing of the shareholders but not other- 
 wise. There was, therefore, a mis- 
 representation in point of fact, 
 because where they represented they 
 had power to borrow, they practically 
 
 . represented they had obtained author- 
 ity from a meeting of the sharehold- 
 ers to enable them to borrow," 
 
 See also cases cited in § 546 ante. 
 
 « Bickford v. First Nat. Bank, 42 
 111. 238. 89 Am. Dec. 436; Wheeler v. 
 Reed, 36 111. 82; Gerard v. Moody, 
 48 Ga. 96; Poole «. Rice, 9 W. Va. 
 73; Baltzen v. Nicolay, 53 N. Y, 470; 
 Mills V. Hunt, 30 Wend. (N. Y.) 431; 
 Baldwin v. Leonard, 39 Vt. 260, 94 
 Am. Dec. 324; Jonea v. .^tna Ins. 
 Co., 14 Conn. 501; York County 
 Bank v. Stein, 24 Md. 447; Cobb v. 
 Knapp, 71 N. Y. 848, 27 Am. Rep, 
 51 ; McClellan v. Parker, 27 Mo. 162 
 Beymer «. Bonsall, 79 Penn. St. 298 
 Bartlett v. Raymond, 139 Mass. 275 
 Murphy v. Helmrick, 66 Cal. 69 
 Button V. Winslow, 53 Vt, 430; Nixon 
 V. Downey, 49 Iowa, 166; Merrill v. 
 Wilson, 6 Ind. 426; Pierce v. John- 
 son, 34 Conn. 274; Mithoff v. Byrne, 
 20 La. Ann. 363; McComb v. Wright, 
 4 Johns. (N. Y.) Ch. 659; Forney v. 
 Shipp, 4 Jones (N. C.) L. 527; Meyer 
 V. Barker, 6 Binn. (Penn.) 228; Dav- 
 enport V. Riley, 2McCord (S. C.) 198, 
 Conyers v. Magrath, 4 McCord(S. C.) 
 392; Bacon c. Sondley, 3 Strobh. (S. 
 C.) 542; Royce v. Allen, 28 Vt. 234; 
 Ye Seng Co. «. Corbitt, 9 Fed. Rep. 
 423; Brent e. Miller, 81 Ala. 309. 
 
 2 Welch c. Goodwin, 133 Mass, 71 
 25 Am. Rep. 24. 
 
 » See post, %% 695-701, 
 
 890
 
 Chap. III.] LIABILITY OF AGENT TO THIRD PERSON. § 555. 
 
 The duty rests upon the agent, if he would avoid personal lia- 
 bility, to disclose his agency, and not upon others to discover it.* 
 It is not, therefore, enough that the other party has the means of 
 ascertaining the name of the principal ; he must have actual 
 knowledge or the agent will be bound. There is no hardship to 
 the agent in this rule, as he always has it in his power to relieve 
 himself from personal liability by fully disclosing his principal 
 and contracting only in the latter's name. If he does not do this, 
 it may well be presumed that he intended to make himself per- 
 sonally responsible.* 
 
 An agent who does not disclose his principal and to whom a 
 personal credit is given, can not escape responsibility merely be- 
 cause he generally acts for a disclosed principal in other transac- 
 tions.' 
 
 Notice of the agency to one member of a firm, has been held 
 not to be sufficient notice to the firm to relieve the agent from 
 personal responsibility for transactions subsequently had with an- 
 other member, who did not know, and was not informed of the 
 agency.* 
 
 The subsequent disclosure of the principal by the agent is not 
 sufficient, nor is the commencement of an action against the 
 principal conclusive evidence of an intention to hold him alone." 
 Nothing short of satisfaction from the principal would in such 
 a case be conclusive evidence of a discharge of the agent* 
 Whether the agent has, in fact, been released is a question to 
 be determined from all the circumstances of the case.' 
 
 § 555. Where Agent makes full Disclosure. The converse of 
 the rule laid down in the preceding section is, of course, true. 
 
 > Baldwin t). Leonard, 89 Vt. 260, ^Baldwin v. Leonard, 39 Vt. 260, 
 
 94 Am. Dec. 334. 94 Am. Dec. 324. 
 
 «Cobb -t). Knapp, 71 N. T. 349, 27 "Cobb v. Knapp, 71 N. Y. 349, 27 
 
 Am. Rep. 51; Raymond v. Crown, Am. Rep. 51; Raymond «. Crown, 
 
 &c. Mills, 2 Mete. (Mass.) 319. But &c. Mills, 2 Mete. (Mass.) 319; Curtis 
 
 Bee Worthington v. Cowles, 112 Mass. v. Williamson, L. R. 10, Q. B. 57, 11 
 
 80, where the rule is laid down that Eng. Rep. 149. 
 
 the agent is bound unless from his «Beymeri). Bonsall, 79 Penn. St. 
 
 disclosures the other party under- 298;Berghoflw.McDonald,87Ind.549. 
 
 Btood, or ought as a reasonable man That judgment without satisfaction 
 
 to have understood, that he was deal- constitutes election, see Priestly e. 
 
 ing with the principal. Fernie, 3 H. & 0. 977; Curtis v. Wil- 
 
 » Brent v. Miller, 81 Ala. 309; Wood liamson, supra. 
 
 t. Brewer, 73 Ala. 259. 'Cobb v. Knapp, 8tt/pra. 
 
 391
 
 § 550. THE LAW OF AGENCY. [Book IV. 
 
 If the agent makes a full disclosure of the fact of his agency and 
 of the name of his principal, and contracts only as the agent of 
 the named principal, he incurs no personal responsibility.* 
 
 § 556. Where Agent acts for a foreign Principal. A distinc- 
 tion formerly prevailed in those cases in which the principal was 
 a resident of a foreign state or country. In such cases it was 
 presumed that credit was given to the agent personally although 
 the agent disclosed his agency.' But this rule no longer prevails 
 in this country and the contracts of agent in behalf of foreign 
 principals stand upon the same ground as those made for domestic 
 employers, it being in each case a question of intention to be 
 gathered from all of the facts andcircumstances of that case.' 
 
 ^ 557. Where there is no responsible PrincipaL Akin to 
 these cases is that where the agent assumes to represent a princi- 
 pal who has no legal existence or status, or who has no legal 
 responsibility. Thus where a committee, appointed by a political 
 meeting for that purpose, ordered a public dinner for the party, 
 it was held that the members were personally liable. There was 
 here no legal body to be bound. It did not rise to the dignity 
 of a voluntary society or a club, for, said the court, " a club is a 
 definite association organized for indefinite existence ; not an 
 ephemeral meeting for a particular occasion, to be lost in the 
 crowd at its dissolution. It would be unreasonable to pre- 
 sume that the plaintiff agreed to trust to a responsibility so des- 
 perate, or furnish a dinner on the credit of a meeting which had 
 vanished into nothing. It was already defunct ; and we are not 
 to imagine that the plaintiff consented to look to a body which 
 had lost its individuality by the dispersion of its members in the 
 general mass." * 
 
 > Whitney v. Wyman, 101 TT. 8. March, 33 Me. 106; Green*. Kopke, 
 
 393; Dunton T. Chamberlain, 1 111. 18 C. B. 549; Wilson v. Zulueta, 14 
 
 App. 861; Barry v. Pike, 21 La. Ann. Ad. & Ell. N. 8. (Q. B.) 405; Paice v. 
 
 321; Aspinwall t). Torrance, 1 Lans. Walker, L. R 5 Ex. 178; Armstrong 
 
 (N. T.) 381; Kean v. Davis, 20 N. J. e. Stokes, L. R. 7 Q. B. 608, 3 Eng. 
 
 435. Rep. 217; Button v. Bulloch, L. R 9 
 
 sSee Story on Agency, § 268. Q. B. 573, 10 Eng. Rep. 184. 
 
 3 Maury v. Ranger, 38 La. Ann. * Eichbaum v. Irons, 6 Watts & 
 
 485, 58 Am. Rep. 197; Bray v. Ket- 8erg. (Penn.) 67, 40 Am. Dec. 540, 
 
 tell, 1 Allen (Mass.) 80; Goldsmith v. See also Blakely v. Bennecke, 59 Mo. 
 
 Manheim, 109 Mass. 187; Oelricks «. 193, an action upon an instrument 
 
 Ford, 23 How. (U. 8.) 49; Rogers v. signed by one as captain of a military 
 
 392
 
 Chap. III.] LIABILITY OF AGENT TO THIRD PERSON. § 558. 
 
 § 558. Where Agent contracts personally. It is undoubtedly 
 competent for the agent, although fully authorized to bind his 
 principal, to pledge instead his own personal responsibility, 
 if he so prefers. The presumption is that the agent intends 
 to bind his principal, but where he expressly charges himself 
 personally, he will be so held.' Such a personal undertaking is 
 not necessarily inconsistent with his character as agent, and where 
 he has so promised personally, the mere addition of the word 
 " agent," " trustee," etc., to a written promise, will ordinarily, as 
 has been seen, be regarded as mere descriptio personam* 
 
 Where the promise is in writing, its construction and effect are 
 ordinarily questions of law to be determined by the court, but 
 where the promise is not in writing, the question of whether the 
 credit was given to the agent personally is always one of fact to 
 be determined from all the circumstances of the case.* In either 
 event, the law aims to ascertain the intent of the parties, and 
 when that is ascertained it is conclusive.* The fact that the agent 
 was known to be insolvent may be taken into consideration in 
 determining whether the credit was given to the agent or his 
 principal." Where dealings are had with the agent of a known 
 principal, the legal presumption is, as has been seen, that the 
 credit was given to the principal rather than to the agent per- 
 sonally, and this presumption will prevail in the absence of 
 evidence that the credit was given exclusively to the agent,* and 
 
 company. Edings t. Brown, 1 Rich. 3 Cobb v. Knapp, 71 N. T. 348, 27 
 
 (S. C.) 2o5; Steele t. McElroy, 1 Am. Rep. 51; Steamship Co. v. Mer- 
 
 Sneed (Tenn.) 341, where the com- chants' Desp. Trans. Co., 135 Mass. 
 
 mittee of an unincorporated Masonic 421 ; Hovey v. Pitcher, 13 Mo. 191 ; 
 
 lodge were held personally liable. Fleming t>. Hill, 62 Ga. 751; Whitney 
 
 •Johnson p. Smith, 21 Conn. 627; t. Wyman, 101 U. S. 392. See also 
 
 Hall v. Crandall, 29 Cal. 567, 89 Am. cases cited in note 7. 
 
 Dec. 64; Higgins «. Senior, 8 Mees. < Whitney e. Wyman, supra; 
 
 & Wels. 834; Magee v. Atkinson, 2 Worthington p. Cowies, 112 Mass. 30, 
 
 Mees. & Wels. 440. « Garrett «. Trabue, 83 Ala. 227. 
 
 8 Duval V. Craig, 2 Wheat. (U, S.) 'Meeker v. Claghorn, 44 N. Y. 349, 
 
 45; Townsend v. Hubbard, 4 Hill 352; Foster v. Persch, 68 N. Y. 400; 
 
 (N. Y.) 351; Quigley v. De Haas, 82 Ferris v. Kilmer, 48 N. Y. 300; Mich- 
 
 Penn. St. 267; Whitehead??. Reddick, ael v. Jones, 84 Mo. 578; Halle. 
 
 12 Ired. (N. Car.) L. 95; Oliver v. Lauderdale, 46 N. Y. 70; Bank of 
 
 Dix, 1 Dev. & Bat. (K C.) Eq. 158; Genesee v. Patchin Bank, 19 N. Y. 
 
 Appleton V. Binks, 5 East. 147; Tip- 312; Key v. Parnham, 6 Har. & J. 
 
 pets «. Walker, 4 Mass. 595; Bryson v. (Md.) 418. Says Swayne, J., in 
 
 Lucas, 84 N. C. 680, 37 Am. Rep. 634. Whitney v. Wyman, tupra, " Where 
 
 393
 
 § 559. THE LAW OF AGENCY. [Book lY. 
 
 the burden of proof rests upon the party alleging it. Where, 
 however, the contract or dealings are such as prima facie bind 
 the agent, the burden of proof that in fact they bound the prin- 
 cipal, is upon the agent. ' 
 
 Of course if the other party knowing the principal, has seen 
 fit to give credit to the agent exclusively, he cannot, as will be 
 seen, afterwards resort to the principal.* 
 
 § 559. Same Subject— Public Agent. It is also competent for 
 a public agent to bind himself personally, if he so elects, but it 
 is not presumed that he will or has done so. Indeed, the pre- 
 sumption that the agent of a known principal intends to bind 
 the latter rather than himself, is stronger in the case of a public 
 agent than in that of the agent of an individual. It is incumbent, 
 therefore, upon him who seeks to hold a known public agent 
 personally responsible, to adduce clear proof of an intention so to 
 be bound.' 
 
 3. Where the Agent has received Money. 
 
 § 560. In general. The question of the liability of the agent 
 to third persons, for money received by him, may arise under two 
 states of fact. It may be money which the agent has received 
 from such third persons to be paid over to his principal, and 
 which being paid to the agent by them through mistake or fraud, 
 they are desirous of recovering before it reaches the hand of his 
 principal. Or it may be money received by the agent from his 
 principal to be paid to such third persons, but which the agent 
 
 the principal is disclosed, and the Allen (Mass.) 370; Brown t;. Rundlett, 
 
 agent is known to be acting as such, 15 N. H. 360; Sydnor v. Hurd, 8 
 
 the latter can not be made personally Tex. 98; Hinsdale v. Partridge, 14 
 
 liable unless he agreed to be so." Vt. 547. 
 
 * Qillaspie t). Wesson, 7 Port. (Ala.) 'New York, &c, Co. «. Harbison, 
 
 454; Lazarus v. Shearer, 3 Ala. 718; 16 Fed. Rep. 688; Halle. Lauderdale, 
 
 Drake v. Flewellen. 33 Ala. 106; 46 N. Y. 70; Gill ». Brown, 13 Johns. 
 
 Pratt V. Beaupre, 13 Minn. 187; Ross- (K Y.) 385; Miller v. Ford, 4 Rich, 
 
 iter «. Rossiter, 8 Wend. (N. Y.) 494; (8. C.) L. 376, 55 Am. Dec. 687; 
 
 24 Am. Dec. 63. Hodgson c. Dexter, 1 Cranch (U. 8. 
 
 2 Raymond ». Crown, «&c. Mills, C. C.) 109; Macbeath v. Haldimand, 
 
 2 Mete. (Mass.) 319; James v. Bixby, 17 R. (Durnf.& E.)172;Ogden v. Ray- 
 
 11 Mass, 34; Mauri®. Heflferman, 18 mond, 23 Conn. 379, 58 Am. Dec. 
 
 Johns, (N, Y.) 58; Miller v. Watt, 70 429; Walker v. Swartwout, 13 Johns. 
 
 Ga. 385; Stehn v. Fasnacht, 30 La. (N. Y.) 444, 7 Am. Dec. 334. 
 Ann. 83; Shattuck v. Eastman, 13 
 
 394
 
 Chap. III.] LIABILITT OF AGENT TO THIRD PERSON. § 502. 
 
 has failed or refused to pay to them, either for some purposes of 
 his own, or because he has been directed by his principal so to do. 
 
 a. Where Money has been paid to him for Principal. 
 
 § 561. Not liable for Money paid over to Principal before No- 
 tice. An agent to whom money has by mistake been voluntarily 
 paid for the use of his principal, is not liable to the person so pay- 
 ing it where, before notice of such mistake, he has paid it over to 
 his principal. In such event, the person paying it must look to 
 the principal.* 
 
 The agent, however, will be liable if after being apprised of 
 the mistake and required not to pay it over, he then pays the 
 money to his principal.* 
 
 § 562. Not liable where before Notice his Situation has been 
 changed. So an agent receiving money by mistake on account 
 of his principal is not liable where, before notice of the mistake, 
 he has done some act upon the assumption that the payment was 
 good, by which he will be prejudiced if it be held invalid.' 
 
 But so long as he stands in his original situation, and until there 
 has been a change of circumstances by his having paid over the 
 money to his principal or done something equivalent to it, he re- 
 mains liable.* 
 
 The mere forwarding of his account to his principal and placing 
 the money to his credit, is not such a change of circumstances as 
 will relieve him.* 
 
 • Law D, Nunn, 3 6a. 90; Upchurch S.) 137; Granger v. Hathaway, 17 
 
 V. Norsworthy, 15 Ala. 705; Griffith Mich. 500; Buller v. Harrison. 3 
 
 V. Johnson, 2 Harr. (Del.) 177; Mc- Cowp. 568; LaFarge v. Kneeland, 7 
 
 Donald®. Napier, 14 Ga. 89; Garland Cow. (N. Y.) 456; Herrick v. Galla- 
 
 V. Salem Bank, 9 Mass. 408, 6 Am. gher, 60 Barb. (N. Y.)566. 
 
 Dec. 86; Jefts v. York, 12 Gush. 'Elliott®. Swartwout, supra; Bul- 
 
 (Mass.) 196; Hearsey v. Pruyn, 7 ler v. Harrison, supra; LaFarge v. 
 
 Johns. (N. Y.) 179; Frye v. Lock- Kneeland, supra; Herrick v. Galla- 
 
 wood. 4 Cow. (N. Y.) 454; Fowler v. gher, supra; O'Connor v. Clopton, 60 
 
 Shearer, 7 Mass. 14; Dickens®. Jones, Miss. 349; Penhallow e. Doane, 3 
 
 6 Yerg. (Tenn.) 483; Pool v. Adkis- Dall. (U. S.) 54. 
 
 son, 1 Dana (Ky.) 117; Morrison v. 'Buller®. Harrison, 2 Cowp. 568. 
 
 Currie, 4 Duer (N. Y.) 79; Langley < Elliott ®. Swartwout, 10 Peters 
 
 e. Warner, 1 Sandf. (N. Y.) 209; (TJ. S.) 137; Buller ®. Harrison, swpra; 
 
 Wallis V. Shelly, 30 Fed. Rep. 747; Cox ®. Prentice, 3 Maule & Sel. 348. 
 
 Bailey e. Cornell, — Mich — , 33 N. 'Cox v. Prentice, supra; Buller t. 
 
 W. Rep. 50. Harrison, supra. See also. Smith «. 
 
 Elliott V. Swartwout, 10 Peters (U. Binder, 75 111. 492. 
 
 395
 
 § 563. THE LAW OF AGENCY. [Book lY. 
 
 I 563. Agent liable for Money mispaid though paid over, if 
 Agency was not known. Where, however, the third person 
 who paid money to an agent under a mistake of fact had no notice 
 of tlie agency, he may recover the money so paid from the agent 
 although the latter has paid it over to his principal.' 
 
 § 564. Agent liable without Notice for Money illegally ob- 
 tained. An agent who has obtained money from third persons 
 illegally, as by compulsion or extortion, — the persons paying it 
 having done so with no intent or purpose that he should pay it 
 to his principal — is liable to the persons from whom he received 
 it, although he has paid it over to his principal without notice 
 not to do so.* 
 
 Money so paid is not paid voluntarily nor on the account of 
 the principal, but merely as the result of the agent's illegal 
 demands. 
 
 This principle has been frequently applied to the cases of ex- 
 cise and custom-house officers, tax collectors, sheriffs, and other 
 officers who by virtue of their office have exacted and enforced 
 the payment of illegal fees, taxes and duties. 
 
 §565. Agentnotliableif Money voluntarily paid. But if the 
 money was voluntarily paid for the use of the principal, though 
 paid under a mistake of law as to the liability to pay it, it will be 
 a complete defense to the agent that before he had received 
 notice of the mistake, he had paid it over to his principal.' 
 
 § 566. Where Agent is a mere Stakeholder. Where an agent, 
 who stands in the situation of a stakeholder, receives money to be 
 paid over upon the happening of a certain contingency or the 
 performance of given conditions, and pays it over before the hap- 
 pening of the contingency or the performance of the conditions, 
 such payment will be no defense to an action by the party ulti- 
 mately found to be entitled to receive the money.* 
 
 •Smith 9. Kelly, 43 Mich. 890; » Elliott ». Swartwout, 10 Pet. (U. 
 
 Newallc.Tomlinson, L. R. 6C. P. 405. S.)137; Mowatt b. Wright, 1 Wend. 
 
 'Ripley v. Gelston, 9 Johns. (N.T.) (N. Y.) 355; Branham v. San Jose, 24 
 
 201, 6 Am. Dec. 271; Frye v. Lock- Cal. 585; Silliman v. Wing, 7 Hill 
 
 wood, 4 Cow. (N. T.) 456; Elliott «. (N. Y.) 159. 
 
 Swartwout, 10 Peters (U. S.) 137; 4Burrough c. Skinner, 5 Burr. 2639; 
 
 Metcalf V. Denson, 4 J. Baxt. (Tenn.) Edwards v. Hodding, 5 Taunt. 815. 
 565; Snowdenc. Davis, 1 Taunt. S58. 
 
 396
 
 Chap. III.] LIABILITY OF AGENT TO THIKD PEKSON. 
 
 §667. 
 
 b. Where Money has been Paid to Agent for Third Person, 
 § 567. "When Agent liable to such third Person. Where 
 money has been delivered by a principal to his agent to be, by 
 the latter, paid over to a third person, the duty to make such 
 payment is one which the agent owes, in the first instance, to the 
 principal only. Between the agent and the third person, there 
 is primarily no privity. The former has entered into no rela- 
 tions with the latter by virtue of which he owes to him tlie per- 
 formance of any duty other than those imposed upon every mem- 
 ber of society. 
 
 Until the agent has paid over the money to the third person, or 
 has assumed to the latter the obligation to do so, the principal 
 may at any time revoke or countermand his directions to the 
 agent to make the payment.' 
 
 Based upon the principle, therefore, that one person can not 
 maintain an action at law upon a contract to which he was not 
 a party, though made for his benefit,' the prevailing doctrine is 
 
 » Williams ». Everett. 14 East 582; 
 Tiernan v. Jackson, 5 Pet. (U. S.) 
 680; Seaman v. Whitney, 24 Wend. 
 (N. Y.) 260, 35 Am. Dec. 618; Brind 
 «. Hampshire, 1 Mees. & Wels. 365; 
 Scott D. Porcher, 3 Meriv, 652; Stew- 
 art©. Fry, 7 Taunt. 339; Denny v. 
 Lincoln, 5 Mass. 385. 
 
 •While this principle is not recog- 
 nized by the courts of all of the 
 States, it is believed to be supported 
 by the better reasons, and the weight 
 of authority. See Pipp v. Reynolds, 
 20 Mich. 88; Turner v. McCarty, 22 
 Mich. 265; Hicks v. McGarry, 38 
 Mich. 667; Nolan v. Manton, 46 N. 
 J. L. 231, 50 Am. Rep. 403; Sergeant 
 V. Stryker, 1 Harr. (N. J. L.) 464; 
 Williams «. Everett, 14 East 582; 
 Tiernan v. Jackson, 5 Pet. (U. S.) 
 680; Seaman v. Whitney, 24 Wend. 
 (N. Y.) 260; 35 Am. Dec. 618; Ferris 
 V. Carson Water Co., 16 Nev. 44, 40 
 Am. Rep. 486. 
 
 The contrary doctrine was finally 
 established in New York after much 
 doubt and dissent in the case of Law- 
 
 rence V. Fox, 20 N. Y. 268, re-afflrmed 
 in Burr t). Beers, 24 N. Y. 178, 80 
 Am. Dec. 327, and followed in many 
 subsequent cases. Becker c. Tor- 
 rancySl N. Y. 631, 643; Dingeldein 
 «. Third Ave. R. R. Co., 37 Id. 575, 
 577; Turk v. Ridge, 41 Id. 201. 206, 
 Barker «>. Bradley, 42 Id. 316, 332; 
 Coster V. Mayor, 43 Id. 399, 411. 
 Hutchings v. Miner, 46 Id. 456, 460; 
 Claflin V. Ostrom, 54 Id. 581, 584; 
 Glen®. Hope Mut. Ins. Co., 56 Id. 
 879, 381 ; Barlow v. Myers, 64 Id. 43, 
 21 Am. Rep. 582; Simson e. Brown, 
 68 Id. 355, 358; Campbell v. Smith, 
 71 Id. 26, 28; Bennett r. Bates, 94 
 Id. 354, 370. 
 
 But the courts of that State have 
 declared themselves disinclined to ex- 
 tend the doctrine, Barlow t>. Myers, 
 supra. See also Ricard ». Sanderson, 
 41 N. Y. 179; Freeman v. Auld, 44 
 N. Y. 55; Hutchings «. Miner, 46 N. 
 Y. 456; Garnsey v. Rogers, 47 N. Y. 
 233, 7 Am. Rep. 440; Vrooman v. 
 Turner, 69 N. Y. 284, 25 Am. Rep. 
 195. 
 
 397
 
 §567. 
 
 THE LAW OF AGENCY. 
 
 [Book lY 
 
 that a third person can not sue an agent at law to recover money 
 which the agent has promised his principal to pay to such third 
 person. In order to maintain such an action against the agent, 
 it is necessary to show that he has in some way, in dealings with 
 such third person, so recognized and assented to the appropria- 
 tion of the money to the latter as to create a privity between 
 them.* When this has been done, the principal can no longer 
 
 The New York doctrine also pre- 
 vails in Kansas. See Burton v. Lar- 
 kin, 36 Kan. 246; 59 Am. Rep. 541, 
 citing the Kansas cases. 
 
 » Williams «. Everett, 14 East. 583. 
 This case, which is a leading one 
 upon the subject, has been so often 
 cited as to seem to warrant a full 
 statement of the facts upon which it 
 arose and of the judgment pronoun- 
 ced. 
 
 Said Lord ELiiENBOROUGH, Chief 
 Justice: " The action was for money 
 bad and received, brought by the 
 plaintiff to recover 800 £, being part 
 of the amount of a bill of 1126 £,2 s., 
 remitted by one James Kelly from 
 the Cape of Good Hope to the de- 
 fendant's house, in a letter dated 
 Cape Town, 8th July, 1809, in which 
 Kelly says, ' I remit you by the War- 
 ley 1126 £, 2 s., which I particularly 
 request you will order to be paid to 
 the following persons, who will pro- 
 duce their letters of advice from me 
 on the subject,' &c. Amongst the 
 persons, he names the plaintiff Wil- 
 liams for 300 £. And he afterwards 
 made another remittance for 500 £ on 
 the same terms. And then he adds : ' I 
 desire the amounts paid each person 
 to be put on the back of their respec- 
 tive bills, «&c., 'and that every bill 
 paid off be cancelled.' Williams, by 
 his attorney, long before the bills be- 
 came due, gave the defendant, Ever- 
 ett, notice of a letter he had received 
 from Kelly, ordering his debt of 300 £ 
 to be paid out of that remittance, 
 and offered him an indemnity of a 
 
 banking house if he would hand over 
 the bill to him; but Everett refused 
 to indorse the bill away, or to act 
 upon the letter; admitting, however, 
 that he had received the letter direct- 
 ing the application of the money in 
 the manner already stated. The 
 question at the trial was whether the 
 plaintiff was entitled to receive from 
 the defendants the amount of his 
 demand on Kelly for 300 £ out 
 of the bill for 1126 £,2 8 which was 
 admitted to have been received by the 
 defendants when it became due. * 
 * * * The question which has 
 been argued before us is whether the 
 defendants, by receiving this bill, did 
 not accede to the purposes for which 
 it was professedly remitted to them 
 by Kelly, and bind themselves so to 
 apply it; and whether, therefore, the 
 amount of such bill paid to them 
 when due did not instantly become, 
 by operation of law, money had and 
 received to the use of the several per- 
 sons mentioned in Kelly's letter, as 
 the creditors in satisfaction of whose 
 bills it was to be applied, and of 
 course, as to 300 £ of it, money had 
 and received to the use of the plain- 
 tiff. It will be observed that there 
 is no assent on the part of the defend- 
 ants to hold this money for the pur- 
 poses mentioned in the letter; but, on 
 the contrary, an express refusal to 
 the creditor so to do. If, in order to 
 constitute a privity between the plain- 
 tiff and defendants as to the subject 
 of this demand, an assent express or 
 implied be necessary, the assent can 
 
 398
 
 Chap. III.] LIABILITY OF AGENT TO THIRD PERSON. 
 
 §568. 
 
 revoke the appropriation, nor can the agent refuse to per- 
 form it.' 
 
 Where, however, the agent has previously assumed obligations 
 to third persons for the accommodation of the principal, against 
 which the latter has expressly or impliedly agreed to indemnify 
 him, a delivery of money to the agent for that purpose can not 
 be revoked by the principal ; * neither can an appropriation of 
 money in the agent's hands be revoked by the principal where, 
 upon the faith of such appropriation the agent has assumed 
 liabilities to third parties.' In the concise language of Maule, 
 " An act done in performance of a binding contract is not 
 revocable." * 
 
 § 568. Same Subject— What constitutes Assent — Consideration. 
 No express form of words is ordinarily requisite to constitute an 
 
 in this case be only an implied one, 
 and that too implied against the ex- 
 press dissent of the parties to be 
 charged. By the act of receiving the 
 bill, the defendants agree to hold it 
 till paid, and its contents, when paid, 
 for the use of the remitter. It is 
 entire to the remitter to give and 
 countermand, his own directions re- 
 specting the bill, as often as he 
 pleases, and the persons to whom the 
 bill is remitted, may still hold the 
 bill till received, and its amount when 
 received, for the use of the remitter 
 himself, until by some engagement 
 entered into by themselves with 
 the person who is the object 
 of the remittance, they have 
 precluded themselves from so doing, 
 and have appropriated the remittance 
 to the use of such person. After 
 such a circumstance they cannot re- 
 tract the consent they may have once 
 given, but are bound to hold it for 
 the use of the appointee. If it be 
 money had and received for the use 
 of the plaintiflE under the orders 
 which accompanied the remittance, 
 it occurs as fit to be asked, when did 
 it become so? It could not be so 
 before the money was received on the 
 
 bill becoming due; and at that In- 
 stant, suppose the defendants had 
 been robbed of the cash or notes in 
 which the bill in question had been 
 paid, or they had been burnt or lost 
 by accident, who would have borne 
 the loss thus occasioned? Surely the 
 remitter Kelly, and not the plaintiff 
 and his other creditors, in whose 
 favour he had directed the applica- 
 tion of the money according to their 
 several proportions to be made. This 
 appears to us to decide the question, 
 for in all cases of specific property 
 lost in the hands of an agent, where 
 the agent is not himself responsible 
 for the cause of the loss, the liability 
 to bear the loss is the test and conse- 
 quence of being the proprietor, as 
 the principal of such agent." 
 
 I Wyman v. Smith, 2 Sandf. (N. Y.) 
 331; Williams v. Everett, 14East 583; 
 Stevens*. Hill, 5 Esp. 247; Walker 
 V. Rostron, 9 Mees. & Wels. 411; 
 Griffin v. Weatherby, Law Reports, 
 3 Q. B. 758 ; Yates v. Hoppe, 9 Man, 
 G. & S. (9 Com. B.) 541, 67 Eng. 
 Com. L. 540. 
 
 • Yates «. Hoppe, supra. 
 
 » Walker «. Rostron, supra. 
 
 * In Yates e. Hoppe, supra. 
 
 599
 
 § 568. THE LAW OF AGENCY. [Book IV". 
 
 assent on the part of the agent to the appropriation. Like other 
 promises, this may be implied. 
 
 The direction from the principal to the agent may often be in 
 substance or in form an ordinary bill of exchange, to which the 
 rules relating to the acceptance of such paper will apply. As is 
 said by a learned writer,' an acceptance, according to the law 
 merchant, may be (1) expressed in words, or (2) implied from 
 the conduct of the drawee. (3) It may be verbal or written. 
 
 (4) It may be in writing on the bill itself or on a separate paper. 
 
 (5) It may be before the bill is drawn or afterward. And (6) 
 there may be absolute, conditional and qualified acceptances. 
 
 By the statutes of many of the States, however, the rule of the 
 law merchant has been changed, and an acceptance must be in 
 writing. 
 
 The question of the consideration for the appropriation by the 
 principal may, in certain cases, become material. When it is so, 
 the ordinary rules of law apply. The existence of a debt, 
 although it be not due, is a good consideration for such an appro- 
 priation to pay it.* 
 
 No new or separate consideration moving from the third per- 
 son to the agent is necessary to sustain the latter's assent to the 
 appropriation of the money,* when directed by the principal. 
 
 XL 
 
 IN TOKT. 
 
 a. For Non-feasance. 
 
 § 569. In general— Not liable. As has been seen,* it is the 
 general rule that an agent is not liable to third persons for inju- 
 ries received by them in consequence of his not performing some 
 duty which he owed to his principal. This rule and the reasons 
 for it are well stated in a recent case in Louisiana. " At com- 
 mon law, an agent is personally responsible to third parties for 
 doing something which he ought not to have done, but not for not 
 doing something which he ought to have done ; the agent in the 
 latter case being liable to his principal only. For non-feasance, 
 
 « 1 Daniel Neg. Inst. § 496. • 1 Daniel Neg. Inst. § 174. 
 
 • Walker «. Rostron, 9 Mees. & * Bee ante, § 639 and cases there 
 Wels. 411, 420. cited. 
 
 400
 
 Chap. III.] LIABILITT OF AGENT TO THIBD PERSON. § 570. 
 
 or mere neglect 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. No man is bound to answer for such violation 
 of duty or obligation except to those to whom he has become 
 directly bound or amenable for his conduct. • * * An agent 
 is not responsible to third persons for any negligence in the per- 
 formance of duties devolving upon him purely from his agency, 
 since he cannot, as agent, be subject to any obligations toward 
 third persons, other than those of his principal. Those duties 
 are not imposed upon him by law. He has agreed with no one, 
 except his principal, to perform them. In failing to do so he 
 wrongs no one but his principal, who alone can hold him 
 responsible." ' 
 
 § 570. Same Subject— Illustrations. In accordance with this 
 rule it is held that an agent having charge of a building, and 
 owing to his principal the duty to keep it in repair, is not liable 
 to a stranger who receives an injury on account of the agent's 
 neglect to repair.* 
 
 And so it has been held that an agent who has charge of a 
 plantation is not liable to the owner of an adjoining plantation 
 for injuries caused from the neglect and refusal of the agent to 
 keep open a drain, which it was his duty to his principal to keep 
 open.* The fact that the motive of the agent in failing or 
 refusing to perform his duty was malicious, and that he intended 
 thereby to injure the other party was held to be immaterial, 
 " for " said the court, " whatever motive operated on the agent, 
 the charge against him was only that he had failed to do, and 
 not that he had done anything maliciously, and for non-feasance 
 or omission to act at all, the agent is answerable only to his 
 employer." * 
 
 So an agent who had rented a house for his principal and had 
 
 * Delaney v. Rochereau, 84 La. and who had agreed with the lessee 
 
 Ann. 1123, 44 Am. Rep. 456. to make all necessary repairs, were 
 
 » Delaney t>. Rochereau, 84 La. Ann. held liable for an Injury to a stranger 
 
 1123, 44 Am. Rep. 456; Carey ». caused by the defective condition of 
 
 Rochereau, 16 Fed. Rep. 87. But the wharf, 
 
 see Campbell v. Portland Sugar Co., • Feltus v. Swan, 62 Miss. 415. 
 
 62 Me. 552, 16 Am. Rep. 503, where * Idem. 
 agents who had charge of a wharf 
 
 26 401
 
 § 571. THE LAW OF AGENCY. [Book lY. 
 
 authorized the tenant to erect a cooking range upon the premises 
 was held not liable for an injury to an adjoining proprietor caused 
 by the use of the range, because if the agent, in permitting the 
 range to be erected, violated any duty, it was a duty which he 
 owed to his principal only and not to third persons.* 
 
 b. For Misfeasance. 
 
 § 571. Agency no Excuse for Misfeasance. But an agent, 
 like any other person, is bound in the performance of his duty to 
 his principal to recognize and respect the rights and privileges 
 of others, and if he fails to do so, either negligently or intention- 
 ally, and thereby causes injury to a stranger, he is liable to the 
 stranger for the damages sustained, and the fact that the injury 
 occurred while in the performance of his agency will constitute 
 no defense." In certain of such cases, the principal will be liable 
 also, but that fact either does not relieve the agent.' 
 
 As is said in the Louisiana case above referred to : " Every 
 one, whether he is principal or agent, is responsible directly to 
 persons injured by his own negligence, in fulfilling obligations 
 resting upon hira in his individual character and which the law 
 imposes upon him independent of contract. No man increases or 
 diminishes his obligations to strangers by becoming an agent. If, 
 in the course of his agency, he comes in contact with the person 
 or property of a stranger, he is liable for any injury he may do 
 to either, by his negligence, in respect to duties imposed by law 
 upon hira in common with all other men. * * * The 
 
 • Labadie v. Hawley, 61 Tex. 177, agent does not exist; tliey are all 
 
 48 Am. Rep. 278. wrong doers, and may be sued 
 
 2Delaney v. Rochereau, 34 La. jointly or separately; and the liability 
 
 Ann. 1123,' 44 Am. Rep. 456; Berg- of each and all does not cease until 
 
 hoff V. McDonald, 87 Ind. 549; Crane payment has been made or satisfac- 
 
 fl. Onderdonk, 67 Barb. (K Y.) 47; tion rendered or something equivalent 
 
 Bennett v. Ives. 30 Conn. 329; Poole thereto." Franklin, C. in BerghofiE 
 
 V. Adkisson, 1 Dana (Ky.) 110; c. McDonald. 87 Ind. 549. See also 
 
 Campbell v. Hillman, 15 B. Mon. Bell v. Josselyn, 3 Gray (Mass.) 309, 
 
 (Ky.) 508; Josselyn v. McAllister, 22 63 Am. Dec. 741; Nowell v. Wright, 
 
 Mich. 800; Starkweather®. Benjamin, 3 Allen (Mass.) 169; Gilmore v. Dris- 
 
 32 Mich. 306; Weber v. Weber, 47 coll, 122 Mass. 208; Osborne p. Mor- 
 
 Mich. 569; Hedden v. Griffin, 136 gan, 130 Mass. 103, 39 Am. Rep. 437; 
 
 Mass. 229, 49 Am. Rep. 25; Reed v. Campbell v. Portland Sugar Co., 63 
 
 Petterson, 91 111. 288, 297. "In Maine, 562, 16 Am. Rep. 503. But see 
 
 torts," said a learned judge in Indi- Leuthold v. Fairchild, 85 Minn. 111. 
 ana, "the relation of principal and » Weber*. Weber. 47 Mich. 569. 
 
 402
 
 Chap. III.] LIABILITY OF AGENT TO THIKD PERSON. § 572. 
 
 whole doctrine on that subject culminates in the proposition that 
 wherever the agent's negligence, consisting in his own wrong 
 doing, therefore in an act, directly injures a stranger, then such 
 stranger can recover from the agent damages for the injury.'" 
 
 § 572. Same Subject— Distinction between Non-feasance and 
 Misfeasance. Some confusion has crept into certain cases from 
 a failure to observe clearly the distinction between non-feasance 
 and misfeasance. As has been seen, the agent is not liable to 
 strangers for injuries sustained by them because he did not under- 
 take the performance of some duty, which he owed to his prin- 
 cipal and imposed upon him by his relation, which is non-feasance. 
 Misfeasance may involve, also, to some extent the idea of not 
 doing, as where the agent while engaged in the performance of 
 his undertaking does not do something which it was his duty to 
 do under the circumstances, — does not take that precaution, does 
 not exercise that care, — which a due regard for the rights of others 
 requires. All this is not doing, but it is not the not doing of 
 that which is imposed upon the agent merely by virtue of his 
 relation, but of that which is imposed upon him by law as a 
 responsible individual in common with all other members of 
 society. It is the same not-doing which constitutes actionable 
 negligence in any relation. 
 
 Upon this distinction, the language of Chief Justice Gkat 
 may be noticed to advantage : " It is often said in the books 
 that an agent is responsible to third persons for misfeasance only, 
 and not for non-feasance. And it is doubtless true that if an 
 agent never does anything towards carrying out his contract with 
 his principal, but wholly omits or neglects to do so, the principal 
 is the only person who can maintain any action against him for 
 the non-feasance. But if the agent once actually undertakes and 
 enters upon the execution of a particular work, it is his duty 
 to use reasonable care in the manner of executing it, so as not 
 to cause any injury to third persons which may be the natural 
 consequence of his acts ; and he cannot by abandoning its execu- 
 tion midway, and leaving things in a dangerous condition, ex- 
 empt himself from liability to any person who suffers injury by 
 reason of his having so left them without proper safeguards. 
 
 ' Bkrmudez, 0. J. in Delaney v. Rochereau, 34 La. Ann. 1123, 44 Am. Rep. 456. 
 
 403
 
 § 573. THE LAW OF AGENCY. [Book IV. 
 
 ,Thi8 is not non-feasance or doing nothing, but it is misfeasance, 
 doing improperly." * 
 
 This distinction may also be further illustrated by the language 
 of Judge Metoalf in a case where an agent had been charged 
 with negligence in admitting water into the pipes in a building 
 without first seeing that they were in a proper condition. " Non- 
 feasance," said the learned judge, " is the omission of an act which 
 a person ought to do ; misfeasance is the improper doing of an act 
 which a person might lawfully do ; and malfeasance is the doing 
 of an act which a person ought not to do at all. The defen- 
 dant's omission to examine the state of the pipes in the house 
 before causing the water to be let on was a non-feasance. But 
 if he had not caused the water to be let on, that non-feasance 
 would not have injured the plaintiff. If he had examined the 
 pipes and left them in a proper condition, and then caused the 
 letting on of the water, there would have been neither non-fea- 
 sance nor misfeasance. As the facts are, the non-feasance caused 
 the act done to be a misfeasance. But from which did the 
 plaintiff suffer? Clearly from the act done, which was no 
 less a misfeasance by reason of its being preceded by a non- 
 feasance."' 
 
 § 573. Same Subject— Principal's Knowledge or Direction no 
 Defense. It does not relieve the agent that the wrong was com- 
 mitted with the knowledge of the principal, or by his consent or 
 express direction,* because no one can lawfully authorize or 
 direct the commission of a wrong. A fortiori is it no defense 
 that the agent in committing the wrong violated his instructions 
 from his principal.* Neither is it material that the agent de- 
 rives no personal advantage from the wrong done.' All persons 
 who are active in defrauding or injuring others are liable for 
 what they do, whether they act in one capacity or another. No 
 one can lawfully pursue an employment known to be fraudulent, 
 and while it may be true that the principal is often liable for the 
 
 > Iq Oaborne v. Morgan, 130 Mass. Dec. 498; Baker v. Wasson, 53 Tex. 
 
 103, 39 Am. Rep. 437. 157; Johnson «. Barber, 5 Gil. (111.) 
 
 « In Bell «. Josselyn, 3 Gray 435, 50 Am. Dec. 416. 
 
 (Mass.) 309, 63 Am. Dec. 741. ♦ Starkweather t». Benjamin, 88 
 
 3 Weber v. Weber, 47 Mich. 569; Mich. 306; Johnsons. Barber, m-pra. 
 
 Lee V. Matthews, 10 Ala. 682, 44 Am. • Weber «. Weber, myra. 
 
 404
 
 Ohap. III.] LIABILITY OF AGENT TO THIBD PERSON. § 574. 
 
 'fraud of his agent, though himself honest, his own fraud will 
 not exonerate his fraudulent agent.' 
 
 The fact that the agent acted in good faith, supposing the 
 principal had a legal right to have done what was done, is no 
 defense. He who intermeddles with property not his own 
 must see to it that he is protected by the authority of one 
 who is himself, by ownership or otherwise, clothed with the 
 authority he attempts to confer." 
 
 § 574. Same Subject— Illustrations. In accordance with these 
 principles it is held that an agent who, for his principal, wrong, 
 fully takes or detains or sells the goods of another, is personally 
 liable in an action of replevin, trover or other action for the 
 tort,' even though he acted in good faith, supposing the goods to 
 be his principal's, and although he has delivered the property to 
 his principal.* So an agent who negligently sets fire to another's 
 property, is liable for the injury although it was done under his 
 principal's direction.' An agent who fraudulently induces a per- 
 son to take out an insurance policy is liable to an action for the 
 injury sustained ; • in such a case the party deceived has two 
 remedies ; he may retain the policy and sue for damages, or he 
 may rescind the contract and recover from the agent the premium 
 paid. So an insurance agent who misrepresents material facts to 
 the insured by reason of which the insured loses his claim against 
 the company for a loss sustained, is personally responsible to the 
 insured for the amount.'' An agent is responsible individually 
 
 ' Weber v. Weber, supra; Stark- aupra; Spraights v. Hawley, supra; 
 
 weather®. Benjamin, «ttpra; Josselyn McCombie v. Davies, 6 East. 638; 
 
 c. McAlliater, 23 Mich. 300. Baldwin v. Cole, 6 Mod. 212; Thorp 
 
 • Spraights «. Hawley, 39 N. Y. «. Burling, 11 Johns. (K Y.) 285; 
 441, 100 Am. Dec. 452; Kimball v. Farrar v. ChaufEetete, 5 Den. (N. Y.) 
 Billings, 55 Me. 147, 92 Am. Dec. 527; Pierson v. Graham, 83 Eng. 
 581; Everett «. Coffin. 6 Wend. (N. Com. L. 468; Everett v. Coffin, 6 
 Y.) 609, 22 Am. Dec. 551; Williams Wend. (N. Y.) 609, 22 Am. Dec. 551; 
 V. Merle. 11 Wend. (N. Y.) 80, 25 Spencer «. Blackman. 9 Wend. (N. 
 Am. Dec. 604. Y ) 167; Williams v. Merle, 11 Wend. 
 
 » Berghoff v. McDonald, 87 Ind. (N. Y.) 80, 25 Am Dec. 604. 
 
 549; Kimball v. Billings, 55 Me. 147, » Johnson v. Barber, 5 Gil. (111.) 
 
 92 Am. Dec. 581; Spraights v. Haw- 425, 50 Am. Dec. 416. 
 
 ley, 39 N. Y. 441, 100 Am. Dec. 452. « Hedden v. Griffin, 136 Mass. 229, 
 
 * Lee V. Mathews, 10 Ala. 682, 44 49 Am. Rep. 25. 
 
 Am. Dec. 498; Perkins v. Smith, 1 ' Kroeger v. Pitcairn, 101 Penn. St. 
 
 Wils. 328; Stephens v. Elwall, 4 811, 47 Am. Rep. 718. 
 Maule & Sel. 259; Kimball v. Billings, 
 
 405
 
 § 575. THE LAW OF AGENCY, [Book IV. 
 
 to the purchaser for a fraud committed bj him in the sale of 
 property, though he does not profess to sell the property as his 
 own, but acts throughout in his capacity as an agent.' An agent 
 who negligently directs water to be admitted to water pipes in 
 a room in a house owned by his principal, but which is under his 
 general management, without first examining the condition of 
 the pipe is liable to the tenant of a room below for injury result- 
 ing therefrom,* So a surveyor is personally liable for a trespass 
 committed by him, though the act was done in behalf and under 
 the direction of a highway board by whom he was employed.' 
 
 § 575. Liability in respect to Subagents. Whether a sub- 
 agent is to be considered the agent of the agent or of the princi- 
 pal is a question which has been already considered.* Where in 
 accordance with the rules there laid down it is determined that 
 the subagent is to be regarded as the agent of the agent, the lat- 
 ter will be liable to the subagent, the principal and third persons 
 as a principal,' — a subject hereafter to be discussed. But where, 
 on the other hand, the subagent is found to be the agent of the 
 principal, then the intermediate agent will not be liable to the 
 subagent or to third persons as a principal.' 
 
 The subagent, like the agent, is personally responsible to third 
 persons for his own misfeasances, although the agent or the prin- 
 cipal may be responsible also.' He would not, however, be liable 
 to third persons for non-feasance. On these subjects, the rules 
 laid down above respecting the liability of the agent to third 
 persons, apply, mutatis mutandis^ to the subagent. 
 
 S 576. Same Subject— Agent who conceals Principal liable as 
 Principal to Subagent. The rule that an agent who conceals 
 his principal may himself be charged as principal, has been ap- 
 plied in favor of subagents who have received injuries while in 
 the employment of the agent as an ostensible principal. In such 
 
 » Campbell v. Hillman, 15 B. Mon. * See ante, § 197. 
 
 (Ky.) 508, 61 Am. Dec. 195. « See ante, %% 192-197. 
 
 2 Bell V. Josselyn, 3 Gray (Mass.) • Stone v. Cartwright, 6 T. R. 411. 
 
 809, 63 Am Dec. 741. But see Bis- ' Stone v. Cartwright. supra; Busb 
 
 Bell V. Roden, 34 Mo. 63, 84 Am. Dec. «. Steinman, 1 Bos. & Pul. 404; Den- 
 
 71_ ison^. Seymour, 9 Wend. (N. Y.) 9^ 
 
 » Mill V. Hawker, L. R. 10 Ex. 93, Rapson v. Cubitt, 9 M. & W. 710; 
 
 12 Eng. Rep. (Moak) 538. Quarman v. Burnett, 6 M. & W. 499. 
 
 406
 
 Chap. III.] LIABILITY OF AGENT TO THIKD PERSON. § 578. 
 
 cases the agent is liable to the subagent in the same manner as 
 though he were in fact the real principal.* 
 
 B. PUBLIC AGENTS. 
 1. 
 
 LIABILITY FOE THEIB OWN T0ET8. 
 
 § 577. In general— Classiflcation. Public agents may be divi- 
 ded into two classes based upon the character and manner in 
 which they serve the public. One class embraces those whose 
 duty is owing primarily to the public collectively and not to any 
 particular individual ; who act for the public at large and who 
 are ordinarily paid out of the public treasury. The other class 
 includes those who, while they may not owe to the public as such 
 the performance of any given duty, become by virtue of an em- 
 ployment by an individual to do some act for him in an oflScial 
 capacity, under a special and particular obligation to him as an 
 individual. This class usually receive their compensation from 
 fees paid by each individual who employs them. 
 
 Another classification is made based upon the nature of the 
 duties to be performed. One class includes those whose duties 
 are of a ipnrely Judicial nature ; another, those whose duties are 
 of a quasi-judicial or discretionary/ character ; another, those 
 whose duties are legislative, and still another those whose duties 
 are ministerial in their nature. 
 
 In respect to this classification it will be found that it is not 
 always easy to determine whether the given duty is judicial oi 
 discretionary, or whether it is ministerial in its nature, particu- 
 larly in view of the fact that the same officer may often, in 
 the same transaction even, be compelled to exercise both 
 functions. 
 
 It will be evident that the question of the liability of the 
 public agent may involve not only his responsibility for his 
 own torts, but for those of his subordinates, assistants and 
 employees. 
 
 § 578. Wo Action by Individual for Breach of Duty owing 
 
 ' Malone t>. Morton, 84 Mo, 436; McQowan «. St. Louis, &c. R R. Co., 61 
 Mo. 528. 
 
 407
 
 g 579. THE LAW OF AGENCY. [Book lY. 
 
 solely to the Public. The first question for determination in con- 
 sidering the liability of a public officer to private action, is whether 
 such officer owes any duty to the individual. Public officers are 
 chosen upon public grounds ; they are part of the machinery of 
 the o-overnment, and they owe the performance of the duties im- 
 posed upon them primarily to the public. 
 
 Many of them in the course of the performance of their duties, 
 incur obligations to individuals, but these obligations are so in- 
 curred as a part of their public duty attaching to these individ- 
 uals as distributive members of the public, and not because the 
 performance of these duties for these particular individuals, was 
 the object and end of their appointment. 
 
 Other of the public agents may never come under any obliga- 
 tion to individuals at all. 
 
 Unless, therefore, it appears that the duty violated was one 
 owing to the individual complaining of its non-performance, and 
 unless it appears that he has sustained a special injury therefrom^ 
 no civil action can be maintained against the officer. Kecourse 
 in such a case must be had by a public prosecution.^ 
 
 8 579. Liable for Wrongs committed in private Capacity. It 
 will be understood that it is the liability of public agents for 
 wrongs committed while they were acting, or assuming to act, in 
 their public capacity, that is now to be considered, and not their 
 liability for those wrongs which they may commit as private in- 
 dividuals. For the latter they are, of course, liable like any other 
 private individuals, and their official character affords them no de- 
 fense. 
 
 1. Judicial Officers. 
 % 580. Judicial OflB.eers not liable when acting within their 
 Jurisdiction. It is a general principle of the highest importance 
 to the proper administration of justice that a judicial officer, in 
 exercising the authority vested in him, shall be free to act upon 
 his own convictions without apprehension of personal conse- 
 quences to himself. No civil action, therefore, can be sustained 
 against a judicial officer by one claiming to have been injured by 
 his judicial action within his jurisdiction.* From the very nature 
 
 » Moss V. Cummings, 44 Mich. 359; » Randall v. Brigham,? "Wall. (U.S.) 
 Butler v. Kent. 19 Johns. (N. T.) 223, 535; Bradley v. Fisher, 13 Wall. (U. 
 10 Am.Dec.219; Cooley on Torts, 379. S.) 335; Fray v. Blackburn, 8 Best & 
 
 408
 
 Chap. III.] LIABILITY OF AGENT TO THIRD PERSON. 
 
 § 580. 
 
 of the case, he is called upon to exercise Ms judgment, and his 
 duty to the individual is performed when he has exercised it, 
 however erroneous or disastrous in its consequences it maj appear 
 either to the party or to others. 
 
 Smith, 576; Yates v. Lansing, 5 
 Johns. (N. Y.) 282; 9 Id. 395, 6 Am. 
 Dec. 290; Lange v. Benedict, 73 N. 
 Y. 12, 29 Am. Rep. 80; Floyd v. Bar- 
 ker, 12 Coke 25; Hire v. Sedgwick, 2 
 Roll. 109; Hammond v. Howell, 1 
 Mod. 184; Groenvelt v. Burwell, 1 
 Balk. 396, 1 Ld. Raym. 454; Miller «. 
 Seare, 2 Bl. 1145; Mostyn© Fabrigas, 
 1 Cowp. 172; Phelps v. Sill, 1 Day 
 (Conn.) 315; Morgan v. Dudley, 18 B. 
 Mon. (Ky.) 693, 68 Am. Dec. 735; 
 Piper V. Pearson, 2 Gray (Mass.) 120, 
 61 Am. Dec. 438; Clarke v. May, 2 
 Gray (Mass.) 410, 61 Am. Dec. 470; 
 Ela v. Smith, 5 Gray (Mass.) 136, 66 
 Am. Dec. 356; Barksloo v. Randall, 4 
 Blackf. (Ind.) 476, 32 Am. Dec. 46; 
 Pratt V. Gardner, 2 Cush. (Mass.) 63, 
 48 Am. Dec. 652; Bailey v. Wiggins, 
 6 Harr. (Del.) 462, 60 Am. Dec. 650; 
 Terry v. Huntington, Hard. 480; 
 Bushell's Case, 1 Mod. 119; Gwinne 
 «. Pool, Lutw. 290; Ackerly v. Par- 
 kinson, 3 Maule & 8. 411; Garnett v. 
 Ferrand, 6 B. & C. 611 ; Miller v. 
 Hope, 2 Shaw, 125; Dicas v. Lord 
 Brougham, 6 C. & P. 249; Houlden v. 
 Smith, 14 Ad. & El. (N. S.) 841, 19 
 L. J. Q. B. 170; Ward v. Freeman, 2 
 Ir. C. L. Rep. 460; Kemp v. Neville, 
 10 C. B. (N. S.)523; Scott «. Stansfield, 
 8 L. R. Ex. 220; Butler v. Potter, 17 
 Johns. (N. Y.) 145; Little v. Moore, 4 
 N. J. 74; Hamilton v. Williams, 26 
 Ala. 527; Craig «, Burnett, 33 Ala. 
 728; Carter v. Dow, 16 Wis. 298; 
 Wall V. Trumbull, 16 Mich. 228; 
 Clark V. Holdridge, 58 Barb. (N. Y.) 
 61 ; McCall®. Cohen, 16 S.Car. 445, 42 
 Am. Rep. 641 ; Grove v. Van Duyn, 
 44 N. J. L. 654; Busteed v. Parsons, 
 54 Ala. 893, 25 Am. Rep. 688; Rains 
 
 D. Simpson, 50 Tex. 495, 82 Am. Rep. 
 609; Grider v. Tally. 77 Ala. 422, 54 
 Am. Rep. 65; Lowther «. Earl of 
 Radnor, 8 East. 113; Pike v. Carter, 3 
 Bing. 78; Basten v. Carew, 3 B. «& C. 
 652; Holroyd v. Breare, 2 B. & Aid. 
 473; Fawcett t. Fowlis, 7 B. & C. 
 394; Evans v. Foster, 1 N. H. 374; 
 Buruham v. Stevens, 33 N. H. 247; 
 Jordan v. Hanson, 49 N. H. 199. 6 
 Am. Rep. 508; Ramsey v. Riley, 13 
 Ohio, 157; Stone v. Graves, 8 Mo. 
 148, 40 Am. Dec. 131; Lenox t. 
 Grant, 8 Mo. 254; Taylors. Doremus, 
 16 N. J. 473; Morris v. Carey, 27 N. 
 J. 377; Mangold v. Thorpe, 33 N. J. 
 134; Hamilton «. Williams, 26 Ala. 
 527; Walker v. Hallock, 32 Ind. 239; 
 Morrison v. McDonald, 21 Me. 550; 
 Downing v. Herrick, 47 Me. 462; 
 Londegan v. Hammer, 30 Iowa, 508; 
 Fuller V. Gould, 20 Vt. 643; Ely v. 
 Thompson, 3 A. K. Marsh. 70; Reid 
 V. Hood, 2 N. & McCord (S. C.) 168, 
 10 Am. Dec. 582; Wilson v. Mayor, 1 
 Den. (N. Y.) 595, 43 Am. Dec. 719; 
 East River Gas L. Co. ©. Donnelly, 
 93 N. Y. 557; Steele ». Dunham, 26 
 Wis. 393; Porter v. Haight, 45 Cal. 
 631; Harman «. Brotherson, 1 Den. 
 (N. Y.) 537; Palmer v. Lawrence, 6 
 Lans. (N. Y.) 282; Wertheimer v. 
 Howard, 30 Mo. 420; Chickering v. 
 Robinson, 3 Cush. (Mass.) 543; Way 
 V. Townsend, 4 Allen (Mass.) 114; 
 Millard v. Jenkins, 9 Wend. (N. Y.) 
 298; Wickware v. Bryan, 11 Wend. 
 (N. Y.) 545; Raymond v. Bolles, 11 
 Cush. (Mass.) 315; Lilienthal v. Camp- 
 bell, 22 La. Ann. 600; Cunningham ». 
 Bucklin, 8 Cow. (N. Y.) 178, 18 Am. 
 Dec. 432; Pickett v. Wallace, 57 Cal. 
 655. 
 
 409
 
 C 581. THE LAW OF AGENCY. [Book IV. 
 
 Judicial offices would either go unfilled, or they would be filled 
 only by truckling, tinae-serving men, if the judicial officer might 
 be called upon, by every person disappointed by his judgment, to 
 defend that judgment at his peril before some other court or tri- 
 bunal. 
 
 As has been well said by Lord Tenterden : "In the imperfec- 
 tion of human nature, it is better that an individual should suf- 
 fer a wrong, than that the course of justice should be impeded 
 and fettered by constant and perpetual restraint and apprehension 
 on the part of those who are to administer it." ' 
 
 § 581. Liability not affected by Motive. Nor can this exemp- 
 tion of judicial officers from civil' liability be afEected by the mo- 
 tives with which they are alleged to have performed their duties. 
 If the officer be in fact corrupt, the public has its remedy, but 
 the defeated suitor can not attempt to redress himself in an ac- 
 tion against the judge, by alleging that the judgment against him 
 was the result of corrupt or malicious motives." The reasons for this 
 rule have been well stated by a distinguished judge, as follows: 
 " Controversies involving not merely great pecuniary interests, 
 but the liberty and character of the parties, and consequently ex- 
 citing the deepest feelings, are being constantly determined in 
 the courts, in which there is great conflict in the evidence and 
 great doubt as to the law which should govern their decision. It 
 is this class of cases which imposes upon the judge the severest 
 labor, and often creates in his mind a painful sense of responsi- 
 bility. Tet it is precisely in this class of cases that the losing 
 party feels most keenly the decision against him, and most read- 
 ily accepts anything, but the soundness of the decision, in ex- 
 planation of the action of the judge. Just in proportion to the 
 strength of his convictions of the correctness of his own view 
 of the case, is he apt to complain of the judgment against him, 
 and from complaints of the judgment, to pass to the ascription 
 
 » In Garnett v. Ferrand, 6 B. & C. 2 Cush. (Mass.) 63, 48 Am. Dec. 652; 
 
 gj^j Cunningham v. Bucklin, 8 Cow. (N. 
 
 2 Bradley v. Fisher, 13 Wall. (U. S.) Y.) 178, 18 Am. Dec. 432; Stone v. 
 
 335; Fray v. Blackburn, 3 Best & Graves, 8 Mo. 148, 40 Am. Dec. 131; 
 
 Smith, 576; Floyd v. Barker, 12 Coke Henke v. McCord. 55 Iowa 378; Jones 
 
 25; Rains v. Simpson, 50 Tex. 495, 32 «. Brown, 5i Iowa, 74. 37 Am. Rep. 
 
 Am. Rep. 609; Weaver t). Devendorf, 185; Green r. Talbot. 36 Iowa 499; 
 
 3 Den. (N. Y.) 117; Pratt v. Gardner, Wassonu. Mitchell, 18 Iowa 163. 
 
 410
 
 Chap. 111.] LIABILITY OF AGENT TO THIRD PERSON. § 582. 
 
 of improper motives to the judge. When the controversy in- 
 volves questions aflEecting large amounts of property, or relates 
 to a matter of general public concern, or touches the interests of 
 numerous parties, the disappointment occasioned by an adverse 
 decision often finds vent in imputations of this character, and 
 from the imperfection of human nature, this is hardly a subject 
 of wonder. If civil actions could be maintained in such cases 
 against the judge, because the losing party should see fit to allege 
 in his complaint that the acts of the judge were done with parti- 
 ality, or maliciously or corruptly, the protection essential to ju- 
 dicial independence would be entirely swept away. Few persons 
 sufficiently irritated to institute an action against a judge for his 
 judicial acts, would hesitate to ascribe any character to the acts 
 which would be essential to the maintenance of the action. 
 
 If upon such allegations a judge could be compelled to answer 
 in a civil action for his judicial acts, not only would his office be 
 degraded and his usefulness destroyed, but he would be subjected 
 for his protection, to the necessity of preserving a complete re- 
 cord of all the evidence produced before him in every litigated 
 case, and of the authorities cited and arguments presented, in 
 order that he might be able to show to the judge before whom he 
 might be summoned by the losing party, — and that judge per 
 haps one of an inferior jurisdiction, — that he had decided as he 
 did with judicial integrity ; and the second judge would be sub- 
 jected to a similar burden, as he in his turn might also be held 
 amenable by the losing party." ^ 
 
 § 582, This Immunity extends to Judicial Ofllcers of all 
 Grades. This exemption from civil action extends to every ju- 
 dicial officer, from the highest judge in the land to the humblest 
 justice who tries petty cases.' Whoever is invested with judicial 
 powers, whether of high or low degree, cannot be called to ac- 
 count to the private individual for his acts within his jurisdiction 
 although, as has been seen, the aggrieved party may allege that 
 the act was corrupt or malicious.^ For such acts, the officer must 
 account only to his conscience and the State. 
 
 » Field, J. in Bradley v. Fisher, 13 (Mass.) 63, 48 Am. Dec. 652; Carter t. 
 
 Wall. (U. S.) 335. Dow. 16 "Wis. 298; Wallc. Trumbull, 
 
 2 Garnett v. Ferrand, 6 B. & C. 16 Mich. 228. 
 611 ; Butler v. Potter, 17 Johns. (N » See cases cited under Note 2 
 
 T.) 145; Pratt v. Gardner, 2 Gush. supra. There are some dicta to the 
 
 411
 
 § 583. TJIE LAW OF AGENOT. [Book lY. 
 
 § 583. Jurisdiction essential. But in order that there shall 
 be this immunity from civil action, the act done by the officer 
 must have been done in a matter within his jurisdiction.' By 
 this is meant, when the officer assumed to do the act as a judge, 
 that he had judicial jurisdiction of the person acted upon, and of 
 the subject-matter as to which it was done.* 
 
 Jurisdiction of the person exists when the person acted upon 
 is before the judge, either constructively or in fact, by reason of 
 the service upon him of appropriate process duly issued and ex- 
 ecuted.' Jurisdiction of the subject-matter exists when the of- 
 ficer possesses the powers lawfully conferred to deal with the 
 general subject involved in the action.* 
 
 Jurisdiction of the subject-matter does not mean that the 
 officer has by the appropriate and proper procedure brought the 
 particular matter in question within his jurisdiction ; — whether 
 he has done so or not is often the point most difficult to deter- 
 mine ; — but it means that he is by law invested with authority to 
 deal with similar cases, — with cases of that class. 
 
 § 584:. Act must be confined within liis Jurisdiction. And 
 not only must the judge have jurisdiction of the person and the 
 subject-matter, but the act must be confined within that jurisdic- 
 tion. It must have been done as a judge in his judicial capacity, 
 and within his jurisdiction,' "For," as has been said, "it is 
 plain that the fact that a man sits in the seat of justice, though 
 having a clear right to sit there, will not protect him in every 
 act which he may choose or chance to do there. Should such an 
 one, rightfully holding a court for the trial of civil actions, order 
 the head of a by stander stricken off, and be obeyed, he would be 
 liable." « 
 
 So where a judge was charged with maliciously conspiring with 
 others to institute in his court a malicious prosecution against the 
 
 contrary, but they are not sustained of law to act officially in the matter 
 
 by the authorities. The principle is then in hand." Cooley on Torts, 
 
 of universal application under the p 417, 
 
 conditions named— judicial duty, jur- » Lange v. Benedict, supra. 
 
 Isdiction. < Hunt v. Hunt, 72 N. Y. 217,28 
 
 ' See cases cited under note 2, § 580, Am. Rep. 129. 
 
 rupm. 5 Lange v, Benedict, 73 N. T. 12, 
 
 a Lange v. Benedict, 73 N, T, 12, 29 Am. Rep. 80. 
 
 29 Am. Rep. 80. " Jurisdiction in a « Folgbr, J. in Lange v. Benedict, 
 
 judge may be defined as the authority supra. 
 
 412
 
 Chap. III.] LIABILITY OF AGENT TO THIRD PERSON. § 5S5. 
 
 plaintiff, it was held that the defendant's judicial character was 
 no defense, for the act of entering into such an agreement was 
 not done in the course of any judicial proceeding or in the dis- 
 charge of any judicial function or duty.' 
 
 § 585. Same Subject— When Jurisdiction presumed— Superior 
 and inferior Courts. A marked distinction is made by the law 
 between courts of general and superior jurisdiction, and those of 
 limited and inferior jurisdiction. In favor of the former, it is 
 presumed that they have not acted without jurisdiction. Who- 
 ever assails them, therefore, upon that ground, must be prepared 
 to show wherein the lack of jurisdiction lies.* On the contrary, 
 no such presumption is indulged in favor of courts whose juris- 
 diction is limited and inferior. In such a case the jurisdiction 
 must be made to appear, — that is, it must appear by the record 
 itself. If, therefore, the court acquires jurisdiction only in a 
 certain way, or by certain procedure, or upon a certain contin- 
 gency, this prerequisite must appear upon the face of the pro- 
 ceedings to have existed in the way and to the extent specified, 
 or the proceedings must fail. Whoever relies upon the judgment 
 of such a court must establish every fact necessary to give it 
 jurisdiction.* 
 
 This distinction becomes of great importance in determining 
 the liability of the judicial officer who has erroneously assumed 
 
 • Stewart v. Cooley, 23 Minn. 847, Dec. 439; Reynolds «. Stansbuiy, 20 
 23 Am. Rep. 690. As to this case Ohio 344, 55 Am. Dec. 459. 
 
 Judge CooLET says: "The wrong- 'Rossiter «. Peck, 8 Gray (Mass.) 
 ful act on the part of the judge here 539; Case c. Woolley, 6 Dana (Ky.) 
 must have consisted in the issuing of 17, 33 Am. Dec. 54; Bloom v. Bur- 
 process; and as to that he could have dick, 1 Hill (N. Y.) 130, 37 Am. Dec. 
 had no discretion, if the complaint 299; Lowry «. Erwin, 6 Rob. (La.) 
 was sufficient, or if he had, it was a 192, 89 Am, Dec. 556. Levyw. Shur- 
 judicial discretion, and to hold him man, 6 Ark. 182, 43 Am. Dec. 690; 
 liable by charging some bad motive Gay v. Lloyd, 1 Greene (Iowa) 78, 
 lying back of it, seems to come 46 Am. Dec. 499; Palmer tj. Oakley, 
 directly within the condemnation of 2 Doug. (Mich.) 433, 47 Am. Dec. 41 ; 
 Bradley v. Fisher, 13 Wall. 335 above Spear «. Carter, 1 Mich. 19, 48 Am. 
 referred to." Cooley on Torts, p. 412, Dec. 688; Kenney e, Greer, 13 111. 
 note 5. 433, 54 Am. Dec. 439; Reynolds v. 
 
 * Lowry 9. Erwin, 6 Rob. (La.) 193, Stansbury, 20 Ohio, 344, 55 Am. Dec. 
 89 Am. Dec. 556; Palmer v. Oakley, 459; Tucker©. Harris, 13 Ga. 1, 58 
 2 Doug. (Mich.) 488, 47 Am. Dec. 41; Am. Dec. 488. 
 
 Kenney v. Qreer, 18 lU. 482, 64 Am. 
 
 413
 
 § 585. THE LAW OF AGENCY. [Book TV. 
 
 jurisdiction, or has erroneously decided that the power to do a 
 certain act is within the jurisdiction conferred upon him. 
 
 If an officer of inferior powers erroneously decides that he has 
 jurisdiction of the subject-matter, or if, having jurisdiction to a 
 limited extent, he exceeds that limit, he is, by a great number of 
 authorities, held to be liable to the party injured thereby. Such 
 a proceeding is without the jurisdiction which the officer, at his 
 peril, is bound not to exceed, and though the act of deciding 
 upon the question of his jurisdiction is, in a measure, a judicial 
 one, yet if as a matter of fact and law he has not jurisdiction, his 
 assumption or exercise of it will, according to these authorities, 
 constitute an actionable wrong, however honest may have been 
 his intention to keep within his powers.* 
 
 This rule and the reasons for it are well stated in a leading 
 case in Massachusetts.* Here, the defendant, a justice of the 
 peace of the county of Middlesex, had assumed jurisdiction of 
 an offense of which the police court of the city of Lowell had 
 by statute exclusive jurisdiction. In the course of the trial of 
 the case, the defendant committed the plaintiff for contempt for 
 refusing to testify. The defendant had authority to so commit 
 the plaintiff if he had had jurisdiction of the offense, but it was 
 held that having no jurisdiction of the offense, the defendant 
 had no power to commit, this power being merely incidental to 
 the authority to try. In giving the opinion of the court, 
 BiGELow, J., said : " The decision of this case depends on the 
 familiar and well settled rule concerning the liability of courts 
 and magistrates, exercising an inferior and limited jurisdiction, 
 for acts done by them, or by their authority, under color of legal 
 proceedings. One of the leading purposes of every wise system 
 of law is to secure a fearless and impartial administration of 
 justice, and at the same time to guard individuals against a wan- 
 ton and oppressive abuse of legal authority. To attain this end, 
 
 'Wingate®. Waite, 6 Mees. & W. Dec. 470; Piper «. Pearson, 2 Gray 
 
 739; Houlden v. Smith, 14 Q.B. 841; (Mass.) 120, 61 Am. Dec. 438; Kelly 
 
 Case of the Marshalsea, 10 Coke 68; v. Bemis, 4 Gray (Mass.) 84; Hendrick 
 
 Groenvelt v. Burwell, 1 Ld. Raym, «. Whittemore, 105 Mass. 28; Morrill 
 
 454; Yates*. Lansing, 5 Johns. (N. e. Thurston, 46 Vt. 732; Carleton v. 
 
 Y.) 282; Phelps v. Sill, 1 Day (Conn.) Taylor, 50 Vt. 220; Vaughn v. Cong- 
 
 315; Palmer «. Carroll. 24 N. H. 314; don, 56 Vt. Ill, 48 Am. Rep. 758. 
 Craig V. Burnett, 32 Ala. 728; Clarke * Piper v. Pearson, 2 Gray (Mass.) 
 
 e. May, 2 Gray (Mass.) 410, 61 Am. 120, 61 Am. Dec. 438. 
 
 414:
 
 Chap. III.] LIABILITY OF AGENT TO THIRD PERSON. § 586. 
 
 the coramon law affords to all inferior tribunals and magistrates 
 complete protection in the discharge of their official functions, 
 80 long as thej act within the scope of their jurisdiction, however 
 false and erroneous may be the conclusions and judgments at 
 which they arrive. 
 
 But on the other hand, if they act without any jurisdiction 
 over the subject-matter, or if having cognizance of a cause, they 
 are guilty of an excess of jurisdiction, they are liable in damages 
 to the party injured by such unauthorized acts. In all cases, 
 therefore, where the cause of action against a judicial officer, 
 exercising only a special and limited authority, is founded on 
 his acts done colore officii, the single inquiry is whether he has 
 acted without any jurisdiction over the subject-matter, or has 
 been guilty of an excess of jurisdiction. By this simple test his 
 legal liability will at once be determined.' If a magistrate acts 
 beyond the limits of his jurisdiction, his proceedings are deemed 
 to be coram nonjudice and void ; and if he attempts to enforce 
 any process founded on any judgment, sentence or conviction in 
 such case, he thereby becomes a trespasser." ' 
 
 § 586. Same Subject— Limitations of this Hule. This doctrine 
 has, however, met with much forcible and reasonable dissent in 
 recent times. There are undoubtedly cases where it is properly 
 applicable, as where jurisdiction is assumed or exercised without 
 even the color of authority, or beyond limits which are clearly 
 and unambiguously defined, or in the face of express statutory 
 prohibitions. But where on the other hand, the officer has juris- 
 diction of the subject-matter, i. e. of that class of cases, but the 
 question of jurisdiction in that particular case depends upon 
 some question for judicial determination, as upon the proper 
 legal construction to be placed upon a doubtful statute, or upon 
 the technical legal sufficiency of the averments of a preliminary 
 complaint or affidavit, — questions upon which he is bound to 
 decide, and questions, too, upon which, as is often the case, the 
 learned judges of the courts of last resort are unable to agree, — 
 
 •Citing 1 Chitty PI. 6th Am. Ed. Johns. (N. T.) 39, 10 Am. Dec. 189; 
 
 90, 209-213; Beaurain «. Scott, 8 Allen «. Gray, 11 Conn. 95. 
 Camp. 888; Ackerley ®. Parkinson, 3 'Citing 1 Chitty PI. 210; Bigelow 
 
 Maule & Sel. 425, 428; Borden v. v. Stearns, supra; Clarke «. May, 3 
 
 Fitch, 15 Johns. (N. Y.) 121, 8 Am. Gray (Mass.) 410, 61 Am. Dec. 470. 
 Dec. 225; Bigelow v. Stearns, 19 
 
 415
 
 § 586. THE LAW OF AGENCY. [Book lY. 
 
 it certainly seems not only impolitic, but a violation of the well 
 established principle governing the liability of judicial officers 
 to hold the inferior officer liable, at any rate where he has acted 
 in good faith and with an honest endeavor to do the right. 
 
 Indeed, it is difficult to see why in this, as in any other case of 
 judicial action, the question of immunity should not be decided 
 regardless of the motive alleged. 
 
 That is the doctrine that is applied to the judges of superior 
 courts. Thus in the leading case upon the subject in this coun- 
 try, it is said : " A distinction must be observed between excess 
 of jurisdiction and the clear absence of all jurisdiction over the 
 subject-matter. Where there is clearly no jurisdiction over the 
 subject-matter any authority exercised is a usurped authority, and 
 for the exercise of such authority, when the want of jurisdiction 
 is known to the judge, no excuse is permissible. But where 
 jurisdiction over the subject-matter is invested by law in the 
 judge, or in the court which he holds, the manner and extent in 
 which the jurisdiction shall be exercised, are generally as much 
 questions for his determination as any other questions involved 
 in the case, although upon the correctness of his determination 
 in these particulars the validity of his judgments may depend. 
 Thus, if a probate court, invested only with authority over wills, 
 and the settlement of estates of deceased persons, should proceed 
 to try parties for public offenses, jurisdiction over the subject of 
 offenses being entirely wanting in the court, and this being 
 necessarily known to its judge, his commission would afford no 
 protection to him in the exercise of the usurped authority. But 
 if, on the other hand, a judge of a criminal court, invested with 
 general criminal jurisdiction over offenses committed within a 
 certain district, should hold a particular act to be a public 
 offense, which is not by the law made an offense, and proceed 
 to the arrest and trial of a party charged with such act, or should 
 sentence a party convicted to a greater punishment than that 
 authorized by the law upon its proper construction, no personal 
 liability to civil action for acts would attach to the judge, 
 although those acts would be in excess of his jurisdiction, or of 
 the jurisdiction of the court held by him, for these are particu- 
 lars for his judicial consideration, whenever his general jurisdic- 
 tion over the subject-matter is invoked. Indeed, some of the 
 most difficult and embarrassing questions which a judicial officer 
 
 416
 
 Chap. III.] LIABILITY OF AGENT TO THIRD PERSON. 
 
 §586. 
 
 is called upon to consider and determine, relate to his jurisdic- 
 tion, or that of the court held by him, or the manner in which 
 the jurisdiction shall be exercised. * * * 
 
 The exemption of judges of the superior courts of record from 
 liabilitj to civil suit for their judicial acts, existing when there is 
 jurisdiction of the subject matter, though irregularity and error 
 attend the exercise of the jurisdiction, the exemption cannot be 
 affected by any consideration of the motives with which the acts 
 are done. The allegation of malicious or corrupt motives could 
 always be made, and if the motives could be inquired into, judges 
 would be subjected to the same vexatious litigation upon such 
 allegations, whether the motives had or had not any real exist- 
 ence. Against the consequences of their erroneous or irreo-ular 
 action, from whatever motives proceeding, the law has provided 
 for private parties numerous remedies, and to those remedies 
 they must, in such cases, resort." * 
 
 And this rule has in recent cases been extended to the case of 
 inferior magistrates. Thus in an action ' against a justice of the 
 
 > Field. J., ia Bradley v. Fisher, 
 13 Wall. (U. S.) 335. 
 
 s Grove v. Van Duyn, 44 N. J. L. 
 654, 42 Am. Rep. 648. And to the 
 same effect are McCall v. Cohen, 16 
 S. Car. 445, 42 Am. Rep. 641 ; Acker- 
 ley V. Parkinson, 3 M. & S. 411; 
 Maguire v. Hughes, 13 La. Ann. 281 ; 
 Henke v. McCord, 55 Iowa 378; 
 Lange t> Benedict, 73 N. T. 12, 29 
 Am. Rep. 80, is an interesting case 
 upon the general question under con- 
 Bideration. 
 
 See also perMAKCT, J., in Savacool 
 V. Boughton 5 Wend. (N. Y.) 172, 21 
 Am. Dec. 181: "Many cases may 
 be found wherein it is stated gen- 
 erally that when an inferior court 
 exceeds its jurisdiction, its proceed- 
 ings are entirely void, and afford no 
 protection to the court, the party, or 
 the officer who has executed its pro- 
 cess. This proposition is undoubt- 
 edly true in its largest sense, where 
 the proceedings are coram non judice, 
 and the process by which the officer 
 
 seeks to make out his Justification 
 shows that the court had not juris 
 diction; but I apprehend that it 
 should be qualified where the subject 
 matter of the suit is within the juris- 
 diction of the court, and the alleged 
 defect of jurisdiction arises from 
 some other cause. " 
 
 See also Jordan v. Hanson, 49 N. 
 H. 199, 6 Am. Rep. 508. 
 
 Why a distinction should be made 
 between officers of different grades, 
 but both dealing judicially with the 
 same question, is not easy to deter- 
 mine satisfactorily. Judge Coolet, 
 considering this question in his work 
 on Torts, says: 
 
 " Why the law should protect the 
 one judge and not the other, and why 
 if it protects one only, it should be 
 the very one who, from his higher 
 position and presumed superior learn- 
 ing and ability ought to be most free 
 from error, are questions of which 
 the following may be suggested as 
 the solution: The inferior judicial 
 
 417
 
 §586. 
 
 THE LAW OF AGENCY. 
 
 [Book IV. 
 
 peace, the Court of Errors and Appeals of New Jersey held him 
 not liable for erroneously assuming that certain facts constituted 
 an offense within his jurisdiction. Beaslet, C. J., states the 
 true rule in respect to the actionable responsibility of a judi- 
 cial officer having the right to exercise general powers, to be 
 " that he is so responsible in any given case belonging to a class 
 over which he has cognizance, unless such case is by complaint 
 or other proceeding, put, at least colorably, under his jurisdic- 
 tion. When the judge is called upon by the facts before him to 
 decide whether his authority extends over the matter, such an 
 
 officer is not excused for exceeding 
 his jurisdiction because, a limited 
 authority only having been conferred 
 upon him, he best observes the spirit 
 of the law by solving all questions of 
 doubt against his jurisdiction. If 
 he errs in this direction, no harm is 
 done, because he can always be set 
 right by the court having appellate 
 authority over him, and he can have 
 no occasion to take hazards so long 
 as his decision is subject to review. 
 The rule of law, therefore, which 
 compels him to keep within his juris- 
 diction at his peril, cannot be unjust 
 to him, because, by declining to exer- 
 cise any questionable authority, he 
 can always keep within safe bounds, 
 and will violate no duty in doing so. 
 Moreover, in doing so he keeps with 
 the presumptions of law, for these are 
 always against the rightfulness of any 
 authority in an inferior court which, 
 under the law, appears doubtful. On 
 the other hand, when a grant of gen- 
 eral jurisdiction is made, a presump- 
 tion accompanies it that it is to be 
 exercised generally until an exception 
 appears which is clearly beyond its 
 intent; its very nature is such as to 
 confer upon the officer entrusted with 
 it more liberty of action in deciding 
 upon his powers than could arise 
 from a grant expressly confined 
 within narrow limits, and the law 
 would be inconsistent with itself if it 
 
 were not to protect him in the exer- 
 cise of this judgment. Moreover, for 
 him to decline to exercise an author- 
 ity because of the existence of a 
 question, when his own judgment 
 favored it, would be to that extent to 
 decline the performance of duty, and 
 measurably to defeat the purpose of 
 the law creating his office ; for it can 
 not be supposed that this contem- 
 plated that the judge should act 
 officially as though all presumptions 
 opposed his authority when the fact 
 was directly the contrary." Cooley 
 on Torts, 420. 
 
 But the same author in his work on 
 Taxation, page 793, Ed. 1886, says: 
 " It has been made a question whether 
 these principles should apply to a 
 case in which these officers are ac- 
 cused of having been actuated by mal- 
 ice, and when the impelling motive 
 has been to inflict injury upon the 
 parties assessed. It has already been 
 seen that assessments, purposely 
 made excessive through evil motive, 
 may be reached and corrected in 
 equity. But to subject every tax 
 officer to the necessity of explaining 
 and justifying his motives to the sat- 
 isfaction of others, under a penalty 
 of personal responsibility, is perhaps 
 to go beyond what is necessary to the 
 protection of tax payers; and in mat- 
 ters depending on judgment of val- 
 ues would be 80 dangerous to the 
 
 418
 
 Chap. III.] LIABILITY OF AGENT TO THIRD PERSON. 
 
 §586. 
 
 act 18 a judicial act, and such officer is not liable in a snit to the 
 person affected by his decision, whether such decision be right or 
 wrong. But when no facts are present, or only such facts as have 
 neither legal value nor color of legal value in the affair, then, in 
 that event, for the magistrate to take jurisdiction is not in any 
 manner the performance of a judicial act, but simply the commis- 
 sion of an official wrong. This criterion seems a reasonable one, 
 it protects a judge against the consequences of every error of 
 judgment, but leaves him answerable for the commission of a 
 wrong that is practically wilful. Such protection is necessary to 
 the independence and usefulness of the judicial officer, and such 
 
 officers that it is doubtful if sound 
 policy could sanction it. In a lead- 
 ing case in New York it is declared 
 that the question of motive is not to 
 be raised in a suit against assessors 
 who have liept within their jurisdic- 
 tion. The assessors, it was said, 
 were judges acting clearly within the 
 scope and limit of their authority. 
 They were not volunteers, but the 
 duty was imperative and compulsory; 
 and acting, as they did, in the per- 
 formance of a public duty, in its 
 nature judicial, they were not liable 
 to an action, however erroneous or 
 wrongful their determination may 
 have been or however malicious the 
 motive which produced it. Such 
 acts, when corrupt, may be punished 
 criminally, but the law will not allow 
 malice and corruption to be charged 
 in a civil suit against such an officer 
 for what he does in the performance 
 of a judicial duty. The rule extends 
 to judges from the highest to the 
 lowest; to jurors, and to all public 
 officers, whatever name they may 
 bear, in the exercise of judicial 
 power. It of course applies only 
 where the judge or officer had juris- 
 diction of the particular case, and 
 was authorized to determine it. If 
 he transcends the limits of his author- 
 ity, he necessarily ceases, in the par- 
 ticular case, to act as judge, and is 
 
 responsible for all consequences. But 
 with these limitations, the principle 
 of irresponsibility, it was said, so 
 far as respects a civil remedy, is as 
 old as the common law itself. Wea- 
 ver V. Devendorf, 3 Denio, 117, 120. 
 There is some apparent dissent from 
 this doctrine, but it can hardly be 
 said that there is opposing authority. 
 See Stearns v. Miller, 25 Vt. 20; 
 Parkinson v. Parker, 48 la. 667; 
 Dilingham v. Snow, 5 Mass. 547; and 
 compare Babcock v. Granville, 44 Vt. 
 335. 
 
 The same reasons which exempt 
 assessors from responsibility to tax 
 payers exempt them also when the 
 injury from erroneous action results 
 to the public instead of to individuals. 
 Assessors are not therefore liable to 
 a parish in failing to levy a tax equal 
 to the amount voted, where they 
 have acted under an honest belief 
 that they were carrying out the views 
 of the parish. First Parish v. Fiake, 
 8 Cush. 264. Nor for neglect to 
 commit the tax list to the proper col- 
 lector, when by an honest mistake of 
 duty it has been committed to an- 
 other. Lincoln «. Chapin, 182 Mass. 
 470. For malfeasance in office 
 assessors as well as other officers are 
 liable to criminal penalties. Dill- 
 ingham V. Snow, 6 Mass. 647." 
 
 419
 
 g 587. THE LAW OF AGENOT. [Book lY. 
 
 responsibility is important to guard the citizen against official 
 oppression." 
 
 § 587. Not liable when Jurisdiction is a,ssiinied through Mis- 
 take of Pact. But even under the more stringent rule, judi- 
 cial officers can not be held liable for acting without jurisdic- 
 tion or for exceeding the limits of their authority, where the 
 defect or want of jurisdiction is occasioned by some facts or cir- 
 cumstances applicable to a particular case of which the officer 
 had neither knowledge nor the means of knowlege. In other 
 words, if the want of jurisdiction over a particular case is caused 
 by matters of fact, it must be made to appear that they were 
 known or ought to have been known, to the officer in order to 
 hold him liable for acts done without jurisdiction. Otherwise 
 the maxim Ignorantia facti excusat applies.* 
 
 2. Quasi-judicial Officers. 
 
 § 588, What Duties are judicial— Qtiasi-judicial. This im- 
 munity from private action is not confined to those only who sit 
 as judges in courts. It extends for the protection of every officer 
 who is called upon to exercise duties which are in their nature 
 judicial, — which are to be performed according to the dictates of 
 his judgment.* 
 
 Such duties, when not conferred upon courts, or the judges of 
 courts, have sometimes been termed quasi-judicial or discretion- 
 ary, but no particular advantage is apparent from the use of this 
 distinctive term. The question depends in each case upon the 
 character of the act.» If it be judicial in its nature, the officer 
 acts judicially and is exempt. Nor is it material that the officer 
 usually or often acts ministerially ; in those cases in which he 
 does act judicially, he is, nevertheless, exempt.* 
 
 « Clarke v. May, 2 Gray (Mass.) 410; erty, or the propriety of doing an act 
 
 61 Am. Dec. 470; Pike v. Carter, 3 are the subject matter of adjudication. 
 
 Bing. 78 8. c. 10 Moo. 376; Lowther Offlcial action, the result of judgment 
 
 t>. Earl of Radnor, 8 East. 113; Cal- or discretion, is a judicial act." 
 
 der «. Halket, 3 Moo. P. C. C. 28; Clopton, J. in Grider v. Tally, 77 
 
 Vaughn v. Congdon, 56 Vt. Ill, 48 Ala. 423, 54 Am. Rep. 65. 
 
 Am. Rep. 758. • "Wall «. Trumbull, 16 Mich. 228. 
 
 «8ee vo»f', P- 422, n. 4. "Judicial « Wall t>. Trumbull, supra: Jen- 
 power," says a learned judge, "is kins v. Waldron, 11 Johns. (N. Y.) 
 authority vested in some court, offl- 114; 6 Am. Dec. 359; Weaver «. 
 cer or person, to hear and determine, Devendorf, 3 Den. (N. T.) 117. 
 when the rights of persons, or prop- 
 
 420
 
 Chap. III.] LIABILITY OP AGENT TO THIBD PERSON. 
 
 §5S8. 
 
 This principle embraces the action of arbitrators in their deci- 
 sion upon the controversy submitted to them ; ' jurors in their 
 deliberations and verdicts;' assessors in the valuation of property 
 for taxation ; • commissioners appointed to determine and award 
 damages for property taken by virtue of the right of eminent 
 domain ; * officers authorized to lay out, alter or discontinue high- 
 ways;' highway officers in deciding upon exemption from high- 
 way taxes ; " members of municipal boards in deciding upon the 
 allowance of claims; ' collectors of customs in the sale of perish- 
 able property;' inspectors of elections' and board of registra- 
 tion ^^ in deciding upon the existence of the necessary qualifica- 
 tions of a voter ; school officers in deciding upon the removal of 
 a teacher;" aldermen in deciding upon the letting of contracts ;" 
 a board of county commissioners in deciding upon an application 
 for a permit to sell intoxicating liquors;" boards of supervisors 
 
 * Jones e. Brown, 54 Iowa, 74, 37 
 Am, Rep. 185; Pappa v. Rose, L. R. 7 
 C. P. 33, 1 Eng. Rep. 87, 8. C. on ap- 
 peal L. R. 7 C. P. 525, 3 Eng. Rep. 
 875. 
 
 2 Hunter v. Mathis, 40 Ind. 356; 
 Turpen v. Booth, 56 Cal. 65, 38 Am. 
 Rep. 48. 
 
 3 Wall V. Trumbull. 16 Mich. 228; 
 Dillingham v. Snow, 5 Mass. 547; 
 Easton v. Calendar, 11 Wend. (N. Y.) 
 90; Weaver v. Devendorf, 3 Den. (N. 
 T.) 117; Vail «. Owen. 19 Barb. (N. 
 T.)22; Brown «. Smith, 24 Id. 419; 
 People V. Reddy, 43 Id. 539; Vose v. 
 Willard, 47 Id. 320; Bell v. Pierce, 40 
 Id. 51, Barhyte v. Shepherd. 35 N. Y. 
 238; Western R. R. Co. v. Nolan. 48 
 Id. 513; Pentlandc. Stewart, 4 Dev. 
 «& Bat. (N. C.) 386; Steam Navigation 
 Co. V. Wasco County, 2 Ore. 209; 
 Macklot«. Davenport, 17 Iowa. 379; 
 Muscatine, &c. R. R. Co. v. Horton, 
 38 Id. 33; Walker v. Hallock, 32 Ind. 
 239; Lilienthal v. Campbell, 22 La. 
 Ann. 600; Williams v. Weaver, 75 N. 
 Y. 30; Buffalo &c. R. R. Co. «. 
 Supervisors, 48 N. Y. 93; McDaniel 
 V. Tebbetts, 60 N. H. 497; Wilson v. 
 
 Marsh, 34 Vt. 352; San Jos6 Gas Co. 
 V. January, 67 Cal. 614. 
 
 * Van Steenbergh v. Bigelow, 3 
 Wend. (N. Y.) 42. 
 
 « Sage V. Laurain, 19 Mich. 137. 
 « Harrington v. Commissioners, &c, 
 2 McCord (S. C.) 400. 
 T Wall V. Trumbull, 16 Mich. 228. 
 
 • Gould V. Hammond, 1 McAllis- 
 ter (U. S. C. C.) 285. 
 
 » Gordon «. Parrar, 2 Doug. 
 (Mich.) 411; Jenkins v. Waldron, 11 
 Johns. (N. Y.) 114, 6 Am. Dec. 359; 
 Miller V. Rucker, 1 Bush. (Ky.) 135; 
 Carter©. Harrison, 5 Blackf. (Ind.) 
 138; Railt). Potts, 8 Humph. (Tenn.) 
 225; Peavey v. Bobbins, 3 Jones (N. 
 C.) L. 339; Caulfield t>. Bullock, 18 B. 
 Mon. (Ky.) 494; Elbin v. Wilson, 33 
 Md. 135; Friend v. Hamill, 3ild. 298. 
 
 "• Fausler v. Parsons, 6 W. Va. 
 486, 20 Am. Rep. 431. 
 
 'I Burton v. Fulton, 49 Penn. St. 
 151. See also Chamberlain v. Clay- 
 ton, 56 Iowa 331, 41 Am. Rep. 101. 
 
 '« East River Gas L. Co. «. Don- 
 nelly, 25 Hun (N. Y.) 614, s. o. 93 N. 
 Y. 557. 
 
 i> State «. Commissioners, 45 Ind 
 501. 
 
 421
 
 8 588. THE LAW OF AGENCY. [Book I V. 
 
 in determining upon the sufficiency of a bond of an officer, and 
 whether by failing to file a new bond required by them, he has 
 forfeited his office ; ' pilot officers in deciding that a pilot was 
 no longer authorized to act as such and therefore revoking his 
 license.* 
 
 An attempt has been made in some cases to make a distinction 
 between those officers whose duties lie outside the domain of 
 courts — the so-called quasi- judicial officers — and the judges of 
 courts, to the effect that while the latter are exempt, the former 
 may be made liable if their motives were corrupt or malicious.* 
 This distinction, however, is believed to be not well founded. 
 If the action is really judicial, the immunity which adheres to 
 judicial action should be applied whether the officer sits upon the 
 bench of a regularly established court or not. As has been 
 said, if the action can be maintained by the allegation of im- 
 proper motives, no litigant will fail to allege them, and the pub- 
 lic officer may be constantly called upon to defend himself from 
 actions brought with motives fully as malicious as those which 
 are alleged to have inspired him. Public policy requires that 
 all judicial action shall be exempt from question in private suits, 
 and the best considered cases so declare the rule.* 
 
 > People «. Supervisors, 10 Cal, Appeal of New York, an action was 
 344 346. brought against the members of a 
 
 « Downer t>. Lent, 6 Cal. 94, 65 common council for damages alleged 
 
 Am. Dec. 489. to have been sustained because the 
 
 > See Hoggatt v. Bigley, 6 Humph. defendants wilfully and corruptly 
 (Tenn.) 236; Baker v. State, 27 Ind. refused to accept the plaintiff's bid 
 485; Chickering ». Robinson, 3 Cush. for doing certain public work, but 
 (Mass.) 543; Gregory v. Brooks, 37 the complaint upon demurrer was 
 Conn. 365. held to state no cause of action. 
 
 * This distinction was expressly Danporth J. said that it is "the 
 repudiated so far as it applied to well settled rule of law that no pub- 
 judge of superior courts in Bradley v. lie officer is responsible in a civil 
 Fisher, 13 "Wall. (U. S.) 335, and the suit for a judicial determination, how- 
 reasons there given apply with equal ever erroneous or wrong it may be, 
 force to all judicial action. It was or however malicious even the motive 
 also repudiated as to arbitrators in which produced it." East River Gas 
 Jones D. Brown, 54 Iowa 74, 37 Am. L. Co. v. Donelly, 93 K Y. 557, 
 Rep. 185, and it was doubted even as affirming 25 Hun, 614. 
 to that class called guosj-judicial The distinction was also ignored in 
 officers in Chamberlain v. Clayton, 56 an action against pilot commissioners 
 Iowa 331, 41 Am. Rep. 101. So in for " wrongfully and maliciously" 
 & recent case before the Court of revoking a pilot's license. Downer e. 
 
 422
 
 Chap. III.] LIABILITY OF AGENT TO THIRD PEK80N. § 590. 
 
 I 
 
 3. Legislative Officers. 
 
 § 589. Same Immunity extends to Legislative Action. The 
 same immunity from private action extends to legislative oflScers 
 while acting within the limits assigned to them. While their 
 duties are not strictly judicial in their nature, they are called 
 upon to exercise discretion, judgment and foresight. They are 
 chosen to make such provisions, within their jurisdiction, as to 
 them seem for the best interests of their constituents, and they 
 cannot be called upon to defend their action at the suit of private 
 individuals, even though it be alleged that they acted corruptly 
 or maliciously.' 
 
 This exemption is not confined to the state or national legisla- 
 tures but it applies also to inferior legislative bodies such as 
 boards of supervisors, county commissioners, city councils and 
 other bodies of a like nature.* 
 
 ^. Ministerial Officers. 
 
 § 590. In general— Liable to party specially Injured. Some 
 consideration has already been given to the question of when the 
 duties to be performed are so particular to the individual as to 
 give him a right of action for an injury sustained by him in con- 
 sequence of the failure to perform such duties.' 
 
 In accordance with the principles there laid down, it may be 
 said that wherever the law imposes upon a public officer the per- 
 formance of ministerial duties, in which a private individual has 
 a special and direct interest, the public officer is liable to such 
 individual for any injury which he may sustain in consequence 
 of the failure or neglect of the officer either to perform them at all, 
 or to perform them properly. In such a case the officer is liable 
 as well for non-feasance as for misfeasance or malfeasance.* 
 
 Lent, 6 Cal. 94, 65 Am. Dec. 489. and Hun (N. Y.) 501 ; Scott v. Stansfield, 
 
 in an action against grand jurors', L. R. 3 Ex. 220. 
 
 Turpen v. Bootli, 56 Cal. 65, 38 Am. » See Cooley on Torts, 876. 
 
 Rep. 48. So it is said by Beards- * Jones v. Loving, 55 Miss. 109, 30 
 
 LEY, J, •* The rule extends to judges Am. Rep. 508; County Commission- 
 
 from the highest to the lowest; to ers c. Duckett, 20 Md. 469; Borough 
 
 jurors and to all public officers what- of Freeport v. Marks, 59 Penn. St. 
 
 ever name ihey may bear, in the exer- 253; Baker v. State, 27 Ind. 485. See 
 
 else of judicial power." In Weaver City of Pontiac ?;. Carter, 32 Mich. 164. 
 
 f>. Devendorf, 3 Den. (K Y.) 117. »^n^e, §578. 
 
 See also Robinson v. Rowland, 26 < Rowning v. Goodchild, 2 W. Bl. 
 
 423
 
 § 591. TUE LAW OF AGENCY. [Book lY. 
 
 It 18 no defense to such an officer upon whom the law has 
 imposed the positive duty of performance, that he was mistaken 
 as to the nature or extent of his obligation, or that he acted in 
 entire good faith and with an honest intention to do his duty/ 
 
 So it is immaterial that the duty is one primarily imposed upon 
 public grounds, and therefore a duty owing primarily to the 
 public; the right of action springs from the fact that the private 
 individual receives a special and peculiar injury from the neglect 
 in performance, against which it was in part the purpose of the 
 law to protect him.' It is also immaterial that the failure in 
 performance is made by law a penal offense.* 
 
 § 591. Same Subject— Nature of the Duty governs Liability. 
 Here, as in the case of judicial officers, it is the nature of the 
 duty, rather than the title of the officer, that determines the lia- 
 bility. Judicial officers are frequently called upon to perform 
 purely ministerial duties, and as to those duties the rule gov- 
 erning ministerial action applies.* 
 
 § 592. Same Subject— What Duties are ministerial. The 
 difficulty in dealing with questions of judicial and ministerial 
 action does not lie so much in the determination of the proper 
 principle of law to be applied when the nature of the action has 
 been ascertained, as in determining whether the given act is 
 judicial or ministerial in its character. 
 
 The majority of cases, perhaps, are easily distinguished, but 
 there are still many others which lie so near the line that courts 
 
 906; Ashby v. "White, 2 Ld. Raym, Eaynsford v. Phelps, 43 Mich. 342, 
 
 938; Lane v. Cotton, 1 Salk. 17; A.my 38 Am. Rep. 189; Clark «. Miller, 54 
 
 «. Supervisors, 11 Wall. (U. S.) 136; N. Y. 528, 534; Keith®. Howard, 24 
 
 Sawyer v. Corse, 17 Gratt. (Va.) 230, Pick. (Mass.) 292; Hover v. Barkhoof, 
 
 94 Am Dec. 445; Bassett v. Fish, 12 44 N. Y. 118; St. Joseph F. «fe M. 
 
 Hun(N. Y.)209; Piercyw. Averill, 37 Ins. Co. v. Leland, 90 Mo. 177, 59 
 
 Id. 360; Bennett v. "Whitney, 94 N. Am. Rep. 9; Grider v. Tally, 77 Ala. 
 
 Y. 302; Jenner v. Joliffe, 9 Johns. N. 422, 54 Am. Rep. 65. 
 Y. 381 ; Adsit v. Brady. 4 Hill (N. Y.) « Amy v. Supervisors, 11 "Wall. (U. 
 
 630, 40 Am. Dec. 305; Rounds v. S.) 136. 
 
 Mansfield, 38 Me. 586; Bailey t>. t Raynsford v. Phelps, 43 Mich. 
 
 Mayor, 3 Hill N, Y. 531, 38 Am. Dec. 842, 38 Am. Rep. 189. 
 669; Maxwell©. Pike, 2 Me. 8; Mc- > Raynsford v. Phelps, iupra; 
 
 Carty v. Bauer, 3 Kan. 237; "Wilson v. Hayes v. Porter, 22 Me. 371. 
 Mayor, 1 Den. (N. Y.) 595, 43 Am. « People c. Provines, 34 Cal. 520; 
 
 Dec. 719; Robinson v. Chamberlain, People v. Bush, 40 Cal. 344; Grider©. 
 
 84 N. Y. 389, 90 Am. Dec. 713; Tally. 77 Ala. 422, 54 Am. Rep. 65. 
 
 424
 
 Chap. III.] LIABILITY OF AGElTr TO THIRD PERSON. § 592. 
 
 have found it extremely difficult to decide upon the true nature 
 of the duty. 
 
 No inflexible rule can be laid down by which this difficulty can 
 be solved in every case. Each case must be determined upon an 
 examination of all of its facts. The most important criterion, 
 perhaps, is that the duty has been positively imposed by law 
 and its performance is required at a time and in a manner 
 specifically designated, nothing being left to the judgment or 
 discretion of the officer. As is said by a learned judge : " The 
 duty is ministerial, when the law, exacting its discharge, pre- 
 scribes and defines the time, mode and occasion of its perform. 
 ance with such certainty that nothing remains for judgment or 
 discretion. Official action, the result of performing a certain 
 specific duty arising from designated facts, is a ministerial act." ' 
 
 In the same line, a ministerial act has also been defined as 
 " an act performed in a prescribed manner, in obedience to the 
 law or the mandate of legal authority, without regard to, or 
 the exercise of, the judgment of the individual upon the propriety 
 of the act's being done." • 
 
 That a necessity may exist for the ascertainment, from personal 
 knowledge or by information derived from other sources, of those 
 facts or conditions, upon the existence or fulfilment of which, the 
 performance of the act becomes a clear and specific duty, does 
 not operate to convert the act into one judicial in its nature. 
 Such is not the judgment or discretion which is an essential 
 element of judicial action.' 
 
 Thus a sheriff must determine whether process coming into his 
 hands for service, is issued from a court of competent jurisdic- 
 tion and is regular on its face, and a treasurer of public money 
 must ascertain whether a warrant for its payment is drawn by 
 Buch an officer and is in such form that its payment becomes a 
 dutv ; but the execution of the process and the payment of the 
 warrant are ministerial acts. A judge must determine whether 
 a judgment is entered according to the verdict of the jury or the 
 the consideration of the court, and whether a bill of exceptions 
 
 ' Clopton, J. in Grider v. Tally, » Grider v. Tally, supra-, Flournoy 
 
 77 Ala. 422, 54 Am. Rep. 65. «. City of Jeffersonville. supra; Betts 
 
 » In Pennington «. Streight, 54 Ind. v. Dimon, 3 Conn. 107; Ray v. City 
 
 876; Flournoy v. City of Jefferson- of Jeffersonville, 90 Ind. 572. 
 ville, 17 Ind. 169, 79 Am. Dec. 468. 
 
 425
 
 § 593. THE LAW OF AGENCY. [Book IV. 
 
 correctly recites the proceedings; but the act of signing the 
 judgment and bill of exceptions is ministerial. 
 
 It has been said that, perhaps, as safe a criterion as any other 
 to ascertain whether a private suit will or will not lie, is to adopt 
 the rule which governs in cases in which a mandamus would or 
 would not be granted to compel the officer to perform the duty.' 
 
 This rule is that in matters which require judgment and con- 
 sideration to be exercised by the officer, or which are dependent 
 upon his discretion, mandamus will not be granted, but that for 
 ministerial acts in the performance of which no exercise of 
 judgment or discretion is required, the writ will be granted.* 
 
 II. 
 LTABiLrrr fob the tokts of theib official subordinates. 
 
 8 593. Public OfiB.cer of Government not liable for Acts of his 
 official Subordinate. Public officers of the government, in the 
 performance of their public functions, are not liable to third per- 
 sons for the misconduct, negligence or omissions of their official 
 subordinates.' This immunity rests upon motives of public 
 policy, the necessities of the public service, and the perplexities 
 and embarassments of a contrary doctrine.* 
 
 These official subordinates are themselves public officers though 
 of an inferior grade, and are directly liable, in those cases in 
 which any public officer is liable, for their own defaults. Such 
 subordinate officers are not infrequently appointed directly by 
 the governmental power and removable only at its pleasure, but 
 even in those cases in which they are appointed and removed by 
 their immediate official superior, the latter is not liable, unless he 
 has himself been negligent either in their selection or retention,* 
 
 I Rains v. Simpson, 50 Tex. 495, Sawyer v. Corse, 17 Gratt. (Va.) 230, 
 
 33 Am. Rep. 609. 94 Am. Dec. 445; Dunlop v. Munroe, 
 
 " » Carrick v. Lamar. 116 U. S. 423; 7 Cranch. (U. S.) 242; Tracy®. Cloyd, 
 
 Decatur ?!. Paulding. 14 Pet. (D. S.) 10 W. Va. 19; Lane v. Cotton, 1 Ld. 
 
 497; United States e. Guthrie, 17 Raym. 646; Whitfield v. Lord Le 
 
 How. (U. S.) 284; United States r. Despencer. 2 Cowp. 754. 
 Commissioner, 5 Wall. (U. S.) 563; * City of Richmond v. Long, 17 
 
 Litchfield t). Register, 9 Wall. (U. S.) Gratt. (Va.) S75. 94 Am. Dec. 461. 
 g;^g » Wiggins V. Hathaway, 6 Barb. (N. 
 
 •City of Richmond t>. Long, 17 Y.) 633; Schroyer t>. Lynch, 8 Watts. 
 
 Gratt (Va.) 375, 94 Am. Dec. 461; (Penn.)453. 
 
 426
 
 Cliap. III.] LIABILITY OF AGENT TO THIRD PERSON. § 594. 
 
 or in the manner of their appointment or qualification ; ' or in 
 superintending the discharge of the duties in his office.* 
 
 § 594. Same Subject— To what Officers this Rule applies. 
 This rule has frequently been applied to the officials of the post 
 office department, and the law is well settled both in England 
 and America, that the postmaster general, the local postmasters, 
 and their assistants and clerks appointed and sworn as required 
 by law, are public officers, each of whom is responsible for his own 
 defaults only, and not for those of any of the others, although 
 selected by him,and subject to his orders,' unless he has negligently 
 or wilfully appointed or retained unfit or improper persons ; * or 
 has failed to require of them conformity to the prescribed regula- 
 tions ; • or has so carelessly conducted the affairs of his office as to 
 furnish opportunity for such default ; • or unless he has co-oper- 
 ated in, or authorized the wrong.' 
 
 Whether contractors for carrying the mail are public govern- 
 mental officers within the meaning of this rule, so as to be exempt 
 from liability for the defaults of their subordinates, is a question 
 upon which there is a conflict of authority, but the better opinion 
 is that they are not.* 
 
 So it has been held that the captain of a ship of war, whose 
 subordinate officers are appointed by the government, is not liable 
 for an injury caused by the negligence of his lieutenant.* 
 
 And a confederate district commissary in Virginia during the 
 late war, was held not responsible for the misfeasances and wrong 
 
 1 Bishop t. Williamson, 11 Me. 495. whom he had not required to take 
 
 » Dunlop V. Munroe, 7 Cranch (U. the oath prescribed by law. To same 
 
 S.) 242; Schroyert). Lynch, ««;)ra. effect: Sawyer v. Corse, 17 Gratt. 
 
 sKeenant). Southworth, 110 Mass. (Va.) 230, 94 Am. Dec. 445; Bolan «. 
 
 474. 14 Am. Rep. 613; Lane v. Cot- Williamson, 1 Brev. (8. C.) 181. 
 
 ton, 1 Ld. Raym. 646; Whitfield v. • Dunlop ». Munroe, 7 Cranch. (U. 
 
 Lord Le Despencer, 2 Cowp. 754; 8.) 242; Ford v. Parker, 4 Ohio St. 
 
 Dunlop V. Munroe, 7 Cranch. (U. 8.) 576. 
 
 242; Bchroyer v. Lynch, 8 Watts. t Tracy «. Cloy d, 10 W. Va. 19. 
 
 (Penn.) 453; Bishop v. Williamson, sgawyer «. Corse, 17 Gratt. (Va.) 
 
 11 Me. 495; Hutchins v. Brackett, 22 230, 94 Am. Dec. 445; contra, Con- 
 
 N. H. 252, 53 Am. Dec. 349. well v. Voorhees, 13 Ohio 523, 42 
 
 * Wiggins V. Hathaway, 6 Barb. Am. Dec. 206; Hutchins r. Brackett, 
 
 (N. T.) 632. 22 N. H. 253, 53 Am. Dec. 248. 
 
 » Bishop «. Williamson, 11 Me. 495. "Nicholson c. Mounsey, 15 East. 
 
 In this case the postmaster was held 884. 
 liable for the default of an assistant 
 
 427
 
 ^ 695. THE LAW OF AGENCY. [liuok 1 V. 
 
 doings of his snbordinates unless he co-operated in or authorized 
 the wrong.' This rule has also been extended to the case of 
 persons acting in the capacity of public agents engaged in the 
 public service and acting solely for the public benefit, although 
 not strictly filling the character of ofiicers or agents of the gov- 
 ernment. Thus it has been held that overseers of highways in- 
 trusted with the supervision of highways, discharging the duties 
 gratuitously and being personally guilty of no negligence, are 
 not responsible for an injury sustained by an individual through 
 the negligence of workmen employed under them.* So trustees 
 and commissioners acting gratuitously for the benefit of the pub- 
 lic and intrusted with the conduct of public works are not liable 
 for an injury occasioned by the negligence or unskillfulness of 
 workmen and contractors necessarily employed by them in the 
 execution of *^.he work.' 
 
 A collector of customs is not personally liable for a tort com- 
 mitted by his subordinates, there being no evidence to connect 
 the collector personally with the wrong, or that the subordinates 
 were not competent, or were not properly selected for their 
 positions.* 
 
 III. 
 
 FOR TORTS OF HIS PRIVATE SERVANT OR AGENT. 
 
 § 595. Liable for Torts of his private Servant or Agent. A 
 public ofiicer is subject to the same liability for the torts of his 
 own private servant or agent as adheres to any other principal.* 
 
 > Tracy v. Cloyd, »upra. Clarke, 6 Taunt. 34; Holliday v. St. 
 
 * Holiiday v. St. Leonard, 11 Com. Leonard, supra. 
 
 B. (N. S.) 192. ■• Robertson v. Sichel, 127 U. S. 507. 
 
 3 Hall V. Smith, 2 Bing. 156; Harris s Sawyer v. Corse, 17 Gratt. (Va.) 
 
 f. Baker, 4 Maule & S. 27; Sutton v. 230, 94 Am. Dec. 446. 
 
 428
 
 Chap. lY.] UABILITT OF PKmOIPAL. TO AQKHT. 
 
 CHAPTER IV. 
 
 THE DUTIES AND LIABILITIES OF THE PRINCIPAL TO THB 
 
 AGENT. 
 
 § 696. In general — Payment of Com- 
 pensation — Indemnity. 
 
 I. The Payment op Compensation. 
 1, Tht Agent's Right to Compensation. 
 
 697. Agreement to pay Compensa- 
 
 tion. 
 
 698. Express Agreement conclu- 
 
 sive. 
 
 699. When Agreement must be ex- 
 
 press. 
 
 600. When Agreement to pay will 
 
 not be implied. 
 
 601. When Promise to pay will be 
 
 implied. 
 
 602. Unauthorized Agent entitled 
 
 to Compensation if Acts are 
 ratified. 
 
 \t. The Amount of the Compensation. 
 
 603. Express Contract governs. 
 
 604. May be left for Principal to 
 
 determine. 
 606. In the Absence of express 
 Agreement, Law implies 
 reasonable Compensation. 
 
 606. What Elements may be con- 
 
 sidered. 
 
 607. What Evidence as to Value is 
 
 admissible. 
 
 608. Agent continuing after Expi- 
 
 ration of Term presumed to 
 be at prior Compensation. 
 
 S. When Compensation is Considered 
 to be Earned. 
 
 609. In general. 
 
 610. Compensation earned when 
 
 Undertak ing fully c o m- 
 pleted. 
 
 § 611. Same Subject — When full 
 Performance a Condition 
 precedent. 
 
 612. Same Subject — Not defeated 
 
 by Principal's Default. 
 
 613. Same Subject — No Defense 
 
 that Principal realized no 
 Profit. 
 
 1. Revocation by Act of Pi'incipal. 
 
 614. When Agent is entitled to 
 
 Compensation if Authority 
 is revoked before Perform- 
 ance. 
 
 a. Authority Rightfully Revoked. 
 
 615. Same Subject — Authority 
 
 rightfully Revoked. 
 
 616. Same Subject — Agency at 
 
 Will of the Principal. 
 
 617. Same Subject — Agency ter- 
 
 minable on Contingency. 
 
 618. Same Subject — Agency ter- 
 
 minable only on Breach of ex- 
 press or implied Condition. 
 
 619. Same Subject — When ter- 
 
 minated for Agent's Miscon- 
 duct. 
 
 b. Authority Wrongfully Revoked. 
 
 620. When Agent discharged with- 
 
 out Cause, Breach of im- 
 plied Contract. 
 
 621. Same Subject — Breach of ex- 
 
 press Contract, Agent's Rem- 
 edies. 
 
 622. Same Subject — The Measure 
 
 of Damages. 
 
 623. Same Subject — Duty of Agent 
 
 to seek other Employment. 
 
 429
 
 THE LAW OF AGENCY. 
 
 [Book lY. 
 
 I 624. When Right of Action ac- 
 crues. 
 
 625. No Damages if Agent ac- 
 
 quiesces in Discharge. 
 
 S. Revocation by Operation of Law. 
 
 626. No Damages where Agency 
 
 revoked by Death of the 
 Principal. 
 
 627. Same Rule where Agency re- 
 
 voked by Insanity of the 
 Principal. 
 
 628. Rule where Agency revoked 
 
 by Bankruptcy of Principal. 
 
 629. Rule where Agency revoked 
 
 by Death of the Agent. 
 
 680. Rule where Agency revoked 
 
 by Insanity of the Agent. 
 
 681. How when Agency terminated 
 
 by Agent's Sickness or In- 
 capacity. 
 
 S. Abandonment by Agent. 
 
 632. 1. When Abandonment law- 
 
 ful. 
 
 633. 2. When Abandonment 
 
 wrongful. 
 684 Same Subject — Entire and 
 severable Contracts, Right 
 to Compensation. 
 
 635. Same Subject — The Rules 
 
 Stated. 
 
 636. Same Subject — The more lib- 
 
 eral Rule, Britton «. Turner. 
 
 637. Same Subject — Further of the 
 
 rule of Britton v. Turner. 
 
 638. Brief Absences no Abandon- 
 
 ment. 
 
 639. Condonation of Abandonment. 
 
 640. What will excuse Abandon- 
 
 ment — Sickness — Epidemic. 
 
 641. Contracts not to terminate 
 
 without Notice. Forfeiture 
 for Breach. 
 
 642. Same Subject — What works 
 
 a Forfeiture. 
 
 643. Agent cannot recover Com- 
 
 pensation from either Party 
 when double Agency un- 
 known. 
 
 § 644. Same Subject — May recover 
 when double Agency wa* 
 fully known and assented to. 
 
 645. Agent cannot Recover Com- 
 
 pensation if Agency was un- 
 lawful. 
 
 646. When Agent can recover for 
 
 extra Services. 
 
 647. Principal's Right of Recoup- 
 
 ment. 
 
 648. Same Subject — What Dam- 
 
 ages may be Recouped. 
 
 649. Same Subject — Limit of Re- 
 
 covery. 
 . 650. Same Subject — Not cut off 
 by Assignment. 
 
 651. No Recoupment against an 
 
 Infant. 
 
 II. The Agent's Right to Reim- 
 bursement. 
 
 652. Agent must be reimbursed for 
 
 proper Outlays. 
 
 ni. Thb Agent's Right to Indem- 
 nity. 
 
 653. Agent must be indemnified 
 
 against Consequences of law- 
 ful Acts. 
 
 654. No Indemnity where Act i& 
 
 unlawful. 
 
 IV. The Agent's Right to Pbo 
 
 TEOTION PROM InJUBY. 
 
 655. In general. 
 
 1. From, ihe Ritks incident to Ou Busi- 
 ness. 
 
 656. General Rule — Principal not 
 
 liable. 
 
 S. From the Negligent of the Princi- 
 pal, 
 
 657. Principal responsible for his 
 
 own Negligence. 
 
 658. 1. For dangerous Premises. 
 
 659. 2. For dangerous Tools and 
 
 Machinery. 
 
 660. 8. For Injuries resulting from 
 
 Failure to repair as agreed. 
 
 661. Same Subject. 
 
 430
 
 Ojiap. lY.] LIABILITY OF PRINCIPAL TO AGENT. 
 
 § 59 G. 
 
 § 662. 4. For Employment of incom- 
 petent Servants. 
 
 663. 5. For injuries outside of 
 
 Employment. 
 
 S. For Negligence of his General Su- 
 perintendent. 
 
 664. Principal cannot relieve him- 
 
 self by delegating Duties. 
 
 665. Liable for Negligence of gen- 
 
 eral Agent or Superintend- 
 ent. 
 
 666. When liable to Agents of Con- 
 
 tractor. 
 
 4. For Negligence of FeUow Servants. 
 
 667. Principal not liable to one ser- 
 
 vant for Negligence of a 
 Fellow Servant. 
 
 668. Same Subject— Who is a Fel- 
 
 low Servant. 
 
 669. Volunteer assisting Servant 
 
 cannot recover. 
 
 670. Contributory Negligence of 
 
 Servant defeats his Recovery. 
 
 671. Agreements to waive Liability 
 
 invalid. 
 
 V. Agent's Right to a Lien. 
 
 673. In general. 
 
 673. Lien defined — General and 
 
 particular Liens. 
 
 674. Foundation of the Claim of 
 
 Lien. 
 
 675. Nature of Lien. 
 
 676. Requisites of Lien — Posses- 
 
 sion. 
 
 677. Possession must have been 
 
 lawfully acquired. 
 
 § 678. Possession must be continu- 
 ous. 
 
 679. Possession must have been ac- 
 
 quired in Course of Employ- 
 ment. 
 
 680. No Lien if contrary to Inten- 
 
 tion of Parties — Waiver. 
 
 681. Waiver by inconsistent Con- 
 
 duct. 
 683. Claim of Lien no Waiver of 
 personal Remedies. 
 
 683. How Lien may be enforced. 
 
 684. How these Rules apply to 
 
 Agents. 
 
 685. Agent's Lien ordinarily a par- 
 
 ticular Lien. 
 
 686. For what Sums the Lien at- 
 
 taches. 
 
 VI. Agent's Right of Stoppage m 
 
 Tbansit. 
 
 687. Agent liable for Price of 
 
 Goods may stop them in 
 Transit. 
 
 688. Right exercised as in other 
 
 Cases. 
 
 689. Right of such an Agent to 
 retain Title until paid for. 
 
 VII. RiQfiTS OF Subagent agaenst 
 
 Pbincipal. 
 
 690. When Principal liable for 
 his Compensation. 
 
 691. Same Rules govern Reimburse- 
 
 ment and Indemnity. 
 
 692. How as to Protection against 
 
 Injury. 
 
 693. When Subagent entitled to a 
 
 Lien. 
 
 § 596 In general — Paj^ment of Compensation — Indemnity. 
 It is obvious that the most important claims which the agent has 
 upon the principal are 1. The payment of his compensation, and 
 2. Indemnity against loss and injury incurred in the performance 
 of his duties. Incidental to these, and to secure their recoeni- 
 tion and observance, is 3. The agent's right of lien. 
 
 431
 
 § 697. THK LAW OF AGENOT. [Book lY. 
 
 I. 
 
 THE PAYMENT OF COMPENSATION. 
 
 1. The Agenfa Bight to Compensation. 
 
 § 697. Agreement to pay Compensation— Express— Implied. 
 It is entirely competent for the parties to agree expressly not 
 only that the agent shall be compensated for his services, but that 
 his compensation shall be a certain sum, or shall be paid in a cer- 
 tain way, or shall be ascertained in a particular manner. It is 
 also competent for them to agree that he shall be compensated 
 only in a certain event, or that he shall receive no compensation 
 at all. 
 
 In practice, however, it is frequently if not commonly found 
 that the parties have not made any express agreement at all, or 
 that if they have attempted to do so, the agreement does not pro- 
 vide for all of the details or contingencies, so that the questions 
 are constantly arising, when will the law imply a promise to pay 
 compensation, and how shall the amount to be paid be ascer- 
 tained. 
 
 §598. Express Agreement conclusive. Wherever the parties 
 have expressly agreed upon the fact that compensation shall or 
 shall not be paid, or shall be paid only in a certain event, that agree- 
 ment, in the absence of fraud or mistake of fact, is conclusive. 
 If the principal has expressly agreed to pay a compensation, the 
 fact that the service was, through no fault of the agent, of no 
 value to him furnishes no excuse for not paying. So if the agent 
 has expressly agreed to serve without compensation, he will have 
 no claim for wages however beneficial his services may have 
 proved to the principal. And so if compensation is to be paid 
 only in a certain event or upon the happening of a given contin- 
 gency, no claim can arise except upon the happening of the event 
 on contingency agreed upon.* 
 
 § 599. When Agreement must be express. There are cer- 
 tain cases where the promise to pay compensation must have been 
 express. Thus where services are rendered for each other by 
 near relatives or others constituting members of the same family, 
 the law presumes that they are inspired by motives of affection, 
 
 > Zerrahn «. Ditson, 17 Mass. 663; Lockwood «. Levick, 8 0. B. (N. B.) 608. 
 
 432
 
 Chap. IV.] LIABILITY OF PRINCIPAL TO AGENT. 
 
 §600. 
 
 gratitude or other considerations than those of a pecuniary 
 nature, and in order to rebut this presumption, there must be 
 clear and unequivocal evidence of a promise or agreement to pay 
 for the services rendered. There must be shown to have been 
 something more than a mere intention to pay, based upon grati- 
 tude or friendship. There must have been an agreement to pay.' 
 This rule is most frequently applied to cases where the relation 
 sustained is rather that of master and servant than that of prin- 
 cipal and agent, but the underlying principle is the same.' 
 
 § 600. When Agreement to pay will not be implied. The 
 mere fact that services have been rendered by the agent for the 
 principal is not, of itself, sufficient to raise a promise to pay 
 therefor, but they must have been rendered under circumstances 
 from which a promise to pay can be inferred.' No recovery can 
 be had for services, however valuable, or however ne^iessary, 
 which have been rendered without the express or implied request 
 of the principal. A man can not, by mere obtrusion of services 
 create an obligation to pay for them.* 
 
 1 Hall V. Finch, 29 Wis. 278, 9 Am. 
 Rep. 559; Thorp v. Bateman, 87 
 Mich. 68; Coe v. Wager, 43 Mich. 49 
 DufEey v. DufiEey, 44 Penn. St. 399 
 Eouck V. Houck, 99 Penn. St. 553 
 Hall V. Hall, 44 N. H. 293; Kaye 
 c. Crawford, 23 Wis. 322; Griffin 
 V. First National Bank, 74 111. 
 259; Wilson «. Wilson, 52 Iowa, 
 44; Allen c. Allen, 60 Mich. 635; 
 Briggs V. Briggs, 46 Vt. 571 ; Scully 
 t. Scully, 28 Iowa, 548; Curry v. 
 Curry, 114 Penn. St. — ; Keegan «. 
 Malone, 62 Iowa. 208; Ayres v. Hull, 
 5 Kans. 419; Sawyer v. Hebard, 58 
 Vt. 375; King v. Kelly. 28 Ind. 89; 
 Faloon v. Mclntyre, 118 111. 292; 
 Morris v. Barnes, 35 Mo. 412. 
 
 « See the discussion in Wood's Mas- 
 ter and Servant, sec. 72. See also 26 
 Cent. L. Jour. 51. 
 
 •Wood v. Brewer, 66 Ala. 570; 
 Cincinnati, &c. R. R. Co. v. Lee, 37 
 Ohio St. 479; Lange v. Kaiser, 34 
 Mich. 318. 
 
 * This rule is tersely expressed by 
 
 Bell, J. as follows: "It is settled 
 that no man can do another an unso- 
 licited kindness, and make it a matter 
 of claim against him; and it makes 
 no difference whether the act was 
 done from mere good will or in the 
 expectation of compensation. Unless 
 the party benefited has done some 
 act from which his assent to pay for 
 the service may be fairly inferred, he 
 is not bound to pay." In Chadwick 
 V. Knox, 31 N. H. 226, 64 Am. Dec. 
 829; citing Reason v. Wirdnam, 1 
 Car. & P. 434; Pelly v. Rawlins 
 Peak's Ad, Cas. 226; Alexander v. 
 Vane, 1 Mees. &Wels. 511; Parker*. 
 Crane, 6 Wend. (N. Y.) 647; 1 Sel. N. 
 P. 48; 2 Qreenl. Ev. 83. See also, 
 Palmer v. Haverhill, 98 Mass. 487; 
 Bartholomew v. Jackson, 20 Johns, 
 (K Y.) 28, 11 Am. Dec, 237. In 
 this case the plaintiff had voluntarily 
 removed defendant's wheat from & 
 burning field to save it from des- 
 truction. Platt, J, said: "The 
 plaintiff performed the service with- 
 
 28 
 
 433
 
 § 600. THE LAW OF AGENCY. [Book TV. 
 
 So no recovery can be had for services, although requested, if 
 thej were rendered as a spontaneous act of kindness or in hope 
 of receiving compensation, but without an express or implied 
 promise to pay it. A fortiori can no recovery be had for ser- 
 vices volunteered upon the chances of obtaining future employ- 
 ment. Such services are mere gratuities.' 
 
 Illustrations of this are found where one undertakes to do 
 some act for another out of kindness or friendship merely, or 
 with a hope and, perhaps, an expectation that the other will rec- 
 ognize the value of the services and compensate him accordingly. 
 So architects, engineers, authors, artists and others who under- 
 take to furnish a satisfactory plan, design, machine, story or other 
 thing in competing for a prize, contract or reward, but without 
 success, can have no claim for compensation in the absence of an 
 express agreement to pay it, although they may have been re- 
 quested to compete.' 
 
 No contract for payment will be implied where the implica- 
 tion would be repugnant to an express promise, or where the 
 circumstances rebut all the grounds upon which a promise to 
 pay could be inferred.^ So where the circumstances account for 
 the transaction on some ground more probable than that of a 
 promise of recompense, no promise will be implied.* 
 
 All contracts for services must be good or bad at their incep- 
 
 out the privity or request of the de- Bay (S. C) 101, 1 Am. Dec. 632: St. 
 fendant, and there was, in fact, no Jude's Church v. VanDenberg, 31 
 rromise express or implied. If a Mich. 237; Livingston v. Ackeston, 5 
 man humanely bestows his labor, and Cow. (N. Y.) 531 ; Nicholson v. Chap- 
 even risks his life, in voluntarily man, 2 H. Bbickstone 254; Smart v. 
 aiding to preserve his neighbor's Guardians, 36 Eng. L. & Eq. 496; 
 house from destruction by fire, the Otis c. Jones. 21 Wend. (N. Y.) 394; 
 law considers the service rendered aa Ehle «. Judson, 24 Wend. (N. Y.) 97; 
 gratuitous, and it therefore forms no Eastwood v. Kenyon, 11 Ad. & EL 
 ground of 'action." Seals v. Edmond- 438; Hertzog v. Hertzog, 29 Penn. St. 
 son, 73 Ala. 295, 49 Am. Rep. 51; 465; Seals ». Edmondson, 73 Ala. 295; 
 Allen V. Bryson, 67 Iowa, 591, 56 49 Am. Rep. 51. 
 Am Rep 358. * Scott v. Maier, 56 Mich. 554, 56 
 1 Osborne v. Governors, 2 Strange, Am. Rep. 396; Palmer v. Haverhill, 
 728; Scott v. Maier, 56 Mich. 554, a 98 Mass. 487. 
 
 c sub. nom; Scott v. Martin, 56 Am. ^ Watsou v. Steever, 25 Mich. 386; 
 
 Rep. 402; Wood v. Ayres, 39 Mich. Coe «. Wager, 42 Mich. 49; St. Jude'a 
 
 345 33 Am. Rep. 396; Bartholomew Church v. VanDenberg, 31 Mich. 287, 
 t). Jackson, 20 Johns. (N. T.) 28, 11 * Wood v. Ayres, 39 Mich. 345, 33 
 
 Am. Dec. 237; James t). O'Driscoll, 2 Am. Rep. 396. 
 
 434
 
 Chap. lY.] LIABILITY OF PKINCIPAL TO AGENT. § 601. 
 
 tion, and a party will not be permitted on account of subsequent 
 events, to recover for services which when rendered were in- 
 tended to be gratuitous.' 
 
 Neither will purely gratuitous services furnish a good consid- 
 eration for a subsequent promise to pay for them,* but when 
 beneficial services, not intended to be gratuitous, have been ren- 
 dered under such circumstances that no legal claim exists there, 
 for, a subsequent promise to pay in consideration of the benefit 
 received is binding.' 
 
 § 601. When Promise to pay will be implied. But when- 
 ever services are rendered by one person at the express request 
 of another, the law will, except in the case of near relatives or 
 others who are members of the same famil}', presume that the 
 person for whom they were rendered intended to pay for them.* 
 If the latter alleges that they were to be gratuitous, the burden 
 of proof is upon him to establish it* This is particularly true 
 where the services rendered are in the line of the agent's business 
 or profession, or of a kind that are usually paid for. Thus if 
 one employs an attorney to try his case in court, or a physician 
 to attend his child in illness, or an auctioneer to sell his goods at 
 an auction, or a broker to effect insurance upon his ship, or an 
 architect to superintend the building of his house, but says noth- 
 ing about paying, the law will presume that the agent was to be 
 paid for his services, and if the party alleges that the services 
 were to be rendered without charge, he must prove it. 
 
 So though there be no express request, a promise to pay may 
 be implied from the circumstances of the case. Thus if bene- 
 ficial services are rendered for a person under such circumstances 
 as to show that the agent expects to be paid for them as a matter 
 of right, and the person for whom they are rendered does noth- 
 ing to disabuse him of this expectation, but permits him to ren- 
 
 * James v. O'Driscoll, 2 Bay (8. N. J. Eq. 246; Lee v. Lee, 6 G. & J. 
 Car.) 101, 1 Am. Dec. 632. (Md). 316; Little v. Dawson, 4 Dall. 
 
 2 Allen t. Bryson, 67 Iowa, 591, 56 (Penn.) 111. 
 
 Am. Rep. 358, citing Cook v. Brud- * VanArmcn v. Byington, 88 111. 
 
 ley, 7 Conn. 57, 18 Am. Deo. 79; Wil- 443; Weeks v. Holmes, 12 Cush. 
 
 liams V. Hathaway, 19 Pick. (Mass.) (Mass.) 215. 
 
 887; Dawson v. Dawson, 12 Iowa, 512; e Dougherty v. Whitehead, 31 Mo. 
 
 McCarthy v. Hampton, 61 Iowa. 283. 255; Lewis v. Trickey, 20 Barb. (N. 
 
 3 Snyder v. Castor, 4 Yeates Y.) 387. 
 (Penn.) 353; Davison v. Davison, 13 
 
 435
 
 § 601. THE LAW OF AQENOT. [Book lY. 
 
 der the services, the law will imply a promise to pay for them.* 
 This is but the ordinary rule of good faith. As has been seen, 
 services are not to be obtruded upon another against his will, but 
 one who stands by and permits another to render him valuable 
 services under such circumstances as to convince any reasonable 
 man that they were being done, though mistakenly, with the 
 expectation of being paid for them as a matter of legal right 
 and not as a matter of hope or expectancy, and says or does 
 nothing to prevent it, can not be permitted to avail himself of 
 the benefits of the services but refuse to pay for them, upon the 
 ground that they were rendered without his request or order.' 
 
 In accordance with these principles it is held that a consulting 
 physician or surgeon who, at the request of the attending physi- 
 cian, and with the consent of the patient, renders services to the 
 patient, may recover their reasonable value from the patient 
 although the attending physician had agreed with the patient to 
 pay therefor, of which fact the consulting physician was ignor- 
 ant. Agreements of such a nature are exceptional, said the 
 court, and if the exceptional contract is to bind the consulting 
 physician or surgeon it must be brought to his knowledge before 
 his services are accepted by the patient.' So where an attorney 
 
 > McCrary v. Ruddick, 33 Iowa, formed for his benefit and on his 
 
 621; James v. Bixby, 11 Mass. 34; account, makes no objection, but 
 
 Muscott V. Stubbs, 24 Kan. 520; Gar- permits the party to continue doing 
 
 rey v. Stadler, 67 Wis. 512, 58 Am. the work and performing the ser- 
 
 Rep. 877; Shelton v. 'Johnson, 40 vices." In Muscott «. Stubbs, 24 
 
 Iowa, 84; Phillips v. Jones, 1 Ad. & Kan. 520. 
 
 Ell. 333; Peacock v. Peacock, 2 Camp. s Garrey v. Stadler, 67 Wis. 512, 58 
 
 45; Scully v. Scully, 28 Iowa, 548 
 Waterman v. Gilson, 5 La, Ann. 672 
 Lucas V. Godwin, 3 Biug. (K C.) 737 
 
 Am. Rep. 877; Shelton v. Johnson, 
 40 Iowa 84. In this case. Day, J. 
 lays down the broad rule that " where 
 
 Trustees p. Allen, 14 Mass. 175; Wes- a party, knowingly and without ob- 
 ton V. Davis, 24 Me. 374 ; Dougherty jection, permits another to render 
 V. Whitehead, 31 Mo. 255; Louis v. service for him of any kind what- 
 Trickey, 20 Barb. (N. Y.) 387. ever, the law implies a promise to 
 •The principle here involved is pay what the same is reasonably 
 said by Brewer, J. to be "not worth." See also Bartlett ®. Spark- 
 merely that one party has done work man, — lilo. — , 14 West. Rep. 725, 
 which benefits the other, because it where the act of an agent in calling 
 was never the law that one party doctor A, though sent for doctor B, 
 could force a contract upon the other, was held ratified because the princi- 
 but also that such other party, know- pal did not dissent. 
 Ing that the services are being per- 
 
 436
 
 Chap. lY.] LIABILITY OF PRINCIPAL TO AGENT. § 603. 
 
 who had undertaken to defend a certain action and pay for such 
 counsel as he desired, employed as counsel, a firm of attorneys 
 who were not informed of this arrangement, and the counsel 
 performed valuable services for the defendants with their knowl- 
 edge and cooperation, it was held that the defendants were liable 
 for the value of the services so rendered. The court said that 
 if the defendants did not intend that the consulting attorneys 
 should look to them for payment for the services they were ren- 
 dering, they should have objected or informed them of the spe- 
 cial contract, but that by their silence with full knowledge of 
 what was being done, and by receiving and enjoying the benefit 
 of the services rendered, a promise to pay therefor would be im- 
 plied. It would have been otherwise if the consulting attorneys 
 had been informed of the special arrangement or had the circum- 
 stances been such as to raise a presumption that they had such 
 information.* 
 
 S 602. Unauthorized Agent entitled to Compensation if Acts 
 are ratified. As has been seen, the effect of the ratification of 
 the unauthorized act of an agent is retroactive and gives validity 
 to the act from the beginning." If therefore one acts as agent 
 without authority but his acts are subsequently ratified by the 
 principal, he is entitled to the same compensation and the same 
 remedies as if the acts had been originally duly authorized.^ 
 
 2. The Amount of the Compensation. 
 
 § 603. Express Contract governs. The question of the agent's 
 right to receive a compensation having been determined in his 
 favor, the next inquiry is as to the amount to be paid to him. If 
 the parties have made an express agreement in reference to this 
 matter, such agreement is conclusive upon all questions arising 
 within its scope.* There can not be both an express and an implied 
 agreement in reference to the same matter, and the express agree- 
 ment, if any, must govern. 
 
 » McCrary v. Ruddick, 83 Iowa, » See ante, %% 171, 174. 
 
 521. See case where the same prin- » Wilson v. Dame, 58 N. H. 893. 
 
 ciple was recognized, but where the * Wallace v. Floyd, 29 Penn. St. 
 
 court held that the facts did not war- 184, 73 Am. Dec. 620; Hamilton ». 
 
 rant the application. Muscot e. Frothingham, 59 Mich. 253. 
 Stubbs, 24 Kan. 520. 
 
 437
 
 § CO-i. THE LAW OF AGENCY. [Book IV. 
 
 8 604. May be left for Principal to determine. It is compe- 
 tent for the parties to agree that the compensation shall be such 
 an amount as the principal may fix. Thus if the agent agree to 
 serve for such compensation as the principal shall, at the termin- 
 ation of the agency, determine to be right and proper under all 
 the circumstances, the amount so fixed by the principal, if he 
 acts honestly and in good faith, is conclusive, although as a mat- 
 ter of fact it be less than the services were really worth. ' 
 
 Agreements of this sort, however, must be clear, and appear to 
 have been fairly made." 
 
 S 605. In the Absence of express Agreement, Law implies rea- 
 sonable Compensation. Where, however, there is no express 
 agreement as to the amount, the law implies a promise to pay 
 what the services are reasonably worth.* The question of rea- 
 sonable value, in this, as in other cases, is one to be determined 
 from all the facts and circumstances surrounding the case.* 
 
 8 606. What Elements may bo considered. In determining 
 the amount of this reasonable compensation, there are many ele- 
 ments to be taken into consideration. All services are not to be 
 estimated by the same standard. In every case the nature of the 
 undertaking, its dangers and responsibilities, the amount involved, 
 the skill, ability and reputation of the agent, the result attained, 
 the previous study, preparation and expense required, as well as 
 the actual time consumed, are to be taken into consideration, and 
 the value of the services is to be estimated accordingly.' 
 
 8 607. What Evidence as to Value is admissible. In many 
 cases custom may have gone far towards establishing the amount 
 of compensation to be paid for certain services, and where par- 
 
 » Butler V. Winona Mill Co., 28 Millar v. Cuddy, 43 Mich. 273, 38 Am. 
 
 Minn. 205, 41 Am. Rep. 277. Rep. 181; Stockbridge v. Crooker, 84 
 
 s Millar©. Cuddy, 43 Mich. 273,88 Me. 349; Nauman v. Zoerhlaut, 21 
 
 Am. Rep. 181. This case has been Wis. 466; Jones®. School District, 8 
 
 cited as opposed to the preceding Kans. 362. 
 
 one. Upon examination it will be * Ruckman v. Bergholz, 38 N. J. L. 
 
 found not to be so. In the former 531; Eggleston c. Boardman, 37Mich. 
 
 there was no question as to the con- 14. 
 
 tract, in the latter the court held that « Eggleston r. Boardman. 37 Mich, 
 
 such a contract could be made, but 14; Vilas v. Downer, 21 Vt. 419; 
 
 had not been in that case. Kentucky Bank v. Combs, 7 Penn. 
 
 3 McCrary v. Ruddick, 33 Iowa 520; St. 543; Stanton v. Embrey. .93 U. 8. 
 
 Shelton v. Johnson, 40 Iowa 84; 543. 
 
 438
 
 Chap. IV.] LIABILITY OF PlilNCIPAL TO AGEXT. § COT. 
 
 ties either expressly or impliedly deal with reference to such a 
 custom, evidence of the amount so fixed is admissible.' 
 
 So evidence of what is usually charged for similar services by 
 other persons in the same line of business at tlie same place is 
 admissible.* It is also competent to show by persons acquainted 
 with the value of like services, what is their opinion as to the value 
 of the services in question.' This is a well-recognized use of 
 what is ordinarily known as expert testimony. If such a witness 
 knows the value of such services, it is not necessary that he 
 should be shown to be acquainted with the amounts which others 
 are in the habit of charging in like cases,* nor is it necessary that 
 he should have personal acquaintance with the agent, or personal 
 knowledge of the services rendered,' but he may give his opin- 
 ion upon a hypothetical question covering the elements in con- 
 troversy. 
 
 Ordinarily the testimony of what such a witness would him- 
 self have charged is not admissible,* yet if the evidence given in 
 reply to such a question is manifestly based upon the witness's 
 opinion as to its value and not upon any uncertain standard of his 
 own, the form of the question might be disregarded.' 
 
 So evidence of what was paid to a particular agent in another 
 case is not, ordinarily, admissible; such evidence having no neces- 
 sary tendency to prove either the usual charge or the actual value, 
 inasmuch as there may have been in that case peculiar circum- 
 stances or elements which would not exist in another,' But up- 
 on cross-examination, in order to test either the good faith or the 
 qualifications of the witness, it might be proper to inquire of 
 him what he would have performed the same service for,* or to 
 ascertain the extent of his knowledge as to the price usually paid 
 by inquiring what had to his knowledge been paid in given cases."* 
 
 1 Stanton v. Embrey, 93 U. S. 548. beck v. New York, &c. R. R. Co.. 86 
 
 « Eggleston v. Boardman, 37 Mich. Barb. (N. Y.) 644. 
 
 14; Stanton «. Embrey, 93 U. S. 548. « Fairchild v. Railroad Co., 8 IlL 
 
 3 Bowen v. Bowen, 74 Ind. 470; App. 591, 
 
 Johnson v. Thompson, 72 Ind. 167, ^ See Elting v. Sturtevant, 41 Conn, 
 
 87 Am. Rep, 152; Parker «. Parker, 176. 
 
 83 Ala. 459. » Eggleston v. Boardman, 37 Mich. 
 
 < Commissioners v. Chambers, 75 14; Lakeman o. Pollard, 43 Me. .463, 
 
 Ind. 409. 69Am. Dec. 77. 
 
 » Mish V. Wood, 34 Peiin. St. 451; » Oilman v. Card, 29 Ind, 391. 
 
 Miller v. Smith, 112 Masa. 470; Whit- '• Lakeman v. Pollard, supra. 
 
 439
 
 § 00s. 
 
 THE LAW OF AGENCY. [Book lY. 
 
 8 608. Agent continuing after Expiration of Term presumed 
 to be at prior Compensation. If an agent employed at a com- 
 pensation for a definite term, continues in the principal's service 
 after the expiration of that term, without any new or other ar- 
 rangement, he will be presumed to be continuing on the old 
 terms and there can be no recovery on a quantum meruit.* 
 
 3. When Compensation is Considered to le Earned. 
 
 g 609. Ill general. The question when the agent's compen- 
 sation is to be deemed to be earned, is one depending upon a 
 variety of considerations. 
 
 Thus it may appear : — 
 
 a. That the agent has fully completed his undertaking. 
 
 h. That he has only partially completed his undertaking. 
 
 0. Tliat he has done nothing at all. 
 
 The fact that he has not completed his undertaking may be at- 
 tributable to one of the following causes : — 
 
 a. That his authority was revoked before he had had time or 
 opportunity to perform fully. 
 
 h. That he had abandoned the agency before he had made full 
 performance. 
 
 The revocation of his authority may have been : — 
 
 a. By act of the principal. 
 
 h. By operation of law. 
 
 If revoked by the act of the principal, that act may have 
 
 been : — 
 
 a. For sufficient cause. 
 
 h. For insufficient cause. 
 
 So if the agent abandoned the agency, such abandonment may, 
 under the circumstances have been : — 
 
 a. Justifiable, or 
 
 h. Unjustifiable. 
 
 Again if the undertaking was performed in part, such part 
 performance may have been : — 
 
 a. Of value to the principal, or 
 
 b. Of no value to the principal. 
 
 § 610. Compensation earned when Undertaking fully com- 
 
 » Wallace v. Floyd, 29 Penn. St. Albright, 86 Penn. St. 371. See ante^ 
 184, 72 Am. Dec. 620; Rauck «. § 212. 
 
 440
 
 Chap. ly.] LIABILITY OF PRINCIPAL TO AGENT. § 612. 
 
 pleted. When the agent has fully completed his undertaking ac- 
 cording to its terms, he is entitled to his compensation. In many 
 cases, there is no difficulty in determining when this time arrives, 
 but in others it is not easy to decide upon the full measure of the 
 agent's undertaking or upon the fact of its performance. Each 
 case rests upon its own peculiar facts and circumstances, and the 
 inquiry in every instance must be: 1. "What did the agent un- 
 dertake to do? 2. Has he done it, and if not, then, 3. To whose 
 act or to what occurrence, is the failure to be attributed. 
 
 § 611. Same Subject— When full Performance a Condition pre- 
 cedent. It is entirely competent for the parties to agree that the 
 full performance of a particular undertaking shall be a condition 
 precedent to the right to recover any compensation, and where 
 such a contract is fairly made it will be enforced, and will be con- 
 clusive unless it appears that the performance has been waived 
 or prevented by the principal. 
 
 Thus where by a special contract, a broker is not to be paid his 
 commission unless he sells certain property at a stipulated price, 
 the sale by him at such a price is condition precedent to his right 
 to compensation, unless pending the negotiations and while his 
 authority remains unrevoked, the principal consents to a sale at 
 a different price.' For a like reason if the promise is to pay a 
 compensation if the sale is effected within a certain time, a sale 
 within that time, unless excused or prevented by the principal, 
 is a condition precedent to the right to compensation.* 
 
 § 612. Same Subject— Not defeated by Principal's Default. 
 If it be found that the agent has done all that he undertook to 
 do, his right to his compensation is complete, and he cannot be 
 deprived of it, because the principal then fails to avail himself 
 of the benefits of the act or refuses to do what he had agreed to 
 do upon performance. Neither can the principal then defeat the 
 agent's claim by revoking his authority or withdrawing the sub- 
 ject-matter from his possession or control.' 
 
 Thus an agent who is employed to procure a loan for his prin- 
 cipal is entitled to his commission when he procures a lender, 
 ready, willing and able to loan the money upon the terms pro- 
 posed. His right to his commission does not depend upon the 
 
 » Jones V. Adler, 34 Md. 440, See « Irby v. Lawshe, 62 Ga. 216. 
 
 Stewart v. Mather, 32 Wis. 344. » See cases cited in note 3, po8t. 
 
 441
 
 § 013. THE LAW OF AGENCY. [Book lY. 
 
 contingency of the principal's acceptance of the loan, but upon 
 his performance of his part of the contract, and the principal 
 cannot deprive the agent of his commission by refusing to 
 accept the loan which the agent's efforts have resulted in secur- 
 ing.' Upon the same principle it is held that an agent who 
 undertakes to negotiate a sale of his principal's property, has 
 earned his commission when he has procured a purchaser who is 
 able, willing and ready to purchase it upon the terms designated, 
 and the principal cannot defeat the agent's claim by then refusing 
 to sell at all, or only upon different terms, or by ignoring the 
 agent and secretly consummating the sale with the purchaser so 
 produced without the further intervention of the agent.* The 
 act of the agent must, however, have been the immediate means 
 of securing the purchaser or lender. In this case it is the causa 
 causans and not the causa jproxima that the law looks to.* 
 
 § 613. Same Subject — No Defense that Principal realized no 
 Profit. So if the agent has done all that he undertook to do, 
 the fact that the services proved to be of no value to the prin- 
 cipal, or that the latter did not realize from them the expected 
 profit, furnishes no ground, upon which to deprive the agent 
 of his compensation.* And it is immaterial whether this result 
 be attributable to the act of the principal or of third persons : 
 the principal and not the agent must run the risk of his under- 
 taking's proving profitless. 
 
 1. Revocation hy the act of Principal. 
 
 § 614. When Agent is entitled to Compensation if Authority 
 is revoked before Performance. The question of the agent's 
 right to compensation when his authority has been revoked 
 before full performance, depends, as has been seen, upon a variety 
 
 > Vinton v. Baldwin, 88 Ind. 104, Rep. 211. See also Tombs v. Alex- 
 
 45 Am. Rep. 447. ander, 101 Mass. 255, 3 Am. Rep. 
 
 «Love «. Miller, 53 Ind. 294, 21 349; Walkers. Tirrell, 101 Mass. 257. 
 
 Am, Rep. 192; Vinton e. Baldwin, 3 Am. Rep. 353; Richards u Jackson, 
 
 mpra; Reyman v. Moaher, 71 Ind. 81 Md. 250, 1 Am. Rep. 49. See this 
 
 596; Moses ». Bierling, 31 (N. Y.) subject fully discussed under the title 
 
 462; Mooneyt). Elder, 56 K T. 238; "Brokers," post. 
 
 Fraser t>. Wyckcff, 63 N. Y. 445; SAttrill r. Patterson, 58 Md. 226. 
 
 Wylie V. Marine Nat. Bank, Gl N. Y. * Lockwood v. Levick, 8 C. B. (N. 
 
 415; Hinds ®. Henry, 36 N. J. L. 328; S.) 603. 
 Hancan v. Moran, — Mich. — 15 West. 
 
 442
 
 Chap. IV.] LIABILITY OF PlilNCirAL TO AGENT. § G15. 
 
 of considerations. The revocation may have resulted from the 
 act of the principal or by operation of law; if revoked by the 
 act of the principal, such revocation may, as to the agent, have 
 been rightful or wrongful. 
 
 It has been seen ^ that unless the authority of the agent be 
 coupled with an interest, it may be revoked by the principal at 
 any time. As has been already explained,* what is meant by 
 this is, that the relation between the principal and the agent, 
 being a personal one founded upon trust and confidence, the 
 law will not undertake to compel the principal to continue to 
 employ an agent against his will, — will not, in other words, 
 enforce specific performance of the contract. But notwith- 
 standing the fact that he possesses this power to revoke, the 
 principal, as has been seen,' may expressly or impliedly agree 
 not to exercise it, and where such an agreement is made, the 
 principal will be liable if he violates it, without good cause, in 
 the same manner as for the violation of any other contract. 
 
 In the absence, therefore, of an express or implied agreement 
 that the agency shall continue for a definite time, it will be pre- 
 sumed to be an agency at will merely, terminable at the will of 
 either party at any time.* And the same rule applies although 
 the agent may have been employed to do a specific thing, unless 
 there is an express or implied agreement on the part of the 
 principal that he will continue to employ the agent until comple- 
 tion, and on the part of the agent that he will continue to act 
 until full performance — it is still at will merely ; no implied 
 agreement to continue the agency until completion arises from 
 the mere fact of such an employment. 
 
 So, as has been seen,' the agent may be under an agreement to 
 act for a certain period with no corresponding obligation on the 
 part of the principal to employ him during that period. 
 
 a. Authority Rightfully Revoked. 
 § 615. Same Subject— Authority rightly revoked. In using 
 the expressions rightfully Siixdi wrongfully revoked it will be un- 
 derstood that the question of the principal's^ot^^e?" to revoke is not 
 involved, but whether by express or implied agreement having 
 
 • Ante, § 204, * Ante, § 210. 
 
 ^Ante, §209. * AnU, §§211,213. 
 
 *Ante, §209. 
 
 443
 
 8 CIG. THE LAW OF AGENCY. [Book IV. 
 
 undertaken not to exercise that power, he has, nevertheless, exer- 
 cised it in violation of the agreement.^ 
 
 In this view of the case the principal may rightfully revoke 
 the agent's authority in one of two cases : a. "Where the author- 
 ity was conferred to continue only during the will of the princi- 
 pal; and, b. Where, though the authority was to continue for a 
 definite time, it was subject to revocation upon the happening of 
 a certain event or upon the breach of an express or implied con- 
 dition of its continuance, and the event has happened or the 
 breach has occurred. What misconduct on the part of the 
 agent will constitute a breach of the implied conditions of every 
 employment, has previously been considered.' 
 
 §616. Same Subject— Agency at Will of the Principal. 
 Where an agency has been created to endure at the will of the 
 principal and is terminated by him, without fault of the agent, 
 after the agent has entered upon the performance, but before 
 full completion, the agent will ordinarily be entitled to compen- 
 eation for the reasonable value of the work already done, and to 
 be reimbursed for the costs and expenses which he had fairly 
 and in good faith incurred in the performance of the agency up 
 to that time.* This will always be the case where, from the 
 nature of the employment, the principal receives the full value 
 of the agent's services as they are rendered. It will also be true 
 in all other cases except those in which the full performance of 
 the undertaking is expressly or impliedly made a condition pre- 
 cedent to the right to compensation, — a subject hereafter 
 considered. 
 
 It is undoubtedly competent for the agent to agree that he 
 shall receive no compensation if his authority is terminated 
 before performance, even though it be so terminated at the mere 
 whim or caprice of the principal, and where such an agreement 
 is fairly made it will be enforced.* 
 
 Where the agency is thus at the will of the principal, the 
 agent cannot, if it be revoked, recover damages for this with- 
 drawal of the power to act, or for the commissions or compensa- 
 
 I See ante, % 209. * Tyler «. Ames, 6 Lans. (N. Y.) 
 
 s See anU, % 214, 280; Spear v. Gardner, 16 La. Ann. 
 
 » United States t). Jarvis, Davies 883; Adriancec. Rutherford, 57 Mich. 
 
 (U. S. C. C.) 274; Chambers t». Seay, 170; Hotchkiss v. Gretna Gin. & 
 
 73 Ala. 372. Compress Co., 36 La. Ann., 517. 
 
 444:
 
 Chap, ly.] LIABILITY OF PRINCIPAL TO AGENT. § 618. 
 
 tion he might have earned had the authority not been revoked.' 
 Nor can it make any difference that the principal acted unreason- 
 ably, capriciously or maliciously in revoking the authority. An 
 action cannot be based upon the doing of what one has a legal 
 right to do, even though the act be prompted by malice.* 
 
 § 617. Same Subject — Agency terminable on Contingency. 
 The same rule would apply where the authority was terminable 
 by the principal upon the happening of a certain contingency. 
 Unless the agent had expressly or impliedly agreed that in the 
 event of such a termination he should have no compensation, he 
 would be entitled to receive the reasonable value of the services 
 already rendered, and to be reimbursed for the expenses and 
 charges which he had fairly and in good faith incurred in the 
 performance of the agency. The agent, however, would not be 
 entitled to recover anything by way of compensation for any 
 damages occasioned by the revocation, as for wages or profits 
 which he might have earned had the revocation not occurred, 
 although the revocation was without reasonable cause.' 
 
 § 618. Same Subject— Agency terminable only on Breach of 
 express or implied Conditions. But where the agent is employed 
 for a definite term, he can be discharged without liability only 
 when there has been a breach of some express or implied condi- 
 tion in the contract creating the agency.* Where these conditions 
 are express, they usually declare what shall be the result of their 
 breach, but, in the absence of such a provision, a breach of an 
 express condition which the parties have made sufficient to ter- 
 minate the agency, would absolve the principal from liability for 
 future wages and for damages occasioned by the revocation, but 
 would not, in the absence of a stipulation to that effect, ordinarily 
 deprive the agent of compensation for services previously per- 
 formed, unless terminated for the agent's gross misconduct* Of 
 the implied conditions of the agency, the most important are those 
 
 > North Carolina State L. Ins. Co. Heywood v. Tillson, 75 Me. 225, 46 
 
 V. Williams, 91 N. C. 69, 49 Am. Rep. Am. Rep. 373, and cases there cited. 
 
 637; Jacobs v. Warfleld, 23 La. Ann. » See preceding section and author- 
 
 895; Kirk v. Hartman, 63 Penn. St. ities cited. 
 
 97; Coffin v. Landis, 10 Wright. * See ante, § 210. 
 
 (Penn.) 426. « See post, % 619. See also ante, 
 
 * Payne v. Western &c. R. Co., § 215. 
 13 Lea (Tenn.) 507, 49 Am. Rep. 666; 
 
 445
 
 g 619. THE LAW OF AGENCY. [Book IV. 
 
 wliich relate to the honesty and fidelity with which the agent 
 performs his duty.' 
 
 S 619. Same Subject— When terminated for Agent's Miscon- 
 duct. It is, as has been previously stated,' an implied condition 
 in every contract of agency, that the agent will not wilfully dis- 
 obey reasonable and lawful instructions ; that he will not willing- 
 ly permit his principal's interests to suffer ; that he will be hon- 
 est and faithful, and will exercise reasonable care and diligence 
 in the discharge of his duties ; and that he will not violate the 
 principles of morality or the laws of the land. For a breach of 
 this implied condition, as has been seen, the principal may, in cer- 
 tain cases, lawfully discharge the agent, although he had been 
 employed for a definite period. What these cases are has already 
 been considered.' Where, then, it is found that the misconduct of 
 the agent was such as to justify his discharge, the question arises : 
 What effect has such discharge upon (a.) future commissions or 
 compensation, and, (5.) commissions or compensation previously 
 earned but not yet paid ? Upon the first branch of the question 
 there can be no doubt that a discharge for cause not only does 
 not render the principal liable to the agent for damages therefor, 
 but also absolves him from all claim for commissions or compen- 
 sation which but for such discharge, the agent might have there- 
 after earned.* But upon the other branch of the question the 
 law is not so clear. It is held in many cases that where the agent 
 is unfaithful to his trust, and abuses the confidence reposed in 
 him, or misconducts himself in the management of the agency, 
 he will forfeit his right to compensation.^ It is not every case 
 of misconduct, however, even though sufiicient to warrant the 
 agent's discharge, which will deprive him of compensation already 
 earned. If the agent were guilty of such misconduct as amounts 
 to treachery, or if he wholly f-ailed to recognize the duties and 
 responsibilities imposed upon him by his situation, or so conducts 
 himself that his services are of no value, it is entirely just and 
 
 * See post, % 619. ' Sea v. Carpenter, 16 Ohio, 412; 
 
 » See a/i^e, § 214. Vennum t). Gregory, 21 Iowa 326; 
 
 3 See ante, % 214. Cleveland &c. 11. R Co. v. Pattison, 
 
 < Murdock «. riiilUps Academy, 12 15 lud. 70; Porter v. Silvers, 35 Ind. 
 
 Pick. (Mas8.) 244; Du Quoin &c. 295; Sumner v. Reicheniker, 9 Kan. 
 
 Mining Co. v. Thorwell, 3 111. App. 320; Spain p. Arnott, 2 Stark, 227. 
 894. 
 
 446
 
 Chap. lY.] LIABILITY OF PRINCIPAL TO AGENT. § 620. 
 
 reasonable that he should receive no compensation whatever, and 
 to this extent the law is well settled.* 
 
 But if on the other hand, though the agent has been negligent 
 or has not performed according to his undertaking, his services 
 are still of some appreciable and substantial value to the princi- 
 pal, over and above all damages sustained by him by reason 
 of the default, the agent should be entitled to recover that 
 value.* 
 
 b. Authority Wrongfully Revoked. 
 
 § 620. When Agent discharged without Cause— Breach of 
 implied Contract. But where, by express or implied contract, 
 the agency has been created to endure for a definite period, it 
 may not be terminated by the principal unless for the agent's 
 default or by virtue of some agreement to that effect, without 
 liability to the agent. As has been seen' where no definite time 
 is agreed upon, the agency is ordinarily held to be one to con- 
 tinue during the will of the principal. But it is not necessary 
 that there should be an express agreement that the agency shall not 
 be thus terminated without liability at the mere will of the prin- 
 cipal. It may be implied as in other cases, and such an iniplied 
 understanding is frequently demanded by the rules of ordinary 
 good faith between parties. It is, of course, always within the 
 power of the agent to protect himself by an express agreement, 
 and in many cases the absence of such an agreement will put the 
 agent at the mercy of the principal's will. 
 
 Thus the mere fact that an agent is employed to perform a 
 certain act will not, of itself, amount to an undertaking on the 
 part of the principal that the agent shall be permitted to com- 
 plete the act, at all events, and the principal may fairly, and in 
 good faith, revoke the agency without liability, at any time 
 before performance. But where the act is one which requires 
 time and labor for its completion, and the agent has, within a 
 reasonable time, brouglit the act to the very verge of completion 
 
 > Brannan v. Strauss, 75 111. 234; Carroll v. Welch, 26 Tex. 147; Con- 
 Myers ?;. Walker, 31 111. 354; Sumner grcgation v. Peres, 2 Cold. (Tenn.) 
 «. Reicheniker, 9 Kan. 320. (520; Green v. Hulett, 22 Vt. 188; 
 
 « Massey v. Taylor, 5 Cold. (Tenn.) Eaken v. Harrison, 4 McCord. (S. C.) 
 
 447 ; Lawrence v. Gulli fer, 38 Me. 532 ; 249, 
 
 Kessee B. Mayfield, 14 La. Ann. 90; ^ See ante, % 210. 
 
 447
 
 § 621. THE LAW OF AGENCY. [Book IV. 
 
 BO that success is certain and immediate, it would be the height 
 of injustice to permit the principal then to withdraw the author- 
 ity and terminate the agency and appropriate the benefit of it, 
 without being liable to the agent for any of the compensation 
 which he had so nearly earned. So where an agent is employed 
 to perform an act which involves expenditure of labor and money 
 before it is possible to accomplish the desired object, and after 
 the agent has in good faith incurred expense and expended time 
 and labor, but before he has had a reasonable opportunity to 
 avail himself of the results of this preliminary effort, it could 
 not be permitted that the principal should then terminate the 
 agency and take advantage of the agent's services without ren- 
 dering any compensation therefor. Thus if after a broker, em- 
 ployed to sell property, had in good faith expended money and 
 labor in advertising for and finding a purchaser, and was in the 
 midst of negotiations which were evidently and plainly approach- 
 ing success, the seller should revoke the authority with the pur- 
 pose of availing himself of the broker's efforts and avoiding the 
 payment of his commissions, it could not be claimed that the 
 agent had no remedy. In these cases it might well be said that 
 there was an implied contract on the part of the principal to 
 allow the agent a reasonable time for performance, that full per- 
 formance was wrongfully prevented by the principal's own acts, 
 and that the agent had earned his commission.' 
 
 § 621. Same Subject— Breach of express Contract— Agent's 
 Hemedies. Where, however, there has been an employment for 
 a definite period, and the agent is discharged without cause be- 
 fore the expiration of that period, or is not permitted to under- 
 take the performance at all, the principal is liable to the agent 
 for the damages occasioned thereby, as in any other case of the 
 breach of a contract. 
 
 There has been, and still is, much uncertainty and confusion 
 in the cases as to the exact remedies which the agent, in such a 
 case, may pursue, and as to the measure and nature of the dam- 
 ages he may recover, but it is believed that the preponderance of 
 authority and reason is in harmony with the following rule: — 
 
 An agent thus wrongfully discharged or prevented from per- 
 forming his undertaking has his choice of three remedies : 
 
 •Sibbalde. Bethlehem Iron Co., 83 Wylie v. Marine Nat. Bank, 61 N. 
 N. Y. 378. 38 Am. Rep. 441; see Y. 415. 
 
 448
 
 Chap. lY]. LIABILITY OF PKINCIPAL TO AGENT. § 622. 
 
 1. He may elect to consider the contract as rescinded, and at 
 once bring an action to recover the value of the services, if any, 
 rendered up to the time of the discharge, less the amount already 
 paid to him ; or 
 
 2. He may at once bring an action for the breach of the con- 
 tract and may recover the probable damages resulting there- 
 from ; or 
 
 3. He may wait until the end of the term, and then bring his 
 action for the breach of the contract and recover the actual dam- 
 ages he has sustained thereby.' 
 
 He cannot, however, pursue all of these remedies, and a recov- 
 ery under one will be a bar to a recovery under the others.' 
 
 The second and third of these remedies are in addition to his 
 right of action for wages earned but not paid.' 
 
 § 622. Same Subject— The Measure of Damages. By pursu- 
 ing the first of these remedies, the agent elects to treat the con- 
 tract as rescinded. He has, however, rendered valuable services 
 for the principal, and there being now no contract to fix the 
 price, he is entitled to recover their value upon a quantum 
 meruit.* In this recovery he is not limited by the contract 
 price, not only because the contract has been rescinded, but be- 
 cause it may be that on account of a fixed employment, or be- 
 cause of an expectation of an increased compensation at a later 
 period in the service, he agreed to render the services in question 
 for less than their actual value. Such a recovery should, of 
 
 > Howard «. Daly, 61 N. Y. 363, 19 James «. Allen County, 44 Ohio St. 
 Am. Rep. 285; James e. Allen 226, 58 Am. Rep. 821. Where, how- 
 County, 44 Ohio St. 226, 58 Am. ever, an agent employed at a salary to 
 Rep. 821; Weed v. Burt, 78 N. T. be paid monthly is wrongfully dis- 
 192; Saxonia «&c. Co. r. Cook, charged, it was held that he might 
 7 Colo. 569; Richardson e. Eagle bring an action for the month's 
 Machine Works, 78 Ind. 422, 41 Am. salary at the end of each month, and 
 Rep. 584; Goodman d. Pocock, 15 Ad. that a recovery for one month would 
 & Ell. (N. S.) 576; Elderton v. not bar a recovery for a subsequent 
 Emmons, 6 Man. G. & S. (C. B.) 160; month. Isaacs v. Davies, 68 Ga. 169. 
 Smith V. Hayward, 7 Ad. «& Ell. 544; » Richardson v. Eagle Machine 
 Classman e. Lacoste, 28 Eng. L. «& Works, 78 Ind. 422, 41 Am. Rep. 584; 
 Eq. 140; Gardenhire «. Smith, 39 James v. Allen County, 44 Ohio St. 
 Ark. 280. 2'.i6, 58 Am. Rep. 821. 
 
 s Richardson v. Eagle Machine * Smith on Master and Servant, 96. 
 Works, 78 Ind. 422, 41 Am. Rep. 584; 
 
 29 449
 
 § 622. THE LAW OF AGENCY. [Book IV. 
 
 course, be less the actual amount, if any, which has been already 
 paid to him. 
 
 The two other remedies proceed upon the theory that the con- 
 tract still continues in force, though broken by the principal, 
 and the recovery had is for damages for the hreach, and not for 
 vjages. A recovery was formerly allowed for wages upon the 
 ground of a constructive service, but the doctrhie of constructive 
 service is almost universally repudiated in modern times.' It 
 is, however, still recognized in a few States.' Under this theory 
 it was incumbent upon the agent to hold himself in readiness, at 
 all times, to perform the service, and having done so, he was per- 
 mitted at the end of the term to recover his wages as such, 
 the same as if he had in fact performed the service. If the 
 wages were to be paid in installments, he might, under this rule, 
 sue for and recover them as they became due.^ By holding him- 
 self in readiness to perform, but being wrongfully prevented by 
 the principal, he was deemed in law to have constructively per- 
 formed. This doctrine is, however, as is said by a learned judge,* 
 so opposed to principle, so clearly hostile to the great mass of 
 the authorities, and so wholly irreconcilable to that great and 
 beneficent rule of the law that a person discharged from service 
 must not remain idle but must accept employment elsewhere, if 
 offered, that it cannot be sustained. If a person discharged from 
 service may recover wages or treat the contract as still subsist- 
 ing, then he must remain idle in order to be always ready to per- 
 form the service. He is placed in the predicament of being 
 called upon by one rule of law to accept other employment if 
 offered, and by another rule to remain idle in order to recover 
 full wases. The doctrine is also not only at war with principle, 
 but with the rules of political economy, as it encourages idleness 
 
 > Howard v. Daly, 61 N. Y. 362, 19 B. 160; Gooiiman v. Pocock. 15 Ad, 
 
 Am. Rep. 285; James t. Allen &E11. (N. S.) 582. 
 
 Couuty, 44 Ohio St. 226, 58 Am. « Strauss v. Meertief, 64 Ala. 299, 
 
 Rep. 821; Richardson v. Eagle 38 Am. Rep. 8; Davist). Ayres, 9 Ala. 
 
 Machine Works, 78 Ind. 422, 41 Am. 292; Ramey v. Holcombe, 21 Ala. 
 
 Rep. 584; Archard ». Hornor, 3 C. & 567; Fowler v. Armour, 24 Ala. 194. 
 
 P. 349; Smitli v. Hay ward, 7 Ad. & ^ Strauss v. Meertief. 64 Ala. 299, 
 
 Ell. 544; Aspdin x. Austin, 5 Ad. & 38 Am. Rep. 8; Davis v. Preston, 6 
 
 Ell. (N. S.) 671; Fewings v. Tisdal. 1 Ala. 83. 
 
 Exch. 295; Elderton v. Emmons, 6C. « Dwight, C. in Howard v. Daly, 
 
 61 N. Y. 362, 19 Am. Rep. 285. 
 
 450
 
 Ohap. lY.] LIABILITY OF PKINCIPAL TO AGENT. § 622. 
 
 and gives compensation to men who fold their arms and decline 
 service, equal to those who perform with willing hands their 
 stipulated amount of labor. 
 
 If the action is brought at once upon the discharge, the 
 measure of damages ys, prima facie a sum equal to the stipulated 
 compensation.' This sum, however, the principal maj reduce if 
 possible by showing the probability of the agent's being able to 
 secure other employment before the term would have expired. 
 The burden of this proof would be upon the defendant.' If 
 this rule seems harsh, it is to be remembered that the principal 
 has brought the action upon himself by his own wrongful act, 
 and it is but just that if there be doubt as to the agent's finding 
 other employment, the burden of it should fall upon him who 
 might have prevented any doubt at all by performing his agree- 
 ment. The damages for the breach of contract could not exceed 
 the stipulated sum.' The agent is entitled to compensation, but 
 not to be placed in a better situation than he would have been if 
 the principal had not made default. Where the action is not 
 brought until the end of the term, the measure of dam- 
 ages can then be more certainly ascertained. It will then be 
 known how much the agent has been able to earn,* or by the 
 exercise of reasonable diligence might have earned,* at other 
 employment, and to this extent therefore the principal's liability 
 is diminished. The rule in this case, as in the other, is compen- 
 
 » Ricks c. Yates, 5 Ind. 115; Rich- Bench, 508; Utter v. Chapman, 38 
 
 ardsoa ®. Eagle Machine Worlis, 78 Cal. 659; Williams v. Chicago Coal 
 
 Ind. 423, 41 Am. Rep. 584; Howard Co., 60 111. 149; Gazette Printing Co. 
 
 •n. Daly, supra; Callo v. Brouncker, 4 «. Morss, 60 Ind. 153; Sutherland v. 
 
 C. «fe P. 518; Fawcett v. Cash. 5 B. «& Wyer, 67 Me. 64; Railroad Co. e. 
 
 Ad. 904; Ansley v. Jordan, 61 Ga. Slack, 45 Md. 161; Williams v. An- 
 
 482; Webster v. Wade, 19 Cal. 291; derson, 9 Minn. 50; Leatherberry v. 
 
 Utter V. Chapman, 38 Cal. 659; Odell, 7 Fed. Rep. 641; Squire v. 
 
 Gazette Printing Co. «. Morss, 60 Ind. Wright, 1 Mo. App. 172; King z. 
 
 153; Jaffray «. King, 34 Md. 217; Steiren, 44 Penn. St. 99; Kirk ». 
 
 Railroad Co. v. Slack, 45 Md. 161; Hartman, 63 Penn. St. 97; Barker v. 
 
 Horn V. Western Land Assn., 22 Knickerbocker L. Ins. Co., 24 Wis. 
 
 Minn. 233; Hunt v. Crane, 33 iliss. 630. 
 569, 69 Am. Dec. 381. ^ Gazette Printing Co. v. Morss, 60 
 
 8 Howard v. Daly, 61 N. Y. 362, 19 Ind. 153; Williams v. Chicago Coal 
 
 A.m. Rep. 285; Ricks v. Yates, 5 Ind. Co., 60 111. 149; Railroad Co. v. Slack, 
 
 115. supra; Congregation c. Peres, 3 
 
 « Meade v. Rutledge, 11 Tex. 44. Coldw. (Tenn.) 620. 
 
 « Emmens v. Elderton, 13 Com. 
 
 451
 
 § 623. THE LAW OF AGENCY. [Book TV. 
 
 sation to the agent. Prima facie the stipulated sum would be 
 the measure of the damages, and the burden is upon the princi- 
 pal to establish either that the agent has obtained other employ- 
 ment or that he might by the exercise of reasonable diligence 
 have so obtained it* 
 
 This action proceeds, as has been said, for the breach of the 
 contract, and the right of action accrues upon the breach. In 
 cases, therefore, of employment for a long term of years, the 
 ao-ent by deferring his action until the end of the term, would 
 incur the liability of having the Statute of Limitations operate 
 against his claim. 
 
 If the ao-ent is informed that his authority is revoked or that 
 he will not be permitted to continue its execution, he is justified 
 in accepting this as conclusive. It is not necessary that he 
 should go through the barren form of offering to perform. His 
 readiness may be shown by other evidence.* 
 
 § 623. Same Subject— Duty of Agent to seek other Employ- 
 ment. It is the duty of the agent wrongfully discharged to ex- 
 ercise reasonable diligence in seeking and obtaining other employ- 
 ment, and thus to reduce his damages as far as he is able.* 
 
 This rule, however, does not impose upon the agent the duty 
 to accept any other employment that may be offered. By other 
 employment is meant employment of the same general nature 
 but not that which is of an entirely different or more menial 
 
 kind.* 
 
 Thus a person employed as a bookkeeper would not be com- 
 pelled to accept employment as a farm laborer, nor would a per- 
 
 I Ansley «. Jordan, 61 Ga. 483; Beckham t. Drake, 9 M. «fc W. 79; 
 
 Horn n. Western Land Ass'n, 22 Emraens v. Elderton, 13 Com. Bench 
 
 Minn. 233; Howard v. Daly, 61 N. 508; Utter ». Chapman, 38 Cal. 659; 
 
 Y. 363, 19 Am. Rep. 285; Leather- Williams v. Chicago Coal Co., 60 111. 
 
 berry ^. Odell, 7 Fed. Rep. 641; King 149; Stone c. Vimont, 7 Mo. App. 
 
 r, Steiren, 44 Penn. St. 99; Kirk v. 277; Chamberlin®. Morgan, 08 Penn. 
 
 Hartman.'eS Penn. St. 97; Barker B. St. 168; Shannon v. Comstock, 21 
 
 Knickerbocker Life Ins. Co., 24 Wis. Wend. (N. T.) 457; King v. Steiren, 
 
 g3Q 44 Penn. St. 99; Armfleld «. Nash, 31 
 
 « Howard -o. Daly, 61 N. Y. 362, Miss. 361 ; Ward v. Ames, 9 Johns. 
 
 19 Am. Rep. 285; Carpenter v. Hoi- (N. Y.) 138. 
 
 comb, 105 Mass. 284; Wallis c War- < Wolf v. Studebaker, 65 Penn. St. 
 
 ren 4 Exch 361; Levy r. Lord Her- 459; Cost iganu Railroad Co., 2 Denio 
 
 berl. 7Taunt. 314. (K Y.) 609; Sheffield v. Page, 1 
 
 •Goodman «. Pocock, 15 Q.B. 574; Sprague (U. S. D. C.) 285. 
 
 452
 
 Chap. lY.] LIABILITY OF PRINCIPAL TO AGENT. § 624. 
 
 son employed as an actor or singer be under obligation to accept 
 employment as a clerk in a store. 
 
 Neither is the agent ordinarily bound to seek employment in 
 another locality,^ nor with an objectionable employer.' The 
 question of locality, however, is one depending upon the facts 
 and circumstances of each case. What might reasonably be 
 deemed the same locality in the case of one employment might 
 not coincide with a like view of another employment. If hav- 
 ing made a reasonable effort to find other employment but with- 
 out success, the agent then does work for himself the principal is 
 not ordinarily entitled to have the value of it deducted from the 
 agent's claim.' Were the agent to embark in some regular busi- 
 ness upon his own account this rule might be different.* 
 
 § 624. Wlien Eight of Action accrues. The right of action 
 accrues when the breach of contract occurs. Where the agent 
 is wrongfully discharged after entering upon the performance of 
 his agency, there can be no question, as has been seen, that he 
 has then a cause of action, for the breach." 
 
 Where, however, before the time arrives for performance to 
 begin and before the agent has entered upon it, the principal re- 
 pudiates the contract and informs the agent that he will not per- 
 mit him to undertake the performance of it when the perform- 
 ance is due, some question has arisen whether such repudiation 
 may be treated as a present breach, or whether the agent must 
 wait until the time for performance arrives and then tender his 
 services. The weight of authority both in England and America, 
 sustains the doctrine of a present breach in case of such repu- 
 diation.* 
 
 The theory of the decisions in this class of cases is, that there 
 
 » Harrington v. Gies, 45 Mich. 374; Strauss v. Mertief, 64 Ala. 299, 88 
 
 Strauss v. Meertief, 64 Ala. 299, 38 Am. Rep. 8. 
 
 Am. Rep, 8. sHariiogton v. Gies, 45 Mich. 374. 
 
 **'Any reasonable objection, be- < See Perry ?). Simpson Waterproof 
 
 cause of capacity, reputation, mode Mfg. Co., 37 Conn. 520. 
 
 of dealing and transacting business, s gee ante, § 621.. 
 
 or of habits or morals, which could « Dugan v. Anderson, 36 Md. 567, 
 
 be made to the person from whom 11 Am. Rep. 509; Howard v. Daly, 
 
 employment could be obtained, would 61 N. Y. 362, 19 Am. Rep. 285; 
 
 afford a justification to the plaintiff Kochster v. Be la Tour, 2 E. & B. 
 
 for rejecting it when offered, or ex- 678; Danube & Black Sea Ry Co. v. 
 
 cuse him from not making exertion Xenos, 13 Com. Bench (N. S.) 825. 
 
 to secure it." Bkickell, C. J., in This prmciple has been frequently 
 
 453
 
 § G24. THE LAW OF AGENCY. [Book lY. 
 
 is a breacli of the contract when the principal repudiates it and 
 declares he will no longer be bound by it. The agent has an 
 inchoate right to the performance of the bargain which becomes 
 complete when the time for performance has arrived. In the 
 meantime, he has a right to have the contract kept open as a sub- 
 sisting and effective contract. Its unimpaired and unimpeached 
 efficacy may be essential to his interests. His rights acquired 
 under it may be dealt with in various ways for his benefit and 
 advantage. Of all such advantages the repudiation of the con- 
 tract by the principal, and the announcement that it never will 
 be fulfilled, must, of course, deprive him. It is therefore quite 
 right to hold that such an announcement amounts to a violation 
 of the contract in omnibus, and that upon it, the agent, if he so 
 elect, may at once treat it as a breach of the entire contract and 
 bring his action accordingly. The contract having been thus 
 broken by the principal, and treated as broken by the agent, per- 
 formance at the appointed time becomes excluded, and the breach, 
 by reason of the future non-performance, becomes virtually in- 
 volved in the action as one of the consequences of the repudia- 
 tion of the contract, and the eventual non-performance may 
 therefore, by anticipation, be treated as a cause of action, and 
 damages be assessed and recovered in respect of it, though the 
 time for the performance may yet be remote. Such a course, it 
 is said, must lead to the convenience of both parties, and though 
 decisions ought not to be founded upon grounds of convenience 
 alone, they yet tend strongly to support the view that such an 
 action ought to be admitted and upheld. By acting on such a 
 notice of the intention of the principal, the agent may in n)any 
 cases avert, or at all events materially lessen, the injurious effects 
 which would otherwise flow from the non-fulfillment of the con- 
 tract ; and in assessing the damages for breach of the perform- 
 ance, a jury will, of course, take into account whatever the agent 
 has done or has had the means of doing, and, as a prudent man, 
 
 applied in sustaining an immediate Rep. 208; Frost v. Knight, L. R. 7 
 
 right of action for breach of a prom- Ex. Ill, 1 Eng. Rep. (Moak) 218, 5 
 
 ise to marry where before the time Albany L. Jour. 235. 
 
 arrives the defendant utterly repu- Upon the general principle of the 
 
 diates it and declares that he will not right of action before time for per- 
 
 perform it. Burtis ??. Thompson, 43 formance arrives, see Daniels ». New- 
 
 N. Y. 246, 1 Am. Rep. 516; Hollo- ton, 114 Mass. 530, 19 Am. Rep. 384. 
 way V. Griffith, 32 Iowa, 409, 7 Am. 
 
 454
 
 Chap. IV.] LIABILITY OF PRINCIPAL TO AGENT. § 629. 
 
 ought in reason to have done, whereby his loss has been, or would 
 have been, diminished.' 
 
 § 625. No Damages if Agent acq.uiesces in Discharge. If 
 the agent, though wrongfully discharged acquiesces in, and con- 
 sents to, the termination of the agency, no damages can be 
 recovered for it.* But in order to effect this result the evidence 
 of acquiescence must be clear. The mere fact that the agent 
 did not protest, or that he peaceably and quietly surrendered his 
 trust, would not justify a claim of acquiescence. 
 
 2. Revocation hy Operation of Law. 
 
 § 626. No Damages where Agency revoked by Death of the 
 Principal. As has been seen, tlie death of the principal, by 
 operation of law, revokes the agency. The agent in such a case 
 is, of course, entitled to the compensation earned up to the time 
 of the death, but he is afterwards entitled neither to future wages 
 nor to damages for the termination of the agency'.' 
 
 § 627. Same Eule where Agency revoked by Insanity of the 
 Principal. And the same rule would probably be applied where 
 the agency is revoked by the after-occurring insanity of the 
 principal. 
 
 § 628. Bule where Agency revoked by Bankruptcy of 
 Principal. But the fact that the principal becomes bankrupt 
 furnishes no defense to an action brought by an agent, employed 
 for a definite time, to recover damages for a refusal or neglect of 
 the principal to employ him after the bankruptcy.* 
 
 § 629. Rule whero Agency revoked by Death of the Agent. 
 Where the agency is terminated before full performance, by the 
 death of the agent, his representatives are entitled to recover the 
 value of his services already rendered. And even in the case of 
 an entire contract for the performance of a given service, the 
 representatives of the deceased agent may recover the value of 
 the services rendered less the damages, if any, sustained by the 
 principal from the non-performance of the undertaking." 
 
 'MrLLEB, J., in Dugan ®. Anderson, < Lewis c. Atlas Mutual Life Ins. 
 
 36 Md. 567, 11 Am. Rep. 509. Co., 61 Mo. 534; Vauuxem v. Bost- 
 
 8 Patnote v. Sanders, 41 Vt. 66; wick, — Penn. St. — , 7 Atl. Rep. 598. 
 
 Boyle «. Parker, 46 Vt. 343. s Ricks®. Yates, 5 Ind. 117; Per- 
 
 • Yerrington v. Greene, 7 R. I. 589, sons v. McKibben, Id. 261; Wolfe «. 
 
 84 Am. Dec 578. Howes, 20 N. Y. 197, 75 Am. Dec. 388. 
 
 455
 
 § G30. THE LAW OF AGENCY. [Book lY. 
 
 § 630. Rule where Agency revoked by Insanity of the Agent. 
 Where the agency is terminated by the agent's insanity, the 
 question of his rights and liabilities would be determined by the 
 same principles which govern in the case of his sickness or other 
 incapacity, — a subject considered in the following section. 
 
 § 631. How when Agency terminated by Agent's Sickness or 
 Incapacity. Where the agency is terminated by the sickness or 
 other physical disability of the agent, which incapacitates him 
 from completing the performance of his undertaking, he will be 
 entitled to recover the reasonable value of his services 
 up to the time of his incapacity. And even though the 
 contract be entire to perform- a stipulated service for a 
 stipulated price, so that, under other circumstances, full perform- 
 ance would ordinarily be considered a condition precedent to the 
 right to recover compensation, yet if the agent be disabled by 
 sickness or other act of God from accomplishing a full perform- 
 ance, he is entitled to recover the reasonable value of his ser- 
 vices, less the probable cost of completing the undertaking.^ If, 
 however, the sickness was such that it could have been antici- 
 pated at the time the service was undertaken, this rule would 
 not apply.' 
 
 3. Abandonment hy Agent. 
 
 § 632. 1. When Abandonment lawful. Where the agency is 
 created to endure for an indefinite period, it is, as has been seen, 
 ordinarily held to be an agency at will merely and it may be 
 lawfully terminated by either party at his will at any time.* 
 Analogous to this is the somewhat common arrangement that 
 the relation shall continue so long as each of the parties or 
 either of the parties, is satisfied. In the event of dissatisfaction, 
 the party having the option may lawfully terminate the agency 
 
 » Fuller t). Brown, 11 Mete. (Mass.) 'Jennings v. Lyons, 29 Wis. 553, 
 
 440; Ryane. Dayton, 25 Conn. 188, 20 Am. Rep. 57. 
 
 65 Am. Dec. 560; Green v. Gilbert, » DeBiiar v. Minturn, 1 Cal. 453; 
 
 21 "Wis. 395; Hillyard ®. Crabtree, 11 Franklin Mining Co. v. Harris, 24 
 
 Tex. 264; Fenton v. Clark, 11 Vt. Mich. 115; Palmer u Marquette, &c. 
 
 557: Seaver r. Morse, 20 Vt. 620; Co., 32 Mich. 274; Tatterson e. Suf- 
 
 Coe D. Smith, 4 Ind. 79; Wolfe folk Mnfg. Co., 106 Mass. 56; Harper 
 
 «. Howes, 20 N. Y. 197, 7o Am. Dec. «. Hassard, 113 Mass. 187; Peacock©. 
 
 888; Lakeman v. Pollard, 43 Me. 463, Cummings, 46 Penn. St. 434. 
 69 Am. Dec. 77. 
 
 456
 
 Chap. TV.] LIABILITY OF PRTiXCIPAL TO AGENT. § 634. 
 
 upon that ground.' In cases of this nature tliere being no 
 agreement to continue the agency for a definite time, no for- 
 feiture can result from its termination by the party having 
 the right. The agent, therefore, would be entitled to recover 
 the stipulated compensation for the services rendered without 
 diminution on the ground of the termination of the agency. 
 
 The same result ensues, also, in those cases in which the 
 agency, though primarily for a definite time, may, by the terms 
 of the contract creating it, be terminated upon the happening of 
 a given event, or the arising of a certain contingency. If termi- 
 nated in the manner and upon the event specified, the agent may 
 recover full compensation for the services rendered.* 
 
 So though employed for a definite time, if the conduct of the 
 principal is such as to justify the agent in abandoning the service, 
 the agent will be entitled to recover the value of his services.* 
 
 § 633. 2. When Abandonment wrongful. But where, on 
 the other hand, the agent has agreed that he will continue to act 
 for a definite period; or that he will fully perform a given 
 undertaking ; or that he will terminate the relation only upon 
 the happening of a certain event or the arising of a certain con- 
 tingency ; or that he will not terminate it in any case without 
 giving a specified notice ; and he does terminate it in violation of 
 this agreement, without good cause, the termination in the sense 
 of which we have spoken, as being a breach of his contract, must 
 be regarded as wrongful.* True, as has been seen," he has the 
 ^ower to terminate it. The law will not compel him to continue 
 performance in accordance with his agreement. But under his 
 contract, his right to terminate is suspended and if he insists 
 upon exercising his power, he must answer for the broken 
 contract.* 
 
 § 634. Same Subject— Entire and severable Contracts— Right 
 to Compensation. The question of the right to recover com- 
 
 • Spring V. Ansonia Clock Co., 34 Atl. Rep. 820; Patterson «. Gage, 23 
 Hun (N. Y.) 175; Provost v. Har- Vt. 558, 56 Am. Dec. 96; Warner ». 
 wood, 29 Vt. 219; Rossiter v. Cooper, Smith. 8 Conn. 14. 
 
 23 Vt. 522; Patrick v. Putnam, 27 Vt. * See ante, § 233, 
 
 759. 6 See ante, § 233. 
 
 2 Winship v. Base Ball Association, • Word v. Winder, 16 La. Ann. 
 
 78 Me. 571. 111. 
 
 • Bishop 9. Ranney, — Vt. — 7 
 
 457
 
 § 634. THE LAW OF AGENOT. [Book IV. 
 
 pensation for services rendered in part performance of an 
 undertaking to act for a given period, or to accomplish a given 
 object, but which has been abandoned by the agent before full 
 performance, is one of the most vexatious and difficult ones in 
 the law. It is certain that the parties may expressly agree that 
 no compensation shall be paid unless the undertaking is per- 
 formed, and in such a case if the agent abandons the undertak- 
 ing, without fault of the principal, before full performance, he 
 cannot recover. Full performance is here expressly made a 
 condition precedent to the right to compensation.' 
 
 But the most difficult question arises where the agreement i8 
 not thus express and it becomes necessary to determine whether 
 under all the facts and circumstances of a given case full per- 
 formance was intended by the parties to be a condition precedent. 
 In determining this question it is important to ascertain whether 
 the contract is entire or severable. As is well said by Mr. Par- 
 sons in his treatise on Contracts,* no precise rules can be given by 
 which this question in a given case may be settled. Like most 
 other questions of construction it depends upon the intention of 
 the parties, and this must be discovered in each case by consider- 
 ing the language employed and the subject-matter of the contract. 
 If, says he, the part to be performed by one party consists of 
 several distinct and separate items, and the price to be paid by 
 the other is apportioned to each item to be performed or is left 
 to be implied by law, such a contract will generally be held to be 
 severable. And the same rule holds where the price to be paid 
 is clearly and distinctly apportioned to different parts of what is 
 to be performed, although the latter is in its nature single and 
 entire. But if on the other hand, the consideration to be paid 
 is entire and single, the contract must be held to be entire, 
 although the subject of the contract may consist of several dis- 
 tinct and wholly independent items. In accordance with this 
 rule a contract by which A agrees to serve B for an indefinite 
 time at a given sum per month, would be held to be severable.* 
 So an agreement by A to serve B for one year at a certain sum per 
 month to be paid at the expiration of each month, is so far sever- 
 able that A would have a right of action for the stipulated sum 
 
 > See ante, § 610. • Idem, p. *521, 
 
 * Parsons on Contracts, 7th Ed. 
 Vol. 2 p. *517. 
 
 458
 
 Chap. lY.] LIABILITY OF PRINCIPAL TO AGENT. § C35. 
 
 at the expiration of each month.' But a contract by A to serve 
 B for one year for a given sum is plainly entire.' And so a 
 contract by A to serve B for one year for a given sum per month 
 is held to be entire.' In both cases, no time for payment being 
 specified, the law presumes that it was to be paid only when the 
 year's service was performed.* 
 
 So a contract to perform a given duty for a given sum would 
 be entire,' but a contract to perform the same duty for a given 
 sum to be paid in installments as the performance progressed 
 would be severable so far as the right to recover ithe several 
 installments is concerned.' 
 
 § 635, Same Subject— The Rules stated. "Where the contract 
 was thus found to be entire, it was early established as the doc- 
 trine of the common law that full performance of it was a con- 
 dition precedent to the right to recover the stipulated compensa- 
 tion." If the agent should voluntarily fail, though by a single 
 day, to complete the designated term, he could recover nothing 
 upon the contract for all the services previously rendered, be- 
 cause the contract had not been fully performed on his part. 
 Neither could a recovery be had upon the basis of an implied 
 
 » See Capron«. Strout, llNev. 304; 10 Mete. (Mass.) 449; Eldridge e. 
 
 Thayer v. Wadsworth, 19 Pick. Rowe, supra; Rex v. Birdbrooke, 4 T. 
 
 (Mass.) 849. R. 245; Diefenback ». Stark, 56 Wis. 
 
 2 Stark V. Parker, 2 Pick. (Mass.) 463, 43 Am. Rep. 719 ; Jennings v. 
 
 267, 13 Am. Dec. 425. In this case Lyons, 39 Wis. 553, 20 Am. Rep. 57. 
 
 the party agreed to work for one A contract with a teacher to teach 
 
 year for $120. Eldridge v. Rowe, 3 ten mouths at a given sum per 
 
 Gilm. (111.) 91, 43 Am. Dec. 41; Miller month is entire. Wilson v. Board of 
 
 V. Goddard, 34 Me. 102, 56 Am. Dec Education, 63 Mo. 137. 
 
 638. Put see Purcell v. McComber, < Davis v. Maxwell, 12 Mete. 
 
 11 Neb. 209, re-reported in aote to 35 (Mass.) 286. 
 
 Am. Rep. 476. ^ Reab v. Moor, 19 Johns. (N. Y.) 
 
 'Thus a contract to work "for 337. 
 
 eight months for $104, or $13 a • Woods v. Russell, 5 B. and Aid. 
 
 month," is entire. Reab v. Moor, 19 942; Clarke v. Spence, 4 A. & E. 448; 
 
 Johns. (N. Y.) 337. So a contract to Laidler v. Burlinson, 2 M. &, W. 
 
 work "seven months at $12 per 602; Cunningham v. Moirell, 10 
 
 month," was held to be an entire con- Johns. (N. Y.) 203, 6 Am. Dec. 332. 
 
 tract to pay $84, at the end of the ' Spain v. Arnott, 2 Stark. 256; 
 
 seven months and not a contract to Cutter c. Powell. 6 T. R. 320; Ellis 
 
 pay $12, at the end of each month. v. Hamlen, 3 Taunt, 51; Sinclair e, 
 
 Davis V. Maxwell, 12 Mete. (Mass.) Bowles, 9 B. «& C. 92; Waddington 
 
 286. See also Nichols v. Coolahan, v. Oliver, 2 B. & P. (N. R.) 61. 
 
 459
 
 § 635. 
 
 THE LAW OF AGENCY. 
 
 [Book IV. 
 
 contract to pay for the services actually rendered, because the 
 existence of the express contract left no room for an implied 
 one. Expressum facit cessare taciturn was the maxim applied.* 
 And this rule has been adopted and still prevails in the majority 
 of the American States.' 
 
 In declaring this rule in a leading case ' it is said by the learned 
 judge: "Courts of justice are eminently characterized by their 
 obligation and office to enforce the performance of contracts, and 
 to withhold aid and countenance from those who seek, through 
 their instrumentality, impunity or excuse for the violation of 
 them. And it is no less repugnant to the well established rules 
 of civil jurisprudence, than to the dictates of moral sense, that 
 a party, who deliberately and understandingly enters into an 
 engagement and voluntarily breaks it, should be permitted to 
 make that very engagement the foundation of a claim to com- 
 pensation for services under it. The true ground of legal de- 
 mand in all cases of contracts between parties is that the party 
 claiming has done all which on his part was to be performed by 
 the terras of the contract to entitle him to enforce the obligation 
 
 « Stark «. Parker, 2 Pick. (Mass.) 
 267, 13 Am. Dec. 425. 
 
 sLantry t. Parks, 8 Cow. (N. Y.) 
 63; Smith v. Brady, 17 N. Y. 173, 72 
 Am. Dec. 442; Olmstead «. Beale, 19 
 Pick (Mass.) 528; Thayer v. Wads- 
 worth, Id. 349; Davis v. Maxwell, 12 
 Mete. (Mass.) 290; Starke. Parker, 2 
 Pick. (IVIass.) 267, 13 Am. Dec. 425; 
 Benson v. Hampton, 32 Mo. 408; 
 Posey V. Garth, 7 Mo. 96, 37 Am. 
 Dec. 183; Caldwell v. Dickson, 17 
 Mo. 575; Schnerr «. Lemp, 19 Mo. 
 40; Brown v. Fitch, 33 N. J. L. 418; 
 Bragg V. Bradford, 33 Vt. 35; Patnote 
 ». Sanders, 41 Vt. 66; Ripley v. Chip- 
 man, 13 Vt. 268; Martin v. Schoen- 
 berger, 8 W. & S. (Penn.) 367; Alex- 
 ander V. Hoffman, 5 Id. 382; Dunn v. 
 Moore. 16 111. 151 ; Eldridge v. Rowe, 
 2 Gilm. (111.) 91, 43 Am. Dec. 41; 
 Mack V. Bragg, 30 Vt. 571; Clark v. 
 School District, 29 Vt. 217; De Camp 
 V. Stevens, 4 Blackf. (Ind.) 24; Hutch- 
 inson V. Wetmore, 2 Cal. 310, 56 Am. 
 
 Dec. 337; Hogan v. Titlow, 14 Cal. 
 73; Miller v. Goddard, 34 Me. 102, 56 
 Am. Dec 638; Green v. Gilbert, 21 
 Wis. 395; Evans v. Bennett, 7 Wis. 
 404; Henderson®. Stiles, 14 Ga. 135; 
 Cody®. Raynaud, 1 Col. 272; Giv- 
 han V. Dailey, 4 Ala. 336; Whitley v. 
 Murray, 34 Ala. 155; Aberoathy ». 
 Black, 2 Cold. (Tenn.) 314; Larkin v. 
 Buck, 11 Ohio St. 561; Halloway ». 
 Lacy, 4 Humph. (Tenn.) 468; Clark 
 v. Gilbert, 26 N. Y. 279; Holmes c. 
 Stummel, 24 111. 370; Jewell v. 
 Thompson, 2 Litt. (Ky.) 52; Morford 
 «. Ambrose, 3 J. J. Marsh. (Ky.) 688; 
 Preston v. American Linen Co., 119 
 Mass. 400; Byrd v. Boyd, 4 McCord. 
 (S. C.)246; Cox v. Adams, 1 N. & 
 McC. (S. C.) 284; Steamboat Co. v. 
 Wilkins, 8 Vt. 54; Sherman v. Trans- 
 portation Co., 31 Vt. 162; Dover v. 
 Plemraons, 10 Ired. (N. C.) L. 28; 
 Angle V. Hanna. 22 111. 429. 
 
 3 Lincoln, J., in Stark v. Parker, 3 
 Pick. (Mass.) 267, 13 Am. Dec. 425. 
 
 460
 
 Chap. IV.] LIABILITY OF PRINCIPAL TO AGENT. § 635. 
 
 of the other party. * * ♦ It will be found that a distinction 
 has been uniformly recognized in the construction of contracts 
 between those in which the obligation of the parties is reciprocal 
 and independent, and those where the duty of the one may be 
 considered as a condition precedent to that of the other. In the 
 latter cases it is held that the performance of the precedent 
 obligation can alone entitle the party bound to it to his action. 
 * * * Nothing can be more unreasonable than that a man 
 who deliberately and wantonly violates an engagement should be 
 permitted to seek, in a court of justice, an indemnity from the 
 consequences of his voluntary act, and we are satisfied that the 
 law will not allow it. * * * The agreement of the defend- 
 ant was as entire on his part to pay, as that of the plain tiflf to 
 serve. The latter was to serve one year, the former to pay one 
 hundred and twenty dollars. * * * The performance of a 
 year's service was in this case a condition precedent to the obli- 
 gation of payment. The plaintiff must perform the condition 
 before he is entitled to recover anything under the contract; and 
 he has no right to renounce his agreement and recover upon a 
 quantum meruit.^ * * * The law, indeed, is most reasonable 
 in itself. It denies only to a party an advantage from his own 
 wrong. It requires him to act justly, by a faithful performance 
 of his own engagements, before he exacts the fulfillment of de- 
 pendent obligations on the part of others. It will not admit of 
 the monstrous absurdity that a man may voluntarily and without 
 cause violate his agreement, and make the very breach of that 
 agreement the foundation of an action which he could not main- 
 tain under it. An apprehension that this rule may be abused to 
 the purposes of oppression by holding out an inducement to the 
 employer, by unkind treatment, near the close of a term of ser- 
 vice, to drive the laborer from his engagement to the sacrifice of 
 his wages, is wholly groundless. It is only in cases where the 
 desertion is voluntary and without cause on the part of the 
 laborer, or fault or consent on the part of the employer, that the 
 principle applies. Wherever there is a reasonable excuse, the 
 law allows a recovery. To say that this is not a sufficient pro- 
 
 > Citing McMillan v. Vanderlip, 12 837; Waddington v. Oliver, 2 B. «fc P. 
 
 Johns. (N. Y.) 165, 7 Am. Dec. 299; (N. R.) 61; Ellis v. Hamlen 8 Taunt. 
 
 Jennings v. Camp, 18 Id. 94, 7 Am. 51. 
 Dec. 867; and Reab v. Moor, 19 Id. 
 
 461
 
 § CoG. THE LAW OF AGENCY. [Boolc IV. 
 
 tection, that an excuse may in fact exist in countless secret and 
 indescribable circumstances, which from their very nature are 
 not susceptible of proof, or which, if proved, the law does not 
 recognize as adequate, is to require no less than that the law 
 ehould presume what can never be legally established, or should 
 admit that as competent which by positive rules is held to be 
 wholly immaterial." 
 
 § 636. Same Subject— The more liberal Rule— Britton v. Turner. 
 This rule, however, while perhaps strictly and severely just, as a 
 principle of retributive justice has not met with universal ap- 
 proval, and a strong tendency has been manifested in many cases 
 to mitigate its severity by the application of a more liberal and 
 equitable principle, and to allow the agent, though in default, to 
 recover the actual value of his services to the principal. 
 
 The principles adopted in such cases are so clearly enunciated 
 in the justly celebrated case of Britton v. Turner,^ as to justify, 
 perhaps, a somewhat liberal extract from it, particularly inasmuch 
 as the contract and breach were there exactly the same as in the 
 leading case of Stark v. Parker to which reference has just been 
 made, and where an opposite conclusion was reached. "It may 
 be assumed," said Pakker, J., " that the labor performed by the 
 plaintiff, and for which he seeks to recover a compensation in this 
 action, was commenced under a special contract to labor for the 
 defendant the term of one year for the sum of one hundred and 
 twenty dollars, and that the plaintiff has labored but a portion of 
 that time, and has voluntarily failed to complete the entire con- 
 tract. It is clear, then, that he is not entitled to recover upon 
 contract itself, because the service, which was to entitle him to 
 the sum agreed upon, has never been performed. But the ques- 
 tion arises, can the plaintiff, under these circumstances, recover a 
 reasonable sum for the service he has actually performed under 
 the count in quantuTn ineruit ? 
 
 Upon this, and questions of a similir nature, the decisions to be 
 found in the books are not easily reconciled. 
 
 It has been held, upon contracts of this kind for labor to be 
 performed at a specified price, that the party who voluntarily fails 
 to fulfill the contract, by performing the whole labor contracted 
 for, is not entitled to recover anything for the labor actually per- 
 
 » 6 New Hampshire, 481, 26 Am. Dec. 718. 
 462
 
 Chap. IV.] LIABILITY OF PRINCIPAL TO AGENT. § 636. 
 
 formed, however much he may have done towards the perform- 
 ance, and this has been considered the settled rule of law upon 
 the subject.' 
 
 That such rule in its operation may be very unequal, not to say 
 unjust, is apparent. A party who contracts to perform certain 
 specified labor, and who breaks his contract in the first instance, 
 without any attempt to perform it, can only be made liable to 
 pay the damages which the other party has sustained by reason 
 of such non-performance, which in many instances may be tri- 
 fling ; — whereas a party who, in good faith, has entered upon the 
 performance of his contract and nearly completed it and then 
 abandoned the further performance — although the other party 
 has had the full benefit of all that has been done, and has, per- 
 haps, sustained no actual damage, — is in fact subjected to a loss 
 of all which has been performed, in the nature of damages for the 
 non-fulfillment of the remainder, upon the technical rule that the 
 contract must be fully performed in order to a recovery of any 
 part of the compensation. By the operation of this rule, then, 
 the party who attempts performance may be placed in a much 
 worse situation than he who wholly disregards his contract, and 
 the other party may receive much more, by the breach of the 
 contract than the injury which he has sustained by such breach, 
 and more than he could be entitled to were he seeking to recover 
 damages by an action. 
 
 The case before us presents an illustration. Had the plaintiff 
 in this case never entered upon the performance of his contract, 
 the damage could not probably have been greater than some small 
 expense and trouble incurred in procuring another to do the labor, 
 which he had contracted to perform. But having entered upon 
 the performance, and labored nine and a half months, the value 
 of which labor to the defendant, as found by the jury, is ninety- 
 five dollars, if the defendant can succeed in this defense, he in 
 fact receives nearly five-sixths of the value of a whole year's 
 labor, by reason of the breach of contract by the plaintiff, — a 
 Bum not only utterly disproportionate to any probable, not to say 
 
 ' Citing Stark v. Parker, 2 Pick. 13 Johns. (N. Y.) 94, 7 Am. Dec. 367; 
 
 (Mass.) 267, 13 Am. Dec. 425; Faxon Reab. v. Moor, 19 Johns. (N. Y.)337; 
 
 r. Mansfield, 2 Mass. 147; McMillan Lautry v. Parks, 8 Cow. (N. Y.) 63; 
 
 e. Vanderlip, 12 Johns. (N. Y.) 16.), Sinclair v. Bowles, 9 Barn. & Cress. 
 
 7 Am. Dec. 299; Jennings v. Camp, 92; Spain v. Arnott, 2 Stark 256. 
 
 4G3
 
 ft 636, THE LAW OF AGENCY. [Book lY. 
 
 possible, damages, which could have resulted from the neglect of 
 the plaintiff to continue the remaining two and a half months, 
 but altogether beyond any damage which could have been recov- 
 ered by the defendant had the plaintiff done nothing towards the 
 fulfillment of his contract. * * * 
 
 It is said that where a party contracts to perform certain work 
 and to furnish materials, as for instance, to build a house, and the 
 work is done, but with some variations from the mode prescribed 
 by the contract, yet if the other party has the benefit of the labor 
 and materials, he should be bound to pay so much as they are 
 reasonably worth.' * * * It is, in truth virtually conceded 
 in such cases that the work has not been done, for if it had been, 
 the party performing it would be entitled to recover upon the 
 contract itself, which, it is held, he cannot do. 
 
 Those cases are not to be distinguished, in principle, from the 
 present, unless it be in the circumstance that where the party 
 has contracted to furnish materials and do certain labor, as to 
 build a house in a specified manner, if it is not done according to 
 the contract, the party for whom it is built may refuse to receive 
 it— elect to take no benefit from what has been performed ; and 
 therefore if he does receive, he shall be bound to pay the value ; 
 whereas, in a contract for labor merely, from day to day, the 
 party is continually receiving the benefit of the contract under an 
 expectation that it will be fulfilled, and can not, upon the breach 
 of it, have an election to refuse to receive what has been done 
 and thus discharge himself from payment. 
 
 But we think this difference in the nature of the contracts does 
 not justify the application of a different rule in relation to them. 
 The party who contracts for labor merely, for a certain period, 
 does so with full knowledge that he must, from the nature of 
 the case, be accepting part performance from day to day, if the 
 other party commences the performance, and with knowledge also 
 that the other may eventually fail of completing the entire term. 
 If under such circumstances, he actually receives a benefit 
 from the labor performed, over and above the damage occasioned 
 
 » Citinc- 2 Stark. Ev. 97, 98; Hay- 564; Hayden e. Madison, 7 Greenl. 
 
 ward V. Leonard. 7 Pick. (Mass.) 181, (Me.) 78; Bull. N. P. 139; 4 Bos. & 
 
 19 Am. Dec. 268; Smith v. First Pul. 355; 10 Johns. (N. Y.) 36; 13 Id. 
 
 Cong. M. H., 8 Pick. (Mass.) 178; 97; 7 East. 479. 
 Jewell V. Schroeppel, 4 Cow. (N. Y.) 
 
 4:04
 
 Chap. lY.] LIABILITY OF PRINCIPAL TO AGENT. § 636, 
 
 by the failure to complete, there is as much reason why he should 
 pay the reasonable worth of what has thus been done for his bene- 
 fit, as there is when he enters and occupies the house which has 
 been built for him, but not according to the stipulations of the 
 contract, and which he, perhaps, enters, not because he is satisfied 
 with what has been done, but because circumstances compel him 
 to accept it such as it is, that he should pay for the value of the 
 house. * * * 
 
 In neither case has the contract been performed. In neither, 
 can an action be sustained on the original contract. In both, the 
 party has assented to receive what is done. The only difference 
 is, that in the one case the assent is prior, with a knowledge that 
 all may not be performed ; in the other, it is subsequent, with a 
 knowledge that the whole has not been accomplished. * * * 
 
 We hold, then, that where a party undertakes to pay upon a 
 special contract for the performance of labor, or the furnishing 
 of materials, he is not to be charged upon such special agreement 
 until the money is earned according to the terms of it ; and where 
 the parties have made an express contract, the law will not imply 
 and raise a contract different from that which the parties have 
 entered into, except upon some farther transaction between the 
 parties. 
 
 In case of a failure to perform such special contract by the de- 
 fault of the party contracting to do the service, if the money is 
 not due by the terms of the special agreement, he is not entitled 
 to recover for his labor, or for the materials furnished, unless the 
 other party receives what has been done or furnished, and upon 
 the whole case derives a benefit from it.' 
 
 But if, where a contract is made of such a character, a party 
 actually receives labor or materials and thereby derives a benefit 
 and advantage, over and above the damage which has resulted 
 from the breach of the contract by the other party, the labor ac- 
 tually done, and the value received furnish a new consideration, 
 and the law thereupon raises a promise to pay to the extent of the 
 reasonable worth of such excess. This may be considered as mak- 
 ing a new case, one not within the original agreement, and the 
 party is entitled to ' recover on his new case for the work done, 
 not as agreed, but yet accepted by the defendant.' • 
 
 * Citing Taft v. Montague, 14 Mass. « Citing 1 Danes Abr. 234. 
 
 282. 7 Am. Dec. 215; 3 Stark. Ev. 644. 
 
 30 465
 
 § 636. THE LAW OF AGENCY. [Book IV. 
 
 If on such failure to perform the whole, the nature of the con- 
 tract be such that the employer can reject what has been done, 
 and refuse to receive any benefit from the part performance, he 
 is entitled so to do, and in such case is not liable to be charged, 
 unless he has before assented to and accepted of what has been 
 done, however much the other party may have done towards the 
 performance. He has, in such case, received nothino;, and having 
 contracted to receive nothing but the entire matter contracted 
 for, he is not bound to pay, because his express promise was only 
 to pay on receiving the whole, and having actually received no- 
 thing, the law cannot and ought not to raise an implied promise 
 to pay. But where the party receives value, takes and uses the 
 materials, or has advantage from the labor, he is liable to pay the 
 reasonable worth of what he has received.' And the rule is the 
 same, whether it was received and accepted by the assent of the 
 part}' prior to the breach, under a contract by which, from its na- 
 ture, he was to receive labor from time to time until the comple- 
 tion of the whole contract; or whether it was received and 
 accepted by an assent subsequent to the performance of all which 
 was in fact done. If he received it under such circumstances as 
 precluded him from rejecting it afterwards, that does not alter the 
 case ; it has still been received by his assent. * * * 
 
 The benefit and advantage which the party takes by the labor, 
 therefore, is the amount of value which he receives, if any, after 
 deducting the amount of damage; and if he elects to put this in 
 defense he is entitled so to do, and the implied promise which 
 the law will raise, in such case, is to pay such amount of the sti- 
 pulated price for the whole labor, as remains after deducting what 
 it would cost to procure a completion of the residue of the ser- 
 vice, and also any damage which has been sustained by reason of 
 the non-fulfillment of the contract. If, in such case, it be found 
 that the damages are equal to, or greater than, the amount of the 
 labor performed, so that the employer, having a right to the full 
 performance of the contract, has not, upon the whole case, re- 
 ceived a beneficial service, the plaintiff can not recover. 
 
 This rule, by binding the employer to pay the value of the ser- 
 vice he actually receives, and the laborer to answer in damages 
 where he does not complete the entire contract, will leave no 
 
 » Citing Farnsworth v. Garrard, 1 Camp. 38. 
 466
 
 Chap. lY.] LIABILITY OF PRINCIPAL TO AGENT. § 637. 
 
 temptation to the former to drive the laborer from his service, 
 near the close of his term, bj ill-treatment, in order to escape 
 from payment ; nor to the latter to desert his service before the 
 stipulated time, without a sufficient reason ; and it will, in most 
 instances, settle the whole controversy in one action and prevent 
 a multiplicity of suits and cross-actions." 
 
 § 637. Same Subject— Further of the Rule of Britton v. 
 Turner. Concisely stated, the doctrine of this case may be said 
 to be that where a party fails to comply substantially with his 
 agreement, he can not, unless it is apportionable, sue or recover 
 upon the agreement at all. But where anything has been done 
 from which the other party has received substantial benefit and 
 which he has appropriated, a recovery may be had upon a 
 quantum meruit^ based upon that benefit. The basis of this 
 recovery is not the original contract, but a new implied agree- 
 ment dedncible from the delivery and acceptance of some valu- 
 able service or thing. The defaulting plaintiff can in no case 
 recover more than the contract price, and he cannot recover that 
 if his work is not reasonably worth it, or if, by paying it, the 
 rest of the work will cost the defendant more than if the whole 
 had been completed under the contract. 
 
 Notwithstanding much opposition, this rule has gradually 
 worked its way into judicial favor and is now adopted and en- 
 forced in Michigan,* Iowa," Nebraska,' Kansas,* Texas,' Indiana,* 
 
 » Allen «. McKibben, 5 Mich. 449. their way into professional and judi 
 2 Pixlur ». Nichols, 8 Iowa 106; Mc- cial favor. It is bottomed on jus- 
 Clay v. Hedge, 18 Id. 66; McAfferty tice and is right upon principle, how- 
 <o. Hale, 24 Id. 356; Byerlee v. Men- ever it may be upon the technical 
 dell, 39 Id. 382; Wolfe. Gerr, 43 Id. and more illiberal rules of the com- 
 339. In McClay ®. Hedge, Judge mon law as found in the older cases." 
 Dillon says: "This question was » Purcell t. McOmber, 11 Neb. 209; 
 settled in this State by the case of also reported in note to 35 Am. Rep. 
 Pixler V. Nichols, 8 Iowa 106, which 476. 
 
 distinctly recognized and expressly < Duncan v. Baker, 21 Kan. 99; 
 
 followed Biilton v. Turner, 6 N. U. also reported in note to 31 Am. Rep, 
 
 481. That celebrated case has been at p. 102. 
 
 criticised, doubted, and denied to be « Carroll «. Welch, 26 Tex. 147. 
 
 sound. It is frequently said to be « Coe y. Smith, 4 Ind. 82, 58 Am. 
 
 good equity but bad law; yet its Dec. 618; Ricks©. Yates, 5 Ind. 115. 
 principles are gradually winning 
 
 467
 
 § 638. THE LAW OF AGENCY. [Book lY. 
 
 Missouri' and Mississippi.* After some leaning in favor of it 
 in "Wisconsin, it has there been finally denied.' 
 
 § 638. Brief Absences no Abandonment, When. The ques- 
 tion of what shall be deemed to be an abandonment of the ser- 
 vices, is one to be determined by the facts and circumstances of 
 each case. There are undoubtedly cases in which instant and 
 constant attention and care are required, where any absence from 
 the post of duty might occasion serious if not irreparable loss. 
 In such cases a wilful absence of an hour might be deemed to be 
 an abandonment or furnish good cause for the dismissal of the 
 agent. But in other cases an absence for a day or more might 
 result in no loss and ought reasonably to be considered neither 
 ground for dismissal nor an abandonment of the service.* The 
 nature of the employment, the necessities of the case, the prob- 
 ability of loss, the reason of the absence, are all to be taken into 
 consideration, and it is for the jury to say, under all of the cir- 
 cumstances, whether there was an abandonment in fact, or 
 whether the principal was justified in treating it as such.* Thus 
 where the foreman of a fruit package factory, employed for a 
 year, was absent upon necessary and reasonable business for less 
 than a day, his absence involving no serious loss, it was held that 
 this was neither an abandonment of the service nor a good 
 ground for his dismissal;* so in another case, the absence of a 
 school teacher for four days, it not appearing that there was any 
 serious loss occasioned, or that the business of the school had 
 been impeded a single hour thereby, was held to be not a suflS- 
 cient reason for a discharge.' On the other hand, the absence 
 of a plantation overseer for a single day was held to be a sufficient 
 reason for his dismissal, it appearing that the absence was for the 
 purpose of provoking a discharge in order to create a cause of 
 action.* 
 
 > Downey v. Burke, 23 Mo. 228. Partington v. Wamsutta Mills, 110 
 
 » Robinson c. Banders, 24 Miss. 391. Mass. 467: Heber v. United States 
 
 »Diefenback v. Stark, 56 Wis. 463, Flax Mfg. Co., 13 R. I. 303; Naylere. 
 
 43 Am. Rep. 719. Fall River Iron Works, 118 Mass. 317. 
 
 * See cases cited in following notes. ' Shaver v. Ingham, supra. 
 
 See also Wood, Master v. Servant. ' Fillieul «. Armstrong, 7 Ad. & 
 
 Second Ed. p. 219. El. 557. 
 
 6 Shavers. Ingham, 58 Mich. 649, « Ford p. Danks, 16 La. Ann. 119. 
 
 55 Am. Rep. 712; Lakeman v. Pol- See Edwards v. Levy, 2 Fost. & Fin. 
 
 lard, 43 Me. 468, 69 Am. Dec. 77; 94; Wright v. Gihon, 3 C. & P. 683. 
 
 468
 
 Chap. lY.] LIABILITY OF PRINCIPAL TO AGENT. § 640. 
 
 § 639. Coadonation of Abandonment. Even if the agent has 
 been absent without authority, yet if the principal subsequently 
 receive him back and permit him to continue the performance 
 with no notice that a forfeiture has been incurred, or would be 
 insisted upon, a condonation will be presumed. It is certainly 
 equitable and in accordance with well estabh'slied principles, to 
 hold that where an employee for a fixed period, without any 
 fault of the employer, absents himself for a short time, and then 
 the employer, with knowledge of the facts, receives him back 
 into his service without objection, and retains him until the ter- 
 mination of the contract, he thereby waives the right to declare 
 the contract forfeited as to the services actually rendered.* 
 
 § 640. What will excuse Abandonment— Sickness— Epidemic. 
 Where sickness or other physical incapacity which could not be 
 foreseen, renders the temporary or permanent cessation from 
 service imperative, the agent cannot be deemed to have aban- 
 doned the service.' Such misfortunes are classed among other 
 acts of God for which the individual cannot be held responsible. 
 So an agent is under no obligation to imperil his life by remain- 
 ing at his post in the vicinity of a prevailing epidemic so dan- 
 gerous in its character as to justify a man of ordinary care and 
 prudence in refusing to remain, nor does it make any difference 
 that subsequent developments demonstrate that he was actually 
 in no danger. The propriety of his conduct is for the jury to 
 determine from the facts as they were presented to him.' 
 
 An agent therefore who is thus compelled by a vis major to 
 abandon the service, although undertaken for a definite time by 
 
 » Bast V. Byrne, 51 Wis. 531, 37 Dayton, 25 Conn. 188, 65 Am. Dec. 
 
 Am. Rep. 841; Ridgway v. Hunger- 560; Greene «. Linton, 7 Port. (Ala.) 
 
 ford Market Co., 3 Ad. & El. 171; 133. 31 Am. Dec. 707; Wolfe c. 
 
 Prentiss v. Ledyard, 28 Wis. 131; Howes, 20 N. Y. 197, 75 Am. Dec. 
 
 McGrath v. Bell, 33 N. Y. Super. 195. 388; Dickey v. Linscott, 20 Me. 453, 
 
 In Bast c. Byrne the agent agreed to 37 Am. Dec. 60; Leopold v. Salkey, 
 
 work a year for a fixed price. He 89 111. 420; Harrington v. Fall River 
 
 worked up to the end of the year but Iron Works, 119 Mass. 82; Callahan 
 
 was absent at different times, nine v. Shotwell, 60 Mo. 398; Hubbard v. 
 
 days and a half in all, but he was Belden, 27 Vt. 645; Smith v. Hill, 13 
 
 held entitled to full pay. Ark. 173; Hunter v. Waldron, 7 Ala. 
 
 « Lakeman «. Pollard, 43 Me. 463, 753; Moulton v. Trask, 9 Mete. 
 
 69 Am. Dec. 77; Jennings v. Lyons, (Mass.) 577. 
 39 Wis. 557, 20 Am. Rep. 57; Ryan v. ^ Lakeman v. Pollard, mpra. 
 
 469
 
 § 641. THE LAW OF AGENCY. [Book lY. 
 
 an entire contract, may recover upon a quantum meruit for the 
 value of the services actually performed.* 
 
 § 641. Contracts not to terminate without Notice— Forfeiture 
 for Breach. It is not uncommon to provide that the agency, 
 though otherwise at will, shall not be terminated by one or 
 either party without notice to the other, either fixed or reason- 
 able. Such agreements are valid, and, if violated, will furnish 
 ground for an action for the damages sustained. They will not, 
 however, work a forfeiture of wages, unless it is expressly so stip- 
 ulated.* The law abhors forfeitures, and will not lightly imply 
 them. 
 
 It is, therefore, common to provide that, if the agent termi- 
 nates the relation without giving the specified notice, he shall 
 forfeit to the principal either all, or a certain portion, of the com- 
 pensation then earned but unpaid. Such stipulations, when 
 fairly made and not unreasonable or oppressive in their effects, 
 will be enforced by the law.* It would not be reasonable, how- 
 ever, to make the forfeiture cover a very long period,* or be out 
 of proportion to the principal's loss.* 
 
 It is not necessary that the stipulation should take the form of 
 a written contract between the parties. If the agent has notice 
 of such a regulation at the time he enters upon performance, and 
 accepts the agency under it ; or if he has notice at any subsequent 
 time during the service and continues to serve under it, he will 
 be bound.* He cannot be bound, however, by a regulation or 
 usage of which he had no notice,^ and he may always show that 
 as a matter of fact he had none. 
 
 § 642. Same Subject— What works a Forfeiture. Here, too, 
 as in other cases, a mere temporary absence will not work a for- 
 feiture, nor will it result from absence on account of sickness, 
 
 » Lakeman c. Pollard, supra; Ryan Schimpf e. Tennessee Mnfg Co. — 
 
 V. Dayton, supra; Greene v. Linton, Tenn. — , 6 S. W. Rep. 131. 
 
 supra; Wolfe v. Howes, supra. * Harmon v. Salmon Falls Mnfg 
 
 2 Hunt t). Otis, 4 Mete. (IVIass.) 463. Co., supra; Bradley «. Salmon Falls 
 
 » Richardson v. Woehler, 26 Mich. Mnfg Co., 30 N. H. 487; Collins v. 
 
 90; Harmon v. Salmon Falls Mnfg New England Iron Co., 115 Mass. 23; 
 
 Co., 85 Me. 447, 68 Am. Dec. 718; Pottsville Iron and Steel Co. v. Good, 
 
 Walsh V. Walley, L R. 9 Q. B. 367, — Penn. St. — , 9 Atl. Rep. 497. 
 
 9 Eng. Rep. (Moak) 338. ' Stevens v. Reeves, 9 Pick. (Mass.) 
 
 « Richardson v. Woehler, supra. 198. 
 
 •Basye e. Ambrose, 28 Mo. 89; 
 
 470
 
 Chap. lY.] LIABILITY OF PRINCIPAL TO AGENT. § 643. 
 
 severe bodily injury, or other unforeseen emergency. To work a 
 forfeiture, said a learned judge," the abandonment of the employ- 
 er's service must be the direct, voluntary act, or the natural and 
 necessary consequence of some voluntary act, of the person em- 
 ployed, or the result of some act committed by him with a design 
 to terminate the contract or employment, or render the further 
 prosecution impossible. But a forfeiture of wages is not incurred, 
 where the abandonment is immediately caused by acts or occur- 
 rences not foreseen or anticipated, over which the person em- 
 ployed had no control, and the natural and necessary consequence 
 of which was not to cause the termination of the employment of 
 a party under a contract for services or labor. 
 
 § 643. Double Agency— Agent cannot recover Compensation 
 from either Party when double Agency unknown. As has been 
 seen, the law will not permit the agent to put himself in such a 
 situation that his own interests will conflict with those of the 
 principal. The latter is entitled to the disinterested skill, dili- 
 gence and zeal of the agent for his own exclusive benefit, and 
 unless the principal expressly consents to it, the agent cannot 
 divide this duty and give a part to another. Hence it is the rule 
 of the law that, unless with the free and intelligent consent of 
 his principal, given after full knowledge of all of the circum- 
 stances, the agent cannot in the same transaction, act both for 
 the principal and the adverse party.' 
 
 If, therefore, without such consent, the agent undertakes to 
 also serve the other party in the same transaction, he commits 
 such a breach of his duty to his own principal, and so violates 
 the rules of sound policy and morality, that he foi'feits all right 
 to compensation from the principal who first employed him.' 
 
 • BiGELow, 0. J. in Hughes v. 71 Pena. St. 256; Meyer v. Hanchett, 
 
 Wamsutta Mills, 11 Allen (Mass.) 201. 39 Wis. 419, S. C. 43 Id. 246; Lloyd 
 
 2 See ante, §§ 66-68. ». Colston, 5 Bush. (Ky.) 587; Walker 
 
 3 Scribner v. Collar, 40 Mich. 875, v. Osgood, 98 Mass. 348, 93 Am. Dec. 
 29 Am. Rep. 541; Raisin v. Clark, 41 168; Farnsworth v. Hemmer, 1 Alien 
 Md. 158, 20 Am. Rep. 66; Bell v. Mc- (Mass.) 494, 79 Am. Dec. 750; De- 
 Connell, 37 Ohio St. 396, 41 Am. Sleiger ?>. Hollington, 17 Mo. App. 
 Rep. 528; Rice v. Wood, 113 Mass. 382; Webb v. Paxton, — Minn. — , 33 
 133, 18 Am. Rep. 459; Lynch u N. W. Rep. 749 ; Morison «. Thomp- 
 Fallon, 11 R. I. 311, 23 Am. Rep. son, L. R. 9 Q. B. 4S0, 10 Eng. Rep. 
 458; Watkins v. Cousall, 1 E. D. (Moak) 129; Bollman «. Loomis, 41 
 Smith (N. T.) 65; Vanderpoel v. Conn. 581. 
 
 Kearns, 2 Id. 170; Everhart v. Searle, 
 
 471
 
 §tU4. 
 
 THE LAW OF AGENCY. [Book IV. 
 
 And for the same reason, he cannot recover compensation from 
 the second employer, who was ignorant of the first engagement.' 
 
 And if the second employer has knowledge of the first en- 
 gagement, then both he and the agent are guilty of the wrong 
 committed against the first employer, and the law will not 
 enforce an executory contract entered into in fraud of his rights. 
 
 It is no answer to say that the second employer, having knowl- 
 edge of the first employment, should be held liable on his 
 promise because he could not be defrauded in the transaction. 
 The contract itself is void as against public policy and good 
 morals, and both parties thereto being in pari delicto the law 
 will leave them as it finds them. Ex dolo malo non oritur actio 
 is the maxim of the law. The result in such cases is therefore 
 that the agent can recover from neither party unless his double 
 employment was known and assented to by both.* 
 
 § 644. Same Subject— May recover when double Agency was 
 fully known and assented to. There is some conflict in the 
 decisions upon the question of the agent's right to recover com- 
 pensation from both parties, even when the double employment is 
 fully known and assented to. It is said, and with no little rea- 
 son, that even in this case the contract is opposed to public policy 
 on account of the natural and legitimate tendency of such em- 
 ployments.' But while all such transactions are properly 
 viewed with suspicion, the weight of reason and authority is in 
 favor of their validity when fairly made.* The agent may not 
 be able to serve each of his principals with all his skill, energy 
 or ability. He may not be able to obtain for a selling principal 
 the highest price which could be obtained, nor for a purchasing 
 
 ' Bell V. McConnell, 87 Ohio St. Bend, 109 Mass. 500; Rice v. Wood, 
 
 396, 41 Am. Rep. 528; Rice 1?. Wood, 113 Mass, 133, 18 Am. Rep. 459; 
 
 113 Mass. 133, 18 Am. Rep. 459; Bollman v. Loomis, 41 Conn. 581; 
 
 Raisin v. Clark, 41 Md. 158, 20 Am. Everhart v. Searle, 71 Penn. St. 256. 
 
 Rep. 66; Lynch v. Fallon, 11 R. I. 'See Meyer v. Hanchett, 43 Wis. 
 
 311, 23 Am. Rep. 458; Bollman ». 246. 
 
 Loomis, 41 Conn. 581 ; Farnsworth t>. « Bell v. McConnell, 37 Ohio St. 
 
 Hemmer, 1 Allen (Mass.) 494, 79 Am. 396, 41 Am. Rep. 528; Adams Mining 
 
 Dec. 756. Co. v. Senter, 26 Mch, 73; Fitz- 
 
 2 Bell «. McConnell, 87 Ohio St. simmons v. Southern Express Co., 40 
 
 396, 41 Am. Rep. 528; Famsworth v. Ga. 330. 2 Am. Rep. 577; Alexander 
 
 Ilcmmer, 1 Allen (Mass.) 494, 79 Am. v. University, 57 Ind. 46G; Joslin v. 
 
 Dec. 756; Walker v. Osgood,'98 Mass, Cowee, 56 N. Y. 626; Rolling Stock 
 
 348, 93 Am. Dec. 168; Smith v. Town- Co. v. Railroad, 34 Ohio St. 450. 
 
 472
 
 Chap. IV.] LIABILITY OF PKIKOIPAL TO AGENT. 
 
 §645. 
 
 principal the lowest price for which the property could have 
 been purchased. But he can render to each a service entirely 
 free from falsehood and fraud; a fair and valuable service in 
 which his best judgment and soundest discretion are fully and 
 freely exercised. And such a service is all that either of his 
 principals contracted for, or had reason to expect.' 
 
 § 64r5. Agent cannot recover Compensation if Agency was 
 unlawful. The law will not lend its aid to the enforcement of 
 an illegal contract. If, therefore, the undertaking of the agent 
 was to perform some act which was forbidden by law, or which 
 was opposed to the public policy, he can recover no compensa- 
 tion for the act though it be fully performed according to the 
 agreement.* 
 
 Some discussion has been given to this question in earlier 
 chapters of this work, and it will not be necessary here to deter- 
 mine what the undertakings are which come within the limits of 
 this rule.' 
 
 ' In Adams' Mining Co. v. Senter, 
 26 Mich, at p. 77. Campbell, J, in 
 speaking of the acts of an agent act- 
 ing for each of two mining compan- 
 ies, says: "It is claimed that upon 
 the principle that a man cannot 
 contract with himself, and cannot 
 occupy positions involving a conflict 
 of duties, all of his dealings whereby 
 the property of one company was 
 transferred to, or used for, the other, 
 should be held unlawful. There is 
 no validity in such a proposition. 
 The authority of agents may, where 
 no law is violated, be as large as 
 their employers may choose to make 
 it. There are multitudes of cases 
 where the same person acts under 
 power from different principals in 
 their mutual transactions. Every 
 partnership involves such double 
 relations. Every survey of boun- 
 daries, by a surveyor jointly agreed 
 upon, would come within similar 
 difficulties. It is only where the 
 agent has personal interests conflict- 
 ing with those of his principal, 
 that the law requires peculiar, safe- 
 
 guards against his acts. There can 
 be no presumption that the agent of 
 the two parties will deal unfairly 
 with either. And when they both 
 deliberately put him in charge of 
 their separate concerns, and there is 
 any likelihood that he may have to 
 deal with the rights of both in the 
 same transactions.instead of lessening 
 his powers, it may become necessary 
 to enlarge them far enough to dis- 
 pense with such formalities as one 
 man would use with another, but 
 which could not be possible for a 
 single person to go through alone." 
 
 «Trist V. Child, 21 Wall. U. S. 
 441; Marshall v. Baltimore & Ohio R. 
 R. Co., 16 How. (U. S.) 314; Clip- 
 pinger, v. Hepbaugh, 5 W. & S. 
 (Penn.)315. 40 Am. Dec. 519; Har- 
 ris V. Roof, 10 Barb. (N. Y.) 489; 
 Rose V. Truax, 21 Id. 861; Gray®. 
 Hook. 4 N. Y. 449; Tool Co. v. Nor- 
 ris, 2 Wall. (U. S.) 45; Swayze v. 
 Hull, 3 Halst. (N. J.) 54, 14 Am. 
 Dec. 399; Gulich v. Ward, 5 Halst. 
 (N. J.) 87, 18 Am. Dec. 389. 
 
 » See ante, §§ 18-40. 
 
 473
 
 § Q4:Q. THE LAW OF AGENCY. [Book IV. 
 
 § 646, When Agent can recover for extra Services. Where 
 the agent is emploj^ed at a fixed salary and the principal enlarges 
 his powers or imposes additional duties upon him, but without 
 stipulating for an increased compensation, the rate fixed will be 
 deemed to be full compensation for all the services rendered, 
 and no extra compensation can be recovered for the perform- 
 ance of the added duties. To warrant such a recovery there 
 must be an express or implied promise to pay for them/ or a legal 
 custom to that effect.' 
 
 § 647. Principal's Right of Recoupment. Instead of resorting 
 to an independent action for the recovery of the damages he may 
 have sustained by reason of the agent's failure to perform his un- 
 dertaking, the principal may recoup them in an action brought 
 against him by the agent to recover his compensation." 
 
 This defense is distinguishable from set-off in three important 
 particulars : 1. The claim sought to be taken advantage of by re- 
 coupment must be confined to matters arising out of, and con- 
 nected with, the transaction or contract upon which the suit is 
 brought. The claims and demands of both parties must spring 
 out of the same contract or transaction, and not out of separate 
 and different transactions. 2. It is immaterial whether the dam- 
 ages sought to be recouped are liquidated or unliquidated, it be- 
 ing well settled that unliquidated damages growing out of the 
 same transaction from which the plaintiff's cause of action arises, 
 
 » Moreau e. Dumagene, 20 La. Ann. (U. S.) 1; United States v. Fille- 
 
 230; City of Decatur v. Vermillion, brown, 7 Pet. (U. 8.) 28. 
 77 111. 315; Marshall v. Parsons, 9 0. sBlodsett v. Berlin Mills Co., 53 
 
 & P. 056; Guthrie v. Merrill, 4 Kan. N. H. 315; Mobile. &c. R. R. Co. •. 
 
 187; Eraser u United States, 16 Ct. Clanton, 59 Ala. 393, 31 Am. Rep. 
 
 of CI. 507; Carr v. Chartiers Coal 15; Brunson v. Martin, 17 Ark. 270; 
 
 Co., 25 Penn. St. 837; Jordan v. Jor- Lee v. Clements, 48 Ga. 128; Houston 
 
 dan, 65 Ga. 351; Pew v. Gloucester v. Young, 7 Ind. 200; Stoddard 9. 
 
 Bank, 130 Mass. 391. Treadwell. 26 Cal. 294; Still v. Hall, 
 
 As to effect of statutes fixing the 20 Wend. (N. Y.) 51; Phelps v. Paris, 
 
 number of hours which shall consti- 39 Vt. 511; Cilley v. Tenny, 31 Vt. 
 
 tute a day's work see Luske v. Hotch- 401 ; DeWitt v. Cullings, 32 Wis. 298; 
 
 kiss, 87 Conn. 219, 9 Am. Rep. 314; Harper v. Ray, 27 Miss. 622; Dunlap 
 
 McCarthy ®. Mayer, 96 N. Y. 1, 48 v. Hand, 26 Id. 460; Runyan v. 
 
 Am. Rep. 601. Nichols, 11 Johns. (N. Y.) 547; Swift 
 
 »United States v. Macdaniel, 7 Pet. v. Harriman, 30 Vt. 607; Marshall «. 
 
 Hann, 17 N. J. L. 425. 
 
 474
 
 Chap. IV.] LIABILITY OF PRINCIPAL TO AGENT. § G48. 
 
 may be recouped. 3, The remedy is conferred and regulated by 
 common law rules and not by statutory regulations.' 
 
 The occasion for the resort to recoupment may arise under 
 one of two states of fact: a. Where the agent sues upon the con- 
 tract itself; and 5. where he sues upon ^quantum meruit. In 
 the first case, the agent treats the contract as being substantially 
 performed, and bases his action upon it. It therefore becomes 
 an essential portion of his case to show what the contract was, and 
 that its performance has been such as to entitle him to the stip- 
 ulated compensation. In the second case, the agent disregards 
 the contract and sues for the value of his services as though no 
 special contract existed. In this case it becomes necessary for 
 the principal to set up the contract and its breach in his defense, 
 
 § 648. Same Subject— "What Damages may be recouped. It is 
 indispensable that the damages sought to be recouped should grow 
 out of the same contract or transaction as that upon which the 
 plaintifPs action is based.' The principal can not therefore re- 
 coup damages for a wrong or injury done by the agent outside of, 
 and disconnected with, the scope of his employment.' But, within 
 this limit, whatever damages the principal may have sustained by 
 reason of the agent's inefficiency, negligence, misconduct, or fail- 
 ure to perform the express or implied covenants, agreements or 
 conditions of his undertaking, and which would furnish the basis 
 of an action by the principal against the agent, may be recouped 
 by the principal in the action brought by the agent.* 
 
 Thus in an action by a railway conductor for his wages, the 
 company may recoup damages resulting to it from a collision 
 caused by his negligence ;• so in an action by an agent to recover 
 
 •Ward «. Fellers, 3 Mich. 281; Brown, 3 Heisk. (Tenn.) 679; Ward 
 
 Wheat t). Dotson, 12 Ark. 699; Bal- «. Wilson, 3 Mich. 1; Allen t». Mc- 
 
 timore & Ohio R. R. Co. v. Jameson, Kibbin, 5 Mich. 449; Hill v. South- 
 
 13 W. Va. 833, 31 Am. Rep. 775; wick. 9 R. I. 299, 11 Am. Rep. 250; 
 
 Myers v. Estell, 47 Miss. 4. Harris v. Gamble, 6 Ch. Div. 748, 23 
 
 2 Lufburrow v. Henderson, 30 Ga. Eng. Rep. (Moak) 310. 
 
 482; Mayberry v. Leech, 58 Ala. 339; 3 Nashville, &c. R.R. Co. ». Chum- 
 
 Desha«. Robinson, 17 Ark. 288; Hart ley, 6 Heisk. (Tenn.) 327. 
 
 «. Francis, 2 Col. 719; Sanger v. « See cases cited in preceding sec- 
 
 Fincher, 27 111, 846; Waterman e. tion, note 1. 
 
 Clark, 76 111. 428; Fessenden v. For- « Mobile, «fec. Ry. Co. e. Clanton, 
 
 est Paper Co., 63 Me. 175; Bartlett t>. 69 Ala. 892, 81 Am. Rep. 15. 
 Farrington. 120 Mass. 284; Hulme v. 
 
 475
 
 R 04.9. THE LAW OF AGENCY. [Book IV. 
 
 his wages, the principal may recoup the damages he has snstained 
 by reason of the seduction of his daughter by the agent ; ' so 
 where a mill operative left his employment without having given 
 the previous notice of his intention to leave which the contract 
 required, in consequence of which the work at the mill was hin- 
 dered and delayed, it was held that the damages thereby occasioned 
 to the mill owner might be recouped against the claim for 
 
 wages.* 
 
 So in such an action, the principal may show in his defense 
 that the agent embezzled or wasted the goods or money com- 
 mitted to his care ; ' that the agent wilfully destroyed the princi- 
 pal's property ; * that by the agent's negligence the property was 
 lost, destroyed or injured ; ' that the agent failed to furnish cer- 
 tain materials which he had agreed to furnish, whereby the prin- 
 cipal was compelled to furnish them ; • that the agent failed to 
 pay certain damages which he had agreed to pay, by reason of 
 which the principal was obliged to pay tliem/ 
 
 So the principal may recoup damages which he has incurred to 
 third persons by reason of the agent's misconduct or neglect, or 
 his failure to observe and perform the principal's instructions.' 
 
 8 649. Same Subject— Limit of Recovery. Damages, however, 
 can be recouped by way of mitigation only, and can not be made 
 the basis of a recovery of the excess.* And having once o£fered 
 and used them in recoupment, the principal can not afterwards 
 bring an action for the excess." If, therefore, the principal's 
 damao-es exceed the plaintiff's claim, he should bring an independ- 
 ent action for them in the first instance. 
 
 I Bixby V. Parsons, 49 Conn. 483, » Allaire Works v. Guion, supra. 
 
 44 Am Rep. 246. * Newton v. Forster. 12 M. & W. 
 
 sSatchweU*. Williams, 40 Conn. 772. 
 
 g^l 7 Barker «. Troy, &c. R. R. Co., 
 
 3 Heck V. Shener. 4 Serg. & R. 27 Vt. 766. 
 
 (Penn.) 249, 8 Am. Dec. 700; Brun- » Campbell v. Somerville, 114 Mass. 
 
 son u Martin, 17 Ark. 270; Allaire 834. 
 
 Works «. Guion, 10 Barb. (N. Y.) 55. 'Ward v. Fellers, 8 Mich. 281; 
 
 * Allaire Works v. Guion, 10 Barb. Britton v. Turner, 6 N. H. 481, 26 
 
 (N Y.) 55; see also Brigbam v. Haw- Am. Dec. 713; Fowler v. Payne. 52 
 
 ley 17 111. 38; Lee v. Clements, 48 Miss. 210; Streeter ». Streeter, 43 111. 
 
 Ga.' 128; Fowler v. Payne, 49 Miss. 156; Holcraft v. Mellott. 57 Ind. 539; 
 
 821- Sanger t). Fincher, 27 111. 347; Brunson 17. Martin, 17 Ark. 270. 
 
 Wilder v. Stanley, 49 Vt. 105. " Ward v. Fellers, 3 Mich. 281. 
 
 476
 
 Chap. IV.] LIABILITY OF PKINCIPAL TO AGENT. § 652. 
 
 The measure of damages is, also, substantially the same as 
 though an independent action were brought to recover them.' 
 The limit of the recoupment must, therefore, be the actual damages 
 which directly and proximately result from the negligence, de- 
 fault or misconduct of the agent, and must not exceed the amount 
 claimed by him.* Indirect, remote or speculative damages, ex- 
 cept in case of fraud where a more liberal rule prevails, are no 
 more to be recovered by recoupment than by an independent ac- 
 tion.' 
 
 § 650. Same Subject— Not cut off by Assignment. The right 
 of recoupment attaches to the contract and goes with it into 
 whosesoever hands the right may come, to sue upon it.* The 
 principal may, therefore, avail himself of this defense against the 
 assignee of the agent even though he be a hona Jide holder.* 
 
 § 651. No Recoupment against an Infant. Where, however, 
 the agent is an infant, no recoupment can be had against him, of 
 damages arising from his failure to perform the express or im- 
 plied duties imposed upon him by the contract of agency.* "Re- 
 coupment is, in substance and effect, a cross-action, and unless the 
 party whom it is attempted to subject to it could be compelled 
 to respond for the damages by an independent action against him, 
 he cannot be reached by recoupment." ' 
 
 II. 
 
 THE agent's right TO KEIMBUR8EMENT. 
 
 § 652. Agent must be reimbursed for proper Outlays. The 
 performance of the agency is undertaken for the benefit of the 
 
 > Myers v. Estell, 47 Miss. 4; Estell Wliitmarsh ». Hall, 3 Denio (N. Y.) 
 
 «. Myers, 54 /d. 147. 375; Derocher v. Continental Mills, 
 
 sSatchwell v. Williams, 40 Conn. 58 Me. 217; 4 Am. Rep. 28G; Robin- 
 
 371. son©. Weeks, 56 Me. 102; Vent v. 
 
 3 Blanchard D. Ely, 21 Wend. (N. Osgood, 19 Pick. (Mass.) 575; Gaff- 
 
 Y.) 342, 34 Am. Dec. 250; Finney v. ney v. Hayden, 110 Mass. 137, 14 Am. 
 
 Cadwallader, 55 Ga. 75; Pettee t>. Rep. 580; Meeker v. Hurd, 31 Vt. 642; 
 
 Tennessee Mfg. Co., 1 Sneed (Tenn.) Dallas ■». Hollingsworth, 3 Ind. 537; 
 
 381. Meredith v. Crawford, 34 Ind. 399; 
 
 *■ Bixby V. Parsons, 49 Conn. 483, Ray v. Haines, 52 111. 485. 
 
 44 Am. Rep. 246. 'Graves, C. J., in Widrig t>. Tag 
 
 » Bixby V. Parsons, supra. gart, supra. 
 ' • Widrig t). Taggart, 51 Mich. 103; 
 
 477
 
 § 653. THE LAW OF AGENCY. [Book IV. 
 
 principal. To him belong all the profits and advantages resulting 
 from its execution. He is also entitled to all of the profits and 
 advantages acquired bj the agent during the course of the per- 
 formance. It is eminently just and proper, therefore, that the 
 principal should bear the natural and legitimate burdens of the 
 transaction, and that the agent should not be called upon to suf- 
 fer loss or injury for his acts done in the proper discharge of his 
 duties. And such is the rule of law. 
 
 The agent is entitled to be reimbursed by the principal, for all 
 of his advances, expenses and disbursements, made in the course 
 of his agency on account of or for the benefit of his principal, 
 when such advances, expenses and disbursements have been 
 properly incurred, and reasonably and in good faith paid, without 
 any default on the part of the agent.' 
 
 The agent cannot, however, claim to be reimbursed for 
 expenses or disbursements which have been rendered necessary 
 by his own neglect to use reasonable care and diligence, or which 
 have been incurred in violation of the express or implied condi- 
 tions of the agency, or in opposition to the instructions of his 
 principal. If such expenses are incurred, the agent must bear 
 them himself.' The right to reimbursement extends only to such 
 expenses as are incurred by the agent in the honest management 
 of the business, and without default on his part.' 
 
 III. 
 
 THE agent's bight TO TNDEMNITT. 
 
 § 653. Agent must be indemnified against Consequences of 
 lawful Acts. The agent has the right to assume that the princi- 
 pal will not call upon him to perform any duty which would 
 render him liable in damages to third persons. Having no per- 
 sonal interest in the act, other than the performance of his duty, 
 the agent should not be required to suffer loss from the doing of 
 an act, apparently lawful in itself, and which he has undertaken 
 to do by the direction, and for the benefit and advantage of his 
 
 1 Ruffner e. Hewitt, 7 W. Va. 585; t>. Butler, 69 111. 575; Elliott v. Wal- 
 
 "Watrea v. Hewitt, 45 Ga. 501; Mait- ker, 1 Rawle (Penn.) 126. 
 land V. Martin, 86 Penn. St. 120; « Godman v. Meixsel, 65 Ind. 33. 
 
 Beach v. Branch, 57 Ga. 362; Searing » Maitland B.Martin,86 Penii.St.120. 
 
 478
 
 Chap. lY.] LIABILITY OF TRINCIPAL TO AGENT. § 653. 
 
 principal. If in the performance of such an act, therefore, the 
 agent invades the rights of third persons and incurs liability to 
 them, the loss should fall rather upon him for whose benefit and 
 bj whose direction it was done, than upon him wliose only inten- 
 tion was to do his duty to his principal. Wherever, then, the 
 agent is called upon by his principal to do an act which is not 
 manifestly illegal, and which he does not know to be wrong, the 
 law implies a promise on the part of the principal to indemnify 
 the agent for such losses and damages as flow directly and imme- 
 diately from the execution of the agency.' Thus an ao-ent is 
 entitled to be indemnified when he is compelled to pay damao-es 
 for taking personal property by direction of his principal, which, 
 though claimed adversely by another, he had reasonable ground 
 to believe to belong to his principal.' So where an agent, actino- 
 under the direction of his principal, cuts timber by mistake 
 partly upon the land of another, which his principal receives and 
 disposes of, the agent is entitled to recover of his principal what 
 he is obliged to pay as damages for the trespass.' 
 
 So where a party is employed in his usual course of business as 
 an auctioneer or warehouseman to sell or deliver goods, by one 
 who claims to have a right to do so, the law will imply a prom- 
 ise to indemnify him, if he be compelled to pay damages to 
 another who establishes a superior right to the goods.* And so 
 when a railroad conductor, who had acted under express instruc- 
 tions from the company, was charged in damages to one whom 
 he had ejected from the train for not producing such a ticket as 
 he had been directed, though unlawfully, to insist upon, it was 
 held that he was entitled to be indemnified by the company.' 
 So where an agent authorized to contract for the use of a vessel. 
 of the principal's, and who did so in his own name, was com- 
 pelled to pay damages because the principal refused to furnish 
 the vessel according to the agreement, it was held that he could 
 
 * Moore v. Appleton, 26 Ala. 633, Aveiy v. Halsey, 14 Pick. (Mass.) 174. 
 
 8. C. 34 Ala. 147, 73 Am. Dec. 448; » Drummond c. Humphreys, 39 Me. 
 
 Ramsay v. Gardner, 11 Johns. (N.Y.) 347. 
 
 439; Stocking i). Sage, 1 Conn. 533; « Nelson ©. Cook, 17 III. 443; Ad- 
 Greene V. Qoddard, 9 Mete. (Mass.) amson v. Jarvis, 4 Bing. 66, 13 Eng. 
 212; Powell v. Newburgh, 19 Johns. Com. L. 343; Butts c. Gibbins, 2 Ad. 
 (N. Y.) 284. & Ell. 57, 39 Eng. Com. L. 37. 
 
 « Moore v. Appleton, 36 Ala. 633, s. « Howe v. Buffalo, &c. R. R Co., 
 
 c. 34 Ala. 147, 73 Am. Dec. 448; 87 N. Y. 297. 
 
 479
 
 § 054. THE LAW OF AGEXCY. [Book TV. 
 
 recover from the principal.* So where an agent who had pur- 
 chased property for his principal, was sued and arrested for the 
 price and was compelled to pay it, it was held that the principal 
 was bound to reimburse him for the amount paid and for his 
 costs and attorney's fees.' In such a case the agent need not 
 wait to be sued by the third party for damages, but may pay 
 them at once and thereupon recover from the principal.' H© 
 can, however, recover from the principal only the amount oi 
 damages actually sustained by the third person, though he may, 
 in fact, have paid him more.* 
 
 It is immaterial whether the agent be sued alone or jointly 
 with the principal. The right to indemnity exists in either 
 case.* 
 
 § 654. No Indemnity where Aot is unlawful. The principal 
 cannot, however, require the agent to perform an unlawful act, 
 and if the agent performs an act which he knows to be such, or 
 which he must be presumed to have known was unlawful, he 
 must answer for it like any other wrong doer, and like other 
 wrong doers he is entitled neither to indemnity nor contribution.* 
 And in such a case not only does the law not imply a promise to 
 indemnify, but it will not enforce even an express promise to 
 that effect. 
 
 An express bond, therefore, or other formal written agree- 
 ment to indemnify the agent against consequences of a proposed 
 act known, or which he must be presumed to have known, to be 
 unlawful, is void, as against the peace and policy of the law. 
 But this rule does not extend to cases where parties, in the pros- 
 ecution of their legal rights, in good faith, have committed an 
 unintentional wrong against another, but is limited to those cases 
 where the intention is to commit a trespass, and does not include 
 cases where the parties are actuated by honest motives in the 
 assertion of what they believe to be their rights under the law, 
 although it should subsequently transpire that they were not 
 justified in doing the acts contemplated by them when the bond 
 was executed.'' 
 
 > Saveland v. Green, 36 Wis. 612. » Moore v. Appleton, 26 Ala. 633, 
 
 « Clark V. Jones, 16 Lea (Tenn.) b. c. 34 Ala. 147, 73 Am. Dec. 448. 
 351, * Coventry v. Barton, 17 Johns. (N. 
 
 » Saveiand v. Green, 36 Wis. 612. T.) 142, 8 Am. Dec. 376. 
 < Saveland v. Green, 36 Wis. 612. t Coventry c. Barton, «w;?ra; Allaire 
 
 480
 
 Chap. lY.] LIABILITY OF PRINCIPAL TO AGENT. § 656. 
 
 But where the act, though unlawful, has already been commit- 
 ted, a bond or other agreement based upon sufficient considera- 
 tion to indemnify the agent against the consequences of it is 
 valid.' 
 
 IV. 
 
 THB agent's bight TO PKOTEOTION FROM INJUBT. 
 
 § 655. In general. It is not within the scope of this work 
 to enter into a minute discussion of the liability of the employer 
 for injuries happening to his employee in the course of his em- 
 ployment, either through the negligence of the employer or of a 
 fellow-employee. These questions belong more appropriately to 
 treatises on the subjects of Master and Servant, Torts and Neg- 
 ligence. A general statement of the rules which govern in these 
 •jases is, however, deemed pertinent and will be given. 
 
 1. From the Risks incident to the Business. 
 
 § 656. General Rvile— Principal not liable. Every undertak- 
 ing for the rendition of services is attended with more or less of 
 risk incident to the business itself. Risks of this nature are as 
 much within the knowledge and control of the agent as of the 
 principal, and are presumably contemplated and considered by 
 the agent when he accepts the undertaking. They result from 
 no fault or neglect of the principal, but arise from the very 
 nature of the thing to be done. 
 
 It is, therefore, the rule of the law that the principal is not 
 
 0. Ouland, 2 Johns. (N. T.) Cas. 54; per v. Kemper, 8 Rand (Va.)8; Davi8 
 
 Castle V. Noyes, 14 N. T. 332; Nelson «. Arledge. 3 Hill (S. Car.) L. 170. 30 
 
 V. Cook, 17 111. 449; Stanton v. Mc- Am. Dec. 860; Atkins®. Johnson, 43 
 
 Mullen, 7 111. App. 326; Moore ». Vt. 78, 5 Am, Rep. 260; Armstrong 
 
 Appleton, 26 Ala. 633; Ives «. Jones, «. Clarion Co., 66 Penn. St. 218; Ar- 
 
 3 Iredell's (N. Car.) L. 538, 40 Am. nold v. Clifford, 2 Sumner (U. S. C. 
 
 Dec. 421 ; Holman v. Johnson, 1 C.) 238. 
 
 Cowp. 341 ;Howe c. Buffalo.&c. R. R. ' Hacket v. Tilley, 11 Mod. 93; 
 
 5(7 N. Y. 299; Stone r. Hooker, 9 Kneeland v. Rogers, 2 Hall (N. Y. 
 
 Clow. (N. Y.) 154; Jacobs v. Pollard, Sup. Ct.) 579; Hall v. Huntoon, 17 
 
 10 Cush. (Mass.) 288; Shotwell v. Vt, 244; Knight r. Nelson. 117 Mass. 
 
 Uamblin. 23 Miss. 156; Forniquet e, 458; Griffiths v. Hardenbergh, 41 N, 
 
 Tegarden, 24 Miss. 96; Cumpston ». Y, 464; Doty t>. Wilson, 14 Johns. 
 
 T.ambert, 18 Ohio, 81 ; Jameison ». (N. Y.) 878. 
 Calhoun, 2 Speer (8. Car.) 19; Kem- 
 
 31 481
 
 § G57. THE LAW OF AGENCY. [Book lY. 
 
 responsible to the agent for injuries received in the execution of 
 the undertaking and which result from the natural and ordinary 
 risks and perils which are incident to the performance of such 
 services.^ 
 
 This rule has been founded upon two reasons. One is that 
 above mentioned, that the agent knowing that he will be ex- 
 posed to incidental risks, must be supposed to have contracted 
 that, as between himself and the principal, he would assume the 
 responsibility of the result.* The other is that this rule best 
 subserves and promotes the public interests. If the agent is to 
 take the risks himself, he will naturally be more careful and pru- 
 dent than if he could demand- indemnity from his principal. 
 The result of this care and prudence is, not only that injuries 
 are less liable to occur to the agent himself, but that they are also 
 much less liable to happen to third persons, with the care of 
 whose persons or property the agent may be intrusted.* 
 
 2. From the Negligence of the Principal. 
 % 657. Principal responsible for his own Negligence. But 
 although the agent thus assumes the responsibility of the risks 
 which are incident to the employment, he has a right to expect 
 that the principal will not add to or increase these risks or create 
 others by his own personal negligence. It has been seen that the 
 fact of the agency is no excuse to the agent for injuries resulting 
 to others by his own neglect. ISo man can relieve himself from 
 
 I Clarke?). Holmes, 7 H. & N. 937; Cent. R. R. Co., 51 Mich. 253; Penn- 
 
 Gibson v. Erie Ry Co., 63 N. Y. 449, sylvaniaR. R. Co. v. Wachter. 60 Md. 
 
 20 Am. Rep. 552; Hayden v. Smith- 395; Moulton v. Gage, 138 Mass. 390; 
 
 ville Mfg Co., 29 Conn. 548; Farwell Watson u Railway Co., 58 Tex. 434; 
 
 X) Boston and Worcester R. R., 4 Lansing v. N. York Cent. R. R. Co., 
 
 Mete. (Mass.) 49, 38 Am. Dec. 339; 49 N. Y. 521, 10 Am. Rep. 417; 
 
 Bryant v. Burlington, &c. Ry Co., 66 Sweeney v. Berlin, &c. Co., 101 N. Y. 
 
 Iowa, 305, 55 Am. Rep. 275; Sweeney 520, 54 Am. Rep. 722. 
 
 r. Central Pac. R. R. Co.. 57 Cal. 15; » Hutchinson ». Railway Co.. 5 
 
 BelU. Western, &c. R. R. Co., 70 Qa. Exch. 343. 
 
 566; Dowell v. Burlington, &c. Ry 3 Priestley v. Fowler, 8 Mees & 
 
 Co.! 62 Iowa 629; Wonder v. Balti- Wels. 1; Illinois Central R. R. Co. v. 
 
 more, &c. R. R. Co., 32 Md. 411, 3 Cox, 21 111. 20; Lawler v. Andros- 
 
 Am. Rep. 143; Yeaton «. Boston, «&c. coggin R. R. Co., 62 Me. 463, 10 Am. 
 
 R li. Co., 135 Mass. 418; Fort Wayne, Rep. 492; Hanrathy v. Northern, &c. 
 
 &c. R. R. Co. V. Gildersleeve, 33 R. R. Co., 46 Md. 280. 
 Mich. 133; Hathaway v. Michigan 
 
 482
 
 Chap, IV.] LIABILITY OF PKINCIPAL TO AGENT. § 658. 
 
 the responsibilities which rest alike upon all persons bj becoming 
 an agent, and the same rule applies to the principal. 
 
 If, tlierefore, injury results to the agent from the personal neg- 
 ligence of the principal, the principal is liable in the same man- 
 ner and to the same extent as though the relation did not exist.' 
 
 This negligence of the principal may consist in his failure to 
 obserre one or more of several duties which he owes to the agent, 
 the more important of which deserve specific mention. 
 
 § 658. 1. For dangerous Premises. The principal may incur 
 liability to the agent for injuries received by the latter from the 
 perils or dangers of the principal's premises, of which the agent 
 had no knowledge or notice and which he had no reason to ex- 
 pect, but of which the principal knew, or by the exercise of rea- 
 sonable care and diligence might have known. It is the general 
 rule of the law that the owner or occupant of land or other 
 premises is liable in damages to those coming to it, using due 
 care, at his invitation or inducement, express or implied, on any 
 business to be there transacted or permitted by him, for an injury 
 there occasioned by the unsafe condition of the land or other 
 premises, or of the access to it, which is known to him and not 
 to them, and which he has negligently suffered to exist and of 
 which he has given no notice." And this rule applies for the 
 protection of the agent as well as of a stranger. Where the service 
 is to be performed upon the principal's premises, it is the duty of 
 the principal to provide a suitable place in which the agent, 
 exercising due care, can perform his duty without exposure to 
 dangers that do not ordinarily come within the obvious scope of 
 such employments as usually carried on.» The agent has a rea- 
 sonable right to expect that if the lands and premises of the 
 principal, where it is his express or implied right or duty to go 
 or to be, in the performance of his undertaking, contain dangers 
 from which he may suffer injury and which exist to the knowl- 
 edge of the principal, but of which he is ignorant, he will receive 
 
 1 Chicago & N. W. Ry Co. «. Bay- Am. Rep, 120; Corby v. Hill, 4 C. B. 
 field, 37 Mich. 205; Quincy Mining (N. S.) 556; Sweeny v. Old Colony. 
 Co. V. Kitts, 42 Mich. 34; Johnson v. &c. R, R. Co., 10 Allen (Mass.) 368, 
 Boston Tow Boat Co., 135 Mass. 215, 87 Am. Dec, 644. 
 
 46 Am, Rep. 458, ' Coombs v. New Bedford Cordage 
 
 2 Carleton v. Iron Co,, 99 Mass. 216; Co., 102 Mass. 572, 3 Am. Rep. 506; 
 Pierce v. Whitcomb, 48 Vt. 127, 21 Swoboda c. Ward, 40 Mich. 420. 
 
 483
 
 § 059. THE LAW OF AGENCY. [Book lY. 
 
 notice of them so as to be upon his guard.' This duty of warn- 
 in <>• would be increased if the agent were, to the knowledge of 
 the principal, so ignorant or inexperienced as to be less likely to 
 anticipate dangers from the employment than a person of greater 
 knowledge or experience.* 
 
 But this rule does not apply to dangers in places where the 
 agent has no express or implied right or duty to be. If the 
 agent impelled by mere idle curiosity goes into a place of danger, 
 into which the principal had no reasonable ground to anticipate 
 that he might go, the principal would not be liable;' but the 
 principal must take into his consideration the age, habits and 
 instincts of his agents, and will be liable if he fails to warn them 
 of dangers known to him in places where he might reasonably 
 have anticipated that their natural instincts or curiosity might 
 lead them.* 
 
 S 659. 2. For dangerous Tools and Machinery. And the same 
 rule applies to the use of dangerous tools and machinery, where 
 the principal has expressly or impliedly undertaken to furnish 
 them. The principal is under no obligation to provide the new- 
 est, latest or best machinery, tools or appliances, or to adopt 
 every new improvement ; but he may conduct his business with 
 such machinery, tools and appliances as he deems best adapted to 
 his purposes and means, provided he uses reasonable prudence 
 and care in the selection of such as are reasonably safe and 
 proper for use, and keeps them in a reasonable state of repair.* 
 
 1 Parkhurst v. Johnson, 50 Mich. » Severy «. Nickerson. 120 Mass. 
 70, 45 Am. Rep. 28; Strahlendorf v. 806; Pierce «. Whitcomb, 48 Vt. 127, 
 Rosenthal, 30 Wis. 674. 21 Am. Rep. 120; Wright v. Rawson, 
 
 2 Parkhurst v. Johnson, 50 Mich. 62 Iowa, 329. 35 Am. Rep. 275; Pitts- 
 70, 45 Am. Rep. 28; Coombs v. New burg, &c R. R. Co. v. Sentmeyer, 93 
 Bedford Cordage Co., 102 Mass. 572, Penn. St. 276, 37 Am. Rep. 684; 
 3 Am. Rep. 506; Smith t). Oxford Doggett ». Illinois Cent. R. R. Co., 34 
 Iron Co., 42 N. J. L. 467; Baker v. Iowa 284. 
 
 Alleghany,&c.R.R. Co.,'95Penn. St. < Atlanta Cotton Factory Co. «. 
 
 211 ; Jones v. Florence Mining Co. , 66 Speer, 69 Ga. 137, 47 Am. Rep. 750. 
 
 Wis. 268, 57 Am. Rep, 269; Bartons- sWormell e. Maine Central R. R 
 
 hill Coal Co. V. Reid, 3 Macq. 266; Co., 79 Me. 397, 1 Am. St. Rep. 331; 
 
 Hill V. Gust. 55 Ind. 45; Anderson v. Sweeney v. Berlin & Jones Envelope 
 
 Morrison. 22 Minn. 274; St. Louis. Co., 101 N. Y. 520, 54 Am. Rep. 722; 
 
 &c. Ry. Co. V. Valirius, 56 Ind. 511; Lake Shore, &c. Ry. Co. v. McCor- 
 
 Thompson v. Chicago, &c. Ry Co., 14 mick, 74 Ind. 440; Coombs v. New 
 
 Fed. Rep. 564; Sullivan v. India, &c Bedford Cordage Co., 103 Mass. 573, 
 
 Co 113 Mass. 396. 8 Am. Rep. 506; Brann v. Chicago, 
 
 ■ 484
 
 Chap. IV.] LIABILITY OF PRINCIPAL TO AGENT. 
 
 §659. 
 
 It may be said that the use of any machinery involves more 
 or less of risk, and in many cases the degree of risk is very great. 
 This risk, however, is a risk incident to the business, and if the 
 agent, being of sufficient age and experience to appreciate the 
 dangers accepts the employment,* or continues in it,' knowing or 
 having full opportunity to know, of the dangers, he assumes the 
 responsibility of injury. 
 
 But even in this case, a duty of warning attaches to the prin- 
 cipal. If there are concealed dangers known to the principal, 
 but of which the agent is ignorant, it is the duty of the principal 
 to notify the agent of their existence.* So if, by reason of the 
 
 &c. R. R. Co., 53 Iowa 595, 86 Am. 
 Rep. 243; Corcoran v. Holbrook, 59 
 N. Y. 517, 17 Am. Rep, 369; Ford v. 
 Fitchburg R. R. Co., 110 Mas3. 240. 
 14 Am. Rep. 598; Wonder v. Balti- 
 more, i&c. R. R. Co., 32 Md. 411, 3 
 Am. Rep. 143; Michigan Cent. R. R 
 Co. V. Smithson, 45 Mich. 212; Jones 
 V. Granite Mills, 126 Mass. 84, 30 Am. 
 Rep. 661 ; Western, &c. R. R. Co. t>. 
 Bishop, 50 Ga. 465; Payne v. Reese, 
 lOOPenn. St. 301; Louisville, «&c. R. 
 R. Co. V. Orr, 84 Ind. 50: Philadel- 
 phia, &c. R, R. Co. «. Keenan, 103 
 Penn. St. 124; Fort Wayne, &c. R. 
 Co. V. Gildersleeve, 33 Mich. 133. 
 
 * Dowling V. Allen, 74 Mo. 13, 41 
 Am. Rep. 298; Smith », St. Louis, 
 &c. Ry. Co., 69 Mo. 32, 33 Am. Rep. 
 484; Porter v. Hannibal, &c. R. R. 
 Co., 71 Mo. 66, 36 Am. Rep. 454; 
 Coombs V. New Bedford Cord. Co., 102 
 Mass. 572, 3 Am. Rep. 506; Sweeney 
 V. Central Pac. R. R. Co., 57 Cal. 15; 
 Hayden v. Smithsville Mfg. Co., 29 
 Conn. 584; Bell v. Western, &c. R. 
 R. Co., 70 Ga. 566; Dowell v. Bur- 
 lington, (fee. R. R. Co., 62 Iowa 639; 
 Yeaton v. Boston, «&c. R. R. Co., 135 
 Mass. 418; Fort Wayne. &c. R. R. 
 Co. V. Gildersleeve, 33 Mich. 133; 
 Hathaway v. Michigan Cent. R. R. 
 Co., 51 Mich. 253; Richards t>. Rough, 
 63 Mich. 213; Gibson v. Erie Ry. Co., 
 
 63 N. T, 449. 20 Am Rep. 552; Lan- 
 ing V. New York Cent. R. R. Co., 49 
 N. Y. 521, 10 Am. Rep. 417; Watson 
 V. Railway Co.. 58 Tex. 434; Won- 
 der V. Baltimore, «&c. R. R. Co., 83 
 Md. 411, 3 Am. Rep. 143. 
 
 «Swoboda«. Ward, 40 Mich. 420; 
 Richards «. Rough, 63 Mich. 213; 
 Pingree v. Leyland, 135 Mass. 398; 
 Huddleston v. Lowell Machine Shop, 
 106 Mass. 282; Umback v. Lake 
 Shore, &c. Ry. Co., 83 Ind. 191; Bell 
 «. Western, &c. R. R. Co., 70 Ga. 
 666; McGlynn v. Brodie, 81 Cal. 376; 
 Sowden «. Idaho Mining Co., 55 Cal. 
 443; Camp Point Mfg. Co. v. Ballou, 
 71 111. 417; Kroy v. Chicago, &c. R. 
 R. Co., 32 Iowa 357; Behm v. Armour, 
 68 Wis. 1; Sullivan v. Louisville 
 Bridge Co., 9 Bush. (Ky.) 81; Porter 
 V. Hannibal. &c. R. R. Co., 71 Mo. 
 66. 
 
 » Dowling V. Allen, 74 Mo. 13, 41 
 Am. Rep. 298; Grizzle «. Frost, 3 
 Fost&Fin. 622; Baxter v. Roberts, 
 44 Cal. 187, 13 Am. Rep. 160; Ford 
 «. Fitchburg R. R. Co., 110 Mass. 
 240; Texas, «fec. Ry. Co. v. McAtee, 
 61 Tex. 695; Ryan v. Fowler, 24 N. 
 Y. 410; Patersont). Wallace, 1 Macq. 
 748; Atchison, &c. R. R. Co. v. Holt, 
 29 Kan. 149; Malone v. Hawley, 48 
 Cal. 409; Hayden v. Smithville Mfg. 
 Co., 29 Conn. 548. 
 
 485
 
 § 660. THE LAW OF AGENCY. [Book IV. 
 
 youth or inexperience of the agent, he is not aware of the dan- 
 gers involved, it is the duty of the principal to inform the agent 
 of them if they are known to him.* It is not enough in these 
 cases that the dangerous parts of the machinery should be visi- 
 ble, because the agent, though knowing the fact, may be utterly 
 ignorant of the risks.* 
 
 That the principal knew or by the exercise of proper care and 
 diligence might have known of the danger, is an essential ingre- 
 dient of the cause of action and a declaration or complaint which 
 does not allege it is fatally defective.' 
 
 § 660. 3. For injuries resulting from Failure to repair as 
 agreed. Should the agent discover that the service has become 
 more hazardous than usual, or than he had anticipated, by reason 
 of defective machinery, the retaining of unfaithful fellow-ser- 
 vants, or of any other cause, the general rule is that he must 
 quit the service or assume the extra risks to which he is exposed.* 
 But this general rule is subject to certain exceptions. The agent 
 has a right to expect that, if the defect were brought to the 
 knowledge of the principal, he would remedy or remove it. But 
 on the other hand, the agent has no right to complain of dangers 
 or defects known to him but which he fails to communicate to 
 the principal, so as to give the latter an opportunity to remove 
 them. Where, therefore, the agent discovers defects in machin- 
 ery, or anything else that renders the service more hazardous, he 
 should at once report the same to the principal or to the person 
 who represents him in that respect, and unless he does so, he can- 
 not recover from the principal for injuries occasioned by extra 
 perils which he voluntarily encounters without notice to the 
 
 "Smith «. Peninsular Car Works, Clarke®. Holmes, 7 H. & N. 937^ 
 
 60 Mich. 501, 1 Am. St. Rep. 542; Bowling v. Allen, 74 Mo. 13, 41 Am. 
 
 Coombs V. New Bedford Cordage Rep. 298. 
 
 Co., 102 Mass. 572, 3 Am. Rep. 506; « Priestly v. Fowler, 3 M. & W. 1, 
 
 Grizzles. Frost, 3 Fost. & Fin. 622; Griffiths©. London, &c. Docks Co., 
 
 Swoboda v. Ward, 40 Mich. 420; Hill 13 Q. B. Div. 259, 37 Eng. Rep. 649, 
 
 V. Gust, 55 Ind. 45; Sullivan v. India Buzzell v. Laconia Mfg. Co., 48 Me. 
 
 Mfg. Co., 113 Mass. 396; St. Louis, 113, 77 Am. Dec. 212; Noyes v. 
 
 &c. Ry. Co. V. Valirius, 56 Ind. 511; Smith, 28 Vt. 59, 65 Am. Dec. 222. 
 
 Dowling V. Allen, 74 Mo. 13, 41 Am. < Missouri Furnace Co. v. Abend, 
 
 Rep. 298. 107 111, 44, 47 Am. Rep. 425; Eureka 
 
 « Coombs V. New Bedford Cordage Co. v. Bass, 81 Ala. 200, 60 Am. Rep. 
 
 Co., 102 Mass. 573, 3 Am. Rep. 506; 152. 
 
 486
 
 Chap. lY.] LIABILITY OF PKINCIPAL TO AGENT. § 661. 
 
 principal. The relation of principal and agent, or of master and 
 servant, imposes no obligation on the principal or master to take 
 more care of the agent or servant than the latter is willing to ob- 
 serve for his own safety.' But where the principal, on being 
 notified by the agent of defects that render the service he is en- 
 gaged in more hazardous, expressly promises to make the neces- 
 sary repairs, the agent may continue in the employment for a 
 reasonable time to permit the performance of the promise, with- 
 out being guilty of negligence, and if any injury results there- 
 from he may recover, unless the danger were so imminent that 
 no prudent person would undertake to perform the service." 
 The reason upon which the rule is said to rest, is that the promise 
 of the principal to repair defects relieves the agent from the 
 charge of negligence in continuing in the service after the dis- 
 covery of the extra perils to which he would be exposed.' 
 
 § 661. Same Subject. The mere fact that the agent has com- 
 plained of the defect will not entitle him to recover. There 
 must, in addition, be shown a promise to repair upon which the 
 agent has relied. And if he continues to serve without further 
 assurances after the expiration of a reasonable time from the date 
 of the promise to repair, he will, ordinarily, be deemed to have 
 accepted the risk of the dangers, and the principal will not be 
 liable.* Whether under the circumstances and in view of the 
 
 'Missouri Furnace Co. v. Abend, Works, 63 Mo. 35; LeClair v. Rail- 
 
 »upra\ Indianapolis, &c. R. R. Co. v. road Co., 20 Minn. 9; Brabbits v. Ry. 
 
 Flanigan, 77 III. 365; Pennsylvania Co., 38 Wis. 389. 
 
 Co. V. Lynch, 90 111. 334; Columbus, But see Sweeney®. Berlin, «&c. Co., 
 
 &c. Ry. Co. V. Troesch, 68 111. 545, 101 N Y. 520, 54 Am. Rep. 722. 
 
 18 Am. Rep. 578. 3 Missouri Furnace Co. v. Abend. 
 
 s Eureka Co. t>. Bass, 81 Ala. 200; supra; Clarke v. Holmes, supra; 
 60 Am. Rep. 152; Missouri Furnace Hough v. Railway Co., supra. 
 Co. V. Abend, supra; Greene v. Min- ■• East Tennessee, &c. R. R. Co. e. 
 neapolisand St. Louis Ry. Co., 31 Duffleld, 13 Lea (Tenn.) 63, 47 Am. 
 Minn. 248, 47 Am. Rep. 785; Manu- Rep. 319; Galveston, «fec. Ry. Co. v. 
 facturingCo. v. Morrissey, 40 Ohio Drew, 59 Tex. 10, 46 Am. Rep. 261; 
 St. 148, 48 Am. Rep. 669 ; Galveston, Conroy v. Vulcan Iron Works, 62 
 &c. Ry. Co. V. Drew, 59 Tex. 10, 46 Mo, 35, s. c. 6 Mo. App. 103; Crutch- 
 Am. Rep. 261; Hough ». Railway Co., field ». Railroad Co., 78 K C. 300; 
 100 U. S. 213; Holmes©. Clarke, 6 H. Eureka Co. v. Bass, 81 Ala. 200, 60 
 & N. 348; Clarke v. Holmes, 7 H. & Am. Rep. 153. 
 
 N. 937; Patterson v. Pittsburg, »&c. In Eureka Co. ■». Bass, supra, Som- 
 
 R R. Co., 76 Penn. St. 389, 18 Am. ERViLLE,J.,says: "We have said that 
 
 Rep. 412; Conroy v. Vulcan Iron the carrying of the risk by the em- 
 
 487
 
 §6G1. 
 
 THE LAW OF AGENCY. 
 
 [Book lY. 
 
 promise to repair, the agent exercised due care in continuing to 
 use the defective raachinerj, is a question for the jury to de- 
 termine.' 
 
 This question most frequently occurs in those cases where the 
 defects or dangers arise after the agent has entered upon his ser- 
 vice, and not to those where he was fully aware of the dangers 
 before he accepted the employment, but even in such cases the 
 agent has a right to rely upon the principal's promise that he 
 will repair. But this rule presupposes that there are defects in 
 the tools, machinery or appliances furnished. If on the other 
 hand those furnished by the principal are reasonably safe and 
 proper for use, although not the best possible, or of the latest 
 design, the principal has done his duty and the agent assumes 
 
 ployer will be implied to continue 
 only for a reasonable time after the 
 making of the promise by him to re- 
 move the danger producing it. The 
 injury, in other words, must have oc- 
 curred within the time at which the 
 defects were promised to be removed. 
 If the employee continues to expose 
 himself to the danger by remaining 
 in the service longer than this, he 
 does so in face of the fact that the 
 promise of the employer is violated, 
 and that he has no reasonable expec- 
 tation of its fulfillment. He can no 
 longer therefore rely upon the prom- 
 ise, and must know that his contin- 
 uance in service under such circum- 
 stances is equally as hazardous and 
 hopeless of remedy as if no assurance 
 or promise had ever been made. A 
 promise already broken can afford no 
 reasonable guaranty of the fulfillment 
 of any expectation based on its dis- 
 appointed assurances. For a servant 
 or employee to persist in exposing 
 himself to danger on the faith of 
 such a promise may often be a want 
 of that ordinary prudence which the 
 law exacts of him at every stage of 
 his employment, according to the de- 
 gree and nature of the danger. 
 His continuance in the service for an 
 
 unreasonable length of time after 
 such promise is a waiver of the de- 
 fects agreed to be remedied by hia 
 employer. The risk, therefore, again 
 becomes his own, and his conduct, as 
 we have said, though not necessarily, 
 or per se negligent, may or may not 
 become negligent according to the 
 circumstances of the particular case. 
 Greene v. Minn. & St. Louis R. Co., 
 31 Minn. 248, 47 Am. Rep. 785; Mis- 
 souri Furnace Co. v. Abend, 107 111. 
 44, 47 Am. Rep. 425; Manufacturing 
 Co, ». Morrissey, 40 Ohio St. 148, 48 
 Am. Rep. 669; Woodward Iron Co. 
 V. Jones, 80 Ala. 123; Shear. & Redf. 
 Neg. § 96; Beach Contr. Neg., § 140; 
 2 Thomp. Neg. 1009, 1010; Patterson 
 V. Pittsburg, (fee. R. R. Co., 76 Penn. 
 St. 389, 18 Am. Rep. 413; Lansing?;. 
 N. Y. Cent. R. R. Co., 49 N. Y. 512, 
 10 Am. Rep. 417; Saunders Neg. 127; 
 Holmes v. Clarke, 6 Hurl. & N. 349; 
 30 L. J. Ex. 185; Wood Mast, and 
 Serv." 
 
 ' Hough V. Railway Co., 100 U. 8. 
 213; Ford v. Fitchburg R. R. Co., 
 110 Mass. 261, 14 Am. Rep. 593; 
 Laning v. New York Cent. R. R. Co., 
 49 N. Y. 521. 10 Am. Rep. 417; Snow 
 tj. Housatonic R. R. Co., 8 Allen 
 (Mass.) 441, 82 Am. Dec. 720. 
 
 488
 
 Cliap. lyj. LIABILITY OF PRINCIPAL TO AGENT. § G62. 
 
 the risk. In such a case, not even the express promise of the 
 principal that he will furnish new or better ones, or will take 
 greater precautions for the agent's safety, will give the agent 
 a right of action for an injury received from the old.* 
 
 § 662. 4. For Employment of inoompetent Servants. It is 
 the duty of the principal to use reasonable care and prudence in 
 the selection and employment of his agents and servants, and for 
 a want of such care and prudence, he is liable to all of his other 
 servants and agents who suffer injury therefrom.' This being his 
 duty as to the selection and employment, he is under a like duty 
 as to the retention of his servants and agents. If having received 
 knowledge of their incompetence or unfitness, he still retains them 
 in his employ, he must respond in damages to others who are 
 injured thereby.' 
 
 He is not a guarantor, however, of the fitness or competence of 
 those whom he employs, and it is not enough to show the fact of 
 the incompetence, but it must also be shown, in the one case that 
 he might by exercise of reasonable care and diligence have dis- 
 covered it, and in the other case that knowledge, or facts sufficient 
 to have led to knowledge, of the incompetency had been brought 
 home to him.* 
 
 » Marsh v. Chickering, 101 N. Y. » Laning v. New York Cent. R. R. 
 
 856; reported also in note to 54 Am. Co., 49 N, Y. 531, 10 Am. Rep. 417; 
 
 Rep at p. 727; Sweeney v. Berlin, Baulec v. New York, &c. R. R. 
 
 &c. Envelope Co., 101 N. Y. 520, 54 Co., 59 N. Y. 356, 17 Am. Rep. 325; 
 
 Am Rep. 722. Pittsburg, &c. R. R. Co. e. Ruby, 38 
 
 « Moss V. Pacific R. R. Co., 49 Mo Ind. 294. 10 Am. Rep. Ill; Chapman 
 
 167, 8 Am. Rep. 126; Columbus, &c. v. Erie Ry Co., 55 N. Y. 579; Davis 
 
 R. R. Co. V. Troesch, 68 111. 545, 18 v. Detroit, &c. R. R. Co., 20 Mich. 
 
 Am. Rep. 578; Harper v. Indiana- 105, 4 Am. Rep, 384. 
 
 polis, &c. R. R. Co., 47 Mo. 567, 4 * Huffman v. Chicago, &c. R. R. 
 
 Am. Rep. 353; Davis v. Detroit, &c. Co. 78 Mo. 50; Kersey c. Kansas City, 
 
 R. R. Co., 20 Mich. 105, 4 Am. Rep. &c. R. R. Co., 79 Mo, 363; East Ten- 
 
 364; Tyson D. Railroad Co., 61 Ala. nessee, &c. R. R. Co. v. Gurley, 13 
 
 654; Chicago, &c. R. R. Co., v. Har- Lea (Tena.) 46; Alabama, &c. R. R. 
 
 ney. 38 Ind. 28; Blake ». Maine Cent. Co. ». Waller, 48 Ala, 459; Ohio, 
 
 R. R. Co., 70 Me. 60; Bunnell v. St. &c. Ry Co. v. Collarn, 73 Ind. 261, 
 
 Paul, &c. Ry Co., 29 Minn. 305; 38 Am. Rep. 134; Chicago, &c. R. R. 
 
 Harper ?). Indianapolis, &c. R. R.Co., Co. ■». Doyle, 18 Kan. 58; Hunting- 
 
 47 Mo. 567; New Orleans, &c. R. R. don, &c. R. R. Co. v. Decker, 84 
 
 Co. V. Hughes, 49 Miss. 258; Gilman Penn, St. 419. 
 «. Eastern R. R. Co., 13 Allen (Mass.) 
 433, 90 Am. Dec. 210. 
 
 489
 
 g 663. THE LAW OF AGENCY. [Book IV. 
 
 S 663. 5. For injuries outside of Employment. It is those 
 risks only which are incident to the undertaking of the agent, 
 which he is deemed to have assumed, and not those of some other 
 or different duty or employment.' Hence, if the principal 
 requires of the agent the performance of an act outside of the 
 scope of his employment, it is his duty to fully inform the agent 
 of the perils of the undertaking and warn him against them. If 
 he fails in this duty and the agent thereby suffers injury, the 
 principal is liable.* 
 
 This is particularly true where the agent is young or inexperi- 
 enced, and not likely to anticipate or guard himself against 
 injury. It is, of course, true that the agent would be under no 
 obligation to obey instructions which required of him the per- 
 formance of a duty beyond the scope of his undertaking, but, 
 as has been well said, where one contracts to submit himself to 
 the orders of another, there must be some presumption that the 
 orders he receives are lawful. The giving of the orders is, of 
 itself, an assumption that they are lawful, and the servant or 
 ao-ent who refused to obey would take upon himself the burden 
 of showing a lawful reason for the refusal, and in case of a failure 
 BO to do, he would incur the double risk of losing his employ- 
 ment and being compelled to pay damages. These are suflScient 
 reasons for excusing him if he declines to take this responsibility 
 in any case in which doubts can fairly exist ; he should assume 
 that the order is given in good faith and in the belief that it is 
 rio-htful, and if in his own judgment it is unwarranted, it is not 
 for the principal to insist that he was wrong in not refusing 
 obedience.* But it has been held that where the agent is of 
 mature age and intelligence, and knows the increased hazard and 
 that it is not embraced within the scope of his duties, he cannot 
 recover of the principal for injuries received by reason of his 
 
 ' Chicago. &c. Ry Co. v. Bayfield, Wis. 603, 33 Am. Rep. 784; O'Con- 
 
 87 Mich. 205; Railroad Co. v. Fort, nor «. Adams, 130 Mass. 437; Jones 
 
 17 Wall. (U.S.) 553; Lalorc. Chicago, v. Lake Shore, &c. Ry Co., 49 Mich. 
 
 «&c. R. R. Co., 53 111. 401, 4 Am. Rep. 573; Broderick v. Detroit Union De- 
 
 QIQ ' ' ' pQj Qq^ 5g jyjicij 261, 56 Am. Rep. 
 
 2 Chicago, &c. Ry Co. «. Bayfield, 383. 
 
 87 Mich. 205; Lalor v. Chicago, &c. 3 Chicago, «fec. Ry Co. v. Bayfield, 
 
 R. Pt. Co., 53 111. 401, 4 Am. Rep. 87 Mich. 305; Thompson v. Her- 
 
 616; Wheeler v. Wason Mfg. Co., 135 mann, 47 Wis. 603, 32 Am. Rep. 784. 
 Mass. 394; Thompson v. Hermann, 47 
 
 490
 
 Chap. IV.] LTABTLITT OF PRINCIPAL TO AGENT. § 665. 
 
 ignorance and inexperience, although he undertook the act for 
 fear of losing his position.' 
 
 3. For Negligence of his Oeneral Superintendent. 
 
 § 664. Principal can not relieve himself by delegating Duties. 
 The principal can not relieve himself from responsibility to hia 
 agents by delegating the performance of his duties to a superior 
 agent or general manager or superintendent. The duty to exer- 
 cise reasonable care and prudence in the selection and care of 
 machinery, and in the employment and retention of other agents 
 and servants is an absolute one which attaches to the relation, 
 and if he sees fit to entrust to an alter ego the general perform- 
 ance of his duties as principal he must personally ansv^er for the 
 manner in which they are performed." 
 
 §665. Liable for Negligence of general Agent or Superin- 
 tendent It is therefore well settled that where the principal 
 entrusts to a general agent the power and the duty to pur- 
 chase, control or keep in repair the implements or machinery to 
 be used, or the power and duty to employ, regulate and dis- 
 charge on his account the agents or servants to be employed, the 
 principal is liable to an agent or servant for a neglect in the per- 
 formance of these duties by such general agent, in the same 
 manner and to the same extent as though the neglect had been 
 that of the principal himself were he personally managing and 
 controlling the business.* 
 
 » Leary v. Boston & Albany R. R., 64 N. T. 5, 21 Am. Rep. 573; Fuller 
 
 139 Mass. 580, 53 Am. Rep. 733 
 Cummings v. Collins, 61 Mo. 520 
 
 Woodleyp. Metropolitan Ry Co., 2 14 Am. Rep. 424; MuUan ». Philadel 
 
 Exch. Div. 506, 21 Eng. Rep. (Moak 
 
 506. But contra, see Jones v: Lake 25, 21 Am. Rep. 3; Ford v. Fitch 
 
 Shore, &c. Ry Co., 49 Mich. 573 
 Lalor V. Chicago, &c. Ry Co., 52 111 
 401, 4 Am. Rep. 616. 
 
 « See cases cited in following sec 
 tion. 
 
 » Bushby v. New York &c. R. R 
 Co. 107 N. Y. 374, 1 Am. St. Rep 
 
 V. Jewett, 80 N. Y. 46, 36 Am. Rep 
 575; Brothers i). Cartter, 53 Mo. 373 
 
 phia, &c. Steamship Co. 78Penn. St 
 
 burg R. R. Co. 110 Mass. 240, 14 Am 
 Rep. 598; Meara's Admr. v. Hoi 
 brook, 20 Ohio St. 137, 5 Am. Rep 
 633, Gunter v. Granite ville Mnfg Co 
 18 S. C. 263, 44 Am. Rep. 573; Mitch 
 ell V. Robinson, 80 Ind. 281, 41 Am 
 Rep; 813; Cowles??. Richmond, &c. R 
 
 844; Flike©. Boston, &C.R.R. Co. 53 R. Co. 84 N. C. 309, 37 Am. Rep 
 
 N. Y. 549, 13 Am. Rep. 545; Cor- 630; Tyson v. North, &c. R.R. Co. 61 
 
 coran v. Holbrook, 59 N. Y. 517, 17 Ala. 554, 32 Am. Rep. 8; Bowling v 
 
 Am. Rep. 369; Malone t). Hathaway, Allen, 74 Mo. 13, 41 Am. Rep. 298; 
 
 491
 
 § GC)G. THE LAW OF AGENCY. [Book IV. 
 
 Such a general agent or superintendent, called by whatever 
 name, is not a fellow-servant or co-employee of the agents or 
 servants employed by and acting under him. For the time being 
 he stands in the principal's shoes and his neglect is the neglect of 
 the principal.' This rule applies alike to corporations and to 
 individuals, although from the very nature of the case, the occa- 
 sions or necessities for the employment of such a general agent 
 are much greater in the case of corporations than in that of 
 individuals.' 
 
 § 666. When liable to Agents of Contractor. Care should be 
 taken, however, to distinguish between the case considered in 
 the last section, and that of an independent contractor who has 
 undertaken to perform certain services for the principal, and to 
 furnish the necessary macliinery, appliances and labor. The 
 agent or servant of such a contractor could not be considered to 
 be the agent or servant of the principal, nor could the contractor 
 himself be considered such an alter ego of the principal as to 
 render the latter liable, to a servant or agent of the contractor, 
 for an injury occasioned by the neglect of the contractor in fur- 
 nishing and keeping in repair the necessary machinery, or in 
 employing or retaining incompetent servants.' The principal 
 would, however, be liable to the servant or agent of the con- 
 tractor for an injury received from perils or dangers in the prin- 
 cipal's premises, where such servant or agent had a right to be, 
 of which the principal had knowledge but of which the agent 
 or servant was left in ignorance. This liability does not rest 
 upon the relation of principal and agent, or of master and ser- 
 
 East Tennessee, &c. R R. Co. «. apolis, &c. R. R. Co. 47 Mo. 567, 4 
 
 Duffleld, 12Lea (Tenn.) 63. 47 Am. Am. Rep. 353. 
 
 Rep. 319; Wilson v. Willimantic * See cases, swpra. 
 
 Linen Co. 50 Conn. 433, 47 Am. Rep. « See cases, supra. 
 
 653; Ryan*. Bagaley, 50 Mich. 179, » Knoxville Iron Co. ». Dobson, 7 
 
 45 Am. Rep. 35; Brown v. Sennett, 68 Lea (Tenn.) 367; Hilliard e. Richard- 
 
 Cal. 225, 58 Am. Rep. 8; Beeson «. son, 3 Gray (Mass.) 349, 63 Am. Dec. 
 
 Green Mountain Co. 57 Cal. 20; 743; Bos well «. Laird, 8 Cal. 469, 68 
 
 Gormley v. Vulcan Iron Works, 61 Am. Dec. 345; Kellogg v. Payne. 21 
 
 Mo. 493; Shanny ©.Androscoggin Iowa, 575; Allen ». Willard, 57 Penn. 
 
 Mills, 66 Me. 420; Cumberland, &c. St. 374; McCafferty r>. Spuyten Duy- 
 
 R. R. Co. «. State, 44 Md. 283, s. c. vil, &c. R. R. Co. 61 N. Y. 178, 19 
 
 45 Md. 229; Brabbits v. Chicago &c. Am. Rep. 267; King v. New York, 
 
 Ry Co. 38Wis.289; Harper ». Indian- &c. R. R. Co. 66 N. Y. 181, 23 Am. 
 
 Rep. 37. 
 
 492
 
 Chap. IV.] LIABILITY OF PRINCIPAL TO AGENT. § 067. 
 
 vant, but upon the broad and familiar principle that every man 
 who expressly or by implication invites others to come upon his 
 premises, assumes to all who accept the invitation, the duty of 
 warning them of any danger in coming, which he knows of or 
 ought to know of, and of which they are not aware.* So if the 
 principal was by the terms of the contract under obligation to 
 the contractor to furnish the necessary machinery or appliances, 
 or to supply a portion of the labor, he would be liable to the 
 agent or servant of the contractor for an injury sustained by 
 reason of his neglect to use due and reasonable care in selecting 
 and keeping in repair the proper machinery or appliances, or in 
 employing and retaining competent servants.* 
 
 4. For Negligence of Fellow-servant. 
 § 667. Principal not liable to one Servant for Negligence of a 
 Fellow-servant. The principle is now firmly established in the 
 law, both in England and the United States, that a master is not 
 liable to one servant for an injury received by the latter, result- 
 ing from the negligence, carelessness or misconduct of a fellow- 
 servant engaged in the same general business.' It is inevitable 
 
 ' Samuelson ». Cleveland Iron Min- fell, killing a servant of O, who was 
 ing Co. 49 Mich. 164, 43 Am. Rep, at vrork upon it. It was held that 
 466; Southcote v. Stanley, 1 H. «& N. defendant was liable. The court 
 247; Indermaur v. Dames, L. Repts. distinguish the case from Winter- 
 1 C. P. 274, 8. c. 2 Id. 311; Francis bottom ». Wright, 10 M. &. W. 109; 
 V. Cockrell L. R, 5 Q. B. 184; Elliott Longmeid v. Halliday, 6 Eng. Law & 
 V. Pray, 10 Allen (Mass.) 378; Eq. 761 ; Loop e. Litchfield, 42 N. Y. 
 Coughtry v. Woolen Co. 56 N. Y. 351, 1 Am. Rep. 543; Losee v. Clute, 
 124, 15 Am. Rep. 387; Tobin v. Port- 51 N. Y. 494, 10 Am. Rep. 638. 
 land, &c. R. R. Co. 59 Me. 183, 8 Am. ' The cases upon this point are ex- 
 Rep. 415; Latham «. Roach, 72 111. ceedingly numerous, and no attempt 
 179;Gillis». Pennsylvania R. R. Co. will be made to cite them all. But 
 59 Penn, St. 139; Malone v. Hawley, the following are among the number: 
 46 Cal. 409;Deford«. Keyser, 30Md. Priestley v. Fowler, 3 M. & W. 1; 
 179; Pierce ». Whitcomb, 48 Vt. 127, Hutchinson v. York, &c. Ry Co. 5 
 21 Am. Rep. 120. Ex. 343; Wigmore v. Jay, 5 Ex. 354; 
 
 « Coughtry t). Globe Woolen Co. 56 Clarke v. Holmes, 7 H. & N. 937; 
 
 N. Y. 124, 15 Am. Rep. 187. In this Wiggett v. Fox, 11 Ex, 833; Beeson 
 
 case, O contracted to put a cornice «. Green Mountain Q. M. Co.,57Cal. 
 
 on defendant's mill, defendant agree- 20; Colorado, &c. R. R. v. Ogden, 3 
 
 ing to erect the necessary scaffolding Colo. 499; Shields v. Yonge, 15 Ga. 
 
 free of cost to O. Defendant erected 849, 60 Am, Dec. 698; Illinois, «&c, R. 
 
 the scaffolding so negligently that it R. v. Cox, 21 111, 20; Chicago, &c. R 
 
 493
 
 §667. 
 
 THE LAW OF AGENCY. 
 
 [Book IV. 
 
 in those employments where the servant is liable to come in 
 contact with other servants, engaged in the same general busi- 
 ness, that he will incur more or less of risk from their negligence 
 
 R. V. Keefe, 47 Id. 108; Columbua, 
 &c. Ry V. Troesch, 68 Id. 545; 18 
 Am. Rep. 578; Ohio, &c. R. R v. 
 Tindall, 13 Ind. 366; Wilson ■». Mad- 
 ison, &c. R. R., 18 Id. 226; Gormley 
 V. Ohio, &c. Ry, 72 Id. 31 ; Ohio, &c. 
 Ry V. CoUarn, 73 Id. 261, 38 Am. 
 Rep. 134; Robertson v. Terre Haute, 
 &c. R. R. 78 Ind. 77, 41 Am. Rep. 
 552; Helfricho. Williams, 84 Ind. 553; 
 Louisville, &c. R. R. ®. Collins, 2 
 Duv. 114; HubghB. N. O. & 0. R. R. 
 6 La. Ann, 495, 54 Am. Dec. 565; 
 Satterly v. Morgan, 35 La. Ann. 1166; 
 Osborne v. Knox, &c. R. R. 68 Me. 
 49 ; Blake v. Maine Central R. R. 70 
 Id. 60, 35 Am. Rep. 297; O'Connell v. 
 Baltimore, &c. R. R. 20 Md. 212; 
 Shauck V. Northern, &c. Ry, 25 Id. 
 463; Cumberland Coal, «S;c. Co. v. 
 Scally, 27 Id. 580; Hanrathy v. 
 Northern, «Sc. Ry 46 Id. 280; Penn- 
 sylvania R. R. V. Wachter, 60 Id. 395; 
 Kelley ». Norcross, 121 Mass. 508; 
 Harkins v. Standard Sugar Refinery, 
 122 Id. 400; Colton v. Richards, 123 
 Id. 484; Kelley v. Boston Lead Co., 
 128 Id, 456; Curran v. Merchants' 
 Mfg. Co. 130 Id. 374, 39 Am. Rep. 
 457; McDermott v. City of Boston, 
 133 Mass. 349; Flynn v. City of 
 Salem, 134 Id. 351; Floyd «. Sugden, 
 Id. 563; Day v. Toledo, «&c. Ry, 42 
 Mich. 523; Smith «. Flint, &c. Ry, 46 
 Id. 253, 41 Am. Rep. 161; Greenwald 
 c. Marquette, &c. R. R. 49 Mich. 197; 
 Brown v. Winona, &c. R. R. 27 
 Minn. 162, 38 Am. Rep. 285; Collins 
 T. St. Paul, &c. R. R. 30 Minn. 31; 
 Brown v. Minneapolis, &c. Ry, 31 Id. 
 553; Chicago, «&c. R. R. v. Doyle, 60 
 Miss. 977; Brothers «. Cartter, 52 Mo. 
 373, 14 Am. Rep. 424, Conner v. 
 Chicago, &c. R. R 59 Mo. 385; Mc- 
 Andrews v. Burns, 39 N. J. L. 117; 
 
 Sherman v. Rochester, «fec. R. R. 17 
 N. Y. 153; Laning v. N. Y. Cent. R. 
 R. 49 Id. 521, 10 Am. Rep. 417; 
 Crispin v. Babbitt, 81 N. Y. 516, 37 
 Am. Rep. 521; McCosker v. Long 
 Island R. R. 84, N. Y. 77: Harvey v. 
 N. Y. Cent. «&c. R. R., 88 Id. 481; 
 Young V. N. Y. &c. R. R. 30 Barb. 
 229; Marvin v. MuUer, 25 Hun 163; 
 Cowles V. Richmond, &c. R. R., 84 N. 
 C. 309, 37 Am. Rep. 620; Columbus, 
 &c. R. R. V. Webb, 12 Ohio St. 475; 
 Pittsburg, &c. Ry v. Devinney, 17 
 Id. 197; Lake Shore, &c. Ry v. 
 Knittal, 33 Id. 468; Railway Co. «. 
 Ranney, 37 Id. 665; Willis v. Oregon, 
 &c. R. R., 3 West Coast Rep. 240 
 (Or.); Weger v. Pennsylvania R. R. 
 55 Pa. St. 460; Lehigh Valley Coal 
 Co. V. Jones, 86 Id. 432, 6 Rep. 125; 
 17 Alb. L. J. 513; Delaware, &c. 
 Canal Co. v. Carroll, 89 Pa. St. 374; 
 Keystone Bridge Co. v. Newberry, 96 
 Id. 246, 42 Am. Rep. 543; Mann«. 
 Oriental Print Works, 11 R. L 152; 
 Lasure v. Graniteville Mfg. Co. 18 S. 
 C. 275; Quntir v. Graniteville Mfg. 
 Co. Id. 262, 44 Am. Rep. 573; Rags- 
 dale V. Memphis, &c. R. R., 3 Baxt. 
 (Tenn.) 426; Nashville, &c. R. R. v. 
 Wheless, 10 Lea (Tenn.) 741, 43 Am. 
 Rep. 317; Houston, &c. R. R. v. Myers, 
 55 Tex. 110; Texas Mexican Ry v. 
 Whitmore, 58 Id. 276; Davis t). Cen- 
 tral Vermont R. R. , 55 Vt. 84, 45 Am. 
 Rep. 590; Brabbits®. Chicago, &c. R. 
 R., 38 Wis. 289; Naylor v. Chicago, 
 &c. Ry, 53 Id. 661; Howland v. 
 Milwaukee, &c. Ry, 54 Id. 226: Hoth 
 «. Peters, 55 Id. 405; Whitnam v. 
 Wisconsin, &c. R. R., 58 Id. 408; 
 Heine v. Chicago, &c. Ry, Id. 525; 
 Hough V. Railway Co., 100 U. S. 213; 
 Halverson v. Nisen, 3 Saw. (U. S. C. 
 C) 562; Melville v. Missouri River, 
 
 494
 
 Chap. IV.] LIABILITY OF PKINCIPAL TO AGENT. § 668. 
 
 or default, but this is one of the risks incident to the business, 
 and, by accepting the employment, the servant assumes this with 
 the others.* 
 
 The servant, at the same time, has a right to rely upon the 
 principal's performance of his duty to use due and reasonable 
 care and diligence to select and retain none but competent and 
 careful servants. If, therefore, as has been seen, the servant 
 receives injury by reason of the employment of a fellow-servant, 
 who was employed, or who has been retained, in violation of this 
 duty of the principal's, the principal is liable.* 
 
 So, too, as it is those risks only which are incident to his 
 employment, which the servant assumes, he does not assume the 
 responsibility for negligence or misconduct of other servants 
 engaged in another and different employment.' 
 
 § 668. Same Subject— Who is a Fellow-Servant ? The ques- 
 tion, who is a fellow-servant engaged in the same business, with- 
 in this rule is one, in many cases, very difficult of determination. 
 It is well settled, however, that where there is one general object, 
 in attaining or furthering which the servant is engaged, the rule 
 applies although he and the servant, through whose negligence 
 he was injured, were not engaged in doing the same kind of 
 work.* Nor is the liability of the master enlarged where the 
 
 &c. R. R., 4 McCrary (U. S. C. 0.) Co., 47 Mo, 567, 4 Am. Rep. 353; Illi- 
 
 194; Yager v. Atlantic, «&c. R. R., 4 nois Cent. R. R. v. Jewell, 46 III. 99; 
 
 Hughes (U. S. C. C.) 192; Jordan «. Wright ». New York Cent. R. R. Co., 
 
 Wells, 3 Woods (U. 8. C. 0.) 527; 25 N. Y. 565; Snow v. Housatonic, 
 
 Thompson v. Chicago, &c. Ry, 18 &c. R. R., Co., 8 Allen (Mass.) 444; 
 
 Fed. Rep. 239, Crew v. St. Louis, &c. 85 Am. Dec. 720; Noyes v. Smith, 28 
 
 Ry, 20 Id. 87. Vt. 63, 65 Am. Dec. 222. 
 
 » Lovell V. Howell, L. R. 1 C. P. » Pool v. Chicago, &c. Ry Co., 56 
 
 DIv. 167, 16 Eng. Rep. 501, where Wis. 227; Cumberland, &c. R. R. Co. 
 
 Archibald, J. states the rule: v. State, 44 Md. 283; Green p. Banta, 
 
 "When a man enters into the ser- 48 N. Y. Super. 156; Nashville, &c. 
 
 vices of a master, he tacitly agrees to R. R. Co. v. Jones, 9 Heisk. (Tenn.) 
 
 take upon himself to bear all ordinary 27; Sheehan v. New York, &c. R. R. 
 
 risks which are incident to his em- Co., 91 N. Y. 382; Shanny u Andres- 
 
 ployment, and, amongst others, the coggin Mills, 66 Me. 420. 
 possibdity of injury happening to * Laning v. New York Central R. 
 
 him from the negligent acts of his R. Co., 49 N. Y., 521, 10 Am. Rep. 
 
 fellow-servants or fellow- workmen." 417; Blake v. Maine Central R. R. 
 
 See generally cases cited in preceding Co., 70 Me. 60, 35 Am. Rep. 297; 
 
 note. Charies v. Taylor, L. R. 8 C. P. D. 
 
 8 Harper ». Indianapolis, &c. R. R. 492; Lovell «. Howell, 1 Id. 161; 
 
 495
 
 § C6S. 
 
 THE LAW OF AGENCY. 
 
 [Book ly. 
 
 servant who has sustained the injury is of a grade inferior to that 
 of the servant or agent whose negligence, carelessness or miscon- 
 duct has caused the injury, if the services of each, in his partic- 
 ular labor, are directed to the same general end/ Kor does it 
 make any difference that the servant guilty of the negligence is 
 a servant of superior authority, whose lawful directions the ser- 
 vant injured was bound to obey,' unless such superior servant 
 arises to the grade of the alter ego of the principal.' If they 
 
 16 Eng. Rep. (Moak) 501; Tun- 
 ney v. Midland Ry. Co., L. R. 1 
 C. P. 296; Seavere. Boston, «&c. R. 
 R. Co., 14 Gray (Mass.) 467; Wonder 
 e. Baltimore & Ohio R. R. Co., 33 
 Md. 411, 3 Am. Rep. 143. 
 
 ' Laning v. New York Central R. 
 R. Co., 49 N. Y. 521, 10 Am. Rep. 
 417; Lawler c. Androscoggin R. R. 
 Co., 62 Me. 463, 16 Am. Rep. 492; 
 Feltham*. England, L, R. 2 Q. B. 
 33; Brown ». Winona, &c. R. R. Co., 
 27 Minn. 162, 38 Am. Rep. 285; 
 Thayer e. St, Louis, &c. R. R. Co., 
 23 Ind. 26; Columbus, &c. R. R. Co. 
 V. Arnold, 81 Ind. 174; Peterson «. 
 Whitebreast, 50 Iowa, 673; Shauck 
 e. Northern, &c. R R. Co., 25 Md. 
 462; Albro «. Agawam Canal Co., 6 
 Cush. (Mass.) 75; Hurd v. Vermont, 
 &c. R. R. Co., 32 Vt. 473; Pittsburg. 
 &c. Ry Co. e. Lewis, 83 Ohio St. 
 196; Warner v. Erie Ry Co., 39 N. 
 
 Y. 468; Sherman «. Rochester, &c. R. 
 
 R. Co., 17 N. Y. 153; Wood v. New 
 
 Bedford Coal Co., 121 Mass. 252; 
 
 Malone «. Hathaway, 64 N. Y. 5, 21 
 
 Am. Rep. 573; Pittsburg, &c. R. R. 
 
 Co. V. Devinney, 17 Ohio St. 197; St. 
 
 Louis, &c. R. R. Co. t>. Britz, 72 III. 
 
 256. 
 
 * Laning «. New York Central R 
 
 R. Co., 49 N. Y. 531, 10 Am. Rep. 
 
 417; Lawler v. Androscoggin R. R. 
 
 Co., 63 Me. 463, 16 Am. Rep. 492; 
 
 Blake v. Maine Central R. R. Co., 70 
 
 Me. 60, 35 Am. Rep. 297; Brown e. 
 
 Winona, &c. R. R. Co., 27 Minn. 162, 
 
 38 Am. Rep. 285; Beaulieu ». Port- 
 
 land Co., 48 Me. 295; Gillshannon v. 
 Stony Brook R. R Co., 10 Cush. 
 (Mass.) 228; Ilurd «. Vermont Central 
 R. R. Co., 32 Vt. 473; Collier v. 
 Steinhart, 51 Cal. 116; McLean v. 
 Mining Co., Id. 255; McDonald t. 
 Manufacturing Co., 67 Ga. 761; Ken- 
 ney t). Shaw, 133 Mass. 501; O'Con- 
 nor V. Roberts, 120 Mass. 227; Floyd 
 t». Sugden, 134 Mass. 563; Marshall 
 V. Schricker, 63 Mo. 308; Keystone 
 Bridge Co. v. Newberry, 96 Penn. 
 St. 246, 43 Am. Rep. 543; Hoth v. 
 Peters, 55 Wis. 405; Dwyer v. Amer- 
 ican Express Co., Id. 453; Malone v. 
 Hathaway, 64 N. Y. 5, 31 Am. Rep, 
 573; Reese o. Biddle, 113 Penn. St 
 72; Conley v. Portland, 78 Me, 217; 
 Qonsior v. Minneapolis, &c. Ry Co,, 
 36 Minn. 385, 31 N. W. Rep. 515. 
 
 » Ryan v. Bagaley, 50 Mich. 179, 45 
 Am. Rep. 35; Chicago, &c, Ry Co, 
 «. Bayfield, 37 Mich, 205; Railroad 
 Co. v. Fort, 17 Wall. (U. S.) 553; 
 Wilson V. Willimantic Co., 50 Conn 
 433, 47 Am. Rep. 653; Mitchell v 
 Robinson, 80 Ind. 281, 41 Am. Rep. 
 812; Dowling v. Allen, 74 Mo. 13, 41 
 Am. Rep. 298; Beeson v. Green 
 Mountain Min. Co., 57 Cal. 20; Chi- 
 cago, &c. R. R, Co. V. May, 108 111. 
 288; GormlyD. Vulcan Iron Works, 
 61 Mo. 492; Corcoran «, Holbrook, 
 59 N. Y. 517, 17 Am. Rep. 369; Berea 
 Stone Co. o. Kraft, 31 Ohio St. 2S7, 
 27 Am. Rep. 510; Brothers v. Carlter, 
 52 Mo. 373, 14 Am, Rep, 434; Mul- 
 lan V. Philadelphia Steamship Co. 
 78 Penn. 25, 21 Am. Rep. 2; Tyson 
 
 496
 
 Chap. lY.] LIABILITY OF PRINCIPAL TO AGENT. § 669. 
 
 are in the employraent of the same master, engaged in the same 
 general business and performing duties and services for the same 
 general purposes, they are fellow-servants within the meaning of 
 this rule, and the master is not liable.' It is immaterial, also, 
 that the service was an occasional or job service. It is the qual- 
 ity, and not the length of time, or extent of the work, which 
 fixes, in this respect, the character of the servant and the service. 
 The servant may be engaged by the day, week or year, or by 
 piece-work, yet if his employment is in the way of accomplish- 
 ing a result which the other employees are also working to bring 
 about, their service is common.* 
 
 § 669. Volxinteer assisting Servant can not recover. It is well 
 settled that a person who, without any employment and without 
 any interest in the performance or result of the service, volun- 
 tarily undertakes to perform service for another, or to assist the 
 servants of another in the service of their master, either at the 
 request or without the request of such servants, who have no au- 
 thority to employ other servants, stands in the relation, for the 
 time beinff, of a fellow-servant with those whom he undertakes 
 to assist and is to be regarded as assuming all the risks incident 
 to the business. If he is injured by the negligence of such ser- 
 vants, he has, therefore, no recourse to the principal.* 
 
 But the rule is otherwise where the person injured, is not a 
 mere volunteer, but assists for the purpose of aiding or advanc- 
 
 V. North, «fec. R. R. Co., 61 Ala. 554, * Ewan v. Lippincott, 47 K J. L. 
 
 82 Am. Rep. 8; Gunter v. Granite- 192, 54 Am. Rep. 148, 
 
 ville Mfg. Co., 18 S. C. 262, 44 Am. ' Flower v. Pennsylvania R. R. Co., 
 
 Rep. 573; Mulcairns t). Janesville, 67 69 Penn. St. 210, 8 Am. Rep. 251; 
 
 Wis. 24; Brown v. Sennett, 68 Cal. New Orleans, &c. R. R. Co. v. Har- 
 
 225. rison, 48 Miss. 112, 12 Am, Rep. 356; 
 
 ' Laning v. New York Central R. Osborne v. Knox & Lincoln R, R. , 68 
 
 R, Co., 49 N. Y. 521, 10 Am, Rep. Me. 49, 28 Am, Rep. 16; May ton c, 
 
 417; Lawler v. Androscoggin R. R, Texas & Pacific R. R. Co., 63 Tex. 
 
 Co., 62 Me. 463, 16 Am. Rep. 492; 77, 51 Am. Rep. 637; Street Railway 
 
 Blake «. Maine Central R, R. Co., 70 Co, v. Bolton, 43 Ohio St, 224, 54 
 
 Me, 60, 35 Am, Rep, 297; Cooley on Am. Rep. 803; Eason ®. 8, & E.T. Ry 
 
 Torts, 543; Fisk v. Central Pac, R, Co., 65 Tex, 577, 57 Am. Rep. 60G; 
 
 R. Co., 72 Cal, 38, 1 Am. St. Rep. 22, Degg v. Midland Ry Co,, 1 H. & N. 
 
 Appended to this case will be found 773; Potteru. Faulkner, 1 Best & S. 
 
 a valuable collection of the cases 800. 
 
 upon the question of who are fellow- But see Cleveland v. Spier, 16 C. B, 
 
 servants. (N. S.) 398; Althorf v. Wolfe, 22 N. 
 
 Y. 355, 
 
 32 497
 
 § 670. THE LAW OF AGENCY. [Book IV. 
 
 ing his own, or his own master's business. Though performing a 
 service which may be beneficial to both parties, he is doing so in 
 his own behalf, or in the behalf of his own master, and not as 
 servant of the master whose servants he assists. Their request 
 or acquiescence gives him the right to assist, but the fact that he 
 does so in his own behalf, or in behalf of his own master, however 
 beneficial may be his assistance to the master of the other servants, 
 gives him the right to be protected against their negligence.* 
 Tlie act done by him, should, however, be a prudent and reason- 
 able one, tnd not a wrongful interference and intermeddling with 
 business in which he had no concern." 
 
 § 670. Contributory Wegligence of Servant defeats his Re- 
 covery. The same rules which govern the question of contribu- 
 tory negligence in other cases apply here. A servant has no 
 cause of action against his master for an injury resulting from 
 tlie negligence of the master, if the servant's own negligence 
 contributed to cause the injury.* And where a servant knows 
 as fully as the master of the existence of that which is at last the 
 producing cause of the injury, and, except apon the master's 
 promise to amend the defect, continues voluntarily and of his 
 own accord in the master's employ, exposed to the effects when 
 they shall come, his so remaining in the service may be such con- 
 tributory negligence as to defeat a recovery.* But where tbo 
 continuance in the service, or the undertaking of the dangerous 
 
 ' Street Railway Co. v. Bolton, 43 97 Penn. St. 103; Wormell «. Maine 
 
 Ohio St. 224, 54 Am. Rep. 803; Eason Cent. R. R. Co., 79 Me. 397, 1 Am. 
 
 V. S. & E. T. Ry Co., suj/ra; Wright St. Rep. 321. 
 
 V. London, &c. Ry Co., 1 Q. B. Div. * East Tennessee, &c. R. R. Co. v. 
 
 253; Holmes «. North Eastern Ry Duffleld, 12 Lea (Tenn.) 63, 47 Am. 
 
 Co., L. R. 4 Ex. 254. Rep. 319; McQlynn v. Brodie, 31 Cal. 
 
 * Street Railway Co. v. Bolton, 43 376; Sowden v. Idaho Quartz Mining 
 
 Ohio St. 224, 54 Am. Rep. 803. Co., 55 Cal. 443; Hayden v. Smith- 
 
 »Buzzell«. LaconiaMnfg. Co., 48 villa, «fec. Co., 29 Conn. 548; Bell v. 
 
 Me. 113, 77 Am. Dec. 212; Campbell «. Western, &c. R. R. Co., 70 Ga. 560; 
 
 Atlanta, &c. R. R. Co., 53 Ga. 488; Sullivan v. Louisville Bridge Co., 9 
 
 Cunniugham t). Railway Co., 17 Fed. Bush. (Ky.) 81; Camp Point Mfg. 
 
 Rep. 882; Honor v. Albrighton, 93 Co. v. Ballou, 71 111, 417; Chicago, 
 
 Penn. St. 475; Muldowney v. Illinois &c. R. R. Co. v. Clark, 11 111. App. 
 
 Central R. R. Co., 39 Iowa, 615; 104; Umback o. Lake Shore, &c. Ry 
 
 State©. Malster, 57 Md. 287; Vicks- Co., 83 Ind. 191; Kroy v. Chicago, 
 
 burg, &c. R. R. Co. v. Wilkins, 47 «&c. R. R. Co.. 32 Iowa, 357; Mul- 
 
 Miss. 404, Baker*. Hughes, 2 Col. downey b. Illinois Cent. R. R. Co., 
 
 79; Green, «&c. Ry Co. v. Bresmer, 39 Iowa, 615; Snow «. Housatonic R. 
 
 498
 
 Chap. IV.] LIABILITY OF PRINCIPAL TO AGENT. § 670. 
 
 task, cannot be regarded as purely voluntary, a more serious ques- 
 tion arises. Ordinarily it may be presumed that the master 
 knows better than the servant the dangers of the employment. 
 There is, too, as has been seen, a presumption that the master's 
 orders are proper and lawful, and the servant who disobeys them 
 must take upon himself the burden of showing that they were 
 otherwise.* 
 
 It is to be expected therefore that great weight will be given 
 by the servant to his master's orders which he has undertaken to 
 obey, and where the service is continued, or the task undertaken, 
 by the express order or command of the master or those who 
 represent him, this fact must be taken into consideration in de- 
 termining the question of the servant's contributory negligence. 
 The command of the master would not justify the servant in 
 going into plain, undoubted and imminent danger, such as no 
 man of ordinary prudence would encounter. But in determin- 
 ing this question, too, regard must be had to the exigencies of the 
 case. A prudent man even will run more risks in times of haz- 
 ard or threatened disaster, than at other times when there is no 
 pressing need. And so under such circumstances men cannot be 
 expected to weigh the chances with nice precision. Each case 
 is left to be judged by its own circumstances and surroundings. 
 The rule of contributory negligence is, therefore, to be modified in 
 this regard, that if the servant incur risk by the express command 
 of the master or his agent, and the danger was not so inevitable or 
 imminent that a man of ordinary prudence would not, under the 
 circumstances, have incurred it, the servant is not to be deemed 
 guilty of contributory negligence.' 
 
 This question is for the jury to determine, and the extent of 
 
 R. Co., 8 Allen (Mass.) 441; Huddles- field Coal & Coke Co. v. McEaery, 
 
 ton V. Lowell Machine Shop, 106 91 Penn. St. 185, 36 Am. Rep. 663. . 
 
 Mass. 282; Pingree v. Leyland, 135 * See ante, §663. 
 
 Mass. 398; Swoboda v. Ward, 40 a East Tennessee, «fec. R. R. Co. e. 
 
 Mich. 420; Richards v. Rough, 53 Duffleld, 12 Lea (Tenn.) 63, 47 Am. 
 
 Mich. 212; Porter v. Hannibal, &c. Rep. 319; Guthrie v. Louisvill«, &c. 
 
 R. R. Co., 71 Mo. 66; Behm v. Ar- R. R. Co., 11 Lea (Tenn.) 873, 47 Am. 
 
 mour, 58 Wis. 1; Greeuleaf®. Illinois Rep. 283; Chicago, &c. Ry Co. r>. 
 
 Cent. R. R. Co., 29 Iowa 14, 4 Am. Bayfield, 37 Mich. 205; Fnmdsen v. 
 
 Rep. 181; Ladd v. New Bedford R. Chicago, «S;c. R. R. Co., 36 Iowa 373; 
 
 R. Co., 119 Mass. 412, 20 Am. Rep. Patterson v. Pittsburg, &c. R. R. Co., 
 
 831; Kelley v. Silver Spring Co., 13 76 Penn. St. 389, 18 Am. Rep. 412. 
 R. L 112, 34 Am. Rep. 615; Mans- 
 
 499
 
 § 671. THE LAW OF AGENCY. [Book IV. 
 
 the danger, the fact that it was incurred under the direct order 
 of the master or his agent, and the exigency of the occasion, are 
 essential elements to be taken into consideration.' 
 
 § 671. Agreements to waive Liability invalid. It is fre- 
 quently attempted by employers to obtain from their employees 
 at the time of entering upon the service and in consideration of 
 it, a waiver of the liability of the master for injuries that may 
 happen through the negligence of the master or of other ser- 
 vants. Such waivers, however, are quite generally held to be 
 opposed to public policy and void,' though they have been sus- 
 tained in England * and in Georgia.* 
 
 V. 
 
 agent's right to a lien. 
 
 § 672. In general. Having ascertained the rights of the 
 agent to commissions, reimbursement and indemnity, it becomes 
 material to determine the means by which those rights may be 
 enforced. The most important of these is the agent's right 
 of lien. 
 
 Liens of various sorts, in recent times, are provided and regu- 
 lated by statute, but it is not the intention here to determine how 
 far the statutes have protected agents. So liens or charges may 
 be created by the express contract of the parties, but these, also, 
 are not now to be considered. The lien to be here considered is 
 that which exists by the common law, as distinguished from 
 statutory liens and those created by express contract. 
 
 § 673. Lien defined— General and particular Liens. A lien 
 
 ' Patterson v. Pittsburg, &c. R, R. Co. v. Spangle, 44 Ohio St. 471, 58 
 
 Co., supra; Laaing v. New York Am. Rep. 833; Roesner «. Hermann, 
 
 Cent. R. R. Co., 49 N. Y. 531, 10 10 Biss. (U. S. C. C.) 486, 8 Fed. Rep. 
 
 Am. Rep. 417; Greene v. Mlun. & St. 782; Little Rock & Ft. Smith Ry Co. 
 
 L. R. R. Co , 31 Minn. 348, 47 Am. v. Eubanks, — Ark. — , 3 S. W. Rep. 
 
 Rep. 785; Missouri Furnace Co. v. 808. 
 
 Abend, 107 111. 44, 47 Am. Rep. 435; » Griffiths e. Earl of Dudley, 9 Q. 
 
 Manufacturing Co. v. Morrissey, 40 B. Div. 357. 
 
 Ohio St. 148, 48 Am. Rep. 669. * Western, &c. R. R. Co. v. Bishop, 
 
 « Kansas Pac. Ry Co. v. Peavey, 29 50 Ga. 465; Western, &c. R. R Co. 
 
 Kana. 169, 44 Am. Rep. 630, 11 Am. v. Strong, 53 (Ja. 461; Galloway c. 
 
 & Eng. R. R. Cases. 260; Railway Western, &c. R. R. Co., 67 Ga. 512. 
 
 500
 
 Chap. IV.] LIABILITY OF PRINCIPAL TO AGENT. 
 
 673. 
 
 at common law has been defined to be the right of detaining the 
 property on which it operates until the claims which are the 
 basis of the lien are satisfied.^ It has also been defined as an 
 obligation which, by implication of law and not by express con- 
 tract, binds real or personal estate for the discharge of a debt or 
 engagement, but does not pass the property in the subject of the 
 lien.' 
 
 The main distinction between common law liens and other 
 liens is that possession is essential to the former class and not 
 always to the latter.' 
 
 Liens are either general or particular. A general lien is a 
 right to retain the property of another to cover and secure a 
 general balance due from the owner to the person who has pos- 
 session.* A particular or specific lien is a right to retain par- 
 ticular property of another for charges incurred, or trouble 
 undergone, with respect to that property.' 
 
 The former being regarded as an encroachment on the common 
 law, is not favored by courts of law or equity, and will be strictly 
 
 ' Ames V. Palmer, 43 Me. 197, 66 
 A.m. Dec. 271; Oakes v. Moore, 24 
 Me. 214, 41 Am. Dec. 379; Ham- 
 monds V. Barclay, 2 East 235: " The 
 word lien, in common parlance, is 
 somewhat indiscriminately used, as 
 if it embraced every species of spec- 
 ial property which one may have in 
 goods, the general ownership of 
 which is in another. It originally, 
 and more appropriately, was used to 
 Bignify the right which artisans and 
 others, who had bestowed labor upon 
 an article, or done some act in refer- 
 ence to it, had, in some instances, of 
 a detention thereof till reimbursed 
 for their expenditures and labor be- 
 stowed thereon. Such maybe termed 
 a lien at common law." Whitman, 
 C. J., in Oakes v. Moore, supra. 
 
 « Fisher on Mortgages, § 149. Ev- 
 ans on Agency, 362. 
 
 •"The common law recognized 
 the right of innkeepers, carriers and 
 certain artisans and mechanics to 
 hold a lien upon property delivered to 
 
 them for their charges. Innkeepers 
 and carriers had such a lien upon the 
 theory that they were bound to serve 
 all persons who required their ser- 
 vices; and artisans upon the theory 
 that by their labor and skill, the 
 speciflc property bailed to them had 
 been increased in value. In both 
 cases to make the lien operative, it 
 is necessary that the lien holder keep 
 the actual possession of the property 
 to which the lien attaches. Statutory 
 liens are analogous to the latter class 
 of common law liens named above, 
 but, unlike them, no possession of 
 the property is required. The pro- 
 tection afforded at common law by 
 possession, is, in the case of statutory 
 liens, accomplished through an at- 
 tachment of the property." Quimby 
 «. Hazen, 54 Vt. 132. 
 
 * Mclntyre v. Carver, 2 Watts & 
 Serg. (Penn.) 392, 37 Am. Dec. 519 
 and note. Evans on Agency, 363. 
 
 501
 
 §674. 
 
 THE LAW OF AGENCY. 
 
 [Book IV. 
 
 construed. It can, in the absence of an express contract, be 
 claimed only as arising from dealings in a particular trade or line 
 of business in which the existence of a general lien has been 
 judicially proved and acknowledged, or upon express evidence 
 being given that, according to the established custom, a general 
 lien is claimed and allowed.* Particular liens on the other hand 
 are favored.* 
 
 § 674. Foundation of tlie Claim of Lien. The common law 
 lien found its origin in principles of natural equity and commer- 
 cial necessity. Its earliest form was the particular or specific 
 lien, and it was first applied for. the protection of those who were 
 required by law to render services or to receive goods for all who 
 sought their aid, as in the case of common carriers and innkeep- 
 ers.* Manifest justice required that those who were thus obliged 
 to serve should have some compulsory means of obtaining com- 
 pensation. A lien was also allowed to those who had, by their 
 own peril, labor and expense, rescued, from loss or destruction at 
 
 » Mclntyre t>. Carver, $upra; Rush- 
 forth t>. Hadfield, 7 East 329; Bevan 
 •. Waters, 3 C. & P. 520; Scarf e v. 
 Morgan, 4 M. & W. 283; Houghton 
 ». Matthews, 3 Bos. & Pul. 494; Blea- 
 den V. Hancock, 4 Car. & P. 156. 
 
 • Scarfe v. Morgan, supra; Bevan 
 t. Waters, supra; Mclntyre «. Car- 
 ver, supra. " It is not to be doubted," 
 said Gibson, C. J., "that the law of 
 particular or specific lien on goods in 
 the hands of a tradesman or artisan 
 for the price of work done on them, 
 though there is no trace of its recog- 
 nition in our own books, was brought 
 hither by our ancestors; and that it 
 is a part of our common law. It was 
 as proper for their condition and cir- 
 cumstances here as it had been in the 
 parent land; and though a general 
 lien for an entire balance of accounts 
 was said by Lord Ellenbo rough, in 
 Kushforth v. Hadfield, 7 East 229, to 
 bo an encroachment on the common 
 law, yet it has never been intimated 
 that a particular lien on specific chat- 
 tels, for the price of labor bestowed 
 
 on them, does not grow necessarily 
 and naturally out of the transactions 
 of mankind as a matter of public 
 policy." Mclntyre t>. Carver, 2 Watts 
 &Serg. (Penn.)392. 
 
 •Naylor v. Mangles, 1 Esp. 109; 
 Carlisle v. Quattlebaum, 2 Bailey (S. 
 C.) 453; Quimbyt). Hazen, 54 Vt. 132. 
 
 "The innkeeper is bound to re- 
 ceive and entertain travellers, and is 
 answerable for the goods of the guest 
 although they may be stolen or other- 
 wise lost without any fault on his 
 part. Like a common carrier, he is 
 an insurer of the property, and noth- 
 ing but the act of God or public 
 enemies will excuse a loss. On ac- 
 count of this extraordinary liability 
 the law gives the innkeeper a hen on 
 the goods of the guest for the satis- 
 faction of his reasonable charges. It 
 was once held that he might drrtain 
 the person of a guest, but that doc- 
 trine is now exploded and the lien is 
 confined to the goods." Bronson, 
 J., in Grinnell v. Cook, 3 Hill (N.Y.) 
 485, 38 Am. Dec. 663. 
 
 602
 
 Chap. IV.] LIABILITY OF PRINCIPAL TO AGENT. 
 
 §674. 
 
 sea, tlie goods or property of anotlier who was unable to protect 
 them. Here, too, obvious equity, as well as commercial neces- 
 sity, demanded that if the owner would reclaim his goods he 
 shoiild first pay the reasonable charges of him by whose exer- 
 tions they had been preserved.^ 
 
 It was, however, soon extended to the case of those who, 
 while not required by law to render service, yet by their skill or 
 labor had imparted additional value to the goods or property of 
 another.* That these persons, also, should have a lien upon the 
 goods or property for the reasonable value of their services was 
 obviously just and so plainly conducive to confidence and secur- 
 ity in the transaction of affairs, that this principle has become 
 firmly established in our law, and has in modern times been 
 extended by statutory enactments to a great variety of cases not 
 contemplated by the common law. 
 
 » Fitch V. Newberry, 1 Doug. 
 (Mich.) 1, 40 Am. Dec. 33. While 
 the right of lien as finder or preserver 
 extends only to those goods which are 
 lost at sea, yet if the owner of goods 
 lost on land offers a reward to him 
 who will restore the property, a lien 
 thereon is thereby created to the ex- 
 tent of the reward so offered. Wood 
 V. Pierson, 45 Mich. 813; Preston v. 
 Neale, 13 Gray (Mass.) 223; Ciim- 
 mings V. Gann, 52 Penn. St. 484; 
 Went worth v. Day, 3 Mete. (Mass.) 
 353, 37 Am. Dec. 145. 
 
 « "The right of lien has always 
 been admitted where the party was 
 bound by law to receive the goods; 
 and in modern times the right has 
 been extended so far that it may be 
 laid down as a general rule, that every 
 bailee for hire, who by his labor and 
 skill has imparted an additional value 
 to the goods, has a lien upon the pro- 
 perty for his reasonable charges. This 
 includes all such mechanics, trades- 
 men, and laborers as receive property 
 for the purpose of repairing or other- 
 wise improving its condition." BaoN- 
 80N, J., in Grinnell v. Cook, 3 Hill 
 (N. Y.) 485, 38 Am. Dec. 663. To 
 
 same efiEect are Morgan v. Congdon, 
 4 N. Y. 551 ; Nevan v. Roup, 8 Iowa 
 307; Wilson v. Mat tin, 40 K H. 88; 
 Moore v. Hitchcock, 4 Wend. (N. Y.) 
 292; Gregory v. Stryker, 3 Den. N. Y. 
 638. 
 
 But except where there is an obli- 
 gation by law to take and care for 
 property, no lien for simply keeping 
 and caring for it exists at common 
 law, upon the ground that the bailee 
 has added no value to the property. 
 Thus agisters and livery stable keep- 
 ers have no lien for keeping animals 
 in the absence of a statute or an ex- 
 press contract to that effect. Grin- 
 nell V. Cook, supra; Lewis v. Tyler, 
 33 Cal. 364; Goodrich v. Willard, 7 
 Gray (Mass.) 183; Wills©. Barrister, 
 36 Vt. 330; Wallace v. Wood gate, 1 
 Car. & P. 575; Bcvan v. Waters. 3 
 Car. & P. 520; Judson v. Etheridge, 
 1 Cromp. & M. 743; Jackson v. Cum- 
 mins 5 Mees. & Wels. 343; Miller v. 
 Marston, 35 Me. 153, 56 Am. Dec. 
 694; McDonald v. Bennett, 45 la. 
 456; Allen v. Ham, 63 Me. 533; Mau- 
 ney v. Ingram, 78 N. C. 96. 
 
 But on the ground of increased val- 
 ue, the horse trainer has a lien. Har- 
 
 503
 
 §675. 
 
 THE LAW OF AGENCY. 
 
 [Book 17. 
 
 § 675. Nature of Lien. This lien conferred by the common 
 law does not create an estate or title in the property over which 
 it prevails. It is a simple right of retainer merely, and is neither 
 a jus ad rem, nor a jus in re. 
 
 It is purely personal to the lien holder, and is neither assign- 
 able by him, nor can it be attached as personal property or as a 
 chose in action of the person who is entitled to it' Being thus 
 a personal privilege, no person but the lien holder can avail him- 
 self of it. It cannot be set up by a third person as a defense to 
 an action brought by the owner of the goods.* 
 
 § 676. Requisites of Lien— Possession. The common law 
 lien being thus a mere right of retainer, it follows that the 
 exclusive possession of the property by the person claiming the 
 lien, is indispensable to its existence and continuance.' If the 
 person holds the property in subordination to the will and con- 
 trol of another, no right of retainer attaches. No lien exists, 
 therefore, in favor of the mere workman or servant of the con- 
 tractor.* But the possession of such a workman or servant is the 
 
 ris V. Woodruff, 124 Mass. 205 ; Bevaa 
 e. Waters, %upra\ Towle ». Raymond, 
 58 N. H. 64; so has the horse doctor; 
 Lord B. Jones, 24 Me. 439, 41 Am. 
 Dec. 391; so has the owner of a stal- 
 lion for the services of the stallion, 
 Scarfe v. Morgan, 4 Mees. »& Wels. 
 270; Sawyer v. Gerrish, 70 Me. 254. 
 
 ' Meany «. Head, 1 Mason, (U. S. 
 C. C.) 319, Story J.; Lovett ©. 
 Brown, 40 N. H. 511; Holly v. Hugg- 
 eford, 8 Pick. (Mass.) 73, 19 Am. 
 Dec. 303; Jones «. Sinclair, 2 N. H. 
 321, 9 Am. Dec. 75; Daubigny t. Du- 
 val, 5 T. R. (Durnf. &, E.) 606. 
 
 s Trespass or trover by the owner 
 of goods consigned to a factor who 
 has a lien thereon for a balance due 
 him from the owner, can be main- 
 tained against an officer who attaches 
 the goods as the property of the fac- 
 tor, and the lien of the factor being a 
 privilege personal to him, cannot be 
 set up by the officer to defeat the ac- 
 
 tion. Holly "t». Huggeford, swpra; 
 Jones n. Sinclair, supra. 
 
 > Mclntyre o. Carver, 2 Watts & 
 Serg. (Penn,)392, 37 Am. Dec. 519; 
 Tucker v. Taylor, 53 Ind. 93; Nevan 
 V. Roup, 8 Iowa 207; Oakes v. Moore, 
 24 Me. 214, 41 Am, Dec. 379; E» 
 parte Foster, 2 Story (U. S. C. C.) 144; 
 McFarland v. Wheeler, 26 Wend. (N. 
 Y.) 467; Collins v. Buck, 63 Me. 459; 
 Robinson v. Larrabee, 63 Me. 116; 
 Rice V. Austin, 17 Mass. 197; Winter 
 V. Coit, 7 N. Y. 288; Heard?;. Brewer, 
 4 Daly (N. Y.) 136; Sawyer v. Loril- 
 lard, 48 Ala. 332; Elliott «. Bradley, 
 23 Vt. 217; Donald t>. Hewitt, 33 
 Ala. 534, 73 Am. Dec. 431; Miller v. 
 Marston, 35 Me. 153, 56 Am. Dec. 
 694; Jenkins v. Eichelberger, 4 Watts 
 (Penn.) 121, 28 Am. Dec. 691. 
 
 ♦ HoUingsworth v. Dow, 19 Pick. 
 (Mass.) 228;McIntyre p. Carver, aupra; 
 Wright t». Terry, — Fla. — , 2 South. 
 Rep. 6. 
 
 504
 
 Chap. IV.] LIABILITY OF PRINCIPAL TO AGENT. 
 
 §677. 
 
 possession of the employer or master, and is sufBcient to maintain 
 the latter's right of lien.* 
 
 § 677. Possession miLst have been lawfully acquired. In 
 order to sustain the lien, the possession of the property must have 
 been obtained in good faith, and from one having the power and 
 the right to confer it. A person can neither acquire a lien by 
 his own wrongful act, nor can he retain one when he obtains 
 possession of the property without the consent of the owner 
 express or implied.* 
 
 If, therefore, the person claiming a lien acquired possession by 
 misrepresentation or fraud, or from an agent or servant or other 
 person having no right or power to confer it,' he cannot main- 
 
 > Heard v. Brewer, supra; Elliott v. 
 Bradley, supra. 
 
 « Fitch V. Newberry, 1 Doug. (Mich.) 
 1, 40 Am, Dec. 33; Madden ». Kemp- 
 ster, 1 Camp 13; Burn v. Brown, 3 
 Btark N. P. 273. 
 
 " To create a lien on a chattel," 
 Bald McKiNiiET, J.," the party claim- 
 ing it must show the just possession 
 of the thing claimed ; and no person 
 can acquire a lien, founded upon his 
 own illegal or fraudulent act, or breach 
 of duty ; nor can a lien arise, where 
 from the nature of the contract be- 
 tween the parties, it would be incon- 
 sistent with the express terms or the 
 clear intent of the contract. " Randel 
 V. Brown, 2 How. (U. S.) 406. 
 
 » An exception to this general rule 
 exists in the case of an innkeeper. 
 It was settled at an early period in 
 the common law that an innkeeper 
 has a lien on a horse brought by a 
 guest, though the guest had no right 
 to do 80, if the innkeeper had no 
 knowledge of the wrong and acted 
 honestly, and this rule has been ap- 
 proved in this country. The reason 
 given for the rule is that the inn- 
 keeper is bound to receive the guest 
 and cannot stop to inquire whether 
 he is the true owner of the property 
 he brings or not. Yorke v. Qrenaugh, 
 
 2 Ld. Raym. 867; Johnson v. Hill, 3 
 Stark 172; Snead ». Watkins, 1 C. B. 
 (N. 8)267; Grinnell v. Cook, 3 Hill 
 (N. Y.) 485, 38 Am. Dec. 663; Jones 
 V. Morrill, 43 Barb. (N. Y.) 626. In 
 Turrill v. Crawley, 13 Q. B. 197, the 
 lien was maintained on a carriage 
 brought by the guest; and in Threfall 
 t?. Borwick, 26 L. T. Rep. N. S. 794, 2 
 Eng. Rep. (Moak) 689, affirmed in the 
 Exchequer Chamber, L. R. 10 Q. B. 
 210, 12 Eng. Rep. (Moak) 266, upon 
 a piano. Manning v. Hallenbeck, 27 
 Wis. 202. 
 
 This exception has not been made 
 in this country in the case of com- 
 mon carriers, and it is well settled 
 that the carrier cannot maintain a 
 lien, against the true owner, upon 
 goods wrongfully delivered to the 
 carrier for transportation. Fitch v. 
 Newberry, 1 Doug. (Mich.)l, 40 Am. 
 Dec. 33; Robinson v. Baker, 5 Cush. 
 (Mass.) 137, 51 Am. Dec. 54; Clark v. 
 Lowell, &c. R. R. Co., 9 Gray (Mass.) 
 231; Gilson v. Gwinn, 107 Mass. 126; 
 Everett v. Saltus, 15 "Wend. (N. Y.) 
 474; Brower v. Peabody, 13 N, Y. 
 121; Martin v. Smith, 58 N. Y. 673. 
 "There is an obvious ground of dis- 
 tinction," said Ransom, J.," between 
 the cases of carrying goods by a com- 
 mon carrier, and the furnishing keep 
 
 505
 
 g 678. THE LAW OF AGENCY, [Book lY. 
 
 tain the lien althongli he might have done so if he had acquired 
 the possesBion fairly. 
 
 § 678. Possession must be continuous. It is also indispen- 
 sable that the possession should be continuous. A voluntary 
 surrender of the property, therefore, to the owner or some one 
 on his behalf, terminates the lien, unless it is consistent with the 
 contract, course of business or intention of the parties that it 
 should continue.* And having once voluntarily relinquished the 
 property, the party cannot regain his lien by recovering posses- 
 sion of the goods, without the consent or agreement of the 
 owner.' If, however, the property be taken from the possession 
 of the party claiming the lien by fraud or misrepresentation, the 
 lien is not lost * and will revive if his possession be restored.* 
 
 The lien is not lost by a mere temporary parting with the 
 possession for a special purpose, when there was no intention to 
 relinquish or release the lien.* 
 
 § 679. Possession must have been acquired in Course of Em- 
 ployment. In order to maintain the lien upon a specific chattel 
 the possession must have been acquired in the course of the em- 
 ployment in respect of which the lien is claimed.' A mere credi- 
 
 ing for a horse by an innkeeper. In Ex parte Foster, 2 Story (U. S. C. C.) 
 
 the latter case, it is equally for the 144; McFarland v. Wheeler, 26 
 
 benefit of the owner to have his horse Wend. (N. Y.) 467; Walcott «. 
 
 fed by the innkeeper, in whose cus- Keith, 23 N. H. 196; Collins v. Buck, 
 
 tody he is placed, whether left by a 63 Me. 459; Sawyer ». Lorillard, 48 
 
 thief, or by himself or agent; in Ala. 332; Way v. Davidson, 12 Gray 
 
 either case, food is necessary for the (Mass.) 465; Bowman v. Hilton, 11 
 
 preservation of his horse, and the Ohio 303; Sears v. Wills, 4 Allen 
 
 innkeeper confers a benefit upon the (Mass.) 212. 
 
 owner by feeding him. But can it be * Robinson v. Larrabee, 63 Me. 116; 
 
 said that a carrier confers a benefit on Spaulding v. Adams, 33 Me. 212; 
 
 the owner of goods by carrying them Nash®. Mosher, 19 Wend. (N. T.)431. 
 
 to a place where, perhaps, he never • Nevan v. Roup, supra. 
 
 designed and does not wish them to ♦ Bigelow v. Heaton, 6 Hill (N. Y.) 
 
 go?" In Fitch v. Newberry, supra. 43; Ash v. Putnam, 1 Id. 302; Wallace 
 
 This distinction would, however, be c. Woodgate, 1 C. & P. 575. 
 
 without force in the case of the car- » Wallace v. Woodgate, supra. 
 
 riage and the piano above cited, and • Hays e. Riddle, 1 Sandf. (N. Y.) 
 
 the rule must be sustained on other 248; Reeves v. Capper, 5 Bing. N. C. 
 
 grounds. 136; Robinson ». Larrabee, 63 Me. 116, 
 
 » Tucker v. Taylor, 53 Ind. 93; ' Scott v. Jester, 13 Ark. 438; 
 
 Nevan v. Roup. 8 Iowa 207; Oakesc. Thachert. Hannahs, 4 Robert(N. Y.) 
 
 Moore, 24 Me. 214, 41 Am. Dec. 379; 407. 
 
 506
 
 Cliap. IV.] LIABILITY OF PRINCIPAL TO AGENT. § 680. 
 
 tor happening to have the goods of his debtor in his possession Las 
 no lien thereon to secure payment of the debt.' Nor does the 
 mere fact that a person occupies a position, or pursues a calling, 
 in respect to which a lien ordinarily attaches give him a lien upon 
 property which chances to be in his possession. The possession 
 must have been acquired by virtue of his position, or in the pur- 
 suit of the calling in which he is engaged.* 
 
 Thus a factor can only claim a lien upon goods which came 
 into his possession as factor;' an attorney only upon the deeds 
 and papers which came into his hands in the character of an 
 attorney ; * a broker only upon the property which was delivered 
 to him in that capacity. * 
 
 § 680. No Lien if contrary to Intention of Parties— Waiver. 
 A lien is presumed to be something of value. It may in its in- 
 ception be waived or given up without any valuable consideration, 
 but when it has once attached, an executory agreement to waive 
 or surrender it will not be obligatory unless based upon a legal 
 consideration." 
 
 A lien will not attach if it be inconsistent with the terms upon 
 which possession was obtained.' The existence of a special con- 
 tract is not, of itself, inconsistent with a lien, but if it expressly 
 or impliedly waives it, the lien can not exist.' 
 
 So it is a general principle that an agreement to give credit, or 
 a special contract for a particular mode of payment, ' or the tak- 
 ing of a note, acceptance or other security payable at a future 
 time," or an agreement to deliver the property before payment or 
 
 » Allen V. Megguire, 15 Mass. A9Q. Aid. 50; Chase v. Westmore, 5 Maule 
 
 a Dixon v. Stansfeld, 10 C. B. 398; & Sel. 180. 
 
 "A man is not entitled to a lien « Farrington v. Meek, 30 Mo. 578; 
 
 simply because he happens to fill a Leese v. Martin, L. R. 17 Eq 334 ; 
 
 character which gives him such a Brandao v. Barnett, 13 CI. & F. 787. 
 
 right unless he has received the » Raitt v. Mitchell, 4 Camp. 148; 
 
 goods or done the act in the particu- Cowell v. Simpson, 16 Ves. Jr. 330; 
 
 lar character to which the right Chandler v. Belden, 18 Johns. (N. Y.) 
 
 attaches." Jabvis, C. J. 157, 9 Am. Dec. 193; Hutchins v. 
 
 » Drinkwater v. Goodwin, 1 Cowp. Olcutt, 4 Vt. 549. 24 Am. Dec. 634; 
 
 251. Moore v. Hitchcock, 4 Wend. (N. Y.) 
 
 * Stevenson v. Blakelock,! Maule & 296 ; Stoddard Woolen Manufactory o. 
 Sel. 535. Huatley, 8 N. H. 441, 31 Am. Dec. 
 
 8 Dixon e. Stansfeld, supra. 198; Stevenson©. Blakelock, 1 M. & 
 
 • Danforth v. Pratt. 42 Me. 50. S. 535. 
 
 T Crawshay v. Homfray, 4 Barn. & >' Hutchins v. Olcutt, 4 Vt. 549, 34 
 
 507
 
 §66J. 
 
 THB LAW OF AGENCY. 
 
 [Book IV. 
 
 before the time of payment arrives,' is a waiver of the lien. An 
 agreement to pay a fixed price is no waiver.' 
 
 S 681. Waiver by inconsistent Conduct. The lien will, how- 
 ever be waived by a general refusal of the person, to whom it 
 inures, to deliver the property, accompanied by a claim of title 
 in himself, or by a claim to retain it on other grounds distinct 
 from his lien.' But a claim of right to detain the goods in respect 
 of two sums, as to one only of which the person has a lien, is not 
 a waiver.* Whether the lien is lost by a general refusal to de- 
 
 Am. Dec 634; Hewison v. Guthrie, 2 
 Bing. N. C. 755; Cowell v. Simpson, 
 16 Ves. Jr. 275; Au Sable Boom Co. 
 «. Sanborn, 36 Mich. 358; Bunney v. 
 Poyntz, 4 B. & Ad. 568. Unless the 
 paper be dishonored while the prop- 
 erty yet remains in the agent's hands. 
 Feise v. Wray, 3 East. 93. It makes 
 no difference whether the note is pay- 
 able on demand or at a future time, or 
 whether negotiable or not. Hutchins 
 V. Olcutt, supra. A factor's lien for 
 money and supplies to make a crop is 
 not waived by taking personal 
 security for such money and supplies. 
 Story V. Flournoy, 55 Ga. 56. 
 
 > Chandler v. Belden, 18 Johns. (N. 
 Y.) 157, 9 Am. Dec. 193. 
 
 s The Hostler's case, Mete. Yelv. 67 
 and note; Hutton v. Bragg, 7 Taunt. 
 14; Raitt v. Mitchell, 4 Camp. 146; 
 Stoddard Woolen Manufactory v. 
 Huntley, 8 N. H. 441, 31 Am. Dec. 
 198. "A particular lien," said 
 WooDWAKD, J., "is given by the 
 common law to any one who takes 
 property in the way of his trade or 
 occupation, to bestow labor and ex- 
 pense upon it. And it exists equally 
 whether there be an agreement to pay 
 a stipulated price, or only an implied 
 contract to pay a reasonable price, 2 
 Kent's Com. 635. It was said by 
 HoLROYD, J. in Crawshay v. Hom- 
 f 1 ay, 4 Bam. & Aid. 50, that the prin- 
 ciple laid down in Chase «. West- 
 more, 5 Maule & Selw. 180, where all 
 
 thfi cases came under the considera- 
 tion of the court, was this, that a 
 special agreement did not of itself 
 destroy the right to retain ; but that it 
 did so only where it contained some 
 special term inconsistent with that 
 right. In 3 Selwin's Nisi Prius, 540, 
 the rule is stated to be, that the right 
 of detaining a thing until the money 
 due upon it be paid, may be waived 
 by a special agreement as to the time 
 or mode of payment; but not merely 
 by an agreement for the payment of a 
 fixed sum," in Mathias v. Sellers, 86 
 Penn. St. 486, 27 Am. Rep. 723. To 
 the same point see also Hanna v. 
 Phelps, 7 Ind. 21, 63 Am. Dec. 410. 
 
 3 White V. Gainer, 9 Moore, 41 ; 2 
 Bing. 23, 1 Car. & P. 324; Boardman 
 V. Sill, 1 Camp. 410 Note; Dirks v. 
 Richards, 5 Scott's N. R. 534; Weeks 
 V. Goode, 6 Com. B. N. S. 367; Can- 
 nee V. Spauton. 8 Scott's N. R. 714 
 8. 0. 7 Man. & G. 903: Dows v. More- 
 wood, 10 Barb. (N. Y.) 183; Hol- 
 brook V. Wight, 24 Wend. (N. Y.) 
 169, 35 Am. Dec. 607; Everett v. 
 Saltus, 15 Wend. (N. Y.) 474; Judah 
 V. Kemp, 2 Johns. (N. Y.) Cas. 411; 
 Rogers v. Weir, 34 N. Y. 463; Pic- 
 quet V. McKay. 2 Blackf. (Ind.) 465; 
 Hanna v. Phelps, 7 Ind. 21, 63 Am. 
 Dec. 410; Leigh v. Mobile, &c. R. R. 
 Co. 58 Ala. 165. 
 
 * Scarfe v. Morgan, 4 Mees & Wels. 
 270. 
 
 508
 
 Chap. IV.] LIABILITY OF PRINCIPAL TO AGENT. § 683. 
 
 liver the goods, without specifying any grounds, is a question 
 apon which the authorities are in conflict, but the better opin-, 
 ion is thought to be that it is.' 
 
 § 682. Claim of Lien no Waiver of personal Bemedies. In 
 general, the lien holder has recourse to the personal responsibil- 
 ity of the debtor as well as the lien upon the goods,' but he may 
 waive this personal responsibility if he so elects. Whether he 
 lias done so in any given case, is a question of fact to be deter- 
 mined from its own circumstances." So although there may have 
 been an undertaking to resort to the goods in the first instance, 
 this will not prevent recourse to the debtor after the proceeds of 
 the goods are exhausted, unless there has been an agreement to 
 look exclusively to the goods.* 
 
 § 683. How Lien may be enforced. It is a general rule that 
 a mere lien can not, in the absence of a statute authorizing it, be 
 enforced by sale of the property.' In such a case, either the 
 ordinary proceedings at law to an execution upon which the 
 property may be seized and sold, must be resorted to, or recourse 
 must be had to the more appropriate remedy of an action in 
 equity. An exception, however, is made in the case of factors, 
 who may, as will be hereafter seen,^ sell the goods in their pos- 
 session to reimburse themselves for their advances. So where 
 the case amounts to a bailment or a pledge of the property, or to 
 a deposit by way of security for a loan, a different rule applies 
 and the bailee or pledgee may, after reasonable demand and 
 notice, sell the property at public sale.' 
 
 • Hanna v. Phelps, supra; Dows v. * Qihon tj. Stanton, 9 N. Y. 476; 
 
 Morewood, 8upra; Spence v. Mc- Parker v. Brancker, 23 Pick. (Mass.) 
 
 Millan. 10 Ala. 583. Contra, see 40; Burrill tJ. Phillips, «fjt)ra; Peisch 
 
 Everett c. Coffin. 6 Wend. (N. Y.) v. Dickson, supra; Stoddard Woolen 
 
 603; Buckley t>. Handy, 2 Miles Mfg. Co. v. Huntley, 8 N. H. 441, 31 
 
 (Penn.) 449. Am. Dec. 198. 
 
 s Graham v. Ackroyd, 10 Hare 193; "Briggs v. Boston, &c. R. R. Co. 6 
 
 Peisch V. Dickson, 1 Mason (U. S. C. Allen (Mass.) 246; Fox v. McGregor, 
 
 C.) 10; Beckwith v. Sibley, 11 Pick. 11 Barb. (N. Y.) 41; Hunt v. Haskell, 
 
 (Mass.) 482; Colley v. Merrill, 6 24 Me. 339, 41 Am. Dec. 387;Crum 
 
 Greenl. (Me.) 50; Upham v. Lefavour, backers. Tucker, 9 Ark. 365; Bailey v. 
 
 11 Mete. (Mass.) 174. Shaw, 24 N. H. 297, 55 Am. Dec. 241. 
 
 3 Burrill v. Phillips, 1 Gall. (U. S. « See post, chapter on Factors. 
 
 C. C.) 360; Peisch v. Dickson, 1 » Parker v. Brancker, 22 Pick. 
 
 Mason (U. S. C. C) 9. (Mass.) 40; Porter v. Blood, 5 Pick. 
 
 509
 
 e 684. THK LAW OF AOETsrcT. ["Book TV. 
 
 S 684. How these Rules apply to Agents. It has not been 
 the purpose here to go minutely into the question of the right of 
 lien as applied to agents of various kinds, but rather to state the 
 most important principles governing liens in general, leaving 
 their particular application to be considered hereafter when 
 treating more fully of the more prominent classes of agents.^ 
 
 But in general it may be said that there exists a particular 
 rio-ht of lien in the a^ent for all his commissions, expenditures, 
 advances and services in and about the property or thmg m- 
 trusted to his agency, whenever they were proper or necessary or 
 incident thereto.' Thus it is said by a learned judge in New 
 York, " An agent may have a lien on the property or funds of 
 his principal for moneys advanced or liabilities incurred in his 
 behalf ; and if moneys have been advanced or liabilities incurred 
 upon the faith of the solvency of the principal, and he becomes 
 insolvent while the proceeds and fruit of such advances or liabil- 
 ities are in the possession of the agent, or within his reach, and 
 before they hare come to the actual possession of the principal, 
 within every principal of equity, the agent has a lien upon the 
 same for his protection and indemnity." * 
 
 So where a principal consigns goods to an agent to sell under 
 an agreement that the agent will accept bills drawn upon him by 
 the principal, it is a necessary inference that the bills were drawn 
 and accepted upon the credit of the goods, and the agent has a 
 lien upon the goods in his hands for the amount of his accept- 
 ances.* So an agent employed to obtain a loan upon a commis- 
 sion, has a lien for the same upon the loan which he secures.* 
 
 (Mass.) 54; Howard v. Ames, 3 Mete. 40 N. H. 88; Farrington v. Meek. 80 
 
 (Mass.) 308; Potter v, Thompson, 10 Mo. 581. 77 Am. Dec. 627; Lovett v. 
 
 j^ J I Brown. 40 N. H. 511; Dan forth o. 
 
 1 See post as to the liens of Attor- Pratt, 43 Me. 50; Moore v. Hitchcock, 
 
 neys, Auctioneers. Factors and Bro- 4 Wend. (N. Y.) 293; Mathias v. Sell- 
 
 kers' in the respective chapters ers, 86 Penn. St. 486. 27 Am. Rep. 
 
 devoted to those agents. 733. 
 
 « McKenzie v. Nevius, 33 Me. 138, • MuUer v. Pondir. 55 K Y. 335. 
 
 38 Am. Dec. 391; Mclntyrec. Carver. «Nagle v. McFeeters, 97 N. Y. 196; 
 
 3 W & S. (Penn.) 393, 37 Am. Dec. Holbrook v. Wight, 24 Wend. (N. Y.) 
 
 519- Nevan v Roup. 8 Iowa 207; 169, 35 Am. Dec. 607; Bank t;. Jones, 
 
 Mo,^<ran V. Congdon, 4 N. Y. 553; 4 N. Y. 497; In re Pavy's Co., 1 Ch. 
 
 Grinnell v. Cook, 3 Hill (N. Y.) 485, Div. 631. 16 Eng. Rep. 661. 
 
 33 Am. Dec. 663; Gregory v. Stryker. » Vinton v. Baldwin, 95 Ind. 433. 
 2 Den. (N. Y.) 631; Wilson v. Martin, 
 
 510
 
 Oiiap. lY.] LIABILITY OF I'HINOIPAL TO AGENT. § 687. 
 
 § 685. Agent's Lien ordinarily a particular Lien. It will be 
 Been hereafter, in cases which stand upon distinctive grounds, 
 that an agent may have a general lien, as in the case of bankers, 
 factors and attorneys. But the lien of an agent employed for a 
 specific transaction is ordinarily a particular lien, and is confined 
 to the retention of the property for services and disbursements 
 in reference to that property only, and not for a general balance 
 of account, nor for services in reference to other property or 
 affairs, unless by general usage, special agreement or mode of 
 dealing, a general lien has been established.^ 
 
 § 686. For what Sums the Lien attaches. Except by virtue 
 of a special agreement, the lien attaches only for debts which are 
 certain and liquidated, and not for contingent, prospective or 
 speculative damages or liabilities.* The debts must also have 
 been incurred by the express or implied authority of the princi- 
 pal, and not as the result of the agent's own wrong, neglect or 
 breach of instructions.' They must also have been incurred for 
 lawful and legitimate purposes, and must be due as a matter of 
 right and not as mere matter of favor.* 
 
 The lien attaches also, in the absence of an express agreement 
 enlarging its scope, only to debts arising or incurred in transac- 
 tions had in the particular character by virtue of which the agent 
 claims the lien, and not from other and dissimilar transactions;* 
 and the demand must be due from the person whose goods are 
 sought to be retained, and not from a stranger, and must accrue 
 to the agent who claims the lien.* 
 
 VI. 
 
 agent's bight of stoppage in transit. 
 
 § 687. Agent liable for Price of Goods, may stop them in 
 Transit. An agent who has made himself liable for the price 
 
 1 McKenzie v. Nevius, 23 Me. 138, Eng. (Ark.) 437; Castellain «. Thomp- 
 
 88 Am. Dec. 291; Adams v. Clark, 9 son, 13 C. B. (N. S.) 105. 
 Cush. (JVIass.) 215, 57 Am. Dec. 41; « Story oa Agency, § 364. 
 Jarvis v. Rogers, 15 Mass, 393; Rush- » See ante, % 67}. 
 
 forth «. Hadfleld. 6 East. 519; Wright ♦Story on Agency, §364, anU, 
 
 V. Snell, 6 B. «& Aid. 350; Barry v. % 673. 
 Boninger, 46 Md. 59; Stevens v. Rob- » See anU, % 679. 
 Ins, 12 Mass. 182; Scott v. Jester, 8 ' Story on Agency, § 365. 
 
 511
 
 § 688. THE LAW OF AGENCY. [Book lY. 
 
 of goods consigned by him to his principal, by obtaining them 
 in his own name, and on his own credit may stop them while in 
 transit if the principal becomes insolvent.' The principle upon 
 which this rule is based is that the relation of the parties under 
 such circumstances is rather like that of vendor and vendee than 
 of principal and agent.' 
 
 The right, however, would not exist if at the time of the con- 
 signment the agent is indebted to the principal on a general 
 balance of account to a greater amount than the value of the 
 goods, and if such consignment has been made in order to cover 
 this balance.' Nor does the right exist if the agent is only a 
 surety for the price of the goods.* 
 
 So the right is lost where the agent, in pursuance of a contract 
 between the principal and a third person who has bought the 
 goods of the principal and paid him for them, delivers the goods 
 to a carrier to be shipped to the purchaser, taking the shipping 
 receipt in the name of the principal, although the principal fails 
 to pay the agent for the goods, before they are delivered to the 
 purchaser.* 
 
 § 688. Right exercised as in other Cases. The agent's right 
 of stoppage in transitu is to be exercised in the same manner, 
 and is subject to be defeated by the same contingencies as in the 
 case of the exercise of the same right by any other vendor.* 
 
 ^689. Right of such an Agent to retain the Title until paid for. 
 Where an agent purchases goods intended for his principal, but, 
 according to the express or implied agreement of the parties, 
 buys them upon his own credit or with funds furnished by him- 
 self, he may retain the title to the goods until they are paid for 
 by the principal.' 
 
 « Newhall v. Vargas, 13 Me. 93, 29 • Gwyn v. Richmond & Danville R. 
 
 Am. Dec. 489; Seymour v. Newton, R Co., 85 N. 0. 429, 39 Am. Rep. 708. 
 
 105 Mass. 272; Feise v. Wray. 3 East. « See Parsons on Contracts. Vol. 1, 
 
 93; D'Aquilac. Lambert, lAmb. 399; Chap. VL; Benjamin on Sales, 
 
 8. 0. 2 Eden 75; Tucker v. Humphrey, §§ 829-868. 
 
 4 Bing. 516; Hawkes v. Dunn, 1 ' Farmers', «fec. Bank «. Logan, 74 
 
 Cromp. & Jer. 519. N. Y. 568; Turner v. Trustees, 
 
 « Newhall v. Vargas, supra. Exch. 543; Mirabita v. Imperial, &c. 
 
 » Wiseman v. Vandeputt, 2 Vem. Bank, L. R. 3, Exch. Div. 164, 31 
 
 203;Vertue v. Jewell, 4 Camp. 31; Eng. Rep. (Moak) 200; Shepherd v. 
 
 E well's Evans on Agency, 377. Harrison, L. R. 4 Q. B. 196; Ogg v. 
 
 «Siffken v. Wray, 6 East 371; Shuter, 1 C. P. D. 47, 15 Eng. Rep. 
 
 Ewell's Evans on Agency, 377 (Moak) 231. 
 
 512
 
 Chap. lY.] LIABILITY OF PRINCIPAL TO AGENT. § 689. 
 
 This rule has been well stated by Folger, J., as follows : 
 ""When commercial correspondents, on the order of a principal, 
 make a purchase of property ultimately for him, but on their 
 own credit, or with funds furnished or raised by them, and such 
 course is contemplated when the order is given, they may retain 
 the title in themselves until they are reimbursed. One of the 
 means by which this may be done, is by taking the bill of sale in 
 tlieir own names, and, when the property is shipped, by taking 
 from the carrier a bill of lading in such terms as to show that 
 they retain the power of control and disposition of it. This re- 
 sults necessarily from the nature of the transaction. It is not, at 
 once, an irrevocable appropriation of the property to the princi- 
 pal. It rests for all of its efficiency and prospect of perform- 
 ance, upon the intention to withhold and the withholding, the 
 right to the property, so that the right may be used to procure 
 the money with which to pay. It contemplates no title in the 
 principal until he has reimbursed to his correspondents the price 
 paid by them or to the person with whom they have dealt, the 
 money obtained from him, with which to pay that price. From 
 the start, the idea formed and nursed is, that the property shall 
 be the means of getting the money with which to pay for it, and 
 that the title shall not pass to him who is to be the ultimate owner 
 until he has repaid the money thus got. 
 
 Although such correspondents act as agents, and are set in mo- 
 tion by the principal who orders the purchase, yet their rights as 
 against him, in the property are more like those of a vendor 
 against a vendee in a sale not wholly performed, where delivery 
 and payment have not been made and where delivery is depend- 
 ent upon payment. * * * 
 
 If the vendor, when shipping the articles which he intends to 
 deliver under the contract, takes the bill of lading to his own 
 order and does so, not as agent or on behalf of the purchaser 
 but on his own behalf, he thereby reserves to himself a power of 
 disposing of the property, and consequently there is no final ap- 
 propriation and the property does not on shipment pass to the pur- 
 chaser. So if the vendor deals with, or claims to retain, the bill of 
 lading in order to secure the contract price, as when he sends it 
 forward with a draft attached, and with directions that it is not to 
 be delivered to the purchaser until payment of the draft, the appro- 
 priation is not absolute, and until payment, or tender of the price, 
 33 513
 
 8 690. THE LAW OF AGENCY. [Book TV. 
 
 is conditional only, and until then the property of the goods does 
 not pass to the purchaser. We see no principle which distin- 
 guishes the case of a vendor and vendee, in this respect, from 
 that of a correspondent or agent, buying for another, yet paying 
 the price from his own means, or from moneys by agreement 
 raised upon the property, or upon his own credit, and holding 
 the property as security until the principal has made reimburse- 
 ment. Such is the purpose of the parties. There is no intent 
 that the property shall be appropriated until payment is made. 
 And unless third parties are unavoidably misled to their harm, 
 they have no cause to complain of a purpose so reasonable and 
 productive of so good results."* , 
 
 VII. 
 
 BiaHTS OF SUBAOKNT AGAINST PRINCIPAL. 
 
 § 690. When Principal liable for his Compensation. The 
 right of the subagent to recover his compensation from the prin- 
 cipal depends upon considerations already discussed. As has 
 been seen, where the appointment of the subagent is expressly 
 or impliedly authorized by the principal, the latter is liable for 
 the subagent's compensation, but where the agent, having under- 
 taken the performance of some duty to his principal, employs 
 upon his own account a servant or subagent to assist him, the 
 subagent must look to his immediate employer, — the agent, — and 
 not to the principal.* 
 
 § 691. Same Rules govern Reimbiirsement and Indemnity, 
 And the same principles would govern the subagent's claim 
 for reimbursement for expenses and indemnity against loss or 
 injury.' 
 
 S 692. How as to Protection against Injury. So where in 
 accordance with the principles referred to, the subagent is to be 
 deemed the agent of the principal, he would be entitled to the 
 same remedies as any other agent for an injury occasioned by the 
 principal's negligence.* Where, however, he is the agent of the 
 
 I Farmers', &c. Bank v. Logan, 74 « See ante, % 197. 
 
 N. Y. 568', Moora v. Kidder, 106 N. » See ante, %% 649-851. 
 
 Y 33. * See ante, % 652 et seq. 
 
 5U
 
 Chap. IV.] LIABILITY OF PRINCIPAL TO AGENT. § 693. 
 
 agent merely, the same rules would apply which govern the rela- 
 tion to the agents or servants of an independent contractor.* 
 
 § 693. When Subagent entitled to a Iiien. A subagent ai>- 
 pointed without the express or implied authority of the principal 
 and who is therefore regarded as the agent or servant of the 
 agent merely, can by virtue of that relation acquire no lien or 
 charge upon the goods or property of the principal confided to 
 the possession of the agent.* But where the subagent, being aj)- 
 pointed by the express or implied authority of the principal, is, 
 in law, to be regarded as the agent of the latter, such subagent 
 >s entitled to a lien to the same extent as any other agent.' So 
 although the appointment of the subagent was originally un- 
 authorized, yet if his appointment has been subsequently ratified 
 by the principal, by availing himself of the proceeds or benefits 
 Accruing from his acts, or otherwise, the subagent's lien will 
 ftttach.* 
 
 At the same time, however, the subagent, though appointed 
 without authority, " 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 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." ' 
 
 So in many cases, proceeds Judge Story, " a subagent who acts 
 without any knowledge or reason to believe that the party em- 
 ploying him is acting as an agent for another, will acquire a 
 rightful lien on the property for his general balance. Thus, for 
 example, if a subagent or broker, at the request of an agent, 
 fihonld 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 the 
 agent has purchased the cargo, and afterwards, and while the 
 policy is in the broker's hands, he should make advances to the 
 
 » See anU, § 668. » Story on Agency, § 389; McKen- 
 
 * Story on Agency, § 389; Maanss zie «. Nevius. supra; Maaass v. Hen- 
 
 w. Henderson, 1 East 335; Man v. derson, 1 East 335; Man v. Sheffner, 
 
 Shirlner, 2 East 523; Westwood v. 2 East 523; McCombie v. Davies, 7 
 
 Bell, 4 Camp 348. East 7; Solly v. Rathbone, 2 M. & 8. 
 
 'Story on Agency, § 389; McKen- 298; Cochran v. Irlam, 2M. & S. 301, 
 
 zie V. Nevius, 22 Me. 138, 38 Am. note; Schmaling v. Thomlinson, 
 
 Dec. 291. Taunt. 147. 
 
 < Slory on Agency, § 389; McKen- 
 rie V. Nevius, supra. 
 
 515
 
 § 694. THE LAW OF AGENCY. [Book IV. 
 
 agent, before any notice of the real state of the title to the prop- 
 erty, 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." • 
 
 ' Story on Agency, § 890; Mann v. Forrester, 4 Oamp. 60; Westwood v. 
 Bell, 4 Camp. 349. 
 
 516
 
 Chap, v.] LiABXirY OF principal to third person. 
 
 CHAPTER V. 
 
 THE DUTIES AND LIABILITIES OF THE PRINCIPAL TO THIRD 
 
 PERSONS. 
 
 § 694. Purpose of chapter. 
 
 I. LlABIIiITT OF PaiNOIPAIj tS CON- 
 TKACT. 
 
 t. Tha LiaMlity of an Undisclosed 
 Principal. 
 
 695. Undisclosed Principal liable 
 
 when discoTered on simple 
 Contracts. 
 
 696. Same Subject — The Rule 
 
 stated. 
 
 697. Same Subject — Of the first 
 
 Exception. 
 
 698. Same Subject— Of the second 
 
 Exception. 
 
 699. Same Subject — What consti- 
 
 tutes an Election. 
 
 700. Same Subject — Election must 
 
 be made within a reasonable 
 Time. 
 
 701. Rule applies to all simple 
 
 Contracts. 
 
 702. Does not apply to Contract 
 
 under Seal. When. 
 
 t. ITis Idability of a Disclosed Princi- 
 pal. 
 
 a. For Agent's Acts and Contracts. 
 
 703. In general. 
 
 704. Principal liable for Agent's 
 
 Acts and Contracts in Exe- 
 cution of Authority. 
 
 705. Same Subject — The Rule 
 
 stated. 
 
 706. Third Person must ascertain 
 
 Agent's Authority. 
 
 707. What constitutes Authority. 
 
 708. Same Subject — Secret Instruc- 
 
 tions and Restrictions. 
 
 § 709. General and special Agents. 
 
 710. Same Subject — Special 
 
 Agent's Authority must be 
 strictly pursued. 
 
 711. Effect of Ratification. 
 
 713. Performance of unlawful Act 
 not enforced. 
 
 713. Principal not bound where 
 
 Agent has an adverse Interest. 
 
 b. For the Agent's Statements and 
 Representations. 
 
 714. When Agent's Admissions 
 
 and Representations binding 
 on Principal. 
 
 715. What embraced within Res 
 
 OestcE. 
 
 716. Agent's Authority must be 
 
 first shown. 
 
 717. When Principal bound by 
 
 Agent's Representation of 
 extrinsic Facts upon which 
 Authority depends. 
 
 c. By notice given to the Agent. 
 
 718. General Rule — Notice to the 
 
 Agent is Notice to the Prin 
 cipal. 
 
 719. Same Subject — The Reason 
 
 of the Rule. 
 
 720. Same Subject — Notice ac- 
 
 quired during Agency. 
 
 731. Same Subject — Knowledge 
 acquired prior to Agency. 
 
 723. Same Subject — Of the first 
 Exception. 
 
 723. Same Subject — Of the sec- 
 ond Exception. 
 
 734. What Notice includes — Act- 
 ual and constructive Notice. 
 
 517
 
 § 694. 
 
 THE LAW OF AGENCY. 
 
 [i3ook IV. 
 
 § 725. Rule applies only to Matters 
 within Agent's Authority. 
 
 726. Notice after termination of 
 Authority does not bind. 
 
 727. Notice must be of some ma- 
 
 terial Matter. 
 
 728. Notice to Subagent when No- 
 
 tice to Principal. 
 
 729. These Rules apply to Corpora- 
 
 tions. 
 
 730. Same Subject— When Notice 
 
 to Director is Notice to Cor- 
 poration. 
 
 731. Same Subject — Notice to 
 
 Stockholder not Notice to 
 the Corporation. 
 
 II. Liability of the Principal in 
 Tort. 
 
 a. For Agent's Wrongful Acts. 
 
 732. In general. 
 
 738. Principal liable for Acts ex- 
 pressly directed. 
 
 734. Liable for Agent's negligent 
 Act in Course of Employ- 
 ment. 
 
 785. Same Subject — Acts in the 
 
 Course of his Employment. 
 
 786. Same Subject — Illustrations. 
 
 787. Not liable for Negligence not 
 
 in Course of Employment. 
 
 § 738. Same Subject — Illustrations. 
 
 739. Liability for Agent's fraudu- 
 
 lent Act. 
 
 740. When Principal liable for 
 
 Agent's willful or malicious 
 Act. 
 
 741. Same Subject — Illustrations. 
 
 742. Same Subject — Liability for 
 
 excessive Force. 
 
 743. Liability of Principal for 
 
 Agent's false or fraudulent 
 Representations. 
 744 Same Subject — Third Per- 
 son's Remedies. 
 
 745. Principal's civil Liability for 
 
 Agent's criminal or penal 
 Act. 
 
 746. Principal's criminal Liability 
 
 for Agent's criminal or penal 
 Act. 
 
 747. Principal's Liability for Acts 
 
 of independent Contractor. 
 
 748. Same Subject — Illustrations. 
 
 749. Principal's Liability for Acts 
 
 of Subagent. 
 
 750. Effects of Ratification, 
 
 751. The Measure of Damages 
 
 against the Principal. 
 
 752. Unsatisfied Judgment against 
 
 Agent no Bar to Action 
 against Principal. 
 
 § 694. Purpose of Chapter. It is obvious that one of the 
 most important questions in the law of agency is that which 
 deals with the duties and liabilities of the principal to third per- 
 sons, based upon and growing out of the acts, declarations, con- 
 tracts and misconduct of the agent in his dealings and transac- 
 tions with them. To some extent and for some time, the agent 
 has been invested with the personality of his principal and sent 
 out into the world to obtain for the principal the profits, benefits 
 or other objects which he desired, and to bind the principal 
 when necessary by such representations, contracts and other acts 
 as are suitable to the occasion, and within the terms and objects 
 of the authorization. 
 
 In pursuing these objects, the agent may have kept either the 
 fact of the agency, or the name of his principal, or both, con- 
 
 518
 
 Chap, v.] LIABILITY OF PRINCIPAL TO THIRD PERSON. § 696. 
 
 cealed from the persons with whom he dealt, and in this event 
 the question arises whether, in either case, the actual principal 
 can be made liable when discovered. 
 
 Or the agent may have disclosed both the fact of his agency 
 and the name of his principal, and in this event it is material to 
 know whether the act, contract or representation of the agent, 
 assumed to be done or made by virtue of his authority, was in 
 fact within its nature and its scope. 
 
 So the question may arise how far the principal can be held 
 responsible for the wrongs committed by the agent in pursuance 
 of, or while engaged in, the undertaking. For convenience of 
 treatment there will be considered : — 
 
 I. The liability of the principal in contract, including: — 
 
 1. The liability of an undisclosed principal. 
 
 2. The liability of a disclosed principal. 
 IL The liability of the principal in tort. 
 
 I. 
 
 LIABILnr OF PRINCIPAL IN CONTRACT. 
 
 1. The Liability of an Undisclosed Principal. 
 
 § 695. Undisclosed Principal liable when discovered on sim- 
 ple Contracts. It has been seen in an earlier part of this work' 
 that, if the agent conceals either the fact of his agency or the 
 name of his principal, he may be held personally liable upon the 
 contracts made by him. This is so because the agent, having 
 failed to disclose a responsible principal, must be presumed to 
 have intended to make himself liable. But this liability of 
 the agent is not exclusive. Although the principal was con- 
 cealed, the contract has been made by his authority and for his 
 benefit and advantage. In point of law the contract is, in real- 
 ity, the contract of the principal,* though ostensibly the contract 
 of the agent. Hence, although the agent, under the rules stated, 
 is primarily liable, the principal, when discovered, should be held 
 liable also at the election of the party who has dealt with the 
 agent under a misapprehension of his true character. 
 
 § 696. same Subject— The Rule stated. It is, therefore, the 
 • See ante, § 554. • Cothay «. Pennell, 10 B. & C. 671. 
 
 519
 
 I 6'J7. THE LAW OF AGENOY. [Book IV. 
 
 rule of the law that an undisclosed principal, when subsequently 
 discovered, may, at the election of the other party if exercised 
 within a reasonable time, be also held liable upon all simple con- 
 tracts made in his behalf by his duly authorized agent, although 
 the credit was originally given to the agent under a misappre- 
 hension as to his true character. ' 
 
 This rule, however, is subject to certain exceptions : — 
 
 1. That the principal is not liable where, before the other 
 party has intervened with his claim, the principal has settled with, 
 paid or credited the agent in good faith and in reliance upon 
 such a state of conduct or representations on the part of the 
 other party, as to reasonably lead the principal to infer that the 
 agent had already settled with such other party. This rule rests 
 upon the familiar doctrine of estoppel." 
 
 2. That the principal cannot be held liable where the other 
 party, with full knowledge as to who was the principal, and with 
 the power of choosing between him and the agent, has distinctly 
 and unquestionably elected to treat the agent alone as the party 
 liable.' 
 
 § 697. Same Subject— Of the flxst Exception. This subject 
 has been much discussed in the English courts and various and 
 
 >Hyde «. Wolf. 4 La. 234, 23 Am. Townsend, 24 N. Y. 61; Ford v. 
 
 Dec. 484; Episcopal Church v. Wiley, Williams, 21 How. (U. S.) 287; Hun- 
 
 2 Hill (3. C.) Ch. 584, s. c, 1 Riley tington «. Knox, 7 Cush. (Mass.) 371; 
 
 (S. C.) Ch. 156, 30 Am. Dec. .386; Eastern R. R. Co. v. Beaedict, 6 
 
 Smith V. Plummet, 5 Whart. (Pena.) Gray (Mass.) 566; Hubbert v. Borden, 
 
 82, 34 Am. Dec. 530; Taintor v. 6 Whart. (Penn.)91 ; Borcherling v. 
 
 Pr'eadergast, 8 Hill (N. Y.) 73, 38 Katz. 37 N. J. Eq. 150; Lerned v. 
 
 Am. Dec. 618; Henderson v. May- Johns, 9 Allen (Mass.) 419 ; National 
 
 Jiew, 2 Gill (Md.) 393, 41 Am. Dec. Ins. Co. v. Allen, 116 Mass. 398, 
 
 434, Hunter «. Giddings, 97 Mass. 41, Meeker tj. Claghorn, 44 N. Y. 349; 
 
 93 Am, Dec. 54; Exchange Bank v. Jessup v. Steurer, 75 N. Y. 613; Hig- 
 
 Rice, 107 Mass. 37, 9 Am. Rep. 1: gins©. Senior, 8 Mees. & Wells, 834; 
 
 Briggs tJ. Partridge, 64 N. Y. 357, 21 Browning v. Provincial Ins. Co., L. 
 
 Am. Rep. 617; Cobb v. Knapp, 71 R. 5 P. C. App. 263; Calder v. Do- 
 
 N.Y. 348, 27 Am. Rep. 51; Merrill v. bell, L. R. 6 C. P. 486. Trueman v. 
 
 Kenyon. 48 Conn. 314, 40 Am. Rep. Loder, 11 Ad. & Ell. 594; Smethurst 
 
 174; Byington v. Simpson, 134 Mass. v. Mitchell, IE. &E. 623; Thomson 
 
 169, 45 Am. Rep. 314; Mayhew «. v. Davenport, 9 B. &. C. 78. 
 Graham, 4 Gill (Md.) 363; Inglehart ^ See following section and cases 
 
 t». Thousand Island Hotel Co. 7 Hun cited. 
 
 (N. Y.) 547; Coleman v. First Na- » See section 698 and cases cited, 
 
 tional Bank, 53 N. Y. 393; Dykers v. 
 
 620
 
 Chap, v.] LIABILITY OF PKINCIPAI. TO THIKD PERSON. § 697. 
 
 conflicting rules have been laid down in successive cases. Some 
 of these rules have been adopted by the courts and textwriters 
 in this country, but have been afterwards denied or limited by 
 later cases in the English courts, and the result has been an ex- 
 ceedingly unsatisfactory condition of the law. 
 
 One of the earliest of these cases is that of Thomson v. Daven- 
 port,' decided in the court of King's Bench, in 1829. In that 
 case the agent disclosed that he was acting for a principal in Scot- 
 land but did not disclose his principal's name. Lord Tenterden, 
 in his opinion, said : " I take it to be a general rule, that if a per- 
 son sells goods (supposing at the time of the contract he is deal- 
 ing with a principal), but afterwards discovers that the person 
 with whom he has been dealing is not the principal in the trans- 
 action, 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 
 qualification, that the state of the account between the principal 
 and the agent is not altered to the prejudice of the principal," 
 and Bayley, J., in the same case, said : " Where a purchase is 
 made by an agent, the agent does not, of necessity, 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 prin- 
 cipal 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. 
 If the principal has paid the agent, or if the state of accounts be- 
 tween the agent 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." 
 
 The rule as laid down by Lord Tenterden was approved by Mr. 
 Parsons in his work on Contracts,* and by Judge Story in his 
 work on Agency.' It was also adopted in Indiana.* 
 
 Following this case came Heald v. Kenworthy,' decided in the 
 Exchequer in 1855, in which these expressions of Lord Tenter- 
 den and Bayley, J., were shown to be mere dicta, and were held 
 
 1 9 Barn. & Cress. 78. * Thomas v. Atkinson, 38 Ind. 248. 
 
 » I. Parsons on Contracts, 63. • 10 Exch. 739. 
 
 » Story on Agency, 449. 
 
 521
 
 3 097. THE LAW OF AGENCY. [Book lY. 
 
 bj the court to be inaccurate statements of the law. Parke, B., 
 limited the rule to those cases where the principal has been mis- 
 led by the action of the seller, saying : " If the conduct of the 
 seller would make it unjust for him to call upon the buyer for 
 the money, as for example, where the principal is induced by the 
 conduct of the seller to pay his agent the money on the faith thai 
 the agent and seller have come to a settlement on the matter, or if 
 any representation to that effect is made by the seller, either by 
 words or conduct, the seller cannot afterwards throw off the mask 
 and sue the principal." 
 
 Afterwards arose the case of Armstrong v. Stokes,' decided in 
 the court of Queen's Bench in' 1872. In this case J. & O. 
 Ryder, who were commission merchants at Manchester, acting 
 sometimes for themselves and sometimes as agents, having 
 received an order for goods from defendants, bought them of 
 plaintiff, without disclosing that they were not acting for them- 
 selves. 
 
 J. & O. Ryder delivered the goods to defendants who paid for 
 them in good faith. Afterward J. & O. Ryder failed, not hav- 
 ing paid the plaintiff. Later it was discovered by plaintiff that 
 J. & O. Ryder had bought the goods for the defendants and 
 thereupon the plaintiff brought the action to charge defendants 
 as undisclosed principals, but it was held that defendants' pay- 
 ment to J. & O. Ryder was a bar to recovery. Blackburn, J., 
 'vho delivered the opinion of the court (Blackburn, Mellor and 
 Lush), held that the rule laid down by Parke, B., was too nar- 
 row and cited and approved that advanced by Lord Tenterden 
 and Mr. Justice Baylet. 
 
 Referring to the rule of Parke, B., the court say: "We 
 think that if the rigid rule thus laid down were to be applied to 
 those who were only discovered to be principals after they had 
 fairly paid the price to those whom the vendor believed to be tlie 
 principals, and to whom alone the vendor gave credit, it would 
 produce intolerable hardship. It may be said, perliaps truly, 
 this is the consequence of that which might originally have been 
 a mistake, in allowing the vendor to have recourse at all against 
 one to whom he never gave credit, and that we ought not to 
 establish an illogical exception in order to cure a fault in a rule. 
 But we find an exception (more or less extensively expressed) 
 ' L. R. 7 Q. B. 598, 3 Eng. (Moak) 217. 
 522
 
 Chap. Y.] LIABILITY OF PRINCIPAL TO THIRD PERSON. § 697. 
 
 always mentioned in the very cases that lay down the rule ; and 
 without deciding anything as to the case of a broker, who avow- 
 edly acts for a principal (though not necessarily named), and 
 confining ourselves to the present case, which is one in which, to 
 borrow Lord Tenterden's phrase in Thomson v. Davenport,' the 
 plaintiff sold the goods to J.& O. Ryder (the agents), 'supposing 
 at the time of the contract he was dealing with a principal,' we 
 think such an exception is established. We wish to be under- 
 stood as expressing no opinion as to what would have been the 
 effect of the state of the accounts between the parties if J. 
 & O. Ryder had been indebted to the defendants on a separate 
 account, so as to give rise to a set-off or mutual credit between 
 them. We confine our decision to the case where the defend- 
 ants, after the contract was made, and in consequence of it, bona 
 fide and without moral blame, paid J. & O. Ryder at a time 
 when the plaintiff still gave credit to J. & O. Ryder and knew 
 of no one else. We think that after that it was too late for the 
 plaintiff to come upon the defendant." 
 
 This case, in its turn, was followed by Irvine v. Watson,* de- 
 cided in the Queen's Bench in 1879 in which Bowen, J., laid 
 down the following rules : " There are two classes of sales 
 through an agent to an undisclosed principal which it is neces- 
 sary to distinguish. 1. Where the seller supposes himself to be 
 dealing with a principal, but discovers afterwards that he has 
 been selling to an agent, and that there is an undisclosed princi- 
 pal behind, the law allows the seller to have recourse on such 
 discovery to the undisclosed principal, provided always ^ that the 
 principal has not meanwhile paid the agent, or that the state 
 of accounts between the principal and agent does not render it 
 unjust, t. «., inequitable that the seller should any longer look to 
 the principal for payment. This statement of the proviso which 
 relieves the undisclosed principal in certain cases from all neces- 
 sity to pay the seller was thought by Parke, B., and the other 
 judges in Heald v. Kenworthy * to be too large without further 
 explanation, and they expressed the view that the only case in 
 which the seller under such circumstances was precluded from 
 
 ' Su-pra. and Bayley, J. in Thomson*. Daven- 
 
 « 5 Q B. Dlv. 102, 29 Eng. Rep. port. 9 B. & 0. 78. 
 
 (Moak) 186. * 10 Exch. 745. 
 3 See, per Lord Tenterdbn, C. J. 
 
 523
 
 § 697. THE LAW OF AGENCY. [Book lY. 
 
 having recourse to the nndisclosed principal when discovered, 
 was when the seller, by some condnct of his own, had misled the 
 principal into paying or settling with his agent in the interim. 
 The principal, such is the reasoning of the Court of Exchequer, 
 has originally authorized his agent to create a debt, and the prin- 
 cipal cannot be discharged from the debt unless the seller has 
 estopped himself, by his conduct, from enforcing it against him. 
 The court of Queen's Bench in Armstrong v. Stokes,' do not 
 adopt this narrower version of Lord Tenterdbn's and Mr. Justice 
 Batley's proviso. They revert to the wider language used by 
 Lord Tenterden and Bayley, J., in Thomson v. Davenport,* 
 and it must now be taken to be the law that a seller who has 
 given credit to an agent, believing him to be a principal, cannot 
 have recourse against the undisclosed principal, if the principal 
 has bona fide paid the agent at a time when the seller still gave 
 credit to the agent, and knew of no one else except him as 
 principal. 
 
 2. The present case is one that belongs to a distinct but analo- 
 gous class. At the time of the dealing in the goods, the seller 
 was informed that the person who came to buy was buying for a 
 principal, but was not told, and did not ask, who that principal 
 was, nor anything further about him. Thomson v. Davenport • 
 is the leading authority to show that, in such a case, where no 
 payment or settlement in account between the undisclosed prin- 
 cipal and his agent has intervened, the seller may afterwards have 
 recourse to the undisclosed principal. But what if the undis- 
 closed principal has meanwhile innocently paid or settled with 
 his agent! If indeed such payment or settlement is the result 
 of any misleading conduct on the part of the seller, then, no 
 doubt, the general principal alluded to in Heald v. Ken worthy/ 
 would equally apply, and the seller could no longer pursue his 
 remedy against the man whom he had misled. But is this the only 
 proviso, or must a wider proviso still in the present class of cases 
 be engrafted on the statement of the rule, similar to the proviso as 
 finally sanctioned in Armstrong v. Stokes.® This was a case in 
 which, at the time of sale, exclusive credit had been given by 
 the seller to the agent, who bought in his own name as princi- 
 
 » Supra. * Supra. 
 
 s Supra. • Supra. 
 
 » Supra. 
 
 524]
 
 Chap, y.] LIABILITY OF PRINCIPAL TO THIRD PERSON."^ § 697. 
 
 pal. In the present instance the agent bought, it is trne, in his 
 own name, but held out to the seller the additional advantage of 
 the credit of an unnamed principal behind. "What difference to 
 the liability of the principal does this make ? It is obvious that 
 when, as in Armstrong v. Stokes,' the seller deals exclusively 
 with the agent as principal, the seller sells knowing, if his buyer 
 turns out to have a principal behind him, the principal will have, 
 at all events, been justified in assuming, as the fact is, that the 
 seller deals simply with the agent. The principal may be 
 expected to arrange with his agent on this basis. If before 
 recourse is had to him, the undisclosed principal has put his 
 agent in funds to pay, the seller cannot afterward object that the 
 undisclosed principal, who had a right to suppose his credit was 
 not looked to in the matter, should have held his hand. The 
 case is altered where the agent, when buying, states he has a 
 principal whose existence, though he does not name him, he is 
 authorized in mentioning. I think that the liability of the prin- 
 cipal, who under such circumstances pays his agent, to pay over 
 again to the seller must depend in each case on what passes 
 between the seller and the agent, acting within the scope of his 
 authority, and on the precise nature of the contract which the 
 agent has lawfully made. * * * The essence of such a trans- 
 action is that the seller, as an ultimate resource, looks to the 
 credit of some one to pay him if the agent does not. Till the 
 agent fails in payment, the seller does not want to have recourse 
 to this additional credit. It remains in the background : but if, 
 before the time comes for payment, or before, on non-payment by 
 the agent, recourse can be fairly had to the principal whose 
 credit still remains pledged, the principal can pay or settle his 
 account with his own agent, he will be depriving the seller 
 behind the seller's back of his credit. It surely must, at all 
 events, be the law that in the case of sales of goods to a broker 
 the principal, known or unknown, cannot, by paying or settling 
 before the time of payment comes, with his own agent, relieve 
 himself from responsibility to the seller, except in the one 
 case, where exclusive credit was given by the seller to the agent. 
 Bat may the payment or settlement to or with the agent bo 
 safely made in such a case after the day of payment has arrived, 
 and if so within what time ? It seems to me that it can only 
 
 * Supra. 
 525
 
 § 697. THE LAW OF AGENCY. [Book IV. 
 
 safely be made if a delay has intervened which may reasonably 
 lead the principal to infer that the seller no longer requires to 
 look to the principal's credit, — such a delay, for example, as leads 
 to the inference that the debt is paid by the agent, or to the 
 inference that, though the debt is not paid, the seller electa to 
 abandon his recourse to the principal and to look to the agent 
 alone." 
 
 This case (Irvine v. Watson), however, went to the Court of 
 Appeal ' where, while the result reached below was affirmed, the 
 court declare the rule as laid down by Parke, B., in Heald v. 
 Ken worthy, to be the true one. 
 
 The court did not expressly overrule Armstrong v. Stokes as 
 the difference in the facts enabled them to draw a distinction 
 between the cases, but Bramwell, L. J., said : " It is to my 
 mind certainly difficult to understand that distinction, or to see 
 how the mere fact of the vendor's knowing or not knowing that 
 the agent has a principal behind him can affect the liability of 
 that principal. I should certainly have thought that his liability 
 would depend upon what he himself knew, that is to say, whether 
 he knew that the vendor had a claim against him and would 
 look to him for payment in the agent's default," and Brett, L. 
 J., said : " If the case of Armstrong v. Stokes arises again, we 
 reserve to ourselves sitting here, the right of reconsidering it." 
 The distinction of Parke, B., was again approved in Davison v. 
 Donaldson,* decided in the Court of Appeal in 1882. 
 
 The result, therefore, of the English cases seems to be to limit 
 the exception to that first stated by Parke, B. 
 
 The subject has not been much considered in the United States 
 but wherever the question has arisen, the tendency has been to 
 follow the rule laid down by Judge Story and Prof. Parsons, 
 based upon the dictum of Lord Tenterden. A general state- 
 ment of the rule was made in a recent case in the New York 
 Court of Appeals with the exception, " provided he has not in 
 the meantime in good faith paid the agent," * but the state- 
 ment was a mere dictum. 
 
 The rule of Parke, B., seems to be eminently reasonable and 
 
 > 5 Q. B. Div. 414. 29 Eng. Rep. See also Ketchum v. Verdell, 42 Ga. 
 
 871. 534, Emerson v. Patch, 123 Mass. 
 
 « L R. 9 Q. B Div. 623. 541; Fradley v. Hyland, 37 Fed. Rep, 
 
 » Knapp V. Simon, 98 N. Y. 284. 49; Laing v. Buller, 37 Hun, 144. 
 
 526
 
 Oiiap. V.J LIABILITY OF PRINCIPAL TO THIRD PERSON. § 698. 
 
 pst. If a principal sends an agent to buy goods for him and on 
 his account, it is not unreasonable that he should see that 
 they are paid for. Although the seller may consider the agent 
 to be the principal, the actual principal knows better. He can 
 easily protect himself by insisting upon evidence that the 
 goods have been paid for or that the seller with full knowledge 
 of the facts has elected to rely upon the responsibility of the 
 agent, and if he does not, but, except where misled by some 
 action of the seller, voluntarily pays the agent without knowinf^ 
 that he has paid for thera, there is no hardship in requiring him' 
 to pay again. If the other party has the right, witliin a reason- 
 able time, to charge the undisclosed principal upon his discov- 
 ery, — and this right seems to be abundantly settled in the law 
 ,of agency — it is difficult to see how this right of the other party 
 can be defeated, while he is not himself in fault, by dealings 
 between the principal and the agent, of which he had no knowl- 
 edge, and to which he was not a party. 
 
 § 698. Same Subject^Of the second Exception. The second 
 exception to the rule rests upon obvious grounds. The other 
 party is at liberty on discovering the principal, to elect to hold 
 either the agent or the principal, but he cannot hold both.' And 
 having once made an affirmative election to hold the agent, he 
 cannot be permitted afterwards to reverse his action and pro- 
 ceed against the principal. If the principal, being apprised of 
 the fact that the other party has elected to look to the a<'ent, 
 settles with the agent upon that basis and either pays him or 
 allows him a corresponding credit, nothing could be more unjust 
 than to permit the other party afterwards to repudiate his action 
 with the agent and resort to the principal.* 
 
 * Paterson v. Gandasequi, 15 East. 29 Eng. Rep. (Moak) 186; Armstrone 
 
 63; Bush «. Devine, 5 Harr. (Del.) v. Stokes, L. R. 7 Q. B. 599, 3 Eag. 
 
 375; Silver t>. Jordoa, 136 Mass. 319; Rep. 217; Heald v. Keuworthy, 10 
 
 Addison??. Gandasequi, 4 Taunt,574; Exch, 739; Kymer v. Suwercropp, 1 
 
 Thomson v. Davenport, 9 B. & C. Camp. 109; Macfailane ». Giannaco- 
 
 78; Schepflin v. Dessar, 20 Mo. App. pulo, 3 Hurl. & Nor. 859; Clealand v. 
 
 569. Walker, 11 Ala. 1058, 40 Am. Dec. 
 
 » Thomson!). Davenport, 9 Barn. 238; Cheever ©. Smith, 15 Johns. (N. 
 
 & Cress. 78; Horsfall v. Fauntleroy, Y.) 276; Bush v. Devine, 5 Har. 
 
 10 Barn. & Cress. 755; Smyth v. And- (Del ) 375; Brown v. Bankers &c. Tel. 
 
 erson, 7 Com. Bench. 21; Irvine v. Co. 30 Md. 39; Schepflin v. Dessar, 
 
 Watson, Law Repts. 5Q.B. Div. 103, 20 Mo. App. 569; Hyde e. Wolfe, 4 
 
 527
 
 § 699. THE LAW OF A.GENCJT. [Book lY. 
 
 And these rules apply not only to the case where the principal 
 at the time of the dealing with the agent, was unknown or un- 
 disclosed, but they apply equally where at that time the other 
 party knew both the fact of the agency and the name of the 
 principal. As has been seen in an earlier portion of this work,^ 
 where an agent acts in behalf of a known principal, there is a 
 presumption that he intends to charge that principal and not 
 himself. This presumption, however, is not conclusive, and the 
 agent is at liberty, if he sees fit, to charge himself personally. 
 E converse there is a presumption that the other party gave credit 
 to the principal rather than to the agent, but this presumption is 
 not indisputable, and the other party, knowing the principal, may 
 still elect to rely upon the responsibility of the agent alone. 
 Whether he has done so or not is a question to be determined 
 from all the facts and circumstances of the case. But if it be 
 found that he has done so, his election so to do is conclusive, and 
 he cannot afterwards hold the principal.* 
 
 § 699. Same Subject— What constitutes an Election. It is im- 
 possible to lay down any general rule by which it can, in all cases, 
 be determined, what constitutes an election to hold the agent 
 only. The other party may, of course, by some express and 
 unequivocal act, done with that direct intent, declare his intention 
 to treat the agent only as his debtor ; but, in the majority of the 
 cases, the intention of the other party is to be gathered from his 
 words and conduct, and the various circumstances which surround 
 the case. This much, however, may be said, that if the state- 
 ments and conduct of the other party have been such as reason- 
 ably to lead a prudent man to the conclusion that the agent only 
 will be held liable, and if the principal acts in good faith upon 
 this belief, in paying, crediting, or settling with the agent, he 
 cannot afterward be held liable to the other party. This ordi- 
 narily is a question of fact to be determined by the jury, under 
 proper directions from the court, from all the facts and circum- 
 stances which surround the case,* although there may undoubt- 
 
 La. 234; 33 Am. Dec. 484; Horaana » Curtis v. Williamson, L. R. 10 Q. 
 
 c. Lambard, 21 Me. 398; Paterson v. B. 57, 11 Eng. Rep. (Moak) 149; Cal- 
 
 Gandasequi, 15 East, 62; Addison v. der v. Dabell, L. R. 6 C. P. 486; Mer. 
 
 Gandagequi, 4 Taunt. 574. rill v. Kenyon, 48 Conn. 314, 40 Am. 
 
 I Ante, % 558. Rep. 174; Cobb t>. Knapp, 71 N. Y. 
 
 » Bcbepflin v. Dessar, 20 Mo. App. 848, 27 Am. Rep. 6L 
 569; Silver v. Jordan, 136 Mass. 319. 
 
 528
 
 Chap. Y.] LIABILITY OF PKINCIPAL TO THIRD PERSON. § 699. 
 
 edly be cases in which the act of the other party in regard to his 
 dealings or proceedings with the agent, with full knowledge of 
 the facts and with freedom of choice, may be such as to preclude 
 him in point of law from afterwards resorting to the principal. 
 
 But here, as in other cases of election, this full knowledge of 
 the facts and freedom of choice are, subject to the exceptiona 
 already stated, indispensable ; the other party cannot be deemed 
 to have made an election when he had no knowledge that there 
 was any choice, and this knowledge must include not only the 
 fact of the agency but the name of the principal.^ 
 
 Thus the taking of an agent's promissory note or acceptance 
 for the price of goods sold to him by one who knew he was act- 
 incr as asent but who did not know for whom, will not conclude 
 the seller from holding the principal also when subsequently 
 discovered,' nor will the fact that the vendor charged the goods 
 to the acrent ' or sent him a statement of the account made out 
 in his name,* supposing him to be the principal, prevent the 
 vendor from subsequently charging the real principal when ascer- 
 tained to be such. So the mere filing of an affidavit of proof 
 against the estate of an insolvent agent to an undisclosed princi- 
 pal, after that principal was discovered, is not conclusive evidence 
 of an election to treat the agent only as the debtor.* 
 
 Nor can the mere commencement of an action against the 
 agent, after the discovery of the principal, be deemed conclusive 
 of such an election.* In such a case it has been held that 
 nothing less than satisfaction would discharge either.' 
 
 > Curtis V. Williamson, L. R. 10 Q.. « Raymond v. Crown, &c. Mills, 3 
 
 B. 57, 11 Eng. Rep. 149; Merrill v. Mete. (Mass.) 319; French v. Price, 
 
 Kenyon, 48 Conn. 314, 40 Am. Rep. 24 Pick. (Mass.) 13; Guest v. Burling- 
 
 174, ton Opera House Co., — Iowa — , 38 
 
 2 Merrill v. Kenyon, supra; Pope v. N. W. Rep. 158. 
 
 Meadow, &c. Co., 20 Fed. Rep. 35. "If « Henderson v. Mayhew, 2 Gill. 
 
 the vendor on a sale made to an agent, (Md.) 393, 41 Am. Dec. 434. 
 
 take the promis.^ory note of the agent « Curtis v. Williamson, L, R. 10 Q. 
 
 for the amount of the purchase, on B. 57, 11 Eng. Rep. 149. 
 
 failure of payment by the agent, the » Cobb v. Knapp, 71 N. Y. 348, 27 
 
 principal would be equally liable to Am. Rep. 51; Curtis v. Williamson, 
 
 an action by the vendor, founded supra ; Raymond v. Crown, &c. Mills, 
 
 upon the original consideration, as if 2 Mete. (Mass.) 319; Ferry v. Moore, 
 
 the note had beeu given by the plain- 18 111. App. 135. 
 
 tiff himself." Keller v. Singleton, ^ Beymer v. Bonsall, 79 Penn. St. 
 
 69 Ga. 703. 298; Maple v. Railroad Co., 40 Ohio 
 
 34 529
 
 § 700. THE LAW OF AGENCY. [Book IV. 
 
 These facts, however, are proper to be taken into consideration, 
 with others, in determining the question of the election. 
 
 But where the creditor with knowledge of the principal's lia- 
 bility sees fit to take the individual note of the agent, without 
 taking, at the time of the transaction, any steps indicative of an 
 intent to hold the principal, this is equivalent to a discharge of 
 the principal as a matter of law.' And the case is much stronger 
 where after the taking of the note and before any claim is made 
 upon the principal, the latter has paid, credited or settled with 
 the agent." 
 
 § 700, Same Subject— Election must be made within a reason- 
 able Time. This right of the other party to hold the principal 
 when discovered, must be exercised within a reasonable time after 
 he is disclosed, and if not so exercised it will be deemed to be 
 waived.' What is a reasonable time, in this as in other cases, is 
 a question to be determined with reference to all of the facts and 
 circumstances of the case. 
 
 § 701. Rule applies to all simple Contracts. This rule applies 
 to all simple contracts whether written or unwritten, entered into 
 by an agent in his own name and within the scope of his au- 
 thority, although the name of the principal does not appear in 
 the instrument, and was not disclosed, and although the party 
 dealing with the agent supposed that the latter was acting for 
 himself ;* and this rule obtains as well in respect to contracts 
 which are required to be in writing, as those to whose validity a 
 writing is not essential.' 
 
 St. 313, 48 Am. Rep. 685. But see « Schepflia v. Dessar, 20 Mo. App. 
 
 Priestley f. Pernie, 3 H. & 0. 977; 569; see cases cited to note 2 of pre- 
 
 Paterson v. Gandasequi, 15 East 63. ceding section. 
 
 1 Ames Packing & Prov. Co. v. ' Smetburst v. Mitchell, 1 Ell. & 
 
 Tucker, 8 Mo. App. 95; Addison v. Ell. 633; Curtis v. Williamson, L. R 
 
 Gandasequi, 4 Taunt 574, 3 Smith's 10 Q. B. 57, 11 Eng Rep. 149; Irvine 
 
 L. C. 869; Paterson v. Gandasequi, v. Watson, 5 Q. B. Div. 103, 29 Eng. 
 
 15 East 63, 2 Smith's L. Cas. 360; Rep. 186. 
 
 Paige V. Stone, 10 Mete. (Mass.) 160, < Briggs v. Partridge. 61 N. T. 357, 
 
 43 Am. Dec. 420; Wilkins v. Reed, 6 21 Am. Rep. 617; Dykers v. Towa- 
 
 Greenl. (Me.) 220, 19 Am. Dec. 211; send, 24 N. Y 61; Coleman v. First 
 
 French®. Price, 24 Pick. (Mass.) 13; Nat. Bank, 53 N Y. 393; Ford v. 
 
 Green v. Tanner, 8 Mate. (Mass.) 411; Williams, 21 How. (U. S ) 389. 
 
 Chapman v. Duraut, 10 Mass. 47; s Borcherling t). Katz, 37 N. J. Eq. 
 
 Tudor t>. Whiting, 12 Mass. 312; 150; Briggs ». Partridge, «Mi>ra. 
 James v. Bixby, 11 Mass. 34. 
 
 630
 
 Chap, v.] LIABILITY OF PRINCIPAL TO THIRD PERSON. § 702. 
 
 It does not violate the principle which forbids the contradiction 
 of a written agreement by parol evidence, nor that which for- 
 bids the discharging of a party by parol from the obligations of 
 his written contract. The writing is not contradicted, nor is the 
 agent discharged; the result is merely, that an additional party 
 is made liable. It is said by a learned judge in a Massachusetts 
 case : " Whatever the original merits of the rule that a party not 
 mentioned in a simple contract in writing may be charged as a 
 principal upon oral evidence, even where the writing gives no 
 indication of an intent to bind any other person than the signer, 
 <ve cannot reopen it, for it is as well settled as any part of the 
 law of agency." ' 
 
 § 702. Does not apply to Contracts under Seal— When. It ia 
 d fundamental principle of common law that, upon an instru- 
 ment under seal, those persons only can be charged who appear 
 upon its face to be the parties to it.* This principle, however, as 
 has been seen, has been modified in modern times in respect to 
 those instruments to the validity of which a seal was not required, 
 though they were in fact sealed. In regard to such instruments 
 a decided tendency has been manifested to regard the seal, in cer- 
 tain cases, as mere surplusage and to reject it as such. 
 
 It may therefore be said to be the rule that where the seal was 
 not essential to the validity of the contract, if the interest of 
 the principal appears upon its face, or if it has been ratified and 
 confirmed by him, and if he has received and accepted the bene- 
 fits of the performance of the other party, the principal may be 
 held liable in assumpsit upon the promise contained in the instru- 
 ment, which may be resorted to, to ascertain the terms of the 
 agreement.' 
 
 * Holmes, J., in Byington ». Simp- deed, under seal, on technical 
 
 eon, 134 Mass. 169, 45 Am. Rep. 314, grounds, no one but a party to the 
 
 citing Huntington v. Knox, 7 Cush. deed is liable to be sued upon it, and, 
 
 (Mass.) 371 ; Eastern R. R. v. Bene- therefore, if made by an attorney or 
 
 diet, 5 Gray (Mass.) 561; Lerned v. agent, it must be made in the name 
 
 Johns. 9 Allen (Mass.) 419; Hunter of the principal, in order that he may 
 
 f. Giddings, 97 Ma'^s. 41; Exchange be a party, because otherwise he is 
 
 Bankc. Rice, 107 Mass. 37, 9 Am. not bound by it." Shaw, C. J., in 
 
 Rep. 1; National Ins. Co. v. Allen, Huntington©. Knox, 7 Cush. (Mass.) 
 
 116 Mass. 398; Higgins v. Senior, 8 374. 
 
 M. & W. 834. ' Briggs v. Partridge, 64 N. Y. 357, 
 
 «" Where a contract is made by 21 Am. Rep, 617; Stowell ». Eldred, 
 
 531
 
 §702. 
 
 THE LAW OF AGENCY. 
 
 [Book lY. 
 
 But where a contract under seal is made with the agent alone, 
 the fact of the agency or the name of the principal not being 
 known or disclosed, and the contract remaining executory, the 
 principal who has neither ratified it, nor received the benefit of it 
 cannot be held even though the seal was not essential.' 
 
 ;;9 Wis. 614; Randall v. VanVechten, 
 19 Johns. (N. Y.) 60, 10 Am. Dec. 
 193; Worrall v. Munn, 5 N. T. 229, 
 55 Am. Dec. 330; DuBois v. Dela- 
 ware & Hudson Caoal Co., 4 Wend. 
 (N. Y.) 2S5; Lawrence v. Taylor, 5 
 Hill (N. Y.) 107; Moore v. Granby 
 iMiningCo., 80 Mo. 86. 
 
 > Briggs V. Partridge, 64 N. Y. 357, 
 21 Am. Rep. 617, is a leading case. 
 In this case it appeared that an agent 
 appointed by parol, had, without dis- 
 closing his agency, made in his own 
 name a contract uuder seal for the 
 purchase of real estate, but it was 
 lield that the contract was not en- 
 forceable against the principal either 
 na a contract under seal or as a simple 
 contract. Andrews, J., said: "Can 
 a contract under seal, made by an 
 agent in his own name for the pur- 
 chase of land, be enfcrced as the .sim- 
 ple contract of the real principal 
 when he shall be discovered? No 
 authority for this broad proposition 
 has been cited. There are cases 
 which hold that when a sealed con- 
 tract has been executed in such form 
 that It is, in law, the contract of the 
 agent and not of the principal, but 
 the principal's interest in the contract 
 appears upon its face, and he has re- 
 ceived the benefit of performance by 
 the other party, and has ratified and 
 confirmed it by acts in pais, and the 
 contract is one which would have 
 Ijeen valid without a seal, the princi- 
 pal may be made liable in assumpsit 
 upon the promise contained in the in- 
 strument, which may be resorted to 
 to ascertain the terms of the agree- 
 ment • • • 
 
 The plaintiff's agreement in this 
 case was with Hurlburd (the agent) 
 and not with the defendant. The 
 planliff has recourse against Hurlburd 
 on his covenants, which was the only 
 remedy which he contemplated when 
 the agreement was made. No ratifi- 
 cation of the contract by the defend- 
 ant is showu. To change it from a 
 specialty to a simple contract, in 
 order to charge the defendant, is to 
 make a different contract from the 
 one the parties intended. A seal has 
 lost most of its former significance, 
 but the distinction between specialties 
 and simple contracts is not obliter- 
 ated. A seal is still evidence, though 
 not conclusive, of a consideration. 
 The rule of limitation in respect to 
 the two classes of obligations is not 
 the same. We find no authority for 
 the proposition that a contract under 
 seal may be turned into the simple 
 contract of a person not in any way 
 appearing on its face to be a party to, 
 or interested in it, on proof de hors the 
 instrument, that the nominal party 
 was acting as the agent of another, 
 and especially in the absence of any 
 proof that the alleged principal has 
 received any benefit from it, or has 
 in any way ratified it, and we do not 
 feel at liberty to extend the doctrine 
 applied to simple contracts executed 
 by an agent for an unnamed princi- 
 pal, so as to embrace this case." See 
 also Tuthill v. Wilson, 90 N. Y. 423. 
 
 So the rule that an unnamed and 
 unknown principal shall stand liable 
 for the contract of his agent, does 
 not apply to a lease under seal. The 
 relation between the owner of land 
 
 532
 
 Chap. Y.] LIABILITY OF PRINCIPAL TO THIRD PERSON. § 705. 
 
 2. The Liability of a Disclosed Principal. 
 a. For Agent's Acts and Contracts. 
 
 § 703. In general. In an earlier portion of this work the 
 questions of what constitutes the authority of an agent,* how it 
 should be interpreted and construed," and how it should be ex- 
 ecuted,' have been considered at some length. It remains now 
 to apply the principles there laid down to the question of the 
 liability of the principal for the acts, contracts, and declarations 
 of the agent made or done in the actual or assumed exercise of that 
 authority. 
 
 § 704. Principal liable for Agent's Acts and Contracts in Ex- 
 ecution of Authority. It is the fundamental principle of the law 
 of agency, that what one person does for and by the authority of 
 another is to be considered as the act of that other. The prin- 
 ciple has taken the form of the familiar maxim Qui facit per 
 alium, facit per se. That this should be so, is an obvious natu- 
 ral and moral necessity as well as a legal one, founded upon mani- 
 fest doctrines of good faith and moral and legal responsibility. 
 That it is not, however, a principle of unlimited application in 
 the law of agency, has already been shown.* It is not every act 
 done by one person for another which is binding upon the latter. 
 The act done must have been a lawful one, done in the name and 
 behalf of that other, and by his express or implied authority. 
 What acts are lawful to be done by an agent have been deter- 
 mined.* 
 
 § 705. Same Subject— The Rule stated. Out of these princi- 
 ples grows the general rule that the lawful acts and contracts of 
 the agent, done or made for the principal and in his behalf, are 
 binding upon the principal if so done or made by the agent while 
 
 and those who occupy it is of a purely money to pay the rent. Kiersted c. 
 
 legal character, and the fact that a Orange, &c. R. R. Co., 69 N. Y. 343, 
 
 lessee takes a lease for an unnamed 25 Am. Rep. 199; Taft v. Brewster, 9 
 
 principal, but in his own name, will Johns. (N. Y.) 334, 6 Am. Dec. 280; 
 
 not render the unnamed principal Stone v. Wood, 7 Cow. (N. Y.) 453, 
 
 liable for the rent. Borcherling v. 17 Am. Dec. 529; Guyon v. Lewis, 7 
 
 Katz, 37 N. J. Eq. 150, although the Wend. (N. Y.) 26. 
 
 fact of the agency is recited and it * See ante, § 271 et seq. 
 
 extrinsically appears that the lessee * See ante, § 293 et seq. 
 
 acted as agent and although the prin- • See ante, % 407 et seq. 
 
 cipal occupies the premises without < See ante, §)^ 275-291. 
 
 assignment of the lease and furnishes < See ante, § 18 et seq. 
 
 533
 
 § 706. THE LAW OF AGENCY. [Book IV. 
 
 he was acting in the course of liis undertaking and within the ap- 
 parent scope of his aiitlioritj,' or if they have subsequently, with 
 full knowledge of the facts, been ratified and confirmed by the 
 principal.* 
 
 The converse of this rule follows as a necessary consequence. 
 If the act done or contract made was not a lawful one, the law, 
 as has been seen, will not enforce it.' If the agent acted for him- 
 self and in his own behalf instead of for his principal, and the 
 other party with full knowledge so dealt with him, the principal 
 is not liable.* If the agent were not acting in the course of his 
 principal's business, but was acting entirely outside of that, and 
 for some purpose of his own, the act is not the principal's, unless 
 he has adopted it* If the act done or contract made was not 
 within the scope of his authority, but exceeded or disregarded 
 it, then no liability attaches to the principal, unless he voluntarily 
 afiirms and ratifies it* 
 
 Some of these rules deserve and will receive a fuller consider- 
 ation. 
 
 § 706, Third Person nmst ascertain Agent's Authority, 
 Every person dealing with an assumed agent is bound, at his 
 peril, to ascertain the nature and extent of the agent's authority. 
 The very fact that the agent assumes to exercise a delegated 
 power is sufficient to put the person dealing with him upon his 
 guard, to satisfy himself that the agent really possesses the pre- 
 tended power.' 
 
 If, having relied upon it, he seeks to hold the alleged principal 
 responsible, he must be prepared to prove, if either be denied, 
 not only that the agency existed, but that the agent had the 
 authority which he exercised." 
 
 § 707. What constitutes Authority. An attempt has been 
 made in an earlier portion of the work to show what constitutes 
 authority,* It has been seen that it is a composite matter into 
 which a number of different elements may enter.'" All authority 
 emanates from the principal, who may confer as little or as much 
 as suits his purposes, and unless an alleged authority can be traced 
 
 » Ante, §§ 275-291. • See post, %% 706-711. 
 
 « See Book I, Chap. V. of Ratifica- ' See ante, §§ 288-291. 
 
 tion. • See ante, % 276. 
 
 « See ante, §S 275-291. • See ante, § 282. 
 
 « See ante, %^ 698-700. " See ante, % 283. 
 • See post, §§ 733-742, 
 
 534
 
 Chap. Y.] LIABILITY OF PRINCIPAL TO THIRD PERSON. § 703. 
 
 home to hiin as its author and its source, it can not operate 
 against hira. It rests upon liis will and intention. That will 
 and intention may find expression in words, but it may also be 
 declared by conduct. The authority of the agent, then, so far as 
 third persons are concerned, is as broad not only as the words of 
 the principal, but as broad also as his acts and conduct. In other 
 phrase, it is, so far as third persons are concerned, as broad as the 
 principal has made it appear to be.^ As respects the mutual 
 rights and dealings of the principal and agent, the actual author- 
 ity may govern ; but as respects the liability of the principal to 
 third persons for the acts and contracts of the agent, it is the 
 ajpparent authority which controls. This apparent authority 
 may be the result of his negligent act — of his omission, silence, 
 or acquiescence.' Every person is presumed by law to contem- 
 plate and intend the natural, proximate and legitimate results of 
 his own acts, and he cannot avoid them by asserting that he did 
 not really intend or contemplate them. If the principal leads 
 third persons, acting reasonably and in good faith, to believe that 
 his agent possesses a certain authority, then, as to them, he does 
 possess it.' 
 
 § 708. Same Subject— Secret Instructions and Restrictions. 
 As has been seen, however, the agent's authority is not unlim- 
 ited. The principal may impose upon it as many limitations and 
 restrictions as he thinks best, and these limitations and restric- 
 tions are binding upon third persons if they have notice of them 
 or might with reasonable diligence have ascertained them.* The 
 principal cannot, however, expect third persons to have notice of 
 limitations and restrictions which are in their nature secret and 
 undisclosed. And while, as has been stated, persons dealing with 
 the agent are bound to know the extent of his authority, they 
 may reasonably take the visible and apparent interpretation of 
 that authority by the principal himself as the true one, and as 
 the one by which he chooses to be bound. It is therefore the 
 rule of the law that the rights of third parties, who have reason- 
 ably and in good faith relied upon the apparent authority of the 
 agent, cannot be prejudiced by secret limitations or restrictions 
 upon it of which they had no notice.* 
 
 ' See anU, §§ 283-385. * See ante, § 279. 
 
 » See ante, § 283. • See ante, § 279. 
 
 » See ante, §§ 282-285. 
 
 535
 
 8 709. TH-E LAW OF AGENCY. [Book IV. 
 
 ^709. General and special Agents. These principles apply to 
 all agents whether they be general or special. It is true, of 
 course, that the scope of the general agent's authority is, from 
 the very nature of the case, wider and more flexible than that of 
 the special agent. The latter is essentially and necessarily lim- 
 ited and restricted. In the former case, particular instructions are 
 unusual ; in the latter, they are expected. In each case the actual 
 authority will be the apparent authority, unless the principal 
 gives to the apparent authority a wider scope. In neither case 
 can the apparent authority be controlled by secret limitations. 
 The true distinction between general and special agents lies then, 
 as has been stated, in this, that the apparent scope of the special 
 authority is naturally and necessarily a limited one. Of these 
 limitations, its very nature gives peculiar warning to which the 
 persons interested must give heed.' 
 
 § 710. Same Subject— Special Agent's Authority miist be 
 strictly pursued. When, therefore, it is said that the act of the 
 agent must be within the scope of his authority in order to be 
 binding upon the principal, the statement applies alike to general 
 and special agents. None the less true on this account, however, 
 is the well settled and often asserted rule that the authority of 
 the special agent must be strictly pursued. It is in its nature 
 limited, and these limits may not be exceeded.' 
 
 § 711, Effect of Satiflcation. Although the agent may have 
 acted beyond the scope of his authority, or may have acted with- 
 out any authority at all, the principal may yet subsequently see 
 fit to recognize and adopt the act as his own. This recognition 
 and adoption is termed ratification, the doctrine of which has 
 been hereinbefore discussed.' By such ratification, as has there 
 been seen, the principal accepts the act with its burdens and 
 responsibilities precisely as though he had previously authorized 
 it.* 
 
 § 712. Performance of unlawful Act not enforced. No con 
 tract for the performance of an act which is either illegal in itself 
 or which is opposed to public policy, will be enforced.* No author- 
 ity to make any such contract or to perform any such act can, 
 
 » See ante, § 385. * See anU, Idem. 
 
 s See anU, % 288. » See ante, § 18 et seq. 
 
 3 See ante, chapter on Ratification. 
 
 536
 
 Chap. Y.] LIABILITY OF PRINCIPAL TO THIRD PERSON. § 714. 
 
 as has been seen,^ be lawfully delegated. And even though the 
 agent deeming himself authorized should perform the act or 
 execute the contract with all formalities, yet such performance 
 or such contract will furnish no ground of action. The law 
 leaves all such parties where it finds them.' 
 
 § 713. Principal not bound where Agent had an adverse 
 Interest. As has been seen, the principal is entitled to demand 
 and receive from the agent a loyal, zealous and disinterested ser- 
 vice. He presumptively contracts for the exercise of all the 
 agent's skill, knowledge and ability in his own behalf and for his 
 own advantage, and the policy of the law will not tolerate the 
 existence of a secret and undisclosed interest in the agent antago- 
 nistic to that of his principal, on account of the temptation 
 offered to the agent to sacrifice the principal's interests to his 
 own. The principal may, if he sees fit, intrust his interests in 
 the hands of an agent whom he knows to also have an interest in 
 the same transaction which is or may be adverse to his own. 
 But this is not to be presumed, and it must appear that the inter- 
 est of the agent was fully and fairly disclosed to the principal.' 
 
 Where, therefore, the agent while ostensibly acting only for 
 his principal, is secretly acting as the agent of the other party, or 
 is himself the other party, the acts done or contracts made by 
 him will not be binding upon the principal if he sees fit to 
 repudiate them.* 
 
 This rule is frequently applied to the case of the agent who, 
 while apparently acting only for his principal in the purchase 
 or sale of property, is, in reality, acting under the commission of 
 the contemplated purchaser or seller, and more often, to the case 
 of the agent who, being authorized to sell or buy property for 
 the principal, secretly sells to or buys of himself. 
 
 6. For the Agent's Statements and Representations. 
 § 714. When Agent's Admissions and Representations bind- 
 ing on Principal. The statements, representations and admis- 
 sions of the agent, made in reference to the act which he is 
 
 ' See ante, § 20 et seq. neau, I Wis. 151, 60 Am. Dec. 368; 
 
 « See ante, § 20. Switzer v. Skiles, 3 Gilm. (111.) 529, 
 
 ' See a?ite, § 454 (?< sej. 44 Am. Dec. 728; Harrison v. Mc- 
 
 * Wassell V. Rcardon, 11 Ark. 705, Henry, 9 Ga. 164. 52 Am. Dec. 435. 
 
 64 Am. Dec. 245; Herman v. Marti- See also ;?<?«<, §§797, 798. 
 
 537
 
 §7U. 
 
 THE LAW OF AGENCY. 
 
 [Book IV. 
 
 authorized to perform and while engaged in its performance, 
 are binding upon the principal in the same manner and to the 
 same extent as the agent's act or contract under like circum- 
 stances, and for the same reason. While keeping within the 
 scope of his authority and engaged in its execution, he is the 
 principal, and his statements, representations and admissions in 
 reference to his act are as much the principal's as the act itself. 
 Such statements, representations and admissions are therefore 
 admissible in evidence against the principal in the same manner 
 as if made by the principal himself.' 
 
 » " The acts of an agent," said Mr. 
 Justice Harlaii in a recent case, 
 " within the scope of the authority 
 delegated to him, are deemed the 
 acts of the principal. Whatever he 
 does in the lawful exercise of that 
 authority, is imputable to the princi- 
 pal, and may be proven without call- 
 ing the agent as a witness. So in 
 consequence of the relation between 
 him and the principal, his statement 
 or declaration is, under some circum- 
 stances, regarded as of the nature of 
 original evidence, 'being ' says Phil- 
 lips, ' the ultimate fact to be proved 
 and not an admission of some other 
 fact,' 1 Phil. Ev. 381. ' But it must 
 be remembered,' says Greenleap, 
 'that the admission of the agent can 
 not always be assimilated to the ad- 
 mission of the principal. The party's 
 own admission, whenever made, may 
 be given in evidence against him; 
 but the admission or declaration of 
 his agent binds him only when it is 
 made during the continuance of the 
 agency, in regard to a transaction 
 then depending, et dum fervet opus. 
 It is because it is a verbal act, and 
 part of the res gestce that it is admissi- 
 ble at all; and, therefore, it is not 
 necessary to call the agent to prove 
 it; but wherever what he did is ad- 
 missible in evidence, there it is com- 
 petent to prove what he said about 
 the act whUe he was doing it.' 1 Qreenl. 
 
 Ev. § 113. This court had occasion 
 in Packet Co. v. Clough, 20 Wall. 
 540 to consider this question. Refer- 
 ing to the rule as stated by Mr Jus- 
 tice Story in his treatise on Agency, 
 § 134, that '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 part of 
 the res gestce.' The court speaking by 
 Mr. Justice Strong, said, ' a close 
 attention to this rule, which is of 
 universal acceptance, will solve al- 
 most every difficulty. But an act 
 done by an agent cannot be varied, 
 qualified or explained, either by his 
 declarations, which amount to no 
 more than a mere narrative of a past 
 occurrence, or by an isolated conver- 
 sation held, or an isolated act done, 
 at a later period. The reason is that 
 the agent to do the act is not author- 
 ized to narrate what he had done, or 
 how he had done it, and his declara- 
 tion is no part of the res gestae. ' " 
 Vicksburg &c. R. R. v. O'Brien, 119 
 U. S. 99. 
 
 That the statements, representa- 
 tions and admission of the agent 
 made while acting within the scope 
 of his authority and in reference to 
 the business which he is employed to 
 transact, may be received in evidence 
 against the principal, see Perkins v. 
 
 538
 
 Chap, v.] LIABKJTY OF PRINCIPAL TO THIRD PKRSt>N. § 714. 
 
 But it is obvious from this statement of the rule that not 
 every statement, representation or admission which the agent 
 may choose to make is binding upon the principal. In order to 
 have that efiect, the statement or admission must have been 
 made, (1) in respect to a matter within the scope of his authority. 
 The term authority as here used has the same significance wliich 
 it has in reference to the agent's act or contract. If, therefore, 
 the statements, representations or admissions offered in evidence 
 were made by one who either had no authority at all, or had no 
 authority to represent the principal in the matters concerning 
 which they were made, they are not admissible against the prin- 
 cipal.* So, (2) the statements, representations or admissions 
 
 Bennett, 2 Root (Conn.) 30; Mather v. 
 Phelps, 2 Id. 150, 1 Am. Dec. 65; 
 Haven v. Brown, 7 Greenl. (Me.) 421, 
 22 Am. Dec. 208; Stockton v. De- 
 muth, 7 Watts. (Penn.) 39, 33 Am. 
 Dec. 735; Franklin Bank v. Pennsyl- 
 vania &c. Co. 11 Gill -& John. (Md.) 
 28. 38 Am. Dec. 687; Stiles v. 
 Western R.R Co., 8 Mete. (Mass.) 44, 
 41 Am. Dec. 486; Ball v. Bank of 
 Alabama, 8 Ala. 590, 42 Am. Dec. 
 649; Hammatt «. Emerson, 27 Me. 
 308, 46 Am. Dec. 598; Cunningham 
 V. Cochran, 18 Ala, 479, 52 Am. Dec. 
 230; Moore v. Bettis, 11 Humph. 
 (Tenn.) 67, 53 Am. Dec. 771; Innis v. 
 Steamer Senator, 1 Cal. 459, 54 Am. 
 Dec. 305; Burnham v. Ellis, 39 Me. 
 319; 63 Am. Dec. 625; Tuttle v. 
 Brown, 4 Gray (Mass.) 457, 64 Am. 
 Dec. 80; Dick t). Cooper, 24 Penn. St. 
 217, 64 Am. Dec. 652; Coweta Falls 
 M.if'g Co. V. Rogers, 19 Ga. 416; 65 
 Am. Dec. 602; Burnside v. Grand 
 Trunk Ry Co. 47 N. H. 554, 93 Am. 
 Dec. 474: Bass v. Chicago «& N. W. 
 Ry Co., 42 Wis. 654, 24 Am. Rep. 
 437; Anderson v. Rome &c. R. R.Co., 
 54 N. Y. 334; White v. Miller, 71 N. 
 Y. 118; Pinnix ». McAdoo, 68 K C. 
 56; Willard v. Buckingham, 36 Conn. 
 395; Robinson v. Walton, 58 Mo. 
 380; Linblomo. Ramsey, 75 111. 246; 
 Lafayette &c. R. R. Co. v. Ehman, 
 
 30 Ind. 83, Rowell «. Klein, 44 Ind. 
 290; Burnham v. Grand Trunk Ry 
 Co. 63 Me. 298; Campbell v. Hast- 
 ings, 29 Ark. 512; Ashmore v. Penn. 
 Steam Towing Co. 38 N. J. L. 13; 
 Dickmaa v. Williams, 50 Miss. 500; 
 Galceran v. Noble, 66 Ga. 367; Mu- 
 tual Ben. L. Ins. Co. v. Cannon, 48 
 Ind. 264; Chorpenning v. Royce, 58 
 Penn. St. 476; Stewartson b. Watts, 8 
 Watts (Penn.) 392; City Bank v. 
 Bateman, 7 Har. & J. (Md.) 104; 
 Central Branch U. P. R. R. Co. v. 
 Butman, 22 Kan. 639; Merchants &c. 
 Trans. Co. v. Leysor, 89 111. 43; Wil- 
 son Sew. Mach. Co. v. Sloan,50 Iowa 
 367; McCormick v. Demary, 10 Neb. 
 515; Dowdall v. Pennsylvania R. R. 
 Co. 13Blatch.(U. S. C. C.) 403. 
 
 * Fogg«. Pew, 10 Gray (Mass.) 409, 
 71 Am. Dec. 662; Lamm v. Port De- 
 posit &c. Assn. 49 Md. 233, 33 Am. 
 Rep. 246; Stiles v. Western R. R. Co. 
 8 Mete. (Mass.) 44, 41 Am. Dec. 486: 
 Corbin v. Adams, 6 Cush. (Mass.) 93; 
 Wakefield y. South Boston R. R., 117 
 Mass. 544; Mobile &c. R. R. v. Ash- 
 croft, 48 Ala. 15; Robinson v. Fitch- 
 burg &c. R. R. Co.. 7 Gray (Mass.) 92; 
 Green v. Ophir, &c. Co. 45 Cal. 522; 
 Memphis &c. R. Co. v. Maples, 63 
 Ala. 601; Meyer v. Virginia &c. R. 
 Co., 16 Nev. 341; Mundhenk v. Cen- 
 tral Iowa Ry Co., 57 Iowa 718; Balti- 
 
 639
 
 § 7M. 
 
 THE LAW OF AGENCY. 
 
 [Book lY. 
 
 must have been made in reference to the subject-matter of his 
 agency. The mere idle, desultory or careless talk of the agent, 
 having no legitimate reference to or bearing upon the business of 
 his principal, can not be binding upon the latter.' And (3) the 
 statements, representations or admissions must have been made 
 by the agent at the time of the transaction, and either while he 
 was actually engaged in the performance, or so soon after as to 
 be in reality a part of the transaction. Or, to use the common 
 expression, they must have been a part of the res gestoB. If on 
 the other hand, they were made before the performance was 
 undertaken, or after it was completed, or while the agent was not 
 engaged in the performance, or after his authority had expired, 
 they are not admissible.* In such a case they amount to no 
 
 more «&c. R R. Co. v. Christie, 5 W. 
 Va. 325; Anderson v. Rome «&c. R. 
 R. Co., 54 N. Y. 334; Chicago R. R. 
 Co. V. Riddle, 60 111 534; Chicago R. 
 R. Co. V. Lee. 60 111. 501; Rowell v. 
 Klein, 44 Ind. 290. 
 
 • See cases cited in following note. 
 
 » Roberts v. Burks, Littells Sel. 
 Cas. (Ky.) 411, 13 Am. Dec. 325; 
 State Bank «. Johnson, 1 Mill. 
 (S. C.) 404, 13 Am. Dec. 645; 
 Thallhimer v. Brinkerhoff, 4 Wend. 
 (N. Y.) 394, 21 Am. Dec. 155; 
 Haven v. Brown, 7 Greenl.(Me.) 431; 
 22 Am. Dec. 208; Hubbard v Elmer, 
 7 Wend (N. Y.) 446, 23 Am. Dec. 
 590; Davis v. Whitesides, 1 Dana. 
 (Ky.) 177, 25 Am. Dec. 138; Frank- 
 lin Bank v. Pennsylvania &c. Co. 11 
 Gill. & John. (Md ) 28, 33 Am. Dec. 
 687; Reynolds D.Rowley, 3 Rob. (La.) 
 201, 38 Am. Dec. 233; Whiteford ?). 
 Burckmyer, 1 Gill. (Md.) 127, 39 Am. 
 Dec. 640; Innis v. Steamer Senator, 1 
 Cal. 459, 54 Am. Dec. 305; Marshall 
 V. Haney, 4 Md. 498, 59 Am. Dec. 
 93; Cobbc. Johnson, 3 Sneed (Tenn ) 
 73, 63 Am. Dec. 457; Burnham t. 
 Ellis, 39 Me. 319, 63 Am. Dec. 635; 
 Converse v. Blumrich, 14 Mich. 109, 
 90 Am. Dec. 230; Anthony t>. East- 
 abrook, 1 Colo. 75, 91 Am. Dec. 703; 
 
 Sweetland ®. Illinois &c. Telegraph 
 Co., 37 Iowa, 433, 1 Am. Rep. 285; 
 Keeley «. Boston &c. R R. Co. 67 
 Me. 163, 24 Am. Rep. 19; First 
 Nat. Bank v. Ocean Nat. Bank 60 N. 
 Y. 278, 19 Am. Rep. 181; Durkee v. 
 Central Pac. R. R. Co.. 69 Cal 533, 
 58 Am. Rep. 562; Hawker v. Balti- 
 more & Oliio R. R. Co., 15 W. Va. 
 628, 36 Am. Rep. 835; McDerraott o. 
 Hannibal &g. R. R. Co., 73 IMo 516, 
 39 Am. Rep. 536, Randall v. North- 
 western Tel. Co. 54 Wis. 140, 41 Am. 
 Rep. 17; Ryan v. Gilmer, 2 Mont. 
 517. 25 Am. Rep. 744; Adams v. Han- 
 nibal &c. R. R. Co. 74 Mo. 553, 41 
 Am. Rep. 333; Waldele v. New York 
 Central, &c. R. R. Co. 95 N. Y. 374, 
 47 Am. Rep. 41; American Steam- 
 ship Co. V. Landreth, 103 Penn. St. 
 131, 48 Am. Rep. 196, Sulliran v. 
 Oregon &c. Co., 12 Oregon 393,53 Am. 
 Rep. 364; North River B;mk v. Ay- 
 mar, 3 Hill (N. Y.) 362; Sandford e. 
 Handy, 33 Wend. (N. Y.) 2G0; Bank 
 of U. S. V. Davis, 2 Hill (N.Y.)451; 
 Carpenter v. American Ins. Co., 1 
 Story (U. S. C. C.) 57; Randel v. 
 Chesapeake & Del. Canal Co. 1 Harr. 
 (Del.) 334; Lee v. Munroc, 7 Cranch 
 (U. S.) 366; Stewartson «. Watts, 8 
 Watts (Penn.) 393; Lobdell v. Baker 
 
 540
 
 Chap. Y.] LIABILITY OF PillNCIPAL TO THIRD PEKSON. § 715. 
 
 more than a mere narrative of a past transaction, and do not 
 bind the principal. Tlie reason is that, while the agent was 
 authorized to act or speak at the time and within the scope of 
 his authority, he is not authorized, at a subsequent time, to nar- 
 rate what he had done or how he did it. 
 
 §715. What embraced within Res Gestae. The question of 
 what declarations and admissions constitute a part of the res 
 gestCB, is one exceedingly difficult of determination, and upon 
 which the authorities are conflicting. It was formerly held, and 
 the doctrine still prevails in some jurisdictions, that the declara- 
 tions and admissions must be strictly contemporaneous with the 
 act ; that if they were not made until the act in controversy was 
 completed, although made immediately afterwards, and on the 
 spot, they were not admissible.' 
 
 The tendency of many of the later cases in the United States 
 is, however, to regard the mere point of time as less material, and 
 to treat the declarations and admissions as admissible if they 
 Bpring from the transaction in controversy and tend to qualify, 
 characterize or explain it, and are voluntary and spontaneous, and 
 are made at a time so near as to preclude the idea of deliberate 
 
 1 Mete. (Mass.) 193; Gott v. Dins- tend to determine their quality, 
 
 more, 111 Mass. 45; Brooks «. J ame- The party therefore to be bound 
 
 eon, 55 Mo. 505; Robinson ®. Walton, by the act must be afficted by 
 
 58 Mo. 380; McCombc. Railroad Co. the words. But except in one or 
 
 70 N. C. 178, Linblom v. Ramsey, 75 the other of these ways, I do not 
 
 111. 246; Newton v. White, 53 Qa. know how what is said by an agent 
 
 395: Adams «. Humphreys, 54 Ga. can be evidence against the principal. 
 
 496; Swenson v. Aultman 14 Kan. The mere assertion of a fact cannot 
 
 273; Fairlie v. Hastings, 10 Ves. Jr. amount to proof of it, though it may 
 
 125; Dawson v. Atty., 7 East 367, have some relation to the business in 
 
 Fitzherbert v. Mather, 1 T. R. 12; which the person making that asser- 
 
 Bree v. Holbech, 2 Dougl. 654. tion was employed as agent." Sir 
 
 1 " What an agent has said may be William Grant in Fairlie v. Hast- 
 
 wliat constitutes the agreement of the ings, 10 Ves. Jr. 127. 
 principal; or the representations or "The declarations or confession a 
 
 statements made may be the founda- of an agent, except they be made sit 
 
 tion of, or the inducement to, the the time, and compose a part of acts 
 
 agreement. Therefore, if a writing done by him for his principal within 
 
 is not necessary by law, the evidence the scope of his authority, cannot be 
 
 must be admitted to prove the agent given in evidence to charge the prin- 
 
 did make that statement or represen- cipal." Mills J., in Roberts t». 
 
 tatiou. So with regard to acts Burks, Littells Sel. Gas. (Ky.) 411, 13 
 
 done, the words with which these Am. Dec. 325. 
 nets are accompanied frequently 
 
 541
 
 §715. 
 
 THE LAW OF AGENCY. 
 
 [Book ly. 
 
 desio-u.' According to the doctrine of these cases, each transac- 
 tion is to be judged by its own peculiar facts, without conclusive 
 regard to a fixed interval of time, and with more regard to the 
 question whether the declarations or admissions seem to have 
 been voluntarily and spontaneously made, under the immediate 
 influence of the principal transaction, and are so connected with it 
 as to characterize or explain it. The scope of the rulings upon 
 the subject can be best shown by some illustrations from the 
 decided cases. 
 
 Thus in an action to recover damages for a breach of 
 warranty, on the sale of a chattel, the declaration of the ven- 
 dor's agent that the chattel was defective, made eight months 
 
 * "Declarations to be a part of the 
 res gestae are not required to be pre- 
 cisely concurrent in point of time 
 with the principal fact; if they spring 
 out of the principal transaction, if 
 they tend to explain it, are voluntary 
 and spontaneous, and are made at a 
 time so near it as to preclude the idea 
 of deliberate design, then they are to 
 be regarded as contemporaneous, and 
 are admissible." Sprague, J., in 
 People V. Vernon, 35 Cal. 49, 95 Am. 
 Dec. 50, citing, 1 Greenl. Ev, § 108; 
 Mitchumu. State, 11 Ga. 615; Com- 
 monwealth V. McPike, 3 Cush. (Mass.) 
 181 (50 Am. Dec. 727). 
 
 "I do not understand that decla- 
 rations by persons whose duty it is to 
 make them, in order to constitute a 
 part of the res gesim, are required to 
 be precisely concurrent in point of 
 time with the principal transaction. 
 If they spring from it, and tend to 
 explain it, are voluntary and spontane- 
 ous, and are made at a time so near as 
 to preclude the idea of design to mis- 
 represent, they may be regarded as so 
 nearly contemporaneous as to be ad- 
 missible." Sherwood, J., in Keyser 
 V. Chicago &G. T. Ry Co. — Mich.— 
 33 N. W. Rep. 867, citing Scaggs v. 
 State, 8 Sm. & Mar. (Miss.) 722; In- 
 surance Co. V. Mosley, 8 Wall. (U. S.) 
 
 397; Commonwealth v. McPike, 3 
 Cush. (Mass.) 181; Harriman v. 
 Stowe, 57 Mo. 93; Crookham ®. State, 
 
 5 W. Va. 510; Boothe v. State, 4 Tex. 
 App. 203; Regina v. Abraham. 2 Car. 
 
 6 K. 550; Hanover R. Co. v. Coyle. 
 55 Penu. St. 403; Browne! 1 v. Pacific 
 R. Co. 47 Mo. 239; People v. Vernon, 
 35 Cal. 49, 95 Am. Dec. 50; Handy ?>. 
 Johnson, 5Md. 450; Carter ». Buchan- 
 non, 3 Ga. 513; Mitchum v. State, 11 
 Ga. 615; Courtney v. Baker, 2 Jones 
 & Sp. (N. Y.) 529; O'Connor v. Chi- 
 cago, &c. Ry Co, 27 Minn. 166; 
 Armil v. Chicago, &c. R. R. Co. 70 
 Iowa 130; State v. Horan, 33 Minn. 
 394, 20 N. W. Rep. 905; Lund v. 
 Tyngsborough, 9 Cush. (Mass.) 36. 
 
 "The modern doctrine has relaxed 
 the ancient rule that declarations, 
 to be admissible as part of the res 
 gestm, must be strictly contempora- 
 neous with the main transaction. It 
 now allows evidence of them when 
 they appear to have been made under 
 the immediate influence of the prin- 
 cipal transaction, and are so con- 
 nected with it as to characterize or 
 explain it." Dissenting opinion of 
 Waite, C. J., Miller, Field and 
 BLATCnFORD, J. J., in Vicksburg, &c. 
 R. R. V. O'Brien, 119 U. S. 99. 
 
 542
 
 Chap, v.] LIABILITY OF PKINUIPAL TO THIRD PEUSON. § 715. 
 
 after the sale and not connected with any present business trans- 
 action, was held to be inadmissible ;' so an admission bj the 
 general agent of a telegraph company of its liability for an acci- 
 dent, alleged to have been caused by its negligence, two months 
 after the accident, has been held to be not admissible ;* so the 
 admissions made by the engineer of an engine which had killed 
 some cattle, made while he was still on the engine where it had 
 been thrown from the track by the accident, but made an hour 
 after the accident, were held to be incompetent ; ' so evidence of 
 the statement of a railroad roadmaster that a certain employee, 
 through whose incompetence an accident had happened, was 
 incompetent, made several days after the accident, has been held 
 to be inadmissible ; < so in an action against a railroad company 
 for personal injuries sustained by a passenger, evidence of the 
 declarations of the conductor and engineer "a few minutes" 
 after the accident, was held incompetent;* so in two like cases 
 
 ' White V. MiUer, 71 N. Y. 118, 37 
 Am. Rep. 13. 
 
 3 Randall v. Northwestern Tel. Co. 
 54 Wis. 140, 41 Am. Rep. 17. 
 
 3 Hawker v. Baltimore & Ohio R. 
 R. Co. 15 W. Va. 638, 36 Am. Rep. 
 835. 
 
 * McDermott v. Hannibal, «&c. R. 
 R. Co. 73 Mo. 516, 89 Am. Rep. 526. 
 Statements "a few days" afterwards 
 inadmissible. Robinson v. Fitch- 
 burg. &c. R. R. Co. 7 Gray (Mass.) 
 93 ; so are statements made two and a 
 half days afterward. .Packet Co. v. 
 Clough, 20 Wall. (U. S.) 528. 
 
 s Alabama, «fec. R. R. Co. v. Hawk, 
 72 Ala. 113, 47 Am. Rep. 403. In 
 this case the court lay down the rule 
 that "Perfect coincidence of time 
 between the declaration and the 
 main fact is not of course required. 
 It is enough that the two are sub- 
 stantially contemporaneous; they 
 need not be literally so. The decla- 
 rations must however be so proximate 
 in point of time as to grow out of, 
 elucidate and explain the character 
 and quality of the main fact, and 
 must be so closely connected with it 
 
 5-lJ 
 
 as virtually to constitute but one 
 entire transaction, and to receive sup- 
 port and credit from the principal act 
 sought to be thus elucidated and ex- 
 plained. The evidence offered must 
 not have the ear-marks of a device, 
 or afterthought, nor be merely nar- 
 rative of a transaction which is 
 really and substantially past," citing 
 Thomp. Car. 557, 558; Gandy v. 
 Humphries, 35 Ala. 617; Henderson 
 V. State, 70 Ala. 33; Enos v. Tuttle, 3 
 Conn, 250; Scaggs v. State, 8 Sm. & 
 M. (Miss.) 723; Commonwealth v. 
 Hackett, 2 Allen (Mass.) 136; Luby v. 
 Hudson R. R. Co. 17 N. Y. 131; Mc- 
 Dermott V. Hannibal, &c. R. R. Co. 
 supra. Yet they reach the conclu- 
 sion "that the declarations of the 
 conductor and engineer cannot, under 
 a proper application of this principle, 
 be regarded as a part of the res gestm 
 of the accident resulting in injury to 
 the plaintiff. The time—' a few min- 
 utes'—does not appear to be so 
 proximate to the main transaction, 
 nor are the declarations made other- 
 wise 80 closely connected with it, as 
 an elucidating circumstance, as justly
 
 § 716. 
 
 THE LAW OF AGENCY. 
 
 [Book IV^ 
 
 evidence of similar declarations made, in one case/ ten to thirty 
 minutes, and in the other," five minutes, after the accident, was 
 held inadmissible ; so in action for injuries sustained by a pas- 
 senger from the overturning of a stage sleigh, the declarations of 
 the driver, made on the spot and immediately after the accident 
 occurred, that it happened through his carelessness, M'ere held 
 inadmissible ; ' so in an action against a railroad company for 
 
 t) authorize the conclusion that they 
 are not merely narrative of a past 
 Dccurrence, which at the moment was 
 tinished and complete." 
 
 * Vicksburg, &c. R. R. v. O'Brien, 
 119 IT. S. 99. "It was," said the 
 court, " in its essence, the mere 
 narration of a past occurrence, not a 
 part of the res gesim — simply an 
 assertion or representation, in the 
 coarse of conversation, as to a matter 
 not then pending, and in respect to 
 which his authority as engineer had 
 been fully exerted. It is not to be 
 deemed part of the res gestm simply 
 because of the brief period interven- 
 iag between the accident and the 
 making of the declaration. The fact 
 remains that the occurrence had 
 ended when the declaration in ques- 
 tion was made, and the engineer was 
 not in the act of doing anything that 
 could possibly affect it. If his decla- 
 ration had been made the next day 
 after the accident, it would scarcely 
 be claimed that it was admissible 
 evidence against the company. And 
 yet the circumstance that it was made 
 hotween ten and thirty minutes, — an 
 appreciable period of time — after the 
 accident, cannot, upon principle, 
 make this case an exception to the 
 general rule. If the contrary view 
 should be maintained, it would follow 
 {hat the declarations of the engineer 
 if favorable to the company, would 
 liave been admissible in its behalf as 
 part of the res gestoB without calling 
 him as a witness, — a proposition that 
 will find no support in the law of 
 
 evidence. The cases have gone far 
 enough in the admission of the sub- 
 sequent declarations of agents aa evi- 
 dence against their principals. These 
 views are fully sustained by adjudi- 
 cations in the highest courts of the 
 States," citing Luby v. Hudson River 
 R. R. 17 N. Y. 131; Pennsylvania R. 
 R. Co. V. Books, 57 Penn. St. 339; 
 Dietrich v. Baltimore, &c. R. R. , 58 
 Md. 347; Lane v. Bryant, 9 Gray 
 (Mass.) 245, 69 Am. Dec. 283; Chi- 
 cago, &c. R. R. Co. V. Riddle, 60 III. 
 534; Virijinia, &c. R. R. Co. v. Say- 
 ers, 26 Qratt. (Va ) 338. Chicago, &c. 
 Ry Co. V. Fillmore, 57 111. 265; Mich- 
 igan Cent. R. R. Co. v. Coleman, 33 
 Mich. 440; Mobile, &c. R. R. Co. v. 
 Ashcraft, 48 Ala. 15; Bellefontaine 
 Ry Co. V. Hunter, 33 Ind. 335, 5 Am. 
 Rep. 201; Adams v. Hannibal, &c. R. 
 R. Co., 74 Mo. 553,41 Am. Rep. 333; 
 Kansas, &c. R. R. Co. v. Pointer, 9 
 Kan. 620; Roberts v. Burks, Litt. 
 (Ky.) Sel. Cas. 411, 13 Am. Dec. 325; 
 Hawker v. Baltimore & Ohio R. R. 
 Co. 15 W. Va. 638, 36 Am. Rep. 835; 
 Waite, C. J. and Field, Milleb 
 and Blatchford, J. J. dissented. 
 
 « Durkee v. Central Pacific R. R. 
 Co. 69 Cal. 533, 58 Am. Rep. 563. 
 
 3 Ryan v. Gilmer, 3 Mont. 517, 25 
 Am. Rep. 741. The declaration of a 
 driver of a street car made as he was 
 getting off the car immediately after 
 running into the plaintiff, as to the 
 cause of the accident, held inadmiss- 
 ible in Luby v. Hudson River R. R. 
 Co., 17 N. T. 131. So the declara- 
 tion of a street car driver immsdi- 
 
 544
 
 Chap, v.] LIABILITY OF PRINCIPAL TO THIRD PERSON. § T16. 
 
 running over a man, evidence of admissions by one trainman to 
 another immediately after the accident, was declared incom- 
 petent.' 
 
 But on the other hand in a recent action brought against a 
 railroad company for negligently injuring the plaintiff, declara- 
 tions made by the engineer immediately after stopping his train 
 and backing up to the place of the accident, as to the reason why 
 he did not stop his train before the accident, were not only held 
 to be competent, but similar declarations made by the engineer 
 when he arrived at his destination about fifty minutes later, were 
 also admitted ; * so in a case involving the liability of a railroad 
 company for baggage lost by fire, the declarations of the bag- 
 gage master as to the origin of the fire, made in view of the ruins 
 l)ut about fourteen hours after the fire, were admitted ; • so, in a 
 number of cases, declarations made within so short a time after 
 the occurrence as properly to be designated as immediately made, 
 have been held admissible.* 
 
 § 716. Agent's Authority must be first shown. As has been 
 seen,* however, the fact of the agent's authority can neither be 
 established, nor can its scope or effect be extended or enlarged, 
 by his own statements, representations or declarations, so as to 
 charge the principal. There must be first & prima facie showing 
 of his authority by other evidence, before the admissions, de- 
 
 ately after an accident that he was Michigan Cent. R. R. Co. v. Carrow^ 
 
 very sorry and that it was his fault, 73 111. 348. 
 
 held inadmissible. Williamson t. * O'Connor v. Chicago, &c. Ry 
 
 Cambridge R.R. Co., 144 Mass. 148,10 Co., 27 Minn. 166; Bass v. Chicago. 
 
 N. E. Rep. 790, and to same effect in &c. Ry Co., 43 Wis. 654, 24 Am. 
 
 Lane tJ.Bryant. 9 Gray (Mass. ) 245, 69 Rep. 437; Brownell v. Pacific R. R. 
 
 Am. Dec. 282, where BiGELOw, J. says. Co., 47 Mo. 239; Toledo, &c. Ry Co. 
 
 "It is no more competent because «. Goddard, 25 Ind. 185. Where a boy 
 
 made immediately after the accident who had driven against a foot passen- 
 
 than if made a week or a month ger on the street immediately stopped 
 
 afterwards." his horse and came back and said he 
 
 > Adams v. Hannibal & St. Joseph did not mean to, Judge Cooley 
 
 R. R. Co., 74 Mo. 553, 41 Am. Rep. said: " It was as much a part of the 
 
 333. Declarations imme iiately after, res gesia as would have been an 
 
 not admissible. Cleveland, &c R. R. exclamation at the very instant the 
 
 Co. c. Mara, 26 Ohio, St. 185. plaintiff was struck" Cleveland v. 
 
 » Keyser v. Cliicago & G. T. Ry Newsome, 45 Mich. 62. To same 
 
 Co. — Mich. — , 33 N. W. Rep. 867. effect are: Little Rock, &c. Ry Co. 
 
 •Illinois Cent. R. R. Co. v. c. Leverett,— Ark.— , 3 S. W. Rep.58. 
 Tronstine, 64 Miss. 834. Contra, « See ante, § 100. 
 
 35 545
 
 8 717. THE LAW OF AGENCY. [Book lY. | 
 
 clarations or representations, if otherwise competent, can be 
 admitted.' 
 
 § 717. When Principal bound by Agent's Representation of 
 extrinsic Pacts upon which Authority depends. In a recent 
 case in the New Tork Court of Appeals ' it is said : " It is a set- 
 tled doctrine of the law of agency in this State, tliat where the 
 principal has clothed his agent with power to do an act npon the 
 existence of some extrinsic fact necessarily and peculiarly within 
 the knowledge of the agent, and of the existence of which the act 
 of executing the power is itself a representation, a third person 
 dealing with such agent in entire good faith, pursuant to the 
 apparent power, may rely upon' the representation, and the prin- 
 cipal is estopped from denying its truth to his prejudice.' * * * 
 If there be any exception to the rule within our jurisdiction, it 
 arises in the case of municipal corporations, whose structure and 
 functions are sometimes claimed to justify a more restricted lia- 
 bility." In accordance with this rule, it was there held that a 
 carrier which had authorized an agent to issue bills of lading in 
 its name, upon receipt of property for transportation, is liable 
 upon a bill of lading issued by such agent and transferred by the 
 shipper to one who, on the faith of it, had discounted a draft 
 on the consignee, although in fact no property had been received 
 by the carrier. 
 
 A difEerent result has in some cases ' been reached upon the 
 same state of facts, but the doctrine of the New York court seems 
 most consonant with reason and justice.' 
 
 1 See ante, % 100, Smith v. Kron, Co., 92 N, C. 42, 53 Am. Rep. 450; 
 98 N. C. 393. Baltimore, &c. R. R. Co. v. Wilkens, 
 
 2 Bank of Batavia v. New York, 44 Md. 11, 23 Am. Rep. 26; Grant v. 
 &c. R. R. Co., 106 N. T. 195, 60 Am. Norway, 10 C. B. 665, 2 Eng. Law & 
 Rep. 440, 35 Am. L. Reg. 573. Eq. 337; The Freeman v. Bucking- 
 
 8 Citing North River Bank v. ham, 18 How. (U. S.) 182; The Loon, 
 
 Aymar, 3 Hill (N. Y.) 263; Qriswold 7 Blatch. (U. S. C. C.)244; Louisiana 
 
 «. Haven, 25 N. Y. 595, 83 Am. Dec. Nat. Bank v. Laveille, 52 Mo. 380; 
 
 380; New York, &c. R. R. Co. v. Pollard c. Vinton, 105 U. S. 7; Hunt 
 
 Schuyler, 34 N. Y. 30; Armour t). s. Railroad Co., 29 La. Ann. 446. 
 Michigan Cent. R. R Co., 65 N. Y. » In addition to the cases cited in 
 
 111 22 Am. Rep. 603. note 2, supra, the New York rule is 
 
 « That the carrier may show the approved in Brooke v. New York, 
 
 non-receipt of the goods even as &c. R. R. Co., 108 Peun. St. 529, 
 
 against a 6(?7ia^(f<3 transferee for value, reported also in note 53 Am. Rep. 
 
 gee Black v. Wilmington, «&c. R. R. 453; Sioux City R. R. Co. v. First 
 
 546
 
 Chap, v.] LIABILITY OF PRINCIPAL TO THIRD PERSOi^^. § 718. 
 
 It is in accordance with the same principle that a bank is held 
 liable upon a check, which its cashier has certified as good, 
 although in fact the drawer had no funds, where third persons 
 have in good faith acquired rights in such check relying upon 
 the certificate.* 
 
 c. By notice given to the Agent. 
 
 § 718. General K,ule— Notice to the Agent is Notice to the 
 Principal. It is a general rule, settled by an unbroken current 
 of authority, that notice to an agent while acting within the scope 
 of his authority and in reference to a matter over which his 
 authority extendi, is notice to the principal.' 
 
 In respect to this rule two important elements will be noticed. 
 The first of these is that the notice or knowledge, which will 
 affect the principal, is that only which is possessed by the agent 
 while he is agent, and while he is acting within the scope of his 
 authority. Whether the notice or knowledge must in all cases 
 have been acquired by the agent during the agency, is a question 
 upon which there is some divergence of authority, and which 
 will be noticed in a following section.' 
 
 The second element is that the notice or knowledge, which 
 shall be imputed to the principal, is that only which relates to 
 the subject-matter of that agent's authority, or, in other words, 
 is that only which relates to the business or transaction in refer- 
 ence to which that agent is authorized to act by and for the 
 principal.* 
 
 Nat. Bank, 10 Neb. 556, 35 Am. Rep. 67, 23 Am. Dec. 62; Weisser v. Deni- 
 
 488; Coventry ». Great Eastern R. R son, ION. Y. 68, 61 Am. Dec. 731; 
 
 Co, 11 Q B. Dlv. 770. 37 Eng. Rep. Backman ». Wright, 27 Vt. 187, 65 
 
 589; Savings Bank a Railroad Co., 20 Am. Dec. 187; Farmers', &c. Bank v. 
 
 Kans. 519. Payne, 25 Conn. 444, 68 Am. Dec. 
 
 1 mil V. Nation Trust Co., 108 362; Hunter v. Watson, 12 Cal. 3T7, 
 Penn. St. 1, 56 Am. Rep. 189; Mer- 73 Am. Dec. 543; Nashville, &c. R. 
 chants' Bank v. State Bank, 10 Wall. R. Co. ». Elliott, 1 Coldw. (Teun.)611, 
 (U. S.) 604; Espy ». Bank of Cincin- 78 Am. Dec. 506; Russell v. Sweezey, 
 nati, 18 Wall. (U. S.) 604; Farmers', 22 Mich. 235; Sandfi>rd v. Nyman, 23 
 &c. Bank v. Butchers' &c. Bank, 10 Mich. 326; Peoria Ins. Co. v. Hall, 12 
 N. Y. 125, 69 Am. Dec. (378. Mich. 202; Taylor v. Young, 56 
 
 2 Reynolds v. IngersoU, 11 Smedes Mich. 285; Campau v. Konan, 39 
 & M. (Miss.) 249. 49 Am. Dec. 57; Mich. 362; Saulsbury v. Wimberly, 
 Rossu Houston, 25 Miss. 591, 59 Am. 00 Ga. 78; Roach v. Karr, 18 Kans. 
 Dec. 231 ; Woodfolk v. Blount, 3 Hay. 529. 
 
 (Tenn.) 147. 9 Am. Dec. 736; Barnes ^ See post. § 721. 
 
 «. McClinton, 3 Pen. & Watts (Penn.) < See vost,.% 723. 
 
 547
 
 § 719. THE LAW OF AGENCY. [Book lY. 
 
 § 719. Same Subject— The Beasons of the Rule. Two gen- 
 eral theories prevail as to the foundation upon which this rule is 
 based, and the results of these respective theories are not entirely 
 alike. The first finds the reason of the rule in the legal identity 
 of the agent with the principal, — in the fact that the agent, 
 while keeping within the scope of his authority, is, as to the mat- 
 ters embraced within it, for the time being the principal himself, 
 or, at all events, the alter ego of the principal — the principal's 
 other self. Whatever notice or knowledge, then, reaches the 
 agent under these circumstances, in law reaches the principal. 
 It is the legitimate and necessary result of this view, therefore, 
 that only such notice or knowledge as comes to the agent, while 
 he is agent, is thus binding upon the principal.' 
 
 The other theory is based upon the rule that it is the duty of 
 the agent to disclose to his principal, all notice or knowledge 
 which he may possess and which is necessary for the principal's 
 protection or guidance. This duty the law presumes the agent 
 to have performed, and, according to the view now being con- 
 Bidered, imputes to the principal whatever notice or knowledge 
 the agent then possessed, whether he has in fact disclosed it or 
 not.* According to this view, therefore, it is immaterial when 
 
 1 " The agent stands in place of the igan: " The reason upon which the 
 principal, and notice therefore to the doctrine of notice to the agent being 
 agent is notice to the principal; but held notice to the principal rests, is 
 he cannot stand in the place of the that the agent is substituted in the 
 principal until the relation of princi' place of, and represents, the princi- 
 pal and agent is constituted, and as pal in the particular transaction, and 
 to all the information which he pre- therefore while acting in such matters 
 viously acquired, the principal is a he takes the place of the principal 
 mere stranger." Sir John Leach in and the latter is bound by the agent's 
 Mountford i>. Scott, 3 Madd. 40. "It act in the light of the knowledge 
 is only during the agency that the then possessed by the agent." Maks- 
 agent represents and stands in the ton, C. J., in Advertiser & Tribune 
 shoes of the principal. Notice to him Co. v. Detroit, 43 Mich. 116. 
 then, is notice to the principal. Notice * " The general rule that a principal 
 to him twenty- four hours before the is bound by the knowledge of his 
 relation commenced is no more notice agent is based on the principle of 
 than twenty-four hours after it has law, that it is the agent's duty to 
 ceased would be." Sharswood, J., communicate to his principal the 
 in Houseman v. Girard, &c. Building knowledge which he has respecting 
 As sn., 81 Penn. St. 256. the subject matter of negotiation, and 
 
 Somewhat of double ground was the presumption that he will perform 
 
 taken by the Supreme Court of Mich- that duty." Bradley, J., in The 
 
 54S
 
 Chap, y.] LIABILITY OF PBINCIPAL TO THIRD PEESON. § 721. 
 
 or how the agent obtained the information, if he then pos- 
 eessed it. 
 
 The courts have not, however, always recognized these differ- 
 ences, nor have their decisions in all cases been consistent with 
 the theory adopted. 
 
 § 720. Same Subject— Notice acquired during Agency. So far 
 as that notice or knowledge which is acquired during the agency 
 is concerned, the result, under either theory is obviously the 
 same. 
 
 Such notice or knowledge is chargeable to the principal in the 
 same manner, and with the same effect, as though it had been com- 
 municated to or acquired by him in person. 
 
 § 721. Same Subject— Knowledge acquired prior to Agency. 
 The theory based upon the legal identity of the parties, and 
 limiting the application of the rule to such notice or knowledge 
 as was acquired during the agency, was at first adopted by the 
 English courts,* and has since been followed by the courts of 
 many of the United States.' The other theory, however, based 
 upon the duty of the agent to disclose to his principal all knowl- 
 
 Distilled Spirits, 11 Wall.(U. S.) at p. 
 867. 
 
 •Preston©. Tubbin. 1 Vern. 287; 
 Brotherton «. Hatt, 2 Vern. 574; 
 Fitzgerald v. Fauconberge, Fitz Gib- 
 bon, 207; Lowther v. Carlton, 2 Atk. 
 242; Warrick v. Warrick, 3 Atk. 294; 
 Worsley ». Scarborough, 3 Atk. 392; 
 Le Neve v. Le Neve, 3 Atk. 648; 
 Mountford v. Scott, 3 Madd. 26, s. c. 
 on appeal, 1 Turn. & Russ. 279; Hiern 
 c. Mill, 13 Ves. Jr. 120. 
 
 «"It is well settled," said C. J. 
 Sharswood, "that the principal is 
 only to be affected by knowledge ac- 
 quired in the course of the business 
 in which the agent was employed." 
 Houseman v. Girard, &c. Ass'n, 81 
 Penn. St. 256, citing Hood v. Fahnes- 
 tock, 8 Watts. (Penn.) 489; Bracken 
 V. Miller, 4 Watts. & Serg. (Penn.) 
 110; Martin v. Jackson, 3 Casey (27 
 Penn. St.) 508, 67 Am. Dec. 489. To 
 same effect are, Willis v. Vallette, 4 
 Mete. (Ky.) 186; Howard Ins. Co. v. 
 
 Halsey, 8 N. Y. 271 ; McCormick v. 
 Wheeler, 36 111. 114, 85 Am. Dec. 388; 
 Mundine v. Pitts, 14 Ala. 84; Wiley v. 
 Knight, 27 Ala. 336. (But see Smyth 
 V. Oliver, 31 Ala. 39. Pepper v. 
 George, 51 Ala. 190;) Williams v, 
 Tatnall, 29 111. 564; Congar v. Rail- 
 road Co., 24 Wis. 158; Pritchett v. 
 Sessions, 10 Rich. (S. C.) L. 293; 
 Barnes v. McClinton, 3 Pen. & Watts. 
 (Penn.) 67, 23 Am. Dec. 62; Weisser 
 V. Denison, 10 N. Y. 68; 61 Am. Dec. 
 731; Farmers', &c. Bank, v. Payne, 
 25 Conn. 444, 68 Am. Dec. 362; Bank 
 of United States v. Davis, 2 Hill (N. 
 Y.) 451 ; North River Bank v. Ay mar, 
 3 Hill (N. Y.) 262; Hay ward v. Na- 
 tional Ins. Co., 52 Mo. 181. 14 Am. 
 Rep. 400. 
 
 See also the recent case declaring 
 this the rule in Pennsylvania, al- 
 though it is held otherwise by the 
 United States Supreme Court, Satter- 
 field V. Malone, 35 Fed. Rep. 445. 
 
 549
 
 1§ 721. THE LAW OF AGENCY. [Book IV. 
 
 edge and information possessed by the agent in relation to the 
 subject-matter of the agency, and therefore charging the princi- 
 pal with it, has since been lirmly established by the English 
 courts,* and has been adopted by the Supreme Court of the 
 United States,'' and by many of the States.' 
 
 This theory, however, recognizes certain exceptions which are 
 clearly founded upon and consistent with it. Thus the agent 
 could not reasonably be expected to disclose information which, 
 though once possessed by him, had been, in fact, forgotten. So 
 the law would not compel him to disclose what it was his legal 
 duty to conceal. So the agent could not be deemed to have dis- 
 closed that information which, from his relations to the subject- 
 matter, or his previous conduct, it is certain he would not dis- 
 close. Subject to these exceptions, it is believed that this theory is 
 supported by the better reason and by a clear preponderance of 
 authority. The rule deducible from these authorities may be said 
 to be the following : — 
 
 The law imputes to the principal, and charges him with, all 
 notice or knowledge relating to the subject-matter of the agency 
 which the agent acquires or obtains while acting as such agent 
 and within the scope of his authority, or which he may previously 
 have acquired, and which he then had in mind,* or which he had 
 
 » Dresser v. Norwood, 17 Com. Phoenix Ins. Co., 53 Wis. 361; Wil- 
 
 Bench (N. S.) 466; RoUand v. Hart, son u Minnesota, &c. Ins. Ass'n, 36 
 
 L. R. 6 Cb. App. 678. Minn. 113, 1 Am. St. Rep. 659. 
 
 « The Distilled Spirits, 11 Wall. (U. * " Knowledge of an agent acquired 
 
 8.) 367. previous to the agency, but appear- 
 
 3 Hunter v. Watson, 13 Cal. 377, 73 ing to be actually present in his mind 
 
 Am. Dec. 548; Bierce v. Red Bluff during the agency and while acting 
 
 Hotel, 31 Cal. 160; Hart v. Bank, 83 for his principal in the particular 
 
 Vt. 353; Whitlen D. Jenkins, 34 Ga. transaction or matter, will, as re- 
 
 305; Day v. Wamsley, 33 Ind. 147; spects such transaction or matter, he 
 
 Cummings v. Harsabraugh, 14 La. deemed notice to his principal and 
 
 Ann. 711; Hovey ©. Blanchard, 13 N. will bind him as fully as if originally 
 
 H. 148; Bank v. Campbell, 4 Hump. acquired by him." Lebanon Savings 
 
 (Tenn.) 396; Campau v. Konan, 39 Bank p. HoUenbeck. 39 Minn. 323. 
 
 Mich. 3G3; Chouteau v. Allen, 70 Mo. " We think," saiil Pollock, C. B. 
 
 390; Lebanon Savings Bank v. Hoi- "that in a commL-rcinl transaction of 
 
 lenbeck, 39 Minn. 333; Abellc. Howe, this description, where the agent of 
 
 43 Vt. 403; Yerger v. Barz, 56 Iowa, the buyer purchases on behaU' of his 
 
 77; Fairfield Savings Bank v. Chase, principal, goods of the factor of the 
 
 73 'Me. 336, 39 Am. Rep. 319; Suit v. seller, the agent having present to hia 
 
 Woodhall, 113 Mass. 391; Shafer v. mind, at the time of the purchase, 
 
 550
 
 Chap. Y.] LIABILITT OF PKINCIPAL TO THIRD PERSON. 
 
 § T21. 
 
 acquired so recently as to reasonably warrant the assumption that 
 he still retained it;' Provided, however, that such notice or knowl- 
 edge will not be imputed ; 1. Where it is such as it is the agent's 
 duty not to disclose,' and, 2. Where the agent's relations to the 
 subject-matter, or his previous conduct, render it certain that he 
 will not disclose it,' and, 3. Where the person claiming the bene- 
 
 knowledge that the goods he is buy- 
 ing are not the goods of the factor 
 though sold in the factor's name, the 
 knowledge of the agent, however 
 acquired, is the knowledge of the 
 principal." Dresser v. Norwood, 17 
 C. B. (N. S.) 466. 
 
 Of this case Mr. Justice Bradley 
 says: "So that in England the doc- 
 trine now seems to be established, 
 that if the agent, at the time of effect- 
 ing a purchase, has knowledge of 
 any prior lien, trust or fraud affect- 
 ing the property, no matter when he 
 acquired such knowledge, his princi- 
 pal is affected thereby. If he acquire 
 the knowledge when he effects the 
 purchase, no question can arise as to 
 his having it at that time; if he ac- 
 quired it previous to the purchase, 
 the presumption that he still retains 
 it and has it present to his mind, will 
 depend on the lapse of time, and 
 other circumstances. Knowledge 
 communicated to the principal him- 
 self, he is bound to recollect, but he 
 is not bound by knowledge commun- 
 icated to his agent, unless it is pres- 
 ent to the agent's mind at the time 
 of effecting the purchase. Clear and 
 satisfactory proof that it was so pres- 
 ent, seems to be the only restriction 
 required by the English rule as now 
 understood. With the qualification 
 that the agent is at liberty to com- 
 municate his knowledge to his prin- 
 cipal, it appears to us to be a sound 
 view of the subject." The Distilled 
 Spirits, 11 Wall. (XJ. S.) 367. 
 
 "We think, all things considered," 
 
 551 
 
 said Peters, J. , " the safer and better 
 rule to be that the knowledge of an 
 agent, obtained prior to his employ- 
 ment as agent, will be an implied or 
 Imputed notice to the principal, under 
 certain limitations and conditions 
 which are these: The knowledge 
 must be present to the mind of the 
 agent when acting for the principal — 
 80 fully in his mind that it could 
 not have been at the time forgotten 
 by him; the knowledge or notice 
 must be of a matter so material to 
 the transaction as to make it the 
 agent's duty to communicate the fact 
 to his principal, and the agent must 
 himself have no personal interest in 
 the matter which would lead him 
 to conceal his knowledge from his 
 principal, but must be at lib- 
 erty to communicate it." Fairfield 
 Savings Bank v. Chase, 72 Me. 226, 
 39 Am. Rep. 319. 
 
 Knowledge or notice will not bind 
 if it does not appear to have been re- 
 tained. Yerger v, Barz, 56 Iowa, 77. 
 
 * Knowledge acquired not only 
 during the continuance of the agency 
 but also that possessed by the agent 
 so shortly before as necessarily to 
 give rise to the inference that it re- 
 mained fixed in his memory when 
 the employment began binds the 
 principal. Chouteau v. Allen, 70 Mo. 
 290. 
 
 s The Distilled Spirits, 11 Wall. (U. 
 S.) 367; Fairfield Savings Bank v. 
 Chase, 72 Me. 226, 39 Am. Rep. 319. 
 
 » See post, 723.
 
 R 722. THE LAW OF AGENCY. [Book IT. 
 
 fit of the notice, or those whom he represents, colluded with the 
 agent to cheat or defraud the principal.' 
 
 This rule does not depend, in either case, upon the fact that 
 the agent has disclosed the knowledge or information to his prin- 
 cipal ; subject to the exceptions named, the law conclusively pre- 
 sumes that he has done so, and charges the principal accordingly.' 
 What present knowledge, previously acquired, may reasonably be 
 attributed to the agent, is a question to be governed by the facts 
 of each particular case. " It may fall to be considered," said 
 Lord Eldon, " whether one transaction might not follow so close 
 upon the other as to render it impossible to give a man credit for 
 having forgotten it. I should be unwilling to go so far as to say, 
 that, if an attorney has notice of a transaction in the morning, 
 he shall be held in a court of equity to have forgotten it in the 
 evening ; it must in all cases depend upon the circumstances. " ' 
 
 The burden of proof rests upon the party asserting the fact of 
 notice or knowledge. 
 
 § 722. Same Subject— Of the first Exception. The first of 
 these exceptions is well settled, both in England and in this 
 country. It is most frequently applied to the case of attorneys 
 and others, upon whom rests the duty of maintaining a profes- 
 sional secrecy. This secrecy the law will not permit, much less 
 require, to be violated.* As is well said by Mr. Justice Bradley, 
 
 1 National L. Ins. Co. v. Minch, 53 mick v. Wheeler, 36 111. 114, 85 Am. 
 N. Y, 144. "The rule which charges Dec. 388; Herrington c. McCoUum, 
 the principal with what the agent 73 111.476; Pepper «. George, 51 Ala 
 knows is for the protection of inno- 190; Terrell v. Bank, 12 Ala. 502 
 cent third persons and not for those Bierce r. Red Bluff Hotel Co., 31 Cal 
 who use the agent to further their 160; Martin v. Jackson, 27 Penn. St 
 own frauds upon the principal." 504, 67 Am. Dec. 489; Allen v. Mc 
 
 2 The Distilled Spirits, 11 Wall. Calla, 25 Iowa 464, 96 Am. Dec. 56: 
 'U. S.) 367; Dresser v. Norwood, 17 Haven d. Snow, 14 Pick. (Mass.) 28 
 C. B (N. S.) 466. Lowther v. Carlton. 2 Atk. 242 
 
 3 Mountford v. Scott, 1 Turn. «& Worsley v. Scarborough, 3 Id. 392 
 Russ. 274; The Distilled Spirits, 11 Warrick «. Warrick. 8 Id. 294 
 Wall. (U. S. 367. Campbell v. Benjamin, 69 111. 244 
 
 < It has been held generally in many And so it has been held that 
 
 cases that knowledge acquired by knowledge acquired by an attorney 
 
 an attorney while acting for one client while acting for one client will not 
 
 will not affect a subsequent client. affect another client for whom he is 
 
 Hood V. Fahnestock, 8 Watts (Penn.) acting in another matter at the same 
 
 489, 34 Am. Dec. 489; Willis v. time. Ford v. French, 72 Mo. 250. 
 
 Vallette, 4 Mete. (Ky.) 186; McCor- But the better rule is believed to be 
 
 552
 
 Chap, v.] LIABILITY OF PRmCIPAL TO THIRD PERSON. 
 
 §723. 
 
 " When it is not the agent's duty to communicate such knowl- 
 edge, when it would be unlawful for him to do so, as, for 
 example, when it has been acquired confidentially as attorney 
 for a former client in a prior transaction, the reason of the rule 
 ceases, and in such a case an agent would not be expected to do 
 that which would involve the betrayal of professional confidence, 
 and his principal ought not to be bound by his agent's secret and 
 confidential information." ' 
 
 § 723. Same Subject— Of the second Exception. The rule is 
 based, as has been seen, upon the principle tliat it is the duty of 
 the agent to communicate to his principal the knowledge pos- 
 sessed by him relating to the subject-matter of the agency, and 
 material to the principal's protection and interests. This pre- 
 sumption, however, will not prevail where it is certainly to be 
 expected that the agent will not perform this duty, as where the 
 agent, though nominally acting as such, is in reality acting in 
 his own or another's interest, and adversely to that of his princi- 
 pal.* Much less will it be entertained where the agent is openly 
 
 that in either case such notice binds 
 the principal unless acquired under 
 such circumstances as to make it 
 privileged. Abell v. Howe, 43 Vt. 
 403; Hunter v. Watson, 13 Cal. 377, 
 73 Am. Dec. 543 ; Hart v. Bank 33. 
 Vt. 253; The Distilled Spirits, 11 
 Wall. (U. S.) at p. 367. 
 
 1 The Distilled Spirits, 11 Wall. 
 (U. S.) 367. 
 
 2 "While the knowledge of an 
 agent is ordinarily to be imputed to 
 the principal, it would appear now to 
 be well established that there is an 
 exception to the construction or im- 
 putation of notice from the agent to 
 the principal in case of such conduct 
 by the agent as raises a clear pre- 
 sumption that he would not commu- 
 nicate the fact in controversy, as 
 where the communication of such 
 a fact would necessarily prevent 
 the consummation of a fraudu- 
 lent scheme which the agent was 
 engaged in perpetrating." Devens, 
 J. in Innerarity v. Merchants' Na- 
 
 tional Bank, 139 Mass. 332, 52 Am. 
 Rep. 710, citing Kennedy ». Green, 3 
 Myl. & Keene 699, Cave v. Cave, 15 
 Ch. Div. 639; In re European Bank, 
 5 Ch. Ap. 358; In re Marseilles Ex- 
 tension Ry, L. R. 7 Ch. Ap. 161, (1 
 Eng. Rep, [Moak] 490); Atlantic 
 National Bank ». Harris, 118 Mass. 
 147; Loring v. Brodie, 134 Mass. 453. 
 See also Atlantic Cotton Mills v. 
 Indian Orchard Mills, — Mass — , 17 
 North E. Rep. 496. 
 
 One of the most recent cases 
 on the point is Dillaway v. But- 
 ler, 135 Mass. 479. A to whom 
 B was indebted, advised C to lend 
 money to B on the security of a 
 mortgage on personal property, and 
 acted as C's agent in completing the 
 transaction. With the money thus 
 obtained B paid A the debt he 
 owed him. Both A and B acted in 
 fraud of a statute of the State, but 
 had no knowledge of the fraud. It 
 was held that the knowledge of A 
 was not in law imputable to C al- 
 
 55:
 
 §723. 
 
 THE LAW OF AGENCY. 
 
 [Book IV. 
 
 and avowedly acting for himself and not as agent/ In such 
 cases the presumption is that the agent will conceal any fact 
 which might be detrimental to his own interests, rather than that 
 he will disclose it. This rule applies to the agents of corpora- 
 tions as well as to those of private individuals. In such a case, 
 says HoRTON, C. J., " neither the acts nor the knowledge of an 
 officer of a corporation will bind it in a matter in which the 
 officer acts for himself, and deals with the corporation as if he 
 had no official relation with it." * 
 
 though A had acted for C in the 
 negotiatioa. 
 
 Kennedy v. Green, 3 Myl. & 
 Keene, 699, (cited above) is a lead- 
 ing case upon this subject. There 
 one Bostock a solicitor, who was so- 
 licitor both for Mrs. Kennedy and 
 Mr, Kirby, was employed to negoti- 
 ate the assignment for a large sum 
 of a mortgage from the former to 
 the latter. At the time of the execu- 
 tion of the assignment, he obtained 
 also, by fraudulent practices, a re- 
 ceipt from the assignor for the 
 money. Having obtained the money 
 from his client, the assignee, instead 
 of turning it over to his other client, 
 the assignor of the mortgage, he em- 
 bezzled it. Mrs. Kennedy thereupon 
 brought an action against Qreen, the 
 solicitor's assignee in bankruptcy, 
 and Mr. Kirby, praying that the as- 
 signment of the mortgage might ba 
 declared void, and that the premises 
 be reassigned to her. The Master of 
 the Rolls granted the relief prayed 
 for upon the ground that knowledge 
 of Boslock's fraud was to be impu- 
 ted to his client Kirby, and also upon 
 the grounl that the appearance of the 
 dueds of assignment was such as to 
 put a prudent man upon inquiry. 
 Upon appeal the decision was aflirmed 
 upon the second ground, the Lord 
 Chancellor being of opinion that 
 Kirby was not to be charged with 
 actual notice of the fraud, which 
 
 though known to his solicitor who 
 ' was the perpetrator of the fraud, it 
 was equally certain that the solicitor 
 would conceal. 
 
 ' Speaking of the general rule, in 
 Frenkel v. Hudson, 83 Ala. 153, 60 
 Am. Rep. 736. Somkrville, J. 
 says: "It has no application how- 
 ever, to a case where the agent acta 
 for himself, in his own interest, and 
 adversely to that of the principal. 
 His adversary character and antago- 
 nistic interests take him out of the 
 operation of the general rule, for two 
 reasons : first, that he will very likely, 
 in such case, act for himself, rather 
 than for his principal; and, secondly, 
 he will not be likely to communicate 
 to the principal a fact which he is 
 interested in concealing. It would 
 be both unjust and unreasonable to 
 impute notice by mere construction 
 under such circumstances, and such 
 is the established rule of law on this 
 subject." Citing Terrell v. Branch 
 Bank of Mobile, 12 Ala. 502; Lucaa 
 V. Bank of Darien, 2 Stew. (Ala.) 
 321; Wickersham v. Chicago Zinc 
 Co. 18 Kans. 481, 20 Am. Rep. 784; 
 Angell and Ames on Corp. §§308.309; 
 Story on Agency § 140. 
 
 2 Wickersham v. Chicago Zinc Co. 
 18 Kans. 481, 28 Am. Rep. 784. 
 See post § 729; Frenkel v. Hudson, 83 
 Ala. 158; 60 Am. Rep. 733. Reid v. 
 Bank of Mobile, 70 Ala. 199. 
 
 554:
 
 Chap, v.] LIABILITT OF PlilNCIPAL TO THIRD PERSON. § 725. 
 
 § 724. What Notice includes— Actual and constructive Notice. 
 The notice which will affect the principal may be the direct and 
 unequivocal information of the fact, or it may, in certain cases, 
 be inferred from the existence of other facts. The former is 
 Bometimes termed actual notice, and the latter constructive notice. 
 The distinction, however, is not of any great practical import- 
 ance, and perhaps, strictly the latter is to be regarded as much 
 actual notice as the former. In either event, it is well settled 
 that the principal may be bound by the one as fully as by the 
 other. The rule as to what will constitute constructive notice 
 may be said to be that wherever a party has knowledge of any 
 fact sufficient to put a prudent man upon an inquiry which, if 
 prosecuted with ordinary diligence, would lead to actual notice, 
 he will be charged with the knowledge which might have been 
 acquired by such diligence.* The presumption that he would 
 have acquired such knowledge is not, however, indisputable, and 
 it is always open to the party to show that he used such diligence 
 without avail.* 
 
 § 725. Rule applies only to Matters within Agent's Authority. 
 This rule which imputes to the principal the knowledge possessed 
 by the agent, applies only to cases where the knowledge is pos- 
 Bessed by an agent within the scope of whose authority the 
 Bubject-matter lies. In other words, the knowledge or notice 
 must come to an agent who has authority to deal in reference to 
 those matters which the knowledge or notice affects, and whose 
 duty it therefore is to communicate it to his principal. The fact 
 that some other agent, employed in reference to different and 
 distinct transactions, may have had notice or knowledge will not 
 affect the principal.' 
 
 "This," says Dixon, 0. J., "seems very clear when we con- 
 sider the reason and ground upon which this doctrine of con- 
 structive notice rests. The principal is chargeable with tlie 
 knowledge of his agent because the agent is substituted in his place 
 and represents him in the particular transaction ; and it would 
 seem to be an obvious perversion of the doctrine, and lead to 
 
 » Williamson v. Brown, 15 N. Y. v. Glassell, 13 Ala. 50, 43 Am. Dec 
 
 854; Baker v. Bliss, 39 Id. 70; Cam- 41. 
 
 bridge Valley Bank v. Delano. 48 Id. « Williamson ?!.Brown, 15 N.Y. 354. 
 
 32G; Hood v. Fabnestock, 1 Penn. 3 Congar ^. Chicago, &c. Ry Co. 24 
 
 St. 479, 44 Am. Dec. 147; Chapman Wis. 157, 1 Am. Rep. 164. 
 
 555
 
 § 726. THE LAW or agency. [Book lY. 
 
 most injurious results, if, in the same transaction, the principal 
 were likewise to be charged with the knowledge of other ajjeuts, 
 not engaged in it and to whom he had delegated no authority 
 with respect to it, but who were employed by him in otlier and 
 wholly different departments of his business." ' Whether the 
 rule be based upon the ground specified by the learned judge, or 
 upon the duty of the agent to communicate, the result is the 
 same, — no duty of communication would rest upon an agent 
 where, from the nature of the acts to be performed by him, the 
 knowledge or notice would appear to be of no use or interest to 
 the principal. 
 
 But where two agents are employed to accomplish the same 
 object, notice to, or knowledge by, one of them only, is notice to 
 the principal, although the one to whom notice is given is not 
 the one who finally accomplishes the object, and although the 
 agent who had the notice or knowledge did not impart it to his 
 principal.' 
 
 § 726. Notice after Termination of Authority does not bind. 
 It follows as a necessary conclusion from the principles consid- 
 ered, that notice to an agent, after his authority has entirely 
 ceased, or after his authority to represent the principal in respect 
 to the matters to which the notice relates has terminated, is 
 not notice to the principal.' Under neither of the theories dis- 
 cussed, could such notice be imputed to the principal. 
 
 ' In Congar e. Chicago, «fec. Ry Co. lost. Subsequent events showed that 
 
 supra. the ship had in fact been lost some 
 
 2 This rule is well illustrated in a time before the plaintiff attempted to 
 
 recent case in the English Court of effect the reinsurance, but neither the 
 
 Appeal. Blackburn v. Vigors, 17 Q. plaintiff nor the broker who finally 
 
 B. Div. 553.* The plaintiff had in- obtained the insurance knew of, or 
 
 structed a broker to effect for him a concealed from defendant, any fact 
 
 re-insurance upon an over-due ship. tending to show that the ship was 
 
 While this broker was acting on lost. It was held that the knowledge 
 
 behalf of the plaintiff, he received in- of the first broker must be imputed to 
 
 formation of a material fact tending the plaintiff and that he could not 
 
 to show that the ship was lost. He recover on the policy. Fitzherbert v. 
 
 did not communicate this informa- Mather, 1 T. R. 12; Gladstone «. 
 
 lion to the plaintiff and failed to King, 1 M. & S. 34 and Proudfoot v. 
 
 effect the insurance. Afterwards the Montefiore, L. R. 2 Q. B. 511, were 
 
 plaintiff employed another broker cited and relied upon, 
 
 who obtained insurance from the ' Boardman v. Taylor, 66 Ga. 638. 
 
 defendant upon the ship, lost or not Notice to former agent of a corpora 
 • This case was reversed in 12 App. Cases, 631, 88 Eug. Bep. 46&. 
 
 556
 
 Chap. Y.] LIABILITY OF I'KINCIPAL TO THIRD PEUSON. § 72'J. 
 
 § 727. Notice must be of some material Matter. The knowl- 
 edge or notice which is to bind the principal must be of some 
 matter so material to the transaction as to make it the agent's 
 duty to communicate it to the principal.^ It must also come 
 from such an apparently authentic and reliable source, that 
 an ordinarily prudent man would be required to give heed to it. 
 But neither the principal nor the agent is bound to regard that 
 which appears to be mere idle and baseless rumor or report.* 
 
 § 728. Notice to Subagent when Notice to Principal. The 
 question whether notice to a subagent is notice to the principal 
 depends upon considerations already stated.* If the subagent be 
 one whom the agent was expressly or impliedly authorized 
 to appoint, he is to be deemed to be the agent of the principal, 
 and notice to such subagent would be notice to the principal as 
 in the case of other agents. But if the subagent be the agent 
 of t<iie agent merely, then there is no privity between him 
 and the principal, and his knowledge cannot be imputed to the 
 principal.* 
 
 S 729. These Bules apply to Corporations— Notice to Agent. 
 These rules apply with particular force to the case of corpora- 
 tions. From the very nature of the case, the executive func- 
 tions of a corporation can only be exercised through rlie 
 medium of the corporate agents to whom and through whom all 
 notice to the corporation must come. Notice to the officers and 
 agents of a corporation therefore, in reference to those matters 
 to which their authority relates, is notice to the corporation.' 
 
 tion is not notice to the corporation Y.) 54; Lincoln «. Battelle, 6 Wend, 
 
 after the agent has severed his con- (N. Y.) 475. 
 
 nection with it. Great Western Ry » Holden v. New York, &c. Bank, 
 
 T. Wheeler. 20 Mich. 419. 73 N. Y. 286; Union Bank v. Camp- 
 
 ' Fairfield Savings Bank v. Chase, bell, 4 Humph, (Tenn.) 394; Waynes- 
 
 73 Me. 236, 39 Am. Rep. 319. ville Nat. Bank v. Irons, 8 Fed. Rep. 
 
 s See Kerna v. Swape. 3 Watts 1; Hart u Farmers', &c. Bank, 83 Vt. 
 
 (Penn.) 75; Jaques v. Weeks, 7 Id. 253; Mihills Mnfg Co. v. Camp, 49 
 
 261; Pittman v. Sofley, 64 111. 155; Wis. 130; Webb ?). Graniteville JMiifg 
 
 MuUiken v. Graham, 73 Penn. St. 484. Co. 11 S. C. 396, 33 Am. Rep. 479; 
 
 » Ante, % 197. Farmers', &c. Bank v. Payne, 25 
 
 ♦Hoover v. Wise, 91 U. S. 808; Conn. 444, 68 Am. Dec. 362; Wilson 
 
 Storrs V. City of Utica, 17 N. Y. 104, «. McCullough, 23 Penn. St. 440, 63 
 
 73 Am. Dec. 437; Boyd t>. Vander- Am. Dec. 347; Fairfield Savings Bank 
 
 kemp, 1 Barb. Ch. (N. Y.) 273; v. Chase, 73 Me. 338, 39 Am. Rep. 
 
 Rourke v. Story, 4 E. D. Smith (N. 819. 
 
 557
 
 §721). THE LAW OF AGENCY. [BookiV. 
 
 But the peculiar characteristics of corporations render it im- 
 perative that this rule be kept within its proper limits. Not 
 every person who is a member of a corporation, or who is con- 
 nected with it, is its agent. Nor is every agent to be deemed to 
 be an agent for all purposes. The magnitude of their business 
 and the extent of territory over which their operations extend, 
 require, in the case of many corporations, that their business be 
 divided into several departments, each with its own complement 
 of superior and inferior agents, and that agents be employed in 
 various capacities, at different points. Attention, then, must be 
 given to the questions whether the assumed agent is, in reality, 
 the agent of the corporation in the given transaction, and if so, 
 does tlie notice or knowledge relate to matters within the scope 
 of his authority. 
 
 Regard must also be had to an exception to the general rules 
 which has been previously considered. The doctrine of imputed 
 notice rests, as has been seen, upon the principle that it is the 
 duty of the agent to disclose to his principal all such knowledge 
 and information as the agent possesses which is material to the 
 subject-matter of the agency, and the law conclusively presumes 
 that he has done so. Where, however, the agent has an interest 
 in the transaction which would be prejudiced by the disclosure of 
 the information, this presumption does not prevail. If, then, an 
 officer or agent of the corporation himself deals, as a party in 
 interest, with the corporation, the corporation will not be charged 
 with notice of the information which he possesses relating to the 
 transaction and which he does not disclose. In such a case the 
 assumed agent is in reality the adverse party, and cannot be 
 treated as an agent at all. He is seeking to promote and protect 
 his own interests, and it is not to be expected that he can 
 or will at the same time protect and advance those of the 
 corporation.' 
 
 « Wickersham v. Chicago Zinc Co. Kentucky, 5 J. J. Marsh. (Ky.) 545; 
 18 Kan. 481, 26 Am. Rep. 784; Barnes Commercial Bank v. Cunningham, 24 
 V. Treuton Gas L. Co., 27 N. J. Eq. Pick. (Mass.) 270; Washington Bank 
 83; First Nat. Bank of Hightstown v. v. Lewis, 22 Pick. (Mass.) 24; Steven- 
 Christopher, 11 Vroom (40 N. J. L.) Bon v. Bay City, 26 Mich. 44; Gal- 
 435, 29 Am. Rep. 262. s. c. 8 Cent. L. lery v. National, «fcc. Bank, 41 Mich. 
 Jour. 181, 8 Rep. 403; Innerarity v. 169; Slralton v. Allen, 1 C. E. Green 
 Merchauts' Nat. Bank, 139 Mass. 332, (N. J.) Eq. 229; Winchester v. Balti- 
 62 Am. Rep. 710; Lyne v. Bank of more, &c. K R. 4 Md. 231; Third 
 
 55S
 
 Chap. Y.] LIABILITY OF PKTXCIPAL TO THIRD PERSON. § 730. 
 
 These cases, however, are to be distinguished from those where 
 the agent for some purpose of his own, fraudulently assigns, con- 
 veys or appropriates to the use of his principal the property 
 of another. In such a case, if the principal after knowledge of 
 the fraud seeks to appropriate and retain the benefit derived from 
 the agent's fraud, he will be held to have ratified the fraud and 
 will be chargeable with it.* 
 
 S 730. Same Subject— When Notice to Director is Notice to 
 Corporation. The question frequently arises whether notice to a 
 director of a corporation is notice to the corporation. In dealing 
 with this question, regard must be had to the scope and nature 
 of the director's powers. The directors of a corporation are not 
 individually its agents for the transaction of its ordinary busi- 
 ness, which is usually delegated to its executive officers, such as 
 its president, secretary, treasurer and the like. Directors are, it 
 
 National Bank v. Harrison, 10 Fed. 
 Rep. 343; Louisiana State Bank v. 
 Senecal, 13 La. 525 ; Seneca County 
 Bank v. Neass, 5 Den. (N. Y.) 339; 
 Hummell v. Bank of Monroe, — 
 Iowa, — . 87 N. W. Rep. 954. Thus 
 wliere the general superintendent of 
 a corporation conveyed to it, with 
 warranty, lands which he had pur- 
 chased in his own interests and 
 which were subject to a prior lease, 
 of which he had actual knowledge, it 
 was held that his knowledge could 
 not be imputed to the corporation. 
 "Wickershara v. Chicago Zinc Co. 18 
 Kans. 481, 26 Am. Rep. 784. So 
 where the president of a corporation 
 conveyed to it land subject to a prior 
 equity against himself, the corpora- 
 tion was held not chargeable with 
 his knowledge. Frenkel v. Hudson, 
 83 Ala. 158, 60 Am. Rep. 736. 
 
 ' Thus if the cashier or other officer 
 of a bank who is secretly a defaulter 
 takes or uses the money of A without 
 authority to make good or cover up 
 his default, the bank, if it seeks to 
 retain the money after notice of the 
 fraud will be held charged with the 
 cashier's fraud and can acquire no 
 
 title against A. Atlantic Cotton 
 Mills V. Indian Orchard Mills, — 
 Mass. — , 17 North E. Rep. 496. So 
 a bank is chargeable with notice of 
 facts vitiating the title to securities 
 obtained by the collusion of its teller 
 with an officer of another bank, 
 by certifying as "good" the check of 
 an irresponsible person which is 
 taken by such other bank. Atlantic 
 Bank «. Merchants' Bank, 10 Gray 
 (Mass.) 533. So where the treasurer 
 of a town, being also cashier of a 
 bank, gave a note as treasurer of the 
 town to raise money for his private 
 use, and discounted the note as cash- 
 ier, the bank was held charged with 
 knowledge of his fraud. Bank of 
 New Mil ford ». Town of New Mil- 
 ford, 36 Conn. 93. So where the 
 cashier of a bank, who was also treas- 
 urer of another corpor;ition, depos- 
 ited securities of the latter to obtain 
 a loan for the use of the former ba,nk. 
 Fishkill Savings lost. v. Bostwick, 19 
 Hun (NY.) 354. See also Holden b. 
 New Yorlt, &c. Bank, 73 N. Y. 288. 
 But see Hummell v. Bank of Monroe, 
 — Iowa, — , 37 N. W. Rep. 954. 
 
 559
 
 § 730. THE LAW OF AGENCY. [Book lY. 
 
 is true, possessed of extensive powers even to the extent of abso- 
 lute control over the management of its affairs, but these powers 
 reside in them as a board and not as individuals, and only when 
 acting as a board in their collective capacity are they the repre- 
 sentatives of the corporation. Notice to them when assembled 
 as a board would undoubtedly be notice to the corporation.* So 
 notice to an individual director which is in fact communicated to 
 the board by him, is notice to the corporation, for this thus 
 becomes notice to the board.* 
 
 But it is well settled, as a general rule, that the mere private 
 knowledge of one or more individual directors concerning any 
 business of the corporation, but which is not by them communi- 
 cated to the board, is not to be imputed to the corporation.' This 
 rule, however, is subject to certain exceptions resting upon 
 obvious principles. Thus it has been held that notice communi- 
 cated to a director officially for tiie express purpose of being 
 communicated to the board is notice to the board, although he 
 may have failed to do so, as it is clearly his duty to so commu- 
 nicate it and he ought to be conclusively presumed to have done 
 his duty.* 
 
 So it has been held that a corporation is properly to be charged 
 with information possessed by an individual director, whether 
 disclosed or not, if, while possessing such knowledge, he acts with 
 the board and as a member of it, upon the very matter to which 
 
 ' First National Bank of Higbts- Co.. 10 Md. 517, 69 Am. Dec. 174; 
 
 town t). Christopher, 11 Vroom (40 N. United States Ins. Co. v. Shriver, 3 
 
 J. L.)435, 29 Am. Rep. 262; Fulton Md. Ch. 381; First National Bank of 
 
 Bank v. New York, &c. Canal Co., 4 Hightstown ». Christopher, 11 Vroom 
 
 Paige (N. T.) 127; Toll Bridge Co. v. (40 N. J. L.) 435, 29 Am. Rep. 262; 
 
 Betsworth, 30 Conn. 380. Westfleld Bank v. Cornen, 37 N. Y. 
 
 In re, Marseilles, &c. Ry Co., 7Ch. 320, 93 Am. Dec. 573; Bank of U. S. 
 
 Ap. 161, 1 Eng. Rep. (Moak ) 490. v. Davis, 2 Hill (N. Y.) 463; National 
 
 a Farmers', &c. Bank v. Payne, 25 Bank v. Norton, 1 Hill (N. Y.) 572; 
 
 Conn. 444, 68 Am. Dec. 362; Bank of Atlantic Bank v. Savery, 18 Hun 41, 
 
 Pittsburgh v. Whitehead, 10 Watts 8. c. 82 N. Y. 291, 308; Getman v. 
 
 (Penn.) 397, 36 Am. Dec. 186. Second National Bank, 23 Hun (N. 
 
 « Wilson «. McCullough, 23 Penn. Y.)503; Sawyer ». Pawners' Bank, 6 
 
 St. 440, 63 Am. Dec. 347; Farmers', Allen (Mass.) 207. 
 
 &c. Bank v. Payne, 25 Conn. 444, 63 * United States Ins. Co. v. Shriver, 
 
 Am. Dec. 362; Farrel Foundry v. 3Md. Ch. 381; Boyd v. Chesapeake, 
 
 Dart, 26 Conn. 376; Winchester v. &c. Canal Co., 17 Md. 195, 79 Am. 
 
 Baltimore, &c. R. R. Co.. 4 Md. 231; Dec. 646. 
 General Ins. Co. v. United States Ins. 
 
 5 no
 
 Chap, v.] LIABILITY OF PRINCIPAL TO THIRD PERSON. § 730. 
 
 tlie information relates.' In such a case there is the strongest 
 possible duty resting upon the director to communicate his infor- 
 mation to the board, and it may well be presumed, as against the 
 corporation, that he has done so. But, in accordance with the 
 exception which has been heretofore noticed, that the agent will 
 not be presumed to communicate information hostile to his own 
 interests, it has been held that when a director is himself dealing 
 as the other party with the corporation, the corporation will not 
 be charged with notice of that knowledge possessed by the direc- 
 tor which his own interest impelled him to conceal,* even though 
 he acts with the board in reference to it.* A director may, also. 
 
 * National Security Bank v. Cush- 
 man, 121 Mass. 490; Innerarity v. 
 Merchants' National Bank, 139 Mass. 
 833, 53 Am. Rep. 710; Union Bank v. 
 Campbell, 4 Humph. (Tenn.) 394; 
 Bank of United States «, Davis, 2 
 Hill (N. Y.) 451; Clerk's Savings 
 Bank v. Thomas. 2 Mo. App. 367. 
 
 • " A bank or other corporation can 
 act only through agents, and it is 
 generally true, that if a director, who 
 has knowledge of the fraud or ille- 
 gality of the transaction, acts for the 
 bank, as in discounting a note, his 
 act is that of the bank and it is 
 affected by his knowledge. National 
 Security Bank v. Cushman, 121 Mass. 
 490. But this principle can have no 
 application where the director of the 
 bank is the party himself contracting 
 with it. In such case the position he 
 assumes conflicts entirely with the 
 idea that he represents the interests 
 of the bank. To hold otherwise 
 might sanction gross frauds by im- 
 puting to the bank a knowledge those 
 properly representing it could not 
 have possessed." Devens, J. in Inner- 
 arity V. Merchants' National Bank, 
 139 Mass. 333. 53 Am. Rep. 710. In 
 this case A shipped a cargo to B for 
 Bftle on A's accoutit, but gave B a bill 
 of lading in lalter's name. B was a 
 director iu defendant's bank. B bor- 
 rowed a large sura of money of the 
 
 bank and, without authority of A, 
 pledged the bill of lading as security. 
 B met and acted with the board in 
 approving the loan but gave the 
 board no notice of the true owner- 
 ship of the cargo, nor did the bank 
 have notice from any other source. 
 In an action by the owner of the 
 cargo it was held that the bank could 
 not be charged with knowledge of 
 the director's fraud. 
 
 In First National Bank of Hights 
 town V. Christopher, 40 N. J. L. 435, 
 39 Am. Rep. 263, P a member of a 
 firm, procured at a bank of which he 
 was a director, the discount of a note 
 belonging to the firm, knowing that 
 the note had been obtained by fraud, 
 but not disclosing this fact to the 
 other officers of the bank. The bank 
 sued upon the note and were allowed 
 to recover, the court holding that the 
 knowledge of the director could nor 
 be imputed to the bank. To sara?? 
 effect: Commercial Bank v. Cunning- 
 ham, 24 Pick. (Mass.) 270, 35 Am. 
 Dec. 322; National Security Bank v. 
 Cushman, 121 Mass. 491; Frost d. 
 Belmont. 6 Allen (Mass.) 163. See 
 also Atlantic Cotton Mills c. Indian 
 Orchard Mills, — Mass. — , 17 North 
 E. Rep. 496. 
 
 ' Innerarity v. Merchants' National 
 Bank, 139 Mass. .353, 53 Am. Rep. 
 710; Custer v. Tompkins County 
 
 36 
 
 561
 
 R 731. THE LAW OF AGENCY. [Book lY. 
 
 either bj custom, acquiescence or express appointment, be charged 
 with the performance of certain corporate duties, in respect to 
 which he is to be regarded like any other agent of the corpora- 
 tion, and notice to him regarding such matters will be notice to 
 the corporation.' 
 
 S 731. Same Subject— Notice to Stockliolder not Notice to the 
 Corporation. The stockholders of a corporation, as such, are 
 in no sense the agents of the corporation. They may, of course, 
 be invested, like other individuals, with representative powers 
 by the corporation and would in that event be treated like other 
 agents ; but their mere position as stockholders gives them no 
 such authority. Notice to a stockholder is, therefore, not notice 
 to the corporation.* 
 
 II. 
 
 LIABILITT OF THE PEINCIPAL IN TORT. 
 
 a. For Agent's Wrongful Acts. 
 
 § 732. In general. The wrongful act of the agent, for which 
 it may be sought to hold the principal liable, may have been 
 one committed by the express directions of the principal. For 
 such an act the principal will be seen to be liable, and upon the 
 familiar maxim, Qai facit per alium^facit per se.^ 
 
 But the question most frequently arises in cases where there 
 was either no express direction at all, or an express direction not 
 to do the act complained of. The same general principles which 
 govern the liability of the principal in contract, will be found to 
 apply here. In the execution of his authority, the agent repre- 
 Bcnts the principal. While so acting, the agent's act is the act 
 of the principal, and whatever injuries may result to third 
 persons, from the manner in which the act is performed, are 
 properly attributable to the principal. These injuries may be 
 
 Bank, 9 Penn. St. 27; Terrell «. approval in Tagg v. Tennessee 
 
 Branch Bank of Mobile, 12 Ala. 503. National Bank, 9 Heisk. (Tenn.) 479. 
 
 United States Bank v. Davis, 2 Hill • Smith ». South Royalton Bank, 
 
 (N. Y.) 451 ; and Union Bank v. Camp- 32 Vt. 341. 
 
 bell, 4 Humph. (Tenn.) 394, are « Housatonic, &c. Bank v. Martin, 1 
 
 contra. These cases, however, have Mete. (Mass.) 294; Union Canal ». 
 
 been criticised and denied. See In- Loyd, 4 "Watts. & S. (Penn.) 393. 
 
 nerarity c. Merchants' National Bank, • State v. Smith, 78 Me. 260. 57 
 
 tupra. They are also cited with Am. Rep. 802. 
 
 562
 
 Chap, v.] LIASILITY OF PRINCIPAL TO TIIIKD PERSON. | 733. 
 
 the result of some act, either of commission or of omisswn, on 
 the part of the agent, but in either event they have come to the 
 third person because the agent, whom the principal set in 
 motion, has neglected some duty which the circumstances imposed 
 upon him. 
 
 It will be noticed, too, that the question of authority to do or not 
 to do the particular act complained of, is not the criterion by 
 which the liability of the principal is to be determined. If the 
 agent be acting in the execution of his general authority to act, 
 *. e., in the scope of his employment, it is enough. Liability for 
 what is done in accomplishing the object, follows as the result of 
 the relation. 
 
 At the same time it is not to be inferred that every tortious 
 act of the agent is to be attributed to the principal. The rule 
 must be kept within the operation of the reasons upon which it 
 \s based. If, therefore, the agent goes beyond and outside of his 
 employment to accomplish some independent purpose of his own, 
 he cannot thereby carry the principal's responsibility with him. 
 These general principles will be more fully discussed in the fol- 
 lowing sections. 
 
 § 733. Principal liable for Acts expressly directed. For in- 
 juries which occur to third persons as the natural, proximate and 
 legitimate result of an act which the principal has expressly 
 directed or authorized his agent to do, the principalis clearly and 
 unquestionably liable. Such results are the direct outgrowth of 
 the deliberate intention of the principal, and he is as much to be 
 charged with the responsibility as if he had performed the act in 
 person.' This same principle is frequently applied to the case 
 of independent contractors, and while the principal is not, as will 
 be seen,' responsible for the acts of the contractor nnder all cir- 
 cumstances, yet wherever he has authorized or directed the doing 
 of an act which is either in itself a source of injury, or which 
 from its very nature is liable to cause injury to third persons, the 
 principal is properly held responsible.' 
 
 1 State V. Smith, 78 Me. 260, 57 59 Me. 520; Bacheller v. Pinkham, 68 
 
 Am. Rep. 802; Scott v. Shepherd, 3. Me. 255. 
 "W. Blackstone, 892; Guille v. Swan, « See post, § 747. 
 
 19 Johns. (N. Y.) 383, 10 Am. Dec. » See post, §§ 747, 748. 
 
 234; Eaton v. European, «fec. Ry Co., 
 
 563
 
 § 7oi. THE LAW OF AGENCY. [Book IV. 
 
 § 73 i. Liable for Agent's negligent Act in Course of Em- 
 ployment. But the principal is not responsible for the resnlta 
 of his own intentional acts alone. He is liable also to third per- 
 sons for injuries sustained by them on account of the negligence 
 of an agent — not standing in the relation of independent con- 
 tractor — in the performance of his undertaking.' In determin- 
 ing the principal's liability for the agent's negligence, the impor- 
 tant inquiry is, not whether the agent was authorized to do or 
 omit to do the act, the doing or not doing of which constitutes 
 the negligence complained of, or whether the act was done or 
 omitted in violation of the principal's instructions ; but whether 
 the act was done or omitted by the agent while engaged in the 
 business of his principal.' As is well said by a learned judge, 
 " In most cases where the master has been held liable for the 
 negligence of his servant, not only was there an absence of author, 
 ity to commit the wrong, but it was committed in violation of 
 the duty which the servant owed the master. The principal is 
 bound by a contract made in his name by an agent, only when 
 the agent has actual or apparent authority to make it ; but the 
 liability of a master for the tort of his servant does not depend 
 primarily upon the possession of an authority to commit it. Thf 
 question is not solved by comparing the act with the authority. 
 
 It is sufficient to make the master responsible civiliter^ if the 
 wrongful act of the servant was committed in the business of 
 the master, and within the scope of his employment, and this, 
 although the servant, in doing it, departed from the instructions 
 of his master. This rule is founded upon public policy and con- 
 
 * Cosgrove «. Ogden, 49 N. Y. 255, Am. Rep. 311; Chicago, &c. R. R. v. 
 
 10 Am, Rep. 361; Smith v. Webster, Dickson, 63 111. 151, 14 Am. Rep. 
 
 23 Mich. 298; Higgins v. Watervliet 114; Evans w. Davidson, 53 Md. 245, 
 
 Turnpike Co., 46 N. Y. 23, 7 Am. 36 Am. Rep. 400; Noblesville, &c. R. 
 
 Rep, 293; Garretzen v. Duenckel, 50 R. Co. v. Gause, 76 lad. 142, 40 Am. 
 
 Mo. 104, 11 Am. Rep. 405; Wilton v. Rep. 234; Quinn v. Power, 87 N. Y. 
 
 Middlesex R. R. Co., 107 Mass. 103, 535,41 Am. Rep. 393; Mulveliill ». 
 
 9 Am. Rep. 11; Pickens v. Diecker, Bates, 31 Minn. 364, 47 Am. Rep. 
 
 21 Ohio St. 212, 8 Am. Rep. 55; Jack- 796; Stone v. Hills, 45 Conn. 44. 29 
 
 son V. Second Ave. R. R. Co., 47 N. Am Rep. 635; Chicago, &c. R. R. 
 
 Y. 274, 7 Am. Rep. 448; Goddard v. Co. v. Flexman, 103 111. 546, 43 Am. 
 
 Grand Trunk Ry. Co., 57 Me. 203, 3 Rep. 33. 
 
 Am. Rep. 39; Passenger R. R. Co. v. » Cosgrove v. Ogden, 49 N. Y. 255, 
 
 Young, 21 Ohio St. 518, 8 Am. Rep. 10 Am. Rep. 361. 
 78; Bryants. Rich, 106 Mass, 180, 8 
 
 564:
 
 Chap, v.] LIABILITY OF PKINCIPAL TO THIRD PKK80N. § 735. 
 
 venience. Every person is bound to use due care in the conduct 
 of his business. If the business is committed to an agent or 
 servant, the obligation is not changed. The omission of such 
 care is the omission of the principal, and for injury resulting 
 therefrom to others, the principal is justly held liable. If he 
 employs incompetent or untrustworthy agents, it is his fault ; 
 and whether the injury to third persons is caused by the negli- 
 gence or positive misfeasance of the agent, the maxim respondeat 
 superior applies, provided, only, that the agent was acting at the 
 time for the principal and within the scope of the business en- 
 trusted to him." ' 
 
 So, too, it is immaterial that the act was committed without 
 the principal's knowledge, or that it was the result of the agent's 
 misapprehension or misapplication of his principal's instructions, 
 and was an act which the principal never intended should be 
 done ; if in fact it was done by the agent in the course of his 
 employment, and not in the willful departure from it, the prin- 
 cipal is liable.* It is immaterial also that the agent acted under 
 a misapprehension as to the facts, or that he misjudged, or came 
 to an erroneous conclusion regarding, the facts. If the principal 
 put the agent into a situation where his duty requires him to 
 determine the facts and act upon them, the principal must be 
 held responsible to those who may suffer injury from the erro- 
 neous judgment of the agent.' 
 
 § 735. Same Subject— Acts in the Course of his Employment, 
 But in determining the scope of the employment, regard must be 
 had, as in other cases, to the nature and extent of the agent's 
 authority. Here, too, the material questions are, (1) What au- 
 thority has the principal held the agent out as possessing? and, 
 (2) Was the agent at the time acting within its scope? These are 
 questions which are to be determined largely by the principles 
 which have already been discovered. No general rule can be 
 laid down by which all cases can be decided. In every instance 
 it becomes a mixed question of law and fact, to be settled by ref- 
 erence to the peculiar facts and circumstances of the case. If 
 
 • Andrews, J., In Higgin3 v. Wat- hon, 103 111. 485, 43 Am. Rep. 29, and 
 ervliet Turnpike Co., 46 N. Y. 23, 7 cases in note 1, p. 564. 
 Am. Rep. 293. • Higgins v. Watervliet Turnpike 
 
 •Chicago City Ry Co. v. McMa- Co., 4G N. Y. 23, 7 Am. Rep. 293, 
 
 and cases in note 1, p. 564. 
 
 565
 
 § 736. THE LATV OF AGENCY. [ijOok IV. 
 
 upon such an investigation, it be found that the agent was acting 
 as such, within the apparent scope of his authority and in the 
 performance of his undertaking, the principal is liable for 
 the agent's negligent omission or commission, although the agent 
 was not authorized to do the particular act complained of, or 
 had received express instructions not to do it* 
 
 This question can not, perhaps, be rendered clearer than by 
 reference to some of the decided cases in which it has been deter- 
 mined. 
 
 § 736. Same Subject— Illustrationa. Thus where the prin- 
 cipal instructed his agent to get a certain team of horses, intend- 
 ing that the agent should get them with the owner's consent, but 
 the agent, misapprehending the instructions, took the horses 
 without getting the owner's consent, and in using them killed 
 one of them, it was held the principal was liable;' so where a 
 father sent his son to get some cattle in a certain pasture, and 
 the son, not finding them there, searched for them in the vicinity 
 and having found them in a neighboring pasture, drove off with 
 them, by mistake, two heifers belonging to another, it was held 
 that the father was liable ; ' so where a master sent his servant to 
 get some lumber belonging to him at a saw-mill, telling him to 
 inquire of the sawyer, who would inform him which was the 
 lumber, and the servant inquired, but was given such directions 
 that he took the plaintiff's lumber, it was held that the master 
 was liable ; * so where a servant being sent to cut trees in a cer- 
 tain vicinity, ignorantly cut them on plaintiff's land, the master 
 was held responsible.* 
 
 So where a railway engineer, who was running his train at a 
 time when he had been expressly forbidden to do so, collided 
 with a special train containing the plaintiff and thereby caused 
 him serious injury, it was held that the disobedience of the 
 engineer constituted no defense ; • and where the agent of a 
 lumber company caused lumber to be negligently piled in a 
 place where his principal had instructed him not to have it piled, 
 
 » See cases cited in following sec- * May ». Bliss, 23 Vt. 477. 
 
 tion. • Luttrell v. Hazea, 3 Sneed (Tenn.) 
 
 « Moir «. Hopkins, 16 111. 313, 63 20. 
 
 Am. Dec. 313. • Philadelphia & Reading R R. Co. 
 
 » Andrus v. Howard, 38 Vt. 248, 84 v. Derby, 14 How. (U. S.) 468. 
 Am. Dec. 680. 
 
 566
 
 Cliap. Y.J LIABILITT OF PRrNCIPAL TO THIRD PERSON. § 736. 
 
 and the lumber fell upon and injured the plaintiff, the lumber 
 company was held liable ; ' and where a clerk in a gun-store who 
 had been expressly instructed not to load guns in the store, 
 loaded one for the purpose of showing it to a customer, and in 
 doing 80 the gun was carelessly discharged and shot the plaintiff, 
 it was held that the clerk's principal was responsible.* So 
 although a street car conductor may have been instructed not to 
 carry passengers without payment of fare, yet if he negligently 
 injures one whom he invited to ride free, the company is liable.' 
 So where a farm laborer, at work with others in his employer's 
 corn-field, undertook to drive out some trespassing cattle, and, in 
 so doing, carelessly killed one of them, it was held that driving 
 out the cattle was within the scope of his employment, and that 
 the employer was liable ; * so where the conductor of a street car, 
 deeming the plaintiff to be drunk and disorderly, forcibly ejected 
 him from the car, it was held that the street car company was re- 
 sponsible, although the conductor might have been mistaken in 
 his judgment ; • and where the keeper of a toll-gate, who had 
 charge of the gate at all hours but was not required to 3olIect 
 toll after nine o'clock in the evening, negligently let the beam of 
 the gate down upon the plaintiff who was attempting to pass 
 after that hour and injured her, it was held that the keeper was 
 still acting in the course of his employment, and that his em- 
 ployer was liable ; • so a teamster engaged in delivering coal for 
 his employer, a coal dealer, is unquestionably acting within the 
 scope of his employment in removing an iron plate in a sidewalk 
 covering the coal cellar into which he is to put the coal, and if he 
 negligently leaves the open hole unguarded, his employer is lia- 
 ble for an injury to one who thereby falls into it ; ' so where the 
 pilot of a ferry-boat went out of his usual course to accommodate 
 a passenger who was carried gratuitously, and in so doing negli- 
 gently collided with a canal boat and killed the plaintiff's intes- 
 tate, it was held that he was acting within the scope of his 
 
 • Cosgrove v. Ogdea, 49 N. Y. 255, » Higgins®. Watervliet Turnpike & 
 10 Am. Rep. 361. R. R. Co., 46 N. T. 33, 7 Am. Rep. 
 
 « Qarretzen v. Duenckel, 50 Mo. 293. 
 104, 11 Am. Rep. 405. • Noblesville, «fec. Co. v. Gause, 
 
 » Wiltoa V. Middlesex R. R. Co., 76 Ind. 143, 40 Am. Rep. 224. 
 107 Mass. 108, 9 Am. Rep. 11. f Whiteley v. Pepper, 2 Q. B. Div. 
 
 * Evans v. Davidson, 53 Md. 245, 376, 30 Eng. Rep. (Moak) 341. 
 86 Am. Rep. 400. 
 
 567
 
 I 7oG. THE LAW OF AGENCY. [Book IV". 
 
 employment, and that his principal was liable ; ' so where a team- 
 ster employed by a flour merchant to deliver goods, having 
 started out with a wagon load for different customers, left by the 
 road side several bags of bran, while he went up a side road to 
 deliver some flour, intending to take up tlie bran on his return, — 
 his object being to lighten his load, and thus finish the delivery 
 sooner so as to get time to attend to some business of his own, — 
 and the bran frightened a passing horse and caused injury, it was 
 held that the flour merchant was responsible.* The court said : 
 " He left the bags to expedite delivery. Did it make the busi- 
 ness his own because he dispatched it more speedily than it would 
 naturally have been done ? He was sent by the defendant to de- 
 liver the flour and bran. Did he do anything else than deliver 
 them ? His whole object in leaving the bran by the side of the 
 road was to gain time. Suppose he had driven the horse with 
 such speed as amounted to carelessness in order to gain time, and 
 had injured a person by so doing ; would he be transacting his 
 own business while driving so rapidly, so that the defendant 
 would not be liable ? Suppose he had left the bran out of con- 
 sideration for his horse, and the same result had followed ; would 
 the defendant be excused? " 
 
 The fact that the agent or servant is given quite large discre- 
 tion or control as to the means or methods to be employed, or 
 that he acts in some degree for himself, does not of itself deter- 
 mine that his acts are not within the scope of his employment. 
 Tluis where the defendant, who was the owner of a horse and ex- 
 press wagon, entrusted them to a driver with general authority 
 to secure such business as he could, make his own contracts and 
 to drive wherever it might be necessary to go in order to receive 
 or deliver articles which he might be employed to transport, and 
 the driver, while drawing a load for himself, negligently injured 
 the plaintiff, it was held that the fact that the driver was carry- 
 ing his own property was immaterial and that, while the defen- 
 dant might require the driver to account to him for the value of 
 the time occupied, he was none the less liable to the plaintiff; • 
 so where the defendant, the proprietor of a cab, entrusted it to a 
 driver with general authority to seek business at such places and 
 
 • Quinn v. Power, 87 N. T. 535, • Mulvehill v. Bates. 31 Minn. 364, 
 
 41 Am. Rep. 392. 47 Am, Rep. 796 
 
 » Phelon V. Stiles, 43 Conn. 426. 
 
 568
 
 Chap, y.] LIABILITY OF PRINCIPAL TO THIRD PERSON. § 736. 
 
 i I such manner as he pleased, tlie driver guaranteeing tlie pro- 
 prietor a fixed sura per day, and the driver, while returning the 
 cab one evening, went a little ont of his way for a purpose of his 
 own, and while so doing negligently injured the plaintiff, it was 
 held that the relation of master and servant existed between 
 the proprietor and the driver, that the driver was acting within 
 the scope of his employment, and that the proprietor was lia- 
 ble ; * and so where a traveling salesman who had no particular 
 instructions as to the route he should pursue, or as to the mode 
 of travel he should adopt, while traveling under his employment, 
 hired a team and carriage to go from one town to another and, 
 while so engaged, negligently permitted the team to run away and 
 cause injury, his employers were held liable.* 
 
 It is likewise immaterial that the agent or servant is acting 
 temporarily for, or under the immediate direction of, another per- 
 son, if he be still employed in and about his principal's business. 
 Thus where the owners of a carriage were in the habit of fre- 
 quently hiring a team and driver for it from the same person, and, 
 upon one of these occasions, the driver by his negligence caused 
 injury to a third person, it was held that the driver, though subject 
 to the general directions of the owners of the carriage as to the 
 course to be pursued, etc., was still engaged in the business of his 
 master, and that the latter was liable. And it was further held 
 to make no difference that the owners of the carriage had always 
 been driven by the same driver, he being the only regular coach- 
 man in the employ of the owners of the horses; or that the 
 owners of the carriage had always paid him a fixed sum for each 
 drive ; or that they provided him with a livery which he left at 
 their house at the end of each drive, and that the injury in ques- 
 tion was occasioned by his leaving the horses while so depositing 
 the livery where he was accustomed to leave it.* In this case 
 
 * Venables «. Smith, 2 Q. B. Div. • Quarman v. Burnett, 6 Mees. & 
 
 279, 20 Eng. Rep. (Moak) 345. The Wels. 499. Of this case Judge 
 
 question of the relation existing be- Cooley says that it is one which, 
 
 tween the parties was decided in view "whether correctly decided or not, 
 
 of a special statute making the pro- has been too often and too generally 
 
 prietor liable, but the question of the recognized and followed to be ques- 
 
 scoDe of the employment was de- tioned now." Joslin v. Grand Rap- 
 
 cided upon common law principles. ids Ice Co., 50 Mich. 516, 4') Am. 
 
 « Pickens v. Diecker, 21 Ohio St. Rep, 54. To the same point: Fenton 
 
 212, 8 Am. Rep. 55. t>. Dublin Steam Packet Co., 8 Ad. 
 
 569
 
 g 737. THE LAW OF AGENCY. [Book IV. 
 
 Baron Paeke said: "Upon the principle that qui facit per 
 aliumfacitper 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 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." That person was the owner of 
 the horses, and not any one at whose service the horses and driver 
 were temporarily placed. And it is immaterial to the application 
 of the principle, that the hirer of the team selected, or asked ex- 
 pressly for, a particular driver.* 
 
 8 737. Not liable for Negligence not in Course of Employment. 
 But a principal or master is not liable for the acts of his agent or 
 servant not within the real or apparent scope of his employment. 
 If the agent or servant, therefore, steps outside of his employ- 
 ment to do some act for himself, not connected with his princi- 
 pal's business, the latter will not be liable for the agent's negli- 
 gence while so engaged. Beyond the scope of his employment, 
 the agent or servant is as much a stranger to his principal as 
 though he were a third person.' 
 
 In determining whether a particular act was done in the course 
 of the agent's employment, it is proper to inquire whether the 
 agent was at the time serving his principal. If the act was done 
 while the agent or servant was at liberty from the service, and 
 
 & El. 853; Dalyell ». Tyrer, El. Bl. of C the injury occurred, but it was 
 
 & El. 899; Rapson t). Cubitt, 9 Mees. held that the Ice Co. was liable. 
 & Wels. 709; Hobbit v. London, «&c. « Butler t). Basing, 2 C. & P. 613; 
 
 Ry Co., 4 Exch. 254. Lamb v. Palk, 9 Id. 629; Joel v. Mor- 
 
 Weyant v. Railroad Co., 3 Duer ison, 6 Id. 501; Storey®. Ashton, L. 
 
 (K Y.) 360; Blake v. Ferris. 5 N, Y. R. 4 Q. B. 479; Croft v. Alison, 4 B. 
 
 48, 55 Am. Dec. 304. & Aid. 590; Marsh v. South Carolina 
 
 • Quarman v. Burnett, tupra ; R. R. Co., 56 Ga 274; Richmond 
 
 Holmes v. Onion, 2 Com. Bench (N. Turnpike Co. t. Vanderbilt, 1 Hill 
 
 S.) 790; Joslin 'o. Grand Rapids Ice (N. Y.) 480; Isaacs u Third Ave. R. 
 
 Co., supra. In this case S was in the R. Co., 47 N. Y. 122, 7 Am. Rep. 
 
 regular employ of the defendant. On 418; Wilson ». Peverly. 2 N. H 548; 
 
 the day the injury occurred C hired Chicago, &c. Ry Co. v. Bayfield, 37 
 
 of defendant one of its teams to Mich. 205; Maddox v. Brown, 71 
 
 assist him in his work, and requested Me. 432, 36 Am. Rep. 336; Stone v. 
 
 that 8 be sent as driver. While 8 Hills. 45 Conn. 44, 29 Am. Rep. 635; 
 
 was driving the team in the business Morier ». St. Paul, &c. Ry Co., 31 
 
 Minn. 351, 47 Am. Rep. 793. 
 
 570
 
 Chap. Y.] LIABILITY OF PRINCIPAL TO THIRD PERSON. 
 
 §738. 
 
 wa8 pursuing his own ends exclusively, the principal is not liable.' 
 If the servant or agent was at the time acting for himself and as his 
 own master pro tempore, the principal is not liable." If the ser- 
 vant or agent step aside from the principal's business, for however 
 short a time, to do some act of his own, not connected with the 
 principal's business, the relation of principal and agent or of 
 master and servant, is, for the time, suspended.' 
 
 §738. Same Subject— Illustrations. The cases upon this point 
 are numerous, but a few of them will serve to illustrate the prin- 
 ciple. Thus where the defendant's teamster, having finished his 
 day's work, had returned to the defendant's premises for the 
 purpose of putting up his horse as was his duty, but instead of doing 
 so drove oS again on business of his own, and, in returning, in- 
 jured the plaintiff, the defendant was held not liable.* Maule, 
 
 ' Butler V. Basing, 2 C. & P. 618, 
 and cases supra. 
 
 « Bard v. Yohn, 26 Penn. St. 482, 
 and cases supra. 
 
 » Joel V. Morison, 6 C. «& P. 601, 
 and cases supra. 
 
 * Mitchell V. Crasweller. 13 Com. 
 Bench 237. So in Storey v. Ashton, 
 L. R. 4, Q. B. 476, the defendant in- 
 trusted his servant with his horse and 
 cart for the day, and when his work 
 was ended and it was his duty to 
 drive home, the servant for a purpose 
 of his own and without express or 
 implied authority from his master, 
 drove in an entirely different direction 
 and by his carelessness injured the 
 plaintiff. The court held the master 
 not liable. 
 
 In Sleath v. Wilson, 9 C. «& P. 607, 
 Erskine, J., said in his charge to the 
 jury: " But whenever the master has 
 intrusted the servant with the control 
 of the carriage, it is no answer that 
 the servant acted improperly in the 
 management of it. * * * The 
 master in such a case will be liable, 
 and the ground is, that he has put it 
 in the servant's power to mismanage 
 the carriage by intrusting him with 
 it." But this reason of Ersktne, J., 
 
 was disapproved in Storey v. Ashton, 
 supra. In that case Cockburn, C. 
 J., said: "I think the judgment of 
 Maule andCresswell, JJ., in Mitchell 
 V. Crassweller, (supra) expresses the 
 true view of the law, and the one 
 which we ought to abide by; 
 and that we cannot adopt the 
 view of Erskine, J., in Sleath v. 
 Wilson, that it is because the master 
 has intrusted the servant with the 
 control of the horses and cart that 
 the master is responsible. The true 
 rule is that the master is only respon- 
 sible so long as the servant can be 
 said to be doing the act, in the doing 
 of which he is guilty of negligence, 
 in the course of his employment as 
 servant. I am very far from saying, 
 if the servant when going on his mas- 
 ter's business took a somewhat longer 
 road, that owing to this deviation he 
 would cease to be in the employment 
 of the master so as to divest the lat- 
 ter of all liability; in such cases it is 
 a question of degree as to how far 
 the deviation could be considered a 
 separate journey. Such a considera- 
 tion is not applicable to the present 
 case, because here the carman started 
 on an entirely new and independent 
 
 571
 
 § 738. THE LAW OF AGENCY. [Book TV. 
 
 J., said : " At the time of the accident the servant was not 
 gointr a roundabout way to the stable, and, as one of the cases 
 expresses it, making a detour. He was not engaged in the business 
 of his employer. But in violation of his duty, so far from doing 
 what he was employed to do, he did something totally incon- 
 sistent with his duty, a thing having no connection whatever 
 with his employer's service. The servant only is liable and not 
 the employer. All the cases are reconcilable with that. The 
 master is liable even though the servant, in the performance of 
 his duty, is guilty of a deviation or failure to perform it in the 
 strictest and most convenient manner. But where the servant, 
 instead of doing that which he is employed to do, does something 
 which he is not employed to do at all, the master cannot be said 
 to do it by his servant, and therefore is not responsible for the 
 negligence of the servant in doing it." 
 
 And so in a recent case in Maine, it appeared that the defend- 
 ant's son, a minor of the age of seventeen years, took his father's 
 horse and carriage, which he had been allowed to use without 
 restriction, and drove to a store for the purpose of depositing 
 money which, as treasurer of a Sunday school, he had received 
 the day before. Entering the store to make the deposit, he left 
 the horse unfastened and unattended, and the horse ran away, 
 colliding with plaintiff's team, and caused the injury for which 
 the action was brought against the father. The horse and car- 
 riac^e were taken in the father's absence, and without his knowl- 
 edge. The court held that, under these circumstances, the son 
 could not be considered as engaged in the business of his father, 
 or as acting for hira, and that the father was therefore not 
 liable.* 
 
 journey, which had nothing at all to ' Maddox v. Brown, 71 Me. 433, 36 
 
 do with his employment. It is true Am. Rep. 336. If a master gives his 
 
 that iu Mitchell v. Crassweller the ser- servant liberty for a day to go to a 
 
 vant had got nearly, if not quite, fair, and to take the master's horse 
 
 home, while in the present case, the and wagon, the master is not liable to 
 
 carman was a quarter of a mile from third persoas for an injury done by 
 
 home; but still he started on what the servant during the day with the 
 
 may be considered a new journey en- horse and wagon. BarJ v. Yohn, 23 
 
 tirely for his own business, as distinct Penn. St. 482. The owner of a horse 
 
 from that of his master; and it would is not liable for an injury caused by 
 
 be going too far to say that under the negligent driving of a borrower, 
 
 such circumstances the master was to a third person, if the horse was not 
 
 liable." being used at the time iu the owner's 
 
 .57-2
 
 Chap. Y.] LIABILITY OF PRINCIPAL TO THIKD PERSON. § 738. 
 
 So a truck-driver, having finished his master's business 
 and being directed to put up his team and while on his way to 
 the barn for that purpose, was met bj another of the defendant's 
 servants, at whose request and for whose accommodation he 
 went to deliver a trunk. On the way he negligently ran over 
 and killed the plaintiflPs intestate, but it was held that he was 
 not then enfjaored in the master's business and the master was 
 therefore not liable.' 
 
 In a recent case in Connecticut it appeared that the defendants 
 ordered their teamster to deliver a load of paper to T. On reach- 
 ing T's, he requested the teamster to carry the paper four and a 
 half miles further on to Hartford and, at the railway station 
 there, to get some freight for T and bring it to him. The team- 
 ster consented, and while getting the freight his team, which he 
 had left unhitched at the station, ran away and injured plaintiff's 
 property. The court held that when the teamster accepted 
 instructions from T and became a carrier of merchandise for 
 him to and from a railway station in an adjoining town, he tem- 
 porarily threw off his employers' autliority, abandoned their 
 business and left their service, and that the defendants were 
 therefore not liable.* 
 
 So where workmen employed upon a railroad, during the noon 
 hour built a fire by the side of the track to cook their dinner, 
 
 business. Herlihy «. Smith. 116 and took hold of a horse standing 
 Mass. 263. A coachman, after having before a van and caused the van to 
 used his master's horse and carriage move so as to make room for the ear- 
 in going upon an errand for his mas- riage to pass, whereby a packing case 
 ter, instead of taking them to the fell from the van and broke the thills 
 stable, used them in going upon an of plaintiff's gig, it was held that the 
 errand of his own without his mas- master was not liable for the injury, 
 ter's knowledge or consent, and while In Campbell v. City of Provi<ience, 9 
 80 doing negligently ran into and in- R. I. 263, the defendant, a hack 
 Jured the plaintiff's horse, but it was owner, employed a person as day 
 held that the master was not liable. driver. The driver used the hack at 
 Sheridan v. Charlick, 4 Daly (N. Y.) night without the master's knowledge 
 338. or consent. It was held that the 
 
 * Cavanagh v. Dinsmore, 12 Hun master could not be held responsible 
 (N. Y.) 465. for an omission on the part of the 
 
 • Stone V. Hills, 45 Conn. 44, 29 driver to comply with the terms of a 
 Am. Rep. 635. In Lamb t>. Palk, 9 cityonlinanceduriagthe time of such 
 C. & P. 629, where a servant driving unauthorized use of the hack. 
 
 his master's h.irse got off the carriage 
 
 573
 
 t« 738. THE LAW OF AGENCY. [Book IV. 
 
 and the fire spread to an adjoining field, it was held that the 
 railway company was not responsible.' 
 
 In a recent English case it appeared that defendants were 
 solicitors occupying offices over plaintiffs' store. The defendants 
 employed clerks whose duties were performed in the general 
 office in which there was a lavatory for their use. They had 
 express orders that no clerk was to go into the private offices 
 after the members of the firm had left them. On the day in 
 question, one of the clerks, after the solicitors had gone, went 
 into one of the private offices to wash his hands at the lavatory 
 in tliat room. He negligently left the water tap turned and the 
 water flooded the plaintiffs' premises. The plaintiffs brought 
 their action against the solicitors, and it was urged that the clerk 
 was acting within the scope of his employment. 
 
 But Grove, J., said: "I am of opinion that the verdict 
 should be entered for the defendants. No doubt this question is 
 a very nice one, and there maybe cases close to the line between 
 the liability and non-liability of a master for the act of another 
 person done in the ' course of his employment ' if he is a servant, 
 or ' within the scope of his authority ' when he is an agent, for 
 * * such is the mode in which those terms have been applied by 
 the courts, although the words 'scope of authority' may cover 
 both cases. * * * 
 
 Although a definition is difficult, I should say that the act, 
 
 ' Morier v. St. Paul, &c. Ry. Co., orders so to do, went out into the 
 31 Mian. 351, 47 Am. Rep. 793. In river and attempted to tow the burn- 
 Woodman V. .Joiner, 10 Jur. (N. S.) ing barge up stream. In doing this 
 853, the plaintiff permitted the de- the barge was brought against another 
 fendant to use his shed temporarily boat to which the fire was communi- 
 as a carpenter shop, and the defend- cated and it was injured. It was 
 ant's workman in lighting his pipe held that going to the aid of the burn- 
 set the shed on fire; held, that the ing barge was outside of the scope of 
 defendant was not liable. In the one the duty of the captain of the ferry 
 case, cooking dinners and in the other boat, and that his employers were 
 lighting and smoking pipes, was no not liable. 
 
 part of the servant's duties. See also So where the servant of a stable 
 
 Wilson V. Peverly, 2 N. H. 548. In keeper killed a horse by immoderate 
 
 Aycrigg v. New York, &c. R. R. Co., driving, at a time when he was driv- 
 
 80 N. J. L. 460, it appeared that the ing without authority and upon pur. 
 
 captain of a ferry boat which was poses of his own, his master was held 
 
 lying at the wharf, saw a barge on not Iiaole. Adams v. Cost, 62 Md. 
 
 flre in the river, and without any 264, 50 Am. Rep. 211, 
 
 5Y4
 
 Chap. Y.] LIABILITY OF PBINCIPAL TO THIBD PERSON. § 739. 
 
 for which the master is to be held liable, must bo something 
 incident to the employment for which the servant is hired, and 
 which it is his duty to perform. * * * I think I should 
 have come to the same conclusion as that I have arrived at, if 
 there had been no express prohibition in the case, and it had 
 merely been shown that the clerks had a room of their own and 
 a lavatory where they could wash their hands. Then what pos- 
 sible part of the clerk's employment could it be for him to go 
 into his master's room to use his master's lavatory, and not only 
 the water, but probably his soap and towels, solely for his, the 
 clerk's, own purposes ? "What is there in any way incident to his 
 employment as a clerk? I see nothing. The case seems to me 
 just the same as if he had gone up two or three flights of stairs 
 and washed his hands in his master's bed-room. It is a voluntary 
 trespass on the portion of the house private to his master. I do 
 not use the word trespass in the sense of anything seriously 
 wrong, but he had no business there at all. In doing that which 
 his employment did not in any way authorize him to do, he negli- 
 gently left the stop-cock open and the water escaped and did 
 damage. I think there was nothing in this within the scope of 
 his authority or incident to the ordinary duties of his employ- 
 ment." ' 
 
 § 739. Liability for Agent's fraudulent Aot. The principal 
 is also liable for the wrongful, fraudulent or deceitful act of the 
 agent committed within the scope of his authority.* As is said 
 
 ' Stevens «. Woodward. 6 Q. B. her act of using the basin and omit- 
 
 Diy. 318, 29 Eng. Rep. (Moak) 645. ting to turn off the water would be 
 
 Grove, J., further said: "The case so incident to her employment that 
 
 is a little stronger by reason of the the master would be liable." Lind- 
 
 prohibition, but I quite agree * » * ley, J., concurred, saying: "lam 
 
 that there are cases where a pro- of the same opinion and I agree for 
 
 hibition would have no effect, and much the same reasons. I do not 
 
 I cannot put a nearer one than that I see on what principle the defendants 
 
 suggested during the argument; sup- are to be held liable for the negligent 
 
 pose this were not a clerk, but a acts of a man who trespasses in their 
 
 housemaid whose duty it was to clean room and leaves their tap running. 
 
 up the room and attend to the lava- The facts show that the clerk was a 
 
 tory and wipe out the basin, then I trespasser after bis master had left." 
 think, that although she was expressly ' Johnson «. Barber, 5 Gilm. (111.) 
 
 prohibited from using the basin, and 425, 50 Am. Dec. 41G, Armstrong v. 
 
 was told not to leave the tap open, Coolty, 5. Gilm. (111.) 512; Sherman 
 
 yet, notwithstanding the prohibition, v. Dutch, 16 111. 285; Moir v. Hop- 
 
 575
 
 § 740. THE LAW OF AGENCY. [Book lY. 
 
 by a learned judge in a case involving the fraudulent disposition 
 by an agent of bonds of a third person, with which he had been 
 intrusted by his principal : " It is difficult to understand upon 
 what ground the principal should be held liable for the negli- 
 gence of his agent and not for his fraud, where the act is done 
 or omitted to be done to the very property as to which the 
 agency exists, and in the course of the agency. Fraud by which 
 the property is lost is generally considered one of the forms of 
 gross negligence. What is the proper understanding of the 
 phrase * within the scope of the agency ? ' Does ' the scope * 
 include negligence and exclude fraud ? It cannot properly be 
 restricted to what the parties intended in the creation of the 
 agency, for that would also exclude negligence, as no agent is 
 appointed for the purpose of being negligent, any more than for 
 the purpose of acting fraudulently. The question cannot be 
 determined by the authority intended to be conferred by the 
 principal. We must distinguish between the authority to com- 
 mit a fraudulent act, and the authority to transact the business 
 in the course of which the fraudulent act was committed. Tested 
 by reference to the intention of the principal, neither negligence 
 nor fraud is within ' the scope of the agency ' ; but tested by 
 the connection of the act with the property and business of the 
 ao^ency, fraud in taking the very property is as much ' within the 
 scope of the agency ' as negligence in allowing others to take it. 
 The proper inquiry is, whether the act was done in the course of 
 the agency and by virtue of the authority as agent. If it was, 
 then the principal is responsible, whether the act was merely 
 nearlisrent or fraudulent." * 
 
 § 740. When Principal liable for Agent's wilful or mali- 
 cious Act. While, as has been seen, it is well settled that 
 the principal is liable for the negligent act of his agent, com- 
 mitted in the course of his employment, it has been held in many 
 cases,' that he is not liable for the agent's willful or malicious act. 
 
 kins, Id. 315; Keedy c. Howe, 73 111. Wright v. Wilcox, 19 Wend. (N. Y.) 
 
 13f.;' Locke V. Stearns, 1 Mete. (Mass.) 345,32 Am. Dec. 507; Tullerc.Yoght; 
 
 560,' 35 Am. Dec. 382; Reynolds c. 13 111. 285; Brown v. Purviance, 2 
 
 Witte, 13 S. Car. 6, 36 Am. Rep. H. & G. (Md.) 316; Foster v. Essex 
 
 673, ' Bank, 17 Mass. 479, 9 Am. Dec. 168; 
 
 ' Reynolds v. Witte, supra. Church p. I^Luisfield, 20 Conn. 284; 
 
 « McManus v. Crickett, 1 East, 106; Bard v. Yohn, 26 Penn. at. 482; Mali 
 
 576
 
 Chap. Y,] LIABILITY OF PRINCIPAL TO THIRD PERSON. § 740. 
 
 In the language of Judge Cowen, which fairly states the doctrine 
 of these cases, " The dividing line is the wilfulness of the act,"' 
 
 The tendency of modern cases, however, is to attach less 
 importance to the intention of the agent and more to the question 
 whether the act was done within the scope of the agent's 
 employment ; and it is believed that the true rule may be said to 
 be that the principal is responsible for the wilful or malicious 
 acts of his agent, if they are done in the course of his employ- 
 ment and within the scope of his authority ; ' but that the prin- 
 cipal is not liable for such acts, unless previously expressly 
 authorized, or subsequently ratified, when they are done outside 
 of the course of the agent's employment, and beyond the scope 
 of his authority, as where the agent steps aside from his employ- 
 ment to gratify some personal animosity, or to give vent to some 
 private feeling of his own.* 
 
 The question of what acts are within the scope of the employ- 
 ment, is no less difficult of determination here than in those 
 cases where the principal's liability for the agent's negligence is 
 involved, but the principles are the same. Indeed, the determina- 
 tion of whether the principal would have been liable had the same 
 injury resulted from the agent's negligence or unskillfulness, will 
 often be of aid, for if the act in the latter case would be within 
 the scope of the employment, it is none the less so where the 
 intention was wilful. Where the principal owes to third per- 
 
 V. Lord, 39 N. Y. 381, 100 Am. Dec. 143, 40 Am. Rep. 224; Gilliam e. 
 
 448; State®. Morris, &c. R. R. Co., 8 South, «fec. Alabama R. R. Co., 70 
 
 Zab. (N. J.) L. 360; Illinois Cent. R. Ala. 268; Chicago, &c. Ry Co. v. 
 
 R. Co. V. Downey, 18 111. 259. Dickson, 63 111. 151, 14 Am. Rep. 
 
 Un Wright v. Wilcox, 19 Wend. 114; Nashville, «&c. R. R. Co. v. 
 
 (N. Y.) 345, 32 Am. Dec. 507. Starnes, 9 Heisk, (Tenn.) 52, 24 Am. 
 
 « Croaker v. Chicago, &c. Ry Co., Rep. 296; Shea v. Sixth Ave. R. R. 
 
 36 Wis. 657, 17 Am. Rep. 504; Red- Co., 62 (N. Y.) 180, 20 Am. Rep. 480; 
 
 ding 0. South Carolina R. R. Co., 3 Little Miami R. R. Co. v. Wetmore, 
 
 S. C. 1, 16 Am. Rep. 681; Stewart©. 19 Ohio St. 110, 2 Am. Rep. 373; 
 
 Brooklyn, &c. R. R. Co., 90 N. Y. Carters. Howe Sewing Machine Co., 
 
 588, 43 Am. Rep. 185; Chicago, &c. 51 Md. 290, 34 Am. Rep. 811. 
 
 R. R. Co. V. Flexman, 103 111. 546, 42 • McManus v. Crickett, 1 East 106; 
 
 Am. Rep. 33; Goddard v. Grand Gilliam t>. South, &c. Alabama R. R. 
 
 TrunkRy Co.,57 Me.202;2 Am.Rep. Co.. 70 Ala. 268; Stevens v. Wood- 
 
 39; McKinley v. Chicago,&c. Ry Co., Avnr.l. 6 Q. B. Div. 318, 29 Eng. Rep. 
 
 44 Iowa 314, 24 Am. Rep. 748; p. 645; and cases cited in note 2» 
 
 Noblesville, «&c. Co. v. Gause,76 Ind. page 576. 
 
 37 577
 
 § 741. THE LAW OF AGENOT. [Book IV. 
 
 sons the performance of some duty, as to do or not to do a par- 
 ticular act, and he commits the performance of this duty to an 
 agent, the principal cannot escape responsibility civiliter if the 
 agent fails to perform it, whether such failure be accidental or 
 willful, or whether it be the result of negligence or of malice.* 
 
 These principles, as will be seen, have been most frequently 
 applied in modern times to the case of railroad companies and 
 other carriers of persons, and it has been thought that a different 
 rule of liability attached to such companies than applies to other 
 principals. It is believed, however, that there is no real ground 
 for the distinction. Another element does, however, enter into 
 these cases, in respect of which they differ from many others, and 
 this is the peculiar and exacting nature of the duty which such 
 carriers owe to their passengers. While carriers of persons are 
 not insurers of the safety of their passengers, they are bound to 
 exercise the highest degree of care for their safety, protection 
 and comfort. They are bound to take all those precautions and 
 exert all of those efforts which are requisite to render the trans- 
 portation most comfortable and least annoying to their passen- 
 gers,* and not only this, but there is also an implied stipulation 
 on their part, says Judge Stoet, " not for protection merely, but 
 for respectful treatment, for that decency of demeanor which 
 constitutes the charm of social life, for that attention which 
 mitigates evils without reluctance, and that promptitude which 
 administers aid to distress. In respect to females, it proceeds 
 yet further; it includes an implied stipulation against general 
 obscenity, that immodesty of approach which borders on lascivi- 
 ousness and against that wanton disregard of the feelings which 
 aggravates every evil." ' 
 
 § 741. Same Subject— Illustrations. The scope of the rulings 
 
 I Croaker v. Chicago &c. Ry Co., Rounds », Delaware &c. R. R. Co., 
 
 8G Wis. 657, 17 Am. Rep. 504; Ood- 64 N. Y. 129, 21 Am. Rep. 597; 
 
 dard V. Grand Trunk Ry Co., 57 Me. Hanson v. European &c. Ry Co., 
 
 202, 2 Am. Rep. 39; Passenger Ry 62 Me. 84,16 Am. Rep. 404; McKin- 
 
 Co. V. Young, 21 Ohio St. 518, 8 Am. ley v. Chicago &c. Ry Co., 44 Iowa 
 
 Rep. 78; Bryant v. Rich, lOo Mass. 314, 24 Am. Rep. 748. 
 
 180, 8 Am. Rep. 311; Sherley v. ' See cases cited in preceding note. 
 
 Billings, 8 Bush (Ky.) 147, 8 Am. > In Chamberlain v. Chandler, 3 
 
 Rep 451; Shea v. Sixth Ave. R. R. Mason (U. S. C. C.)242. 
 Co., 63 N. Y. 180, 20 Am. Rep. 480; 
 
 578
 
 Chap. Y.] LIABILITY OF PRINCIPAL TO THIRD PERSON. § 741. 
 
 upon this subject can be best illustrated by some selections from 
 the adjudicated cases. Thus in a leading case in New York/ in 
 which the older and more rigid rule was adhered to, it appeared 
 that a son while driving his father's horses and wagon about his 
 father's business, seeing some boys attempting to get into the 
 wagon, whipped up his horses and the wagon ran over one of the 
 boys who was seen to be between the wheels when the horses 
 were started. An action was brought against the father and the 
 son jointly to recover damages, and a verdict rendered against 
 them both. But Cowen J., said: "It is impossible to sustain 
 this verdict against the father. It is difficult to infer from the 
 evidence, anything short of a design in Stephen (the son), to 
 throw the plaintiff's boy from the wagon ; and the judge, as I 
 understand the charge, told the jury that the defendants were 
 jointly liable in that view. If Stephen, in whipping the horses, 
 acted with the willful intention to throw the plaintiff's boy off, 
 it was a plain trespass, and nothing but a trespass, for which the 
 master of Stephen is no more liable than if his servant had com- 
 mitted any other assault and battery. All the cases agree that a 
 master is not liable for the willful mischief of his servant, though 
 he he at the time, in other respects^ engaged in the service of the 
 foi-mer.^ Why is the master chargeable for the act of his ser- 
 vant? Because what a man does by another he does by himself. 
 The act is within the scope of the agency. • A master is not 
 answerable,' says Mr. Hammond, 'for every act of his servant's 
 life, but only for those done in his relative capacity. To chargg 
 the master, it must always be shown or presumed, that the rela- 
 tion of master and servant subsisted between them in the partic- 
 ular affair. If the master is liable under other circumstances, he 
 is so, not quatenus master, but as any one would be who insti- 
 gates an injury.' The dividing line is the wiltfidness of the act. 
 If the servant make a careless mistake of commission or omission, 
 the law holds it to be the master's business negligently done. It 
 is of the very nature of business that it may be well or ill done. 
 We frequently speak of a cautious or careless driver in another's 
 employment. Either may be in the pursuit of his master's busi- 
 
 » Wright c. Wilcox, 19 Wend. (N. on Parties 83; Croft p. Alison, 4 
 
 Y.)343, 33 Am. Dec. 507. Barn. & Aid. 590; 1 Chit. Gen. Pr. 
 
 « Citing 1 Chit. Pi. 69; McManus 80; Bowcher d. Noidstrom, 1 Taunt. 
 
 «. Crickett, 1 East. 108, Hammond 568. 
 
 579
 
 I 741. THE LAW OF AGENCY. [Book IV. 
 
 ness, and negligence in servants is so common, that the law will 
 hold the master to the consequences as a thing that he is bound 
 to foresee and provide against. 
 
 But it is different with a willful act of mischief. To subject 
 the master in such a case, it must be proved that he actually 
 assented, for the law will not imply assent. In the particular 
 affair, there is, then, no longer the presumed relation of master 
 and servant. The distinction seems to resolve itself into a ques- 
 tion of evidence." 
 
 The rule here announced by Judge Cowen is undoubtedly that 
 laid down by the older cases.* But the better and more modern 
 rule clearly is that the mere natiire of the act is not the only 
 criterion, but that the most important test is whether the act was 
 done in the course of the employment. Thus Ryan, C. J., says: 
 " We cannot help thinking that there has been some useless sub- 
 tlety in the books in the application of the rule respondeat super' 
 ior^ and some unnecessary confusion in the liability of principals 
 for willful and malicious acts of agents. This has probably arisen 
 from too broad an application of the dictum, of Lord Holt, that 
 ' no master is chargeable with the acts of his servant but when 
 he acts in the execution of the authority given to him, and the 
 act of the servant is the act of the master.' " For this would seem 
 to go to excuse the master for the negligence as well as for the 
 malice of his servant. One employing another in good faith 
 to do his lawful work, would be as little likely to authorize negli- 
 gence as malice ; and either would be equally dehors the employ- 
 ment. Strictly, the act of the servant would not, in either case, 
 be the act of the master. It is true that so great an authority as 
 Lord Kenyon denies this, in the leading case of McManus v. 
 Crickett,* which has been so extensively followed ; and again, in 
 Ellis v. Turner,* distinguishes between the negligence and the 
 willfulness of the one act of the agent, holding the principal for 
 
 » McManus ». Crickett, 1 East. 106; 20 Conn. 284; Bard v. Yohn, 26 
 
 Ellis B. Turner, 8 T. R. 531; Middle- Penn. St. 482; Mali v. Lord. 39 N. 
 
 tontj. Fowler, 1 Salk. 283; Croft e. Y. 381, 100 Am. Dec. 448; State e. 
 
 Alison, 4 B. & Aid. 590; Bowcher v. Morris &c. Ry Co., 3 Zab. (N. Y.) 
 
 Noidstrom, 1 Taunt. 568. See also 300; Illinois Cent. R. R. Co. ». 
 
 Tuller «. Voght, 13 111. 285; Brown Downey, 18 111. 259. 
 
 ». Purviance, 2 H. & G. (Md.) 316; » Mlddleton v. Fowler, 1 Salk. 283. 
 
 Foster v. Essex Bank, 17 Mass. 479, • 1 East. 106, supra. 
 
 9 Am. Dec. 168; Church v. Mansfield, < 8 Term Rep. 531. 
 
 580
 
 Chap. Y.] LIABILITY OF PKINCIPAL TO THIRD PERSON. § 741. 
 
 the negligence but not for the willfulness. It is a singular com- 
 ment on these subtleties, that McManus v. Crickett appears to 
 rest on Middleton v. Fowler, the only adjudged case cited to 
 support it ; and that Middleton v. Fowler, was not a case of mal- 
 ice, but of negligence. Lord Holt holding the master in that 
 case not liable for the negligence of his servant, in such circura- 
 Btances as no court could now doubt the master's liability. In 
 Bpite of all the learned subtleties of so many cases, the true dis- 
 tinction ought to rest, it appears to us, on the condition whether 
 or not the act of the servant be in the course of his employ- 
 ment."' 
 
 It does not, by any means, follow from this rule that the prin- 
 cipal is liable for any willful or malicious act of his agent, but 
 only for those which are committed by the agent while acting in 
 the course of his employment and within the scope of his author- 
 ity. At the same time, it is not to be inferred that the principal's 
 liability depends upon whether he has or has not intentionally 
 authorized the doing of the wrongful act. If he has done so, 
 he is, of course, liable. But what is meant, is, that if the agent, 
 while engaged in doing something which he is authorized to do, 
 and while acting in the execution of his authority, inflicts an 
 injury upon third persons, though willfully or maliciously, the 
 principal is liable. But if, on the other hand, the agent steps 
 aside from his employment to do some act having no connection 
 with the principal's business, and to which he is inspired by pure 
 personal and private malice or ill will, the principal is not liable. 
 
 Thus it is held that where the engineer upon a locomotive engine 
 wantonly and maliciously sounds the whistle so as to frighten 
 the horses of the plaintiff, a traveller upon the highway, causing 
 them to run away and injure the plaintiff," or where he wantonly 
 and willfully runs down and kills the plaintiff's cattle,' the engi- 
 neer's principal is responsible for the injury so inflicted. But in 
 
 ' Croaker v. Chicago & Northwest- 52, 24 Am. Rep. 296; Toledo, Wabash 
 
 ern Ry Co. 36 Wis. 657, 17 Am. Rep. & West. Ry Co. v. Harmon, 47 111. 
 
 504; See also Redding v. South Caro- 298. 
 
 lina R. R. Co., 3 S. C. 1, 16 Am. Rep. » Illinois &c. R. R. Co. v. Middles- 
 
 681. worth, 46 111. 494; Detroit &c. R R 
 
 « Chicago, Burlington & Quincy R. Co. v. Barton, 61 Ind. 293, Pritch- 
 
 R. Co. 0. Dickson, 63 111. 151, 14 Am. ard v. La Crosse &c. R. R. Co.,7 Wis. 
 
 Rep. 114; Nashville & Chattanooga 233, 
 R. R. Co. V. Starnes, 9 Heisk.(Tenn.) 
 
 681
 
 §741. 
 
 THE LAW OF AGENCY. 
 
 [Book IV. 
 
 eiich a case it was held that exemplary or punitive damages 
 should not be awarded in the absence of evidence that the prin- 
 cipal, knowing of the reckless or willful character of the agent, 
 still retained him in his employment.^ 
 
 It will be noticed that the person injured in these cases was 
 not a passenger, or other person, to whom the principal sustained 
 any particular duty by contract of carriage or otherwise. 
 
 So a principal is responsible for a malicious prosecution insti- 
 tuted or conducted by his agent in the course of his employment. 
 For such a prosecution begun or carried on by the express 
 instructions of the principal, he. is, of course, liable ; so also if 
 he has subsequently ratified and confirmed the act; and although 
 there are conflicting decisions, the better rule seems to be that if 
 the action is instituted or prosecuted by the agent, while engaged 
 in the course of his employment, and within the scope of his 
 authority, the principal is liable, even though it were done with- 
 out his knowledge or consent, or contrary to his instructions.* 
 And a corporation is liable for a malicious prosecution,' or for 
 a false imprisonment,* by its agent, under the same circumstan- 
 ces as an individual. 
 
 'Nashville &c. R. R. v. Starnes, 
 tupra. See Cleghorn v. New York 
 &c. R. R. Co., 56 N. Y. 44, 15 Am. 
 Rep. 375; Goddard v. Grand Trunk 
 Ry Co.. 57 Me. 202, 2 Am. Rep. 39; 
 Bass V. Chicago & N. W. Ry Co. 42 
 Wis. 654, 24 Am. Rep. 437. 
 
 8 See cases cited in two following 
 notes : 
 
 Contra, only when expressly au- 
 thorized or ratified: — Wallace «. Fin- 
 berg, 46 Tex. 35; Dally v. Young, 3 
 111. App. 39. 
 
 * Wheless v. Second Nat. Bank. 1 
 Baxt. (Tenn.) 469, 25 Am. Rep. 783; 
 Goodspeed v. East Haddam Bank, 22 
 Conn. 530; 58 Am. Dec. 439; Iron 
 Mountain Bank v. Mercantile Bank, 
 4 Mo. App. 505; Williams v. Planters' 
 Ins. Co., 57 Miss. 759, 34 Am. Rep. 
 494; Vance®. Erie Ry Co., 32 N. J. 
 L. 334; Copley v. Grover & Baker 
 Sewing Machine Co., 2 Woods (U. S. 
 C.C.) 494; National Bank v. Graham, 
 
 100 U. S. 699; Edwards v. Midland 
 Ry Co., 6 Q. B. Div. 287, 29 Eng. 
 Rep. (Moak) 621; Wheeler & Wilson 
 Mnf g Co. V. Boyce, 36 Kans. 350, 59 
 Am. Rep. 571. 
 
 Contra, Owsley v. Montgomerj 
 &c. R. R. Co., 37 Ala. 560; Childs v. 
 Bank of Missouri, 17 Mo. 213. Not 
 where the prosecution was a criminal 
 one, Gillett v. Missouri Valley R. R. 
 Co., 55 Mo. 315, 17 Am. Rep. 653; 
 Only when expressly authorized or 
 ratified. Carter v. Howe Machine 
 Co., 51 Md. 290, 34 Am. Rep. 311. 
 
 * Wheeler & Wilson Manf'g Co. v. 
 Boyce, 36 Kans. 350, 59 Am. Rep. 
 571. "It is a well established prin- 
 ciple of jurisprudence" says John- 
 ston, J. in this case, " that corpora- 
 tions may be held liable for torts in- 
 volving a wrong intention, such as 
 false imprisonment, and exemplary 
 damages may be recovered against 
 them for the wrongful acts of their 
 
 582
 
 Chap, Y.] LIABILITY OF PRINCIPAL TO THIRD PERSON. § 741. 
 
 But where in addition to the duties wliich are owing to every 
 individual, the principal has assumed special responsibilities by 
 contract or operation of law, as to carry the individual as a 
 passenger in a public conveyance, the rule of liability is pro- 
 perly enforced with great strictness. It has been thought that 
 these cases stood upon a distinct ground, but the distinction 
 seems to be unnecessary. There can certainly be no question 
 that an agent who violates the duty which the principal owes to 
 the passenger, is to be deemed to have done so while acting 
 in course of his employment. 
 
 Thus where a railway brakeraan assaulted and grossly insulted 
 a passenger, upon the false pretense that the passenger had not 
 surrendered his ticket, the company was held liable.' And the 
 same result ensued where the conductor of a passenger train had 
 willfully and wrongfully caused passengers to be ejected from the 
 train ; " where the steward and some of the table waiters upon 
 a passenger-boat wrongfully and without provocation assaulted a 
 passenger ; • where the conductor of a passenger train kissed a 
 female passenger against her will ; * where a brakeman struck a 
 passenger in the face with a lantern because the passenger, who 
 had lost his watch, said he thought the brakeman had it ; ' where 
 the driver of a street railroad car maliciously assaulted a passen- 
 ger because the passenger expostulated with the driver about an 
 assault made by the driver upon another person outside the 
 car ; • and where a railway brakeman made a malicious assault 
 upon a passenger who had attempted to enter the wrong car.'' 
 
 But where a prospective passenger, while seeking to get his 
 trunk checked, provoked a personal quarrel with the baggage- 
 servants and agents done in the Am. Rep. 311; same point, Sherley 
 course of their employment, in all e. Billings, 8 Bush (Ky.) 147, 8 Am. 
 cases, and to the same extent, that Rep. 451. 
 
 natural persons committing like * Croaker v. Chicago & N. W. Ry 
 wrongs would be held liable. In Co., 36 Wis. 657, 17 Am. Rep. 504. 
 such cases the malice and fraud of • Chicago & Eastern R. R. Co. v, 
 
 the authorized agents are imputable Flexman, 103 111. 546, 42 Am. Rep. 
 to the corporations for which they 33. 
 acted." * Stewart v. Brooklyn &c. R. R. 
 
 » Goddard v. Grand Trunk Ry, 57 Co., 90 N. Y. 588, 43 Am. Rep. 185. 
 Me. 202, 2 Am. Rep. 39. "> McKinley v. Chicago & N. W. 
 
 » Passenger R. R. Co. v. Young, Ry Co., 44 Iowa, 314, 35 Am. Rep. 
 21 Ohio St. 518, 8 Am. Rep. 78. 748. 
 
 3 Bryant v. Rich, 106 Mass. 180, 8 
 
 583
 
 § 742. THE LAW OF AGENCY. [Book IV^- 
 
 master and was struck by the latter as an act of personal resent- 
 ment, it was held that the company was not liable.* 
 
 §742. Same Subject— Excessive Force. The principal is also 
 liable to third persons, where the agent, though autliorized to use 
 reasonable force or proper means, negligently, or wilfully and 
 maliciously, uses excessive force or improper means in the course 
 of his employment, by reason of which such third persons receive 
 injury.' 
 
 It is immaterial, in this respect, whether the excessive force or 
 improper means be the result of a lack of judgment or careless 
 inattention or active wilfulness;, if the act be done in the course 
 of the employment, the principal is liable.* 
 
 The principle is of frequent application to the case of the 
 agents and servants of carriers who undertake, with unnecessary 
 force and violence, or at improper times or places, to eject from 
 their conveyances persons whom they would be authorized to 
 remove under proper circumstances,* but it is by no means con- 
 fined to such cases. It applies wherever the circumstances are 
 appropriate, regardless of the nature of the occupation. 
 
 S 743. Liability of Principal for Agent's false or fraudulent 
 Hepresentations. The liability of the principal for the agent's 
 false or fraudulent representations, rests upon the same ground 
 as his liability for the other torts of the agent. For such false 
 representations as he has expressly authorized, he is, of course, 
 liable. But he is liable, also, for the agent's false or fraudulent 
 representations made in the course of the employment, and with- 
 in the scope of the authority, although they were made without 
 
 > Little Miami R. R. Co. «. Wet- by the plaintiff, the act was flagrant, 
 
 more, 19 Ohio St. 110, 2 Am. Rep. reckless and illegal; but the point is, 
 
 373, was the act within the scope of the 
 
 s Higgins v. Watervliet, Turnpike, employment and authority? If it 
 
 &c. Co., 46 N. Y. 23, 7 Am. Rep. was, and the servant in doing what 
 
 293; Rounds v. Delaware, «fec. R. R. he did undertook to act for the com- 
 
 Co., 64 N. Y. 129, 21 Am. Rep. 597; pany, and not for himself or for his 
 
 Hoffman v. New York, &c. R. R. Co., own ends, the company is not exon- 
 
 87 N. Y. 25, 41 Am. Rep. 337; Han- crated although the servant may have 
 
 son V. European, &c. Ry. Co., 62 Me. deviated from instructions in execut- 
 
 84, 16 Am. Rep. 404. ing the authority, or may have acted 
 
 » Hoffman v. New York, &c. R. R. without judgment, or even brutally." 
 
 Co., mpra. In this case Andrews, * See cases cited in note 1, supra. 
 J., says: "Assuming the case made 
 
 684
 
 Chap. Y.] LIABILITY OF PKINCIPAL TO THIRD PERSON. 
 
 743. 
 
 his knowledge or consent, or even in violation of his express 
 instructions.^ He is not, however, liable for every false or fraud- 
 ulent statement or representation which the agent may see fit to 
 make. The representation, winch is to bind the principal, must 
 be made in reference to the subject-matter of his agency ; it 
 must be made while the agent is acting as such ; and the making 
 of such a representation must be within the apparent scope of 
 his authority.' 
 
 ' " When a principal authorizes an 
 agent to do a certain thing, he is 
 answerable for and bound by the acts 
 and representations of the agent in 
 accomplishing that end. even though 
 the agent is guilty of fraud in bring- 
 ing about the result. Having given 
 such authority, the principal is re- 
 sponsible for the fraudulent as well 
 as the fair means used by the agent, 
 if they are in the line of accomplish- 
 ing the object of the agency. Having 
 put the agent in a position where he 
 may perpetrate a fraud upon innocent 
 third parties, the principal will not 
 be allowed, as against such third par- 
 ties, to retain the fruits of the fraud 
 and defeat a claim of reparation by 
 saying that he justifies the end, but 
 not the means used by the agent. 
 Conceding that the principal is in- 
 nocent of any active fraud, yet, when 
 a case arises that he or an innocent 
 third party must suffer by the fraud 
 of the agent, the principal who con- 
 ferred authority upon the agent must 
 suffer the loss rather than the inno- 
 cent third party. This the principal 
 may generally avoid by submitting to 
 a rescission of the contract, and re- 
 storing what he may have received as 
 the fruit of the agent's bad faith. To 
 thus bind the principal by the fraud 
 of the agent is not to bind him beyond 
 the scope of the agency. In such a 
 case, the agent does not exceed his 
 authority, but perpetrates a fraud in 
 the exercise of his authority to ac- 
 complish the object of the agency. 
 
 and in such case the principal is liable 
 for the fraud, although he may not 
 have directed it nor had knowledge 
 of it. The fraud of the agent becomes 
 the fraud of the principal as to third 
 parties." Zollars, C. J., in Wolfe 
 V. Pugh, 101 Ind. 293, 304. See also 
 Rhoda V. Annis, 75 Me. 17, 46 Am. 
 Rep. 354; Eilenberger v. Protective 
 Mut. F. Ins. Co., 89 Peun. St. 464; 
 Tagg V. Tennessee Nat. Bank, 9 
 Heisk. (Tenn.) 479; Reynolds v. 
 Witte, 18 S. Car. 5, 36 Am. Rep. 678; 
 Locke V. Stearns, 1 Mete. (Mass.) 560; 
 White V. Sawyer, 16 Gray (Mass.) 
 586; Howe v. Newmarch, 12 Allen 
 (Mass.) 49; Prak t). Bunker, 45 Me. 
 569; Stickney «. Munroe, 44 Me. 195; 
 Lynch v. Mercantile Trust Co., 18 
 Fed. Rep. 486; Jewett v. Carter, 133 
 Mass. 335; Kibbe v. Hamilton Ins. 
 Co., 11 Gray (Mass.) 163. 
 
 Contra, see Kennedy v. McKay, 14 
 Vroom. (N. J.) 288, 39 Am. Rep. 581. 
 A principal who employs an agent to 
 sell his real estate is liable for a false 
 representation made by the agent as 
 the condition, situation, title, bound- 
 aries and encumbrances of the land. 
 Rhoda V. Annis, 75 Me. 17, 46 Am. 
 Rep. 354; Wolfe v. Pugh, 101 Ind. 
 293; Lynch v. Mercantile Trust Co., 
 18 Fed. Rep. 486; Law v. Grant, 37 
 Wis. 548; or for a fraudulent state- 
 ment as to when possession would be 
 given, Lamm v. Port Deposit Home- 
 stead Assn, post. 
 
 « Lamm v. Port Deposit Homestead 
 Assn, 49 Md. 233, 33 Am. Rep. 246. 
 
 585
 
 § 743. THE LAW OF AGENCY. [Book IV. 
 
 In order to maintain an action for the fraud, it must appear, 
 in this, as in other cases, 1. That the representations were made 
 with a knowledge of their falsity, and with an intent to deceive ; 
 or, 2. That they were made recklessly and heedlessly, and with- 
 out any knowledge or reasonable ground for belief in reference 
 to the subject ; or 3. That, though they were believed to be true, 
 the party making them had no reasonable grounds for such belief, 
 and yet made the representations positively, as of facts known 
 to him to be true. 4. It must also appear that they were material, 
 and that the other party was deceived by them.^ 
 
 The representations must also be representations of fact^ as 
 distinguished from representations of law\ and they must also 
 be assertions of fact as distinguished from the mere expression 
 of opinion. They must also be representations, upon which the 
 other party, whom they affect injuriously, had a right to rely, 
 and did rely. If the representation be mere matter of opinion, 
 or be of a fact equally within the knowledge of both parties, or 
 be one upon which the party had no right to rely, then the rep- 
 resentation, though acted upon, will create no cause of action.' 
 Thus one who has a claim against an insurance company for a 
 loss, and is induced, by the false representations of the company's 
 agent that his policy has been forfeited by non-occupancy, or that 
 he has no enforceable claim, to settle for less than the amount of 
 his claim, has no cause of action against the company for such 
 representations.' So, in an action against a corporation, for deceit 
 by false representations, made by an agent, in the sale of goods 
 manufactured and sold by it for a particular purpose, there can 
 be no recovery without proof of bad faith or absence of reason- 
 sonable grounds of belief. * 
 
 > Erie City Iron Works v. Barber, t>. Cowgill, 5 Blackf. (Ind.) 18, 32 
 
 106 Penn. St. 125, 51 Am. Rep. 508; Am. Dec. 49; Moore v. Turbeville, 2 
 
 Cowley «. Smith, 46 N. J. L. 380, 50 Bibb. (Ky.) 602, 5 Am. Dec. 642; 
 
 Am. Rep. 432. These cases are par- Saunders v. Hatteman, 2 Ired. (N. 
 
 ticularly full upon the subject, the C.) 32, 37 Am. Dec. 404; Anderson 
 
 latter containing a valuable collection «. Burnett, 5 How. (Miss.) 165, 35 
 
 of the English cases. See also Lynch c. Am. Dec. 425. 
 
 Mercantile Trust Co., 18 Fed. Rep. 486. 3 Thompson b. Phoenix Ins, Co., 
 
 " .(Etna Ins. Co. v. Reed, 33 Ohio supra; .^tna Ins. Co. v. Reed, supra; 
 
 St. 283; May hew «. Phoenix Ins. Co., Mayhew c. Phoenix Ins. Co., supra. 
 
 23 Mich. 105; Thompsons. Phoenix Ins. < Erie City Iron Works v. Barber, 
 
 Co., 75 Me. 55; 46 Am. Rep. 357; Foley 106 Penn. St. 125, 51 Am. Rep. 608. 
 
 586
 
 Chap, v.] LIABIIJTY OF PRINCir A.L TO THIRD PERSON. § 745. 
 
 Les8 than this will, in many cases, suffice to sustain an action 
 for a breach of warranty, for damages may be recovered for such 
 a breach, though the party making the warranty in good faith 
 believed it to be true,* but less than this will not sustain an action 
 for the fraud. 
 
 These rules apply as well where the principal is a corporation 
 as in any other case.' 
 
 § 744. Same Subjeot— Third Person's Remedies. The party 
 injured by the agent's fraud, if he desires to take the initiative, 
 has ordinarily his choice of three remedies : a. he may promptly 
 restore what he has received under the contract, rescind the con- 
 tract, and recover what he has parted with in pursuance of it ; ' or 
 b. he may retain what he has received, and bring his action for the 
 fraud practiced upon him ; * or, c. he may retain what he has 
 received and, waiving the fraud, bring his action, based upon the 
 contract, for damages sustained by reason of its breach.* If, on 
 the other hand, he prefers to act upon the defensive, he may 
 avail himself of the fraud either in total bar • of an action brought 
 against him by the principal, or by way of tlie reduction of dam- 
 ages.^ 
 
 § 745. Principal's civil Liability for Agent's criminal or penal 
 Act. The principal's civil liability for his agent's criminal or 
 penal act rests upon the same considerations, and is, in many 
 aspects, of the same nature, as his liability for his agent's torts 
 generally. Thus, as an illustration of that class of cases in which 
 a criminal intent is necessary to constitute the offense, the malic- 
 ious assault of a conductor upon a railway passenger may be 
 
 » Erie City Iron Works v. Barber, Trunket, J., in Erie City Iron Works 
 
 supra. This principle is elementary, v. Barber, 106 Penn. St. 125, 51 Am. 
 
 and requires no extensive citation of Rep. 508; Lamm v. Port Deposit 
 
 authorities in this place. Homestead Assn, 49 Md. 233, 33 Am. 
 
 « "As it can only speak or act by Rep. 246. 
 
 agent, there is stronger reason for « Wolfe v. Pugh, 101 Ind. 293; 
 
 holding it answerable for the acts and Rhoda v. Annis, 75 Me. 17, 46 Am. 
 
 representations of the agent, done Rep. 354. 
 
 within the ostensible scope of his * Rhoda v. Annis, supra; Lynch v. 
 
 authority and while transacting the Mercantile Trust Co., 18 Fed. Rep. 
 
 business of the principal, than when 486. 
 
 the principal is a natural person. « Rhoda v. Annis, supra. 
 
 However the same rule applies alike • See post, %% 773-775. 
 
 to natural and artificial persons." "> See post, %% 773-775. 
 
 587
 
 § 745. TUE LAW OF AGENCY. [Boolv IV^. 
 
 adverted to. Here, as has been seen, the principal is liable in a 
 civil action by the person injured, for damages occasioned by the 
 injury. At the same time the assault is an offense against the 
 State, which the State may and does punish as such. As respects 
 the individual injured the act is a tort; as respects the State, it is 
 a crime. 
 
 But there is also another class of cases where the liability is 
 not dependent upon the intent, but upon the question of the 
 infraction. These are usually the subject of express statutory 
 prohibition, based often upon the police power of the State, and 
 making that, which might under other circumstances be a thing 
 innocent or indifferent in itself, a wrong prohibited under a pen- 
 alty, — a malum proMhitum as distinguished from a malum in 
 se. Of this class, the now common legislation providing for the 
 recovery of penalties or damages for the prohibited sale of intox- 
 icating liquors, furnishes a well-recognized illustration. 
 
 Thus in an action to recover a penalty fixed by law, alleged to 
 be due by reason of the unlawful sale of intoxicating liquors by 
 an agent, the Supreme Court of Massachusetts said : " The 
 action is brought under a statute which makes that a tort which 
 was not so before, and provides for the recovery of damages 
 against the tort-feasor. The tort consists in selling intoxicating 
 liquor to one who has the habit of using it to excess, after notice 
 of his habit and a request from his wife not to sell such liquor to 
 him. The defendant engages in the business of selling liquor 
 voluntarily. He chooses to intrust the details of the business 
 to a servant. If he forbids the making of sales to the intemper- 
 ate person, and his servant negligently, through forgetfulness of 
 the instruction given him, or through a failure to recognize the 
 person, continues to make sales to that person, there is no reason 
 why the defendant should not be responsible for the wrongful 
 act. The sale is his sale, made in the performance of his busi- 
 ness, and is an act within the general scope of the servant's 
 employment." ' And the same result would, within the princi- 
 ples already considered, undoubtedly follow though the act was 
 willful.' 
 
 > George «. Gobey, 128 Mass. 289, Knoble, 35 Wis. 85; Smith c. Rey- 
 85 Am. Rep. 376. See also Worley v. nolds, 8 Hun (N. Y.) 130. 
 Spurgeon, 38 Iowa 465; Peterson v. ^Kreiler v. Nichols, 28 Mich. 496; 
 
 Kehrig ». Peters, 41 Mich. 475. 
 
 588
 
 Chap, y.] LIABILITY OF PRINCIPAL TO THIRD PERSON. § 745. 
 
 But here, as in other cases, the principal is liable only while 
 the agent was acting within the scope of his employment. If the 
 agent has gone outside of that, to commit a criminal act, the prin- 
 cipal is not liable. Thus where an armed watchman, employed 
 by the owners of a brewery to guard their premises and preserve 
 the peace, pursued a person, who had been acting on the prem- 
 ises in a drunken and disorderly manner, and, while the latter 
 was retreating and was off of the premises, killed him, it was held 
 that the proprietors of the brewery were not liable. Without 
 determining whether the principals would be liable in any event 
 for such an act, the court held that the fact that the deceased was 
 retreating from the brewery at the time he was shot, showed con- 
 clusively that the shot was not fired either in the defense of the 
 brewery or in the line of the watchman's duty.' 
 
 Neither will the penalty fixed by law attach to the principal 
 where the act, on account of which it is alleged to have been 
 incurred, was committed by the agent without the knowledge or 
 consent of the principal, and for some private and personal object 
 of the agent. This rule is well illustrated by the decisions grow- 
 ing out of the enactments against usury. 
 
 Thus, if the principal place in the hands of his agent money 
 to be loaned on the principal's account, and the agent, by the 
 authority, or with the knowledge and consent of the principal, 
 exacts or receives from the borrower something by way of bonus, 
 commission or interest in excess of legal interest, the taint of 
 usury will attach to the principal, if he receives the excess, or if 
 he permits the agent to keep it as part of his compensation.' 
 And the same result will attach although the principal did not 
 authorize or have knowledge of the usury at the time, if with 
 knowledge, he subsequently receives the benefit of it.' 
 
 But where the agent is authorized to loan for legal interest 
 only, and, without the knowledge or consent of the principal, 
 exacts from the borrower a usurious interest for the agent's own 
 private benefit, and the principal does nothing subsequently to 
 ratify the act, the usury will not affect the principal.* In such a 
 
 • Golden r. Newbrand, 52 Iowa 59, field, 3 Neb. 256; Cheney v. White, 5 
 
 85 Am. Rep. 257. Neb. 261, 25 Am. Rep. 487; Cheney 
 
 « Payne v. Newcomb, 100 111. 611, ». Woodruff, 6 Neb. 151. 
 
 89 Am. Rep. 69; Rogers v. Bucking- ^ Payne v. Newcomb, supra. 
 
 ham, 33 Conn 81; Philo u. Butter- < Dagnall v. Wigley, 11 East 43; 
 
 589
 
 §746. 
 
 THE LAW OF AGENCY. 
 
 [Book IT. 
 
 case, the fact that the principal receives from the agent the obli- 
 gations of the borrower and attempts to enforce them, will not be 
 deemed to be a ratification of the usury.' Where, however, the 
 agent takes the security in his own name, as principal, upon 
 usurious interest, the borrower supposing him to be the principal, 
 the real principal, if he seeks to avail himself of the security, 
 will be bound by the usury.' 
 
 § 746. Principal's criminal Liability for Agent's criminal or 
 penal Acts. But it is not only in a civil action that the principal 
 may be made liable for the criminal or penal acts of his agent ; 
 lie may be held criminally liable also under certain circumstances. 
 Thus the principal is unquestionably so liable, in greater or less 
 
 Solarte v. Melville, 7 B. & G. 430; 
 Barretto v. Saowden, 5 Wend.(N. Y.) 
 181; Gondii v. Baldwin, 21 N. Y. 219, 
 78 Am. Dec. 137; Bell v. Day, 33 K 
 Y. 165; Conover*. Van Mater, 18 N. 
 J. Eq. 481; Rogers v. Buckingham, 
 33 Comi. 81; Gokey v. Knapp, 44 
 Iowa 33; Wyllis v. Ault, 46 Iowa 46; 
 Bingham v. Myers, 51 Iowa 397, 33 
 Am. Rep. 140; Callt). Palmer, 116 U. 
 S. 98; Muir v. Newark Savings Inst., 
 1 Green (N. J.)Eq. 537; Manning©. 
 Young, 28 N. J. Eq. 568; Gray v. 
 Van Blarcom, 29 Id. 454. See also 
 Ballinger v. Bourland, 87 111. 513, 29 
 Am. Rep. 69; Phillips v. Roberts, 90 
 111. 492; Boylston v. Bain, Id. 283; 
 Acheson v. Chase, 28 Minn. 211. 
 
 See also Sherwood v. Roundtree, 32 
 Fed. Rep. 113 (distinguishing Call v. 
 Palmer, supra); Fisher v. Porter, 23 
 Fed. Rep. 162; Coudert v. Flagg, 31 
 N. J. Eq. 394; White v. Dwyer, 31 
 Id. 40; Forbes v. Baaden, 31 Id. 381; 
 Boardman v. Taylor, 66 Ga. 838; Cox 
 V. Life Ins. Co., 113 111. 383 (distin- 
 guishing Payne v. Newcomb, supra); 
 Borcherling v. Trefz, 40 N. J. Eq. 
 502; Eddy v. Badger, 8 Biss. 238; 
 Fellows V. Longyor, 91 N. Y. 330; 
 Wyck V. Watters, 81 N. Y. 352; 
 Dusenbury v. Secley, 87 N. Y. 634; 
 Alger V. Gardner, 54 N. Y. 360; Lyon 
 
 e. Simpson, 12 Daly (N.Y.) 58; Wyeth 
 «. Braniff, 84 N. Y. 637. 
 
 The contrary rule is enforced in 
 Nebraska. Thus in Philo ». Butter- 
 field, 3 Neb. 256, the court say: " It 
 is a settled rule of law which will not 
 be questioned, that in all cases where 
 a person employs another as his agent 
 to loan money for him, and places the 
 funds iu the hands of the agent for 
 Buch purpose, the principal is bound 
 by the acts of his agent; and if the 
 agent charges the borrower of such 
 money unlawful interest, or even 
 demands and receives from the bor- 
 rower a bonus for such loan, and 
 appropriates it to his own individual 
 use, either with or without the knowl- 
 edge of his principal, the principal is 
 affected by the act of his agent," and 
 this doctrine is reaffirmed in later 
 cases: Cheneys. White, 5 Neb. 261, 
 25 Am. Rep. 487; Cheney v. Wood- 
 ruff, 6 Neb. 151; Olmstead v. New 
 England Mortgage Security Co., 11 
 Neb. 487; Cheney v. Eberhardt, 8 
 Neb. 423. 
 
 ' Thompson v. Craig, 16 Abb. Pr. 
 N. S. 33; Smith®. Tracy, 36 N. Y 
 84; Hoover v. Greenbaum, 62 Barb. 
 (N. Y.) 188. 
 
 2 Erickson v. Bell. 53 Iowa 637, 36 
 Am. Rep. 246. 
 
 590
 
 Chap. Y.] LIABILITY OF PRINCIPAL TO THIRD PERSON. § 746. 
 
 degree, where he is present and co-operates with the agent, or 
 encourages, aids or abets him ; or where, though not present, he 
 expressly or impliedly commands, encourages or incites the doing 
 of the act.' He would be so liable if he directed the doing of 
 an act which was in itself a crime, or which necessarily involved 
 or required the commission of a crime.' 
 
 But as a general rule he cannot be held criminally liable for 
 the act of his agent committed without his knowledge or consent.' 
 There is, however, a class of cases, as has been seen, where, by 
 statutory enactment, the doing of a certain act, otherwise perhaps 
 innocent or indifferent, or at the most not criminal, is expressly 
 prohibited under a penalty. Of this class are many of the stat- 
 utes in the nature of police regulations which impose penalties 
 for their violation, often irrespective of the question of the intent 
 to violate them; the purpose being to require a degree of dili- 
 gence for the protection of the public which shall render viola- 
 tion exceedingly improbable, if not impossible.* Similar to 
 
 ' See Bishop on Crirn. Law, § 649. 
 
 * See Bishop on Crim. Law,§§ 649- 
 651. State v. Smith, 78 Me. 260, 57 
 Am. Rep. 803. 
 
 * Commonwealth v. Nichols, 10 
 Mete. (Mass.) 259, 43 Am. Dec. 432; 
 Hipp v. State, 5 Blackf. (lad.) 149, 33 
 Am. Dec. 463; Commonwealth v. 
 Putnam, 4 Gray (Mass.) 16; Somerset 
 «. Hart,12 Q.B.Div. 360, 37Eng.Rep. 
 624. A principal is not liable crim- 
 inally for the act of his agent in sell- 
 ing liquors to an intoxicated person 
 without the principal's knowledge or 
 assent. People v. Parks, 49 Mich. 
 333. His assent must be shown. 
 Commonwealth v. Putnam, supra. 
 
 A principal cannot be arrested 
 under a statute permitting arrest 
 " where defendant has been guilty of 
 a fraud in contracting the debts" for 
 frauds committed without his knowl- 
 edge or authority by his agent in 
 purchasing goods for him. Hath- 
 away V. Johnson, 55 N. T. 93, 14 
 Am. Rep. 186. 
 
 * In People t>. Roby, 52 Mich. 579, 
 
 53 Am. Rep. 270, Coolkt, C. J. says : 
 "I agree that as a rule there can be 
 no crime without a criminal intent; 
 but this is not by any means a uni- 
 versal rule. One may be guilty of 
 the high crime of manslaughter when 
 his only fault is gross negligence; and 
 there are many other cases where 
 mere neglect may be highly criminal. 
 Many statutes, which are in the 
 nature of police regulations, as this 
 is, impose criminal penalties irres- 
 pective of any intent to violate them ; 
 the purpose being to require a degree 
 of diligence for the protection of the 
 public which shall render violation 
 impossible. Thus, in Massachusetts, 
 a person may be convicted of the 
 crime of selling intoxicating liquor 
 as a beverage, though he did not 
 know it to be intoxicating; Common- 
 wealth V. Boynton, 3 Allen 160; and 
 of the offense of selling adulterated 
 milk, though he was ignorant of its 
 being adulterated; Commonwealtli 
 V. Parren, 9 Allen 489; Common 
 wealth V. Holbrook, 10 Allen, 200; 
 
 591
 
 §T46. 
 
 TUE LAW OF AGENCY. 
 
 [Book IV. 
 
 these statutes were many of the well settled doctrines of the 
 common law, as for example, the law of libels and nuisances. It 
 is the duty of the principal to see to it that such statutes are not 
 
 Commonwealth v. Waite, 11 Allen 
 264; Commonwealth v. Smith, 103 
 Mass. 444, See State v. Smith, 10 R. 
 I. 258. In Missouri a magistrate may 
 be liable to the penalty of perform- 
 ing the marriage ceremony for 
 minors without consent of parents or 
 guardians, though he may suppose 
 them to be of the proper age. Beck- 
 ham V. Nacke, 56 Mo. 546. When 
 the killing and sale of a calf under a 
 specified age is prohibited, there may 
 be a conviction though the party was 
 ignorant of the animal's age. Com- 
 monwealth V. Raymond, 97 Mass. 
 567. See The King v. Dixon, 3 M. «& 
 S. 11. In State v. Steamboat Co., 13 
 Md. 181, a common carrier was held 
 liable to the statutory penalty for 
 transporting a slave on its steamboat, 
 though the persons in charge of its 
 business had no knowledge of the 
 fact. A case determined on the same 
 principle is Queen v. Bishop, 5 Q. B. 
 Div. 259. If one's business is the 
 sale of liquor, a sale made by his 
 agent in violation of the law is prima 
 facie evidence of his authority. 
 Commonwealth v. Nichols, 10 Met. 
 259 ; and in Illinois the principal is 
 held liable though the sale by his 
 agent was in violation of instructions. 
 Noeckert). People, 91 111. 494. In 
 Connecticut It has been held no 
 defense, in a prosecution for selling 
 intoxicating liquor to a common 
 drunkard, that the seller did not know 
 him to be such. Barnes v. State, 19 
 Conn. 398. It was held in Faulks v. 
 People, 39 Mich. 200, under a former 
 statute, that one should not be con- 
 victed of the offense of selling liquors 
 to a minor who had reason to believe 
 and did believe he was of age; but I 
 doubt if we ought so to hold under 
 
 the statute of 1881, the purpose of 
 which very plainly is, as I think, to 
 compel every person who engages in 
 the sale of intoxicating drinks to keep 
 within the statute at his peril. There 
 are many cases in which it has been 
 held, under similar statutes, that it 
 was no defense that the seller did not 
 know or suppose the purchaser to be 
 & minor. State v. Hartfiel, 24 Wis. 
 60; McCutcheon v. People, 69111. 601; 
 Farmer v. People, 77 111. 323; Ulrich 
 V. Commonwealth, 6 Bush. 400; State 
 e. Cain, 9 W. Va. 559; Common- 
 wealth V. Emmons, 98 Mass. 6; Red- 
 mond V. State, 36 Ark. 58; and in 
 Commonwealth t». Pinnegan, 124 
 Mass. 324, the seller was held liable, 
 though the minor had deceived him 
 by falsely pretending he was sent for 
 the liquor by another person. So a 
 person has been held liable to a 
 penalty for keeping naphtha for sale 
 under an assumed name, without 
 guilty knowledge, the statute not 
 making snch knowledge an ingredi- 
 ent of the offense. Commonwealth e. 
 Wentworth, 118 Mass. 441. Other 
 cases might be cited, and there is 
 nothing anomalous in these. A per- 
 son may be criminally liable for 
 adultery with a woman he did not 
 know to be married. Fox v. State, 3 
 Tex. App. 329; or for carnal knowl- 
 edge of a female under ten years of 
 age though he believed her to be 
 older. Queen v. Prince, L. R. 3 Cr. 
 Cas. 154; State v. Newton, 44 la. 45. 
 And other similar cases might be 
 instanced." See also Halsted v. State, 
 12 Vroom (N. J.) 552, 32 Am. Rep. 
 247; Redmond v. State, 36 Ark. 58, 38 
 Am. Rep. 24; Farrell v. State. 32 
 Ohio St. 456, 30 Am. Rep. 614; King 
 V. State, 58 Miss. 737. 38 Am. Rep. 
 
 592
 
 Chap, y.] LIABILITY OF PKINCIPAL TO THIRD PERSON. § 746. 
 
 violated by bis agents in the course of tbeir employment. For 
 what they may do outside of the employment, he is, of course, 
 not responsible ; but if the prohibited act be done by them in 
 the course of their employment, he must respond. This is par- 
 ticularly true in those cases where the principal confides, in a 
 greater or lesser degree, the conduct and management of his busi- 
 ness to his agents. He selects his own agents, and has the 
 power, as well as the duty, to control them ; and if, by reason of 
 his lack of oversight or their own carelessness or unfaithfulness, 
 the prohibited act is done, he should be held accountable. He 
 certainly cannot relieve himself from responsibility for the man- 
 ner in which his purposes are carried out, by turning over the 
 management of his business to agents. 
 
 Instances of these principles may be found in the case of the 
 publication of libels ; the smuggling of goods ; the sale of 
 unwholesome or adulterated food ; the erection or continuance of 
 nuisances ; the transportation of forbidden goods ; the transac- 
 tion of business without a license and the like. Frequent illus- 
 trations are also found in the statutes regulating the traffic in 
 intoxicating liquors. 
 
 Thus booksellers and publishers have been held criminally lia- 
 ble for publications, issued from their establishment, in the regu- 
 lar course of business, although the particular act of sale or 
 publication was done without their knowledge ; ^ a trader has 
 been held liable to a penalty for the illegal act of his agent in 
 harboring and concealing smuggled goods, although the principal 
 was absent at the time ; * a baker has been held liable to a crimi- 
 nal charge for selling adulterated bread, although the adultera- 
 tion was put in by his servant, and although he did not know 
 that it was used in improper quantities ; ' the directors of a gas 
 company have been held liable to an indictment for a nuisance 
 created by their superintendent, acting under a general authority 
 to manage the works, though they were personally ignorant of 
 
 344; Stem t>. State, 53 Ga. 229, 21 28 Eng. Rep. (Moak) 53, as to the 
 
 Am. Rep. 266; and note 268. George effect of the statutes limiting such 
 
 V. Gobey, 128 Mass. 289. 35 Am. Rep. liability. 
 
 376. ' Attorney General «. Sidden, 1 
 
 1 Rex V. Walter, 3 Esp. 21 ; Rex v. Cromp, & Jer. 220. 
 
 Gutch, 1 Moo. & M. 437. But see » Rex v. Dixon, 4 Camp. 12. 
 Queen v. Holbrook, 3 Q. B. Div. 60, 
 
 38 593
 
 § 747. THE LAW OF AGENCY. [Book IV". 
 
 the particular plan adopted, and altbougli it was a departure 
 from the original and understood method, which they supposed 
 him to be following;' a saloonkeeper has been held criminally 
 responsible for not keeping his saloon closed upon Sunday, 
 though it appeared that it was opened by his clerk, without his 
 knowledge or consent, but while he was on the premises,' and 
 an indictment, which alleges that defendant sold spirituous 
 liquors without legal authority and contrary to the statute, is 
 supported by evidence that he sold it by his clerk, servant or 
 agent.' 
 
 Where the criminal act is committed by a known agent, this is 
 jprima facie evidence of the principal's authority,* but he may 
 rebut the presumption by showing that the act was not in fact 
 authorized or assented to by him.' 
 
 § 747. Principal's Liability for Acts of independent Con- 
 tractor. The principal's liability for the acts of his agent, within 
 the scope of his authority, depends upon the fact that the rela- 
 tion of principal and agent exists. It is the principal's will that 
 is to be exercised ; his purpose that is to be accomplished ; his 
 are the benefits and advantages which ensue. He selects liis own 
 agent, puts him in motion, and has the right to direct and control 
 his actions. It is, therefore, just and proper that he should be 
 responsible for what the agent does while so employed.* 
 
 • Rex ». Medley, 6 C. and P. 293. Bible for the damages sustained. The 
 » People v. Roby, 53 Mich. 579, 50 master selects the servant, and the 
 
 Am. Rep. 270. servant is subject to his coutrol, and, 
 
 8 Commonwealth c. Park, 1 Gray in respect of the civil remedy, the act 
 
 (Mass.) 553; Commonwealth ». of the servant is, in law, regarded as 
 
 Holmes, 119 Mass. 195. that of the master. But it is not 
 
 • Commonwealth v. Nichols, 10 enough in order to establish a liabil- 
 Metc. (Mass.) 259, 43 Am. Dec. 432. ily of one person for the negligence of 
 
 « See cases cited in note 3, p. 593. another, to show that the person 
 
 • " Where one person has sustained whose negligence caused the injury 
 an injury from the negligence of was at the time acting under an em- 
 another, he must, in general, proceed ployment by the person who is sougnt 
 against him by whose negligence the to be charged. It must be shown, in 
 injury was occasioned. If, however, addition, that the employment created 
 the negligence which caused the the relation of master and servant 
 injury was that of a servant while between them." Andrews, J. in 
 engaged in his master's business, the King v. New York, &c. li. R. Co., CO 
 person sustaining the injury may dis- N. Y. 181, 23 Am. Rep. 37. See also 
 regard the immediate author of the McCafferty t. Spuyten Duyvil. «fec. 
 mischief and hold the master respon- R. R. Co., 61 N. Y. 178, 19 Am. licp. 
 
 594
 
 Chap. Y.] LIABILITY OF PRINCIPAL TO THIKD PERSON. 
 
 747. 
 
 "Where, however, the principal has not this right of control a 
 different rule prevails. Neither reason nor justice requires that 
 he should be held responsible for the manner of doing an act 
 when he had no power or right to direct or control that manner.' 
 If therefore, the principal, using due care in the selection of the 
 person, enters into a contract with a person exercising an inde- 
 pendent employment, by virtue of which the latter undertakes to 
 accomplish a given result, being at liberty to select and employ 
 his own means and methods, and the principal retains no right 
 or power to control or direct the manner in which the work shall 
 be done, such a contract does not create the relation of principal 
 And agent or master and servant, and the person contracting for 
 the work is not liable for the negligence of the contractor, or of 
 his servants or agents, in the performance of the work.* The 
 employment is regarded as independent where the person ren- 
 ders service in the course of an occupation, representing the will 
 of his employer only as to the result of his work, and not as to 
 the means by which it is accomplished.' The independent con- 
 
 267; Clark v. Fry, 8 Ohio St. 358. 72 
 Am. Dec. 590. 
 
 • " The liability oif any one, other 
 than the party actually guilty of any 
 wrongful act, proceeds on the maxim, 
 'Qui facit per aUum facit per se.* 
 The party employing has the selection 
 of the party employed, and it is rea- 
 sonable that he who has made choice 
 of an unskilful or careless person to 
 execute his orders, should be respon- 
 sible for any injury resulting from 
 the want of skill or want of care of 
 the person employed; but neither the 
 principle of the rule, nor the rule 
 itself, can apply to a case where the 
 party sought to be charged does not 
 stand in the character of employer to 
 the party by whose negligent act the 
 injury has been occasioned " Rolfk, 
 B. in Hobbit v. Loudon, &c. Ry 
 Co., 4 Exch. 255. 
 
 8 Milligan v. Wedge, 12 Ad. & El. 
 737; DeForrest v. Wright, 2 Mich. 
 870; Wood v. Cobb, 13 Allen (Mass.) 
 58; Kellogg v. Payne, 21 Iowa 575; 
 King V. New York. &c. R. R. Co., 66 
 
 59; 
 
 N. Y. 186, 23 Am. Rep. 37; McCarty 
 », Second Parish. 71 Me. 318, 36 Am, 
 Rep 320; Harrison v. Collins, 86 
 Penn. St. 156, 27 Am. Rep. 699; 
 Linton v. Smith, 8 Gray (Mass.) 147; 
 Bennett v. Truebody, G'o Cal. 509, 56 
 Am. Rep. 117; Bailey v. Troy & 
 Boston R. R. Co., 57 Vt. 252, 53 Am. 
 Rep. 129; McCafferty v. Spuyten 
 Duyvil, &c. R. R. Co., 61 N. Y. 178, 
 19 Am. Rep. 267; Ilexamer v. Webb, 
 101 N. Y. 377, 54 Am. Rep. 703; Hasa 
 V. Philadelphia, &c. Steamship Co., 
 88 Penn. St. 269, 32 Am. Rep. 463; 
 Boswell V, Laird, 8 Cal. 469, G8 Am. 
 Dec. 345; Hilllard v. Richardson, 3 
 Gray (Mass.) 349, 63 Am. Dec. 743; 
 City of St. Paul v. Seitz, 3 Minn. 297, 
 74 Am. Dec. 753; Clark v. Fry. 8 
 Ohio St. 358, 72 Am. Dec. 590; Cuff 
 e. Newark, &c. R R. Co., 35 N. J. 
 L. 17, 10 Am. Rep. 205; Ryan v. Cur- 
 ran, 64 lud. 345, 31 Am. Rep. 123; 
 Myer v. Hobbs, 57 Ala. 175, 29 Am. 
 Rep. 719. 
 
 ' Harrison v. Collins, 86 Penn. St. 
 153, 27 Am. Rep. 699; Pack v. Mayor,
 
 g 747. THE LAW OF AGENCY. [Book lY. 
 
 tractor is usually paid, in common parlance, by the job, but the 
 fact that he is paid by the day does not necessarily destroy the 
 independent character of his employment' 
 
 This rule of immunity from liability is, however, subject to 
 certain exceptions. No one can lawfully delegate to another the 
 authority to do an unlawful act, nor can one, upon whom the law 
 imposes the performance of a duty, relieve himself from respon- 
 sibility for its non-performance, by committing its performance 
 to a substitute. Thus if the thing to be done is in itself unlaw- 
 ful, or if it isj)er se a nuisance, or if it cannot be done without 
 doing damage, he who causes it to be done by another, be the 
 latter servant, agent, or independent contractor, is as much liable 
 for injuries which may happen to third persons from the act 
 done, as though he had done the act in person.* 
 
 So it is the duty of every person who does in person, or causes 
 to be done by another, an act which from its nature is liable, 
 unless precautions are taken, to do injury to others, to see to it 
 that those precautions are taken, and he cannot escape this duty 
 by turning the whole performance over to a contractor.* Of the 
 same nature is the duty which the law imposes upon every per- 
 Bon who, for his own purposes, brings on his lands, and collects 
 or keeps there, anything likely to do mischief if it escapes, to 
 keep it in at his peril; and if he does not do so, he iaprimn, 
 facie answerable for all the damage which is the natural conse- 
 quence of its escape.* 
 
 This distinction has been stated in a recent case as follows : 
 "If the work to be done is committed to a contractor to be 
 
 8N. T, 222; Barry v. St. Louis, 17 Am. Rep. 269; Gray v. Pullen, 5 B. 
 
 jIo.'l21. & 9- 970, 117 Eng. Com. Law; Bow- 
 
 > Harrison v. Collins, supra; For- er v. Peate, L. R. 1 Q. B. Div. 341, 
 
 syth V. Hooper, 11 Allen (Mass.) 419; 16 Eng. Rep. (Moak) 374; Tarry v. 
 
 Corbin v. America Mills, 27 Conn. Ashton, 1 Q. B. Div. 314, 16 Eng 
 
 274. Rep. (Moak) 367; Gorham t>. Gross, 
 
 « Bailey v. Troy & Boston R R. 125 Mass. 232, 28 Am. Rep. 224; Stur- 
 
 Co., 57 Vt. 252, 52 Am. Rep. 129; gesv. Theological Society, 130 Mass. 
 
 Gorham v. Gross. 125 Mass. 232. 28 414, 89 Am. Rep. 463. 
 Am. Rep. 224; Eaton v. Railroad « Gorham v. Gross, 125 Mass. 232, 
 
 Co., 59 Me. 520, 8 Am. Rep. 430; 28 Am. Rep. 224; Fletcher v. Ry- 
 
 Caswell V. Cross, 120 Mass. 545; lands, L. R. 1 Exch. 265 ; Shipley u. 
 
 Water Co. t>. Ware. 16 Wall. (U. S.) Fifty Associates, 106 Mass. 194, 8 
 
 666. -^.m. Rep. 318. 
 
 • Wilson V. White, 71 Ga. 506, 51 
 
 596
 
 Chap. Y.] LIABILITY OF PRINCIPAL TO THIRD PERSON. § 74:8. 
 
 done in his own way, and is one from which, if properly done, no 
 injurious consequences to third persons can arise, then the con- 
 tractor is liable for the negligent performance of the work. If, 
 however, the work is one that will result in injury to others 
 unless preventive measures be adopted, the employer cannot 
 relieve himself from liability by employing a contractor to do 
 what it was his duty to do to prevent such injurious consequences. 
 In the latter case, the duty to so conduct one's own business as 
 not to injure another, continuously remains with the employer."^ 
 
 The fact that the contractor expressly agrees to assume respon- 
 sibility for injuries cannot, of course, relieve the principal if 
 otherwise liable.* 
 
 § 748. Some Subject— Illustrations. Some illustrations from 
 the numerous cases upon this subject will serve to make the dis- 
 tinction plain. Thus in a leading case in New York, a railroad 
 company let by contract the entire construction of its road, and 
 the contractor sub-let a portion of the work. Through the neg- 
 ligence of the men employed by the sub-contractor in performing 
 the work, stones and rocks were thrown by a blast upon plaintiff's 
 adjoining property, and injured it. The court held that this 
 injury did not necessarily result from the work contracted to be 
 done, but was caused by the unskillful and negligent manner in 
 which a lawful and proper thing was done, and that the railroad 
 company were not responsible.* 
 
 So the owners of a sugar refinery employed a rigger to remove 
 
 • Powers, J. in Bailey v. Troy & shire R R. Co., 19 N. H. 427, 51 
 Boston R. R. Co., 57 Vt. 252, 53 Am. Am. Dec. 192, and so where the 
 Rep. 129. injury was a necessary result of the 
 
 * Storrs V. City of Utica, 17 N. Y. work. Carman v. Railroad Co., 4 
 104, 72 Am. Dec. 437. Ohio St. 399; Teffln v. McCormack. 
 
 » McAfferty v. Spuyten Duyvil, «S;c. 84 Ohio St. 638. Pack v. Mayor was 
 
 R. R. Co., 61 N.Y. 178, 19 Am. Rep. approved and followed in Kelly v. 
 
 267. The same result was reached in Mayor, UN. Y. 432. See also that 
 
 Pack e. Mayor, 8 N. Y. 222, involv- railroad company is not liable for 
 
 ing the liability of a municipal cor- negligence of contractor in construct- 
 
 poration for injuries caused by neg- ing road. Cunningham v. Interna- 
 
 ligent blasting done by a sub-con- tional R. R. Co., 51 Tex. 503. 32 Am. 
 
 tractor employed by one who had Rep. 632; for negligent use of a steam 
 
 taken the contract to grade a street. shovel, Bailey v. Troy & Boston R, 
 
 And so in Tibbetts tJ. Knox &c. R. R. Co.. 57 Vt. 252, 63 Am. Rep. 
 
 R. Co., 62 Me. 437. But a contrary 129. 
 result was reached in Stone v. Che- 
 
 597
 
 § 7i8. THE LAW OF AGENCY. [liook IV. 
 
 machinery from a railroad car, and place it in their building. It 
 was not contemplated that it would be necessary, nor did it 
 appear to be necessary, that a certain coal-hole should be opened, 
 yet the rigger in the progress of the work, and for some purpose 
 of his own, opened the hole and left it open a few minutes after 
 the work was finished, when a boy fell in and was injured. The 
 court held that the rigger was pursuing an independent employ- 
 ment, and that, as it was not expected that the hole was to be 
 opened, the owners of the refinery were not charged with the 
 duty of guarding it, and were consequently not responsible for 
 the injury.' So a person, who carried on the business of slating, 
 was employed to repair the roof of a church; while doing this, 
 with his workmen, a ladder, which they had placed against the 
 building to reach the roof, was blown down and injured a passer- 
 by, who brought an action against the society for damages. 
 The court, however, held that the slater was exercising an inde- 
 pendent employment, and that the injury resulted from the 
 careless manner in which he performed -an undertaking lawful 
 and proper in itself, and that the society was not liable.' So the 
 owner of land contracted with a carpenter to repair a certain 
 house thereon, the latter to furnish the materials and do the work 
 for a specified sura. A teamster employed by the carpenter, 
 piled lumber for the work in the highway where it frightened 
 the plaintiff's horse and caused injury. An action was brought 
 against the owner, but it was held that the carpenter, and not 
 the owner, was at fault.* So a public licensed drayman was 
 employed to haul a quantity of salt from a warehouse and deliver 
 it at his employer's store for so much a barrel. While in the act 
 of delivering the salt, the drayman carelessly permitted a barrel 
 to roll against a passer-by, causing an injury, on account of which 
 an action was brought against the employer. It was held, how- 
 
 • Harrison «. Collins, 86 Perm. St. been employed to repair the water 
 
 153, 27 Am. Rep. 699. The result pipes. Bennett v. Truebody, 66 CaL 
 
 would undoubtedly have been differ- 509, 56 Am. Rep. 117. 
 
 ent had the employment contempla- ' McCarthy v. Second Parish of 
 
 ted the opening of the hole. See a Portland, 71 Me. 318, 36 Am. Rep. 
 
 similar case where the owner of a 320. 
 
 building was held not liable for an » Hilliard v. Richardson, 3 Gray 
 
 injury caused by falling through a (Mass.) 349, 63 Am. Dec. 743. This 
 
 trap door negligently left open by case contains a valuable and exhaust- 
 
 the servants of a plumber who bad ive review of earlier cases. 
 
 598
 
 Chap. Y.] LIABILITY OF PRINCIPAL TO THIRD PERSON. § 748. 
 
 ever, that the drayman was exercising an independent calling and 
 was alone the party liable.' 
 
 The fact that the employer furnishes the tools, materials or 
 appliances with which the work was to be done by the contractor 
 does not render him liable for negligence in their use by the 
 contractor or his servant.* If he negh'gently furnishes defective 
 appliances, however, he would be liable for an injury happening 
 on that account.* 
 
 But where a municipal corporation contracted for the digging 
 of a sewer in a public street, and took no measures to provide 
 proper protection against the excavation, it was held liable for 
 an injury to one who fell into it and was hurt. The cause of the 
 accident, the court held, was not the mangier in which the work 
 was done, but it was the result of tlie work itself. Said Com- 
 8T0CK, J., "A ditch cannot be dug in a public street and left 
 open and unguarded at night without imminent danger of such 
 casualties. If they do occur, who is the author of the mischief ? 
 Is it not he who causes the ditch to be dug, whether he does it 
 with his own hands, employs laborers, or lets it out by contract? 
 If by contract, then I admit that the contractor must respond to 
 third parties, if his servants or laborers are negligent in the 
 immediate execution of the work. But the ultimate superior or 
 proprietor first determines that the excavation shall be made, and 
 then he selects his own contractor. Can he escape responsibility 
 for putting a public street in a condition dangerous for travel at 
 night, by interposing the contract which he himself has made for 
 the very thing which creates the danger ? I should answer the 
 question in the negative." * So the owner of a building 
 
 • DeForrest ». Wright, 2 Mich. 368. tools to the contractor, with which 
 
 • Riley v. State Line Steamship Co. to do the work agreed, and they are 
 29 La. Ann. 791, 29 Am. Rep. 349. suitable and safe when furnished, the 
 
 » The owner of a mill employed a owner is not liable for an injury hap- 
 
 contractor to put a cornice on the mill, pening from the lack of repair in the 
 
 the owner agreeing to erect the neces- absence of an express agreement on 
 
 sary scaffolding. The scaffolding was his part to keep the tools in repair. 
 
 80 negligently erected that it fell And if the owner agrees to repair the 
 
 and killed one of the contractor's tools when notified that they need it, 
 
 servants, who was at work upon it. hisduty will not arise until such notice 
 
 It was held that the owner was re- is given. King v. New York &c. R. 
 
 sponsible. Coughtry v. Globe Woolen R. Co., 66 N. Y. 181, 23 Am. Rep. 
 
 Co. 56 N. Y. 124, 15 Am. Rep. 387. 37. 
 
 Where the owner agrees to furnish * Storrs v. City of Utica, 17 N. T. 
 
 599
 
 § T4:9. THE LAW OF AGENCY. [Book IV. 
 
 employed a contractor to dig a drain from his cellar into the 
 common sewer, and to do so it was necessary to cut through a 
 barrier which had been constructed to prevent the tide waters 
 from flowing into the cellars in that vicinity. The contractor 
 so negligently performed this part of the work that the tide 
 flowed through and caused injury, for which the owner was held 
 responsible, upon the manifest ground that the owner had con- 
 tracted for the doing of a thing which, if improperly done, was 
 liable to cause mischief, and he was bound to see that the neces- 
 sary precautious were taken,' 
 
 § 749. Principal's LiabiUty for Acts of Subagent. The ques- 
 tion of the liability of the principal, for the acts of a subagent, 
 has already been considered. It has been seen that, where there 
 was an express or implied consent to the appointment of the sub- 
 agent, or if his appointment was justified by usage or necessity, 
 there arises such a privity between the subagent and the princi- 
 pal, as renders the latter liable for the acts of the subagent in the 
 same manner and to the same extent as in the case of any other 
 agent.* Where no such privity exists, — where the agent stands 
 in the attitude of an independent contractor, — the principal is 
 
 104, 72 Am. Dec. 437. Same point. the thing contracted to be done from 
 
 City of St. Paul v. Seitz, 3 Minn. 297, its nature creates a nuisance, or 
 
 74 Am, Dec. 753. where, being improperly done, it cre- 
 
 ' Sturgis V. Theological, «&c. Socl- ates a nuisance and causes mischief 
 
 ety, 130 Mass. 414, 89 Am. Rep. 463. to a third person, the employer is 
 
 Morton, J. said "The owner of a liable for it. Gorham v. Gross, «W 
 
 building, who has used due care in supra, and cases cited." In Gorham 
 
 the employment of an independent v. Gross, a party wall fell doing 
 
 contractor, is not responsible to third injury. Its fall was owing either to 
 
 persons for the negligence of the the fact that it had not been properly 
 
 latter, occurring in his own work in supported, or that it had been negli- 
 
 the performance of the contract, such gently built in such cold weather that 
 
 as the handling of tools or materials, the mortar froze. The owner and not 
 
 or providing temporary safeguards the contractor was held liable. See 
 
 while doing the work. Billiard v. also Percival v. Hughes, 9 Q. B. Div. 
 
 Richardson, 3 Gray (Mass.) 349, 63 441, 36 Eng. Rep. 403; s. c. on ap- 
 
 Am. Dec. 743; Conners «. Hennessey, peal, 8 Ap. Cas. 443, 35 Eng. Rep. 
 
 112 Mass. 96; Gorham v. Gross, 125 776. 
 
 Mass. 232, 28 Am. Rep. 224; Butler « See ante, % 197, California Bank 
 
 V. Hunter, 7 H. «fc. N. 826. As to v. Western Un. Tel. Co., 52 Cal. 289; 
 
 such matters, pertaining to the mode Louisville, &c. R. R. Co. «. Blair, 4 
 
 in which he does the work, he is not Baxt. (Tenn.) 407. 
 the servant of the owner. But where 
 
 600
 
 Chap, v.] LIABILITY OF PELNCIPAL TO THIKD PEKSON. § 750. 
 
 liable only in those eases in which he would be liable for the 
 acts of the servants or agents of any other independent con- 
 tractor.* 
 
 § 750. Effect of Ratification. It has been seen in an earlier 
 portion of the work that a principal may with a full knowledge 
 of the facts, render himself liable by his ratification not only of his 
 agent's unauthorized contract, but also of his unauthorized tort.' 
 But, ae has been seen,' such full knowledge is indispensable to 
 charge the principal, and the mere appropriation of the fruits of 
 the trespass without such knowledge is not sufficient.* So the 
 doctrine of ratification can not be so applied as to authorize one 
 to be made a party to a suit by amendment, when the ratification 
 took place after the suit was instituted.* 
 
 > See ante, §§ 747. 748. Principal 
 is not liable for acts of a subagent 
 who is subject to the control of the 
 agent only. Lindsay v. Singer ;Mf'g 
 Co., 4 Mo. App. 570. 
 
 » See ante. Chapter on Ratification . 
 
 3 See ante, §§ 128, 129. 
 
 * Herring t. Skaggs, 63 Ala. 180, 
 34 Am. Rep, 4. 
 
 » Burns v. Campbell, 71 Ala. 271, 
 289. In this care Somerville, J. 
 says: " There is no difficulty about 
 the general rules of law governing the 
 ratification of an agent's unauthorized 
 act by a principal. It is settled that 
 where such an agent, acting in tJie 
 name and for the benefit of his princi- 
 pal, commits an unindictable trespass 
 de bonis asportatia, or, in other words, 
 a trespass which is voidable merely 
 and not wholly void, as imposing a 
 civil and not a criminal liability upon 
 the perpetrator, the principal, after 
 being fully informed of its tortious 
 nature, may adopt it as his own act, 
 and such ratification ordinarily binds 
 the principal to the same extent, and 
 holds him to the same civil responsi- 
 bilities as if he had originally author- 
 ized it. And for many purposes the 
 ratification will relate back to the 
 date of the unauthorized act so as to 
 
 constitute the principal a trespasser ab 
 initio. Ewell's Evans' Agency, *64, 
 ♦70-71; Coke's Inst, IV. 317; 1 Brick. 
 Dig. p. 59 § 91; Blevins v. Pope, 7 
 Ala, 371; Story on Agency, §§ 239, 
 244; Chapman v. Lee, 47 Ala. 143; 
 Mound City Ins. Co. v. Huth, 49 Ala. 
 529; 1 Waterman on Trespass § 28. 
 This, however, is upon the doctrine of 
 relation, which is a mere legal fiction, 
 having its origin in necessity, and 
 which is never allowed to prevail ex- 
 cept for the advancement of right 
 and justice. — Jackson v. Ramsay, (3 
 Cow. 75) 15 Am. Dec. 242, 246; 
 Pierce v. Hall,41 Barb. 142; Menville's 
 case, 13 Co. 19. It cannot be applied 
 so as to authorize one to be made a 
 party defendant to a suit, by amend- 
 ment, when the act creating his lia- 
 bility was done after the suit was 
 instituted. All pleas setting up de- 
 fenses to an action, have reference to 
 the time when an action was com- 
 menced, excepting pleas to the further 
 maintenance of the action, and pleas 
 puis darrein continuance. If a de- 
 fendant be not liable on the date 
 when the suit is commenced, he can 
 not be made liable at all in that action 
 by any subsequent act of adoption or 
 ratification. To create such retro- 
 
 601
 
 § 751. THE LAW OF AGENCY. [JBook IV. 
 
 8 751. The Measxire of Damages against the Principal. Where 
 the principal is found to be liable for the wrongful act of his 
 ao-ent, the measure of damages is ordinarily full compensation 
 for the injury inflicted.* But it is held, in many cases, that he 
 is not liable for exemplary or punitive damages, in those juris- 
 dictions in which such damages are allowed, unless he is himself 
 in fault. The rule of these cases was well stated by Church, C. 
 J., of the New York Court of Appeals, as follows : " For inju- 
 ries, by the negligence of a servant while engaged in the busi- 
 ness of the master, within the scope of his employment, the lat- 
 ter is liable for compensatory damages; but for such negligence, 
 however gross or culpable, he is not liable to be punished in 
 punitive damages unless he is also chargeable with gross miscon- 
 duct. Such misconduct may be established by showing that the 
 act of the servant was authorized or ratified, or that the master 
 employed or retained the servant, knowing that he was incompe- 
 tent, or, from bad habits, unfit for the position he occupied. 
 Something more than ordinary negligence is requisite ; it must 
 be reckless and of a criminal nature, and clearly established. 
 Corporations may incur this liability as well as private persons. 
 If a railroad company, for instance, knowingly and wantonly 
 employs a drunken engineer, or switchman, or retains one after 
 knowledge of his habits is clearly brought home to the company, 
 or to a superintending agent authorized to employ and discharge 
 him, and injury occurs by reason of such habits, the company 
 may and ought to be amenable to the severest rule of damages ; 
 but I am not aware of any principle which permits a jury to 
 award exemplary damages in a case which does not come up to 
 this standard, or to graduate the amount of such damages by their 
 views of the propriety of the conduct of the defendant, unless 
 such conduct is of the character before specified." * 
 
 tpective liabUity, with its attendant « In Cleghorn v. New York Cent 
 
 costs and consequences, would be to R R. Co., 56 X. Y. 44, 15 Am. Rep. 
 
 pervert the doctrine of relation to an 375, approved in Sullivan v. Oregon 
 
 unjust and improper end." Ry Co., 12 Oreg. 392, 53 Am. Rep. 
 
 » Chicago R. R. Co. v. Scurr, 59 364. To same effect: Nashville, &c. 
 
 Miss. 456, 42 Am. Rep. 373; Croaker R. R. Co. v. Starnes, 9 Heisk. (Tenn.) 
 
 e. Chicago, &c. Ry Co., 36 Wis. 657, 52, 24 Am. Rep. 296; Croaker v. 
 
 17 Am. Rep. 504; Pullman Palace Chicago, &c. Ry Co., supra; Hagaa 
 
 Car Co. V. Reed, 75 Dl. 125, 20 Am. v. Providence,&c. R.R.Co., 3 R. I. 8S; 
 
 Rep. 233. 63 Am. Dec. 377; Turner v. North 
 
 602
 
 Chap. Y.j LIABILITY OF PllINCIPAL TO THIKD PKKSOX. 
 
 §751. 
 
 But in other cases a more rigid rule is imposed, and it is held 
 that a corporation is liable in exemplary damasfes for the wrong- 
 ful act of its agent or servant in all cases in which an individual 
 would be liable to them under like circumstances, althousrh such 
 corporation had not previously authorized or subsequently rati- 
 fied the act.' The case of a corporation, however, and particu- 
 larly of a carrier of persons, involves elements not appearing ordi- 
 narily in the case of a principal who is a private individual, in- 
 asmuch as it is only through the medium of its agents and ser- 
 vants that the corporation can act at all, and as the carrier owes 
 to the passenger a peculiar duty ; but whatever may be the true 
 rule, in the case of corporations and carriers, in the case of pri- 
 vate individuals, the ^ew York rule seems most consonant with 
 reason and justice.* 
 
 Beach, «&c. R R. Co., 84 Cal. 694; 
 Higgins t>. Watervliet Co., 46 N. Y. 
 23, 7 Am. Rep. 293; Allegheny Val- 
 ley R R. «. McLain, 91 Penn. 
 St. 442; Hays t». Houston. &c. R. R 
 Co., 46 Tex. 272; Houston, &c. Ry 
 Co. «. Cowser, 57 Tex. 293. The 
 Amiable Nancy, 3 Wheat. (U. 8.) 
 646. 
 
 Knowingly retaining the agent in 
 service after the wrongful act will be 
 a ratification: New Orleans, &c. R. 
 R Co. f). Burke, 53 Miss. 200, 24 Am. 
 Rep. 689; Bass v. Chicago, &c. Ry 
 Co., 42 Wis. 654, 24 Am. Rep. 437; 
 Gasway v. Atlanta, &c. Ry Co., 58 
 Ga. 216; Perkins e. Missouri, «fcc. R. 
 R Co., 55 Mo. 201. 
 
 ' Atlantic, &c. Ry Co. v. Dunn, 19 
 Ohio St. 162, 2 Am. Rep. 382; God- 
 dard v. Grand Trunk Ry Co., 67 Me. 
 202, 2 Am. Rep. 39; Palmer v. Rail- 
 road, 3 S. C. 580, 16 Am. Rep. 750; 
 Doss ». Missouri, &c. R. R Co., 59 
 Mo. 27, 21 Am. Rep. 371; Hanson c. 
 European, &c. Ry Co., 64 Me. 84, 16 
 Am. Rep. 404; New Orleans, &c. R. 
 R Co. V. Burke, 53 Miss. 200, 24 Am. 
 Rep. 689; Philadelphia, &c, R. R. 
 Co. V. Larkin, 47 Md. 155, 28 Am. 
 Rep. 442; Singer Mfg. Co. •. Hold- 
 
 fodt, 86 111. 455, 29 Am. Rep. 43; St 
 Louis, &c. R. R. Co. tJ. Dalby, 19 lU. 
 353; Gasway 0. Atlanta, «fcc. R. R. 
 Co., 58 Ga. 216; Wabash, i&c. Ry Co. 
 «. Rector, 104 111. 296; Jeffersonville 
 R. R Co. v. Rogers, 83 Ind. 116, 10 
 Am. Rep. 103; American Express 
 Co. «. Patterson, 73 lad. 430; Hawes 
 t. Knowles, 114 Mass. 518; Levi v. 
 Brooks, 121 Mass. 501 ; Forsee v. Ala- 
 bama, &c. R. R. Co., 63 Miss. 66, 56 
 Am. Rep. 801. 
 
 * "The rule is," says Somervillb, 
 J., in Burns v. Campbell, 71 Ala. 271, 
 292, " that, where several defendants 
 are sued in t'^rt for damages, the mal- 
 ice or other evil motive of one can 
 not be matter of aggravation, or 
 ground for vindictive damages against 
 the other. Wood's Mayne on Dam- 
 ages, p. 594, § 624. Hence, principals 
 are not generally held liable for such 
 damages by reason of the evil motive 
 of an agent, unless the act of the 
 agent was fully ratified with a knowl- 
 edge of its malicious, aggravating, or 
 grossly negligent character; or these 
 matters of aggravation were probably 
 consequent on the doing of the wrong 
 ful act ordered by the principal; or 
 unless the agent was employed with 
 
 603
 
 §752. 
 
 THE LAW OF AGENCY. 
 
 [Book lY. 
 
 § 752. Unsatisfied Judgment against Agent no Bar to Action 
 against Principal. A judgment obtained against an agent for a 
 fraud committed by hira while acting witliin the scope of his 
 agency, and which remains wholly unpaid, is no bar to an action 
 by the same plaintiff against the agent's principal to recover 
 damages for the same fraud.' 
 
 a knowledge of his incompetency. 
 Lienkauf v. Morris, 66 Ala, 406. 415; 
 Pollock t). Gantt, 69 Ala. 373; Kirk- 
 sey V. Jones, 7 Ala. 622; Field's Law 
 Damages, §§ 86, 87; Wood's Mayne 
 
 on Dam., p. 57, § 48; Carmichael •. 
 W. and L. Railway Co., 13 Ir. L. R 
 313." 
 
 * Maple V. Railroad Co., 40 Ohio 
 St. 813, 48 Am. Rep. 68S. 
 
 604
 
 Chap. YI.] LIABILITT OF THIRD PEE80N TO AGENT. 
 
 §753. 
 
 CHAPTER VI. 
 
 THE DUTIES AND LIABILITIES OF THIRD PERSONS TO THE 
 
 AGENT. 
 
 L In Contract. 
 753. In general — Right of Action 
 
 in Principal alone. 
 764. Agent may sue on Contract 
 
 made by him. 
 
 766. Agent may sue on Contract 
 
 made with him personally. 
 756. Agent may sue when he has a 
 beneficial Interest. 
 
 767. Same Subject — Principal may 
 
 sue or control Action. 
 
 768. Agent only may sue on sealed 
 
 Contract made with him per- 
 sonally. 
 
 769. Agent's Rights depend upon 
 
 the Contract. 
 
 760. Right of assumed Agent to 
 
 show himself Principal. 
 
 761. Agent may recover Money 
 
 paid by him under Mistake 
 or illegal Contract. 
 
 762. What Defenses open to third 
 
 Person. 
 
 763. What Damages Agent may re- 
 
 cover on Contract. 
 
 II. In Tort. 
 
 764. Agent may sue for personal 
 
 Trespass. 
 
 765. When Agent may sue for In- 
 
 juries to Principal's Prop- 
 erty. 
 
 m CX)NTBAOT. 
 
 8 753, In General— Right of Action in Principal alone. Con 
 tracts entered into by the agent with third persons in pursuance 
 of his authority, are presumed to be made on account and in 
 behalf of the principal, and for his benefit and advantage. It is 
 the principal's contract, and the benefits which grow out of it are 
 to be reaped by him. The legal interest in the contract vests in 
 the principal. As a general rule, therefore, where the contract 
 is made by the agent, as such, on behalf of his principal, and the 
 agent has no beneficial interest in the transaction, the right of 
 action is in the principal alone, and the agent cannot sue upon 
 it.» 
 
 ' Fisher t>. Marsh, 6 B. «& S. 411; Commercial Bank t>. French, 21 Pick. 
 Buckbee v. Brown, 21 Wend. (N. Y.) (Mass.) 486, 32 Am. Dec. 280; Med- 
 110; Garland e. Reynolds, 20 Me. 45; way Cotton Manufactory e. Adams. 
 
 605
 
 ft 754. THE LAW OF A.GENCT. [Book lY. 
 
 S 754. Agent may sue on Contract made by him. But it has 
 been seen that, notwithstanding the fact that the agent has author- 
 ity, and is expected to bind the third person with whom he 
 deals, to the principal, yet, through failure to use apt and appro- 
 priate language, or from a deliberate intention to deal with the 
 agent exclusively, the result of the negotiation may be that the 
 third person has assumed obligations, either prima facie or 
 exclusively, to the agent alone. It may thus happen that the legal 
 interest in the contract will be, or will appear to be, in the agent 
 alone, and, in accordance with the well settled rule that an action 
 upon a contract is to be brought in the name of the party in 
 whom the legal interest in the contract is vested,Mhe right of 
 action may be either in the agent alone,' or it may be subject to 
 an action by the agent or the principal.' This question as to the 
 ao-ent's right of action may arise under a variety of circum- 
 stances. Thus the contract may be, (a) an unwritten one, or it 
 may be, (b) a written contract, and if in writing, it may be, (c) 
 under seal. So in his negotiation the agent may have acted, 
 (a) as the agent of a known principal, or, (b) he may have dis- 
 closed the fact of his agency, but concealed the name of his 
 principal, or, (c) he may have bargained as the real principal. 
 So the contract upon which the question arises may be, (a) fully 
 executed, or, (b) partially executed, or, (c) wholly executory. 
 
 S 755. Agent may sue on Contraot made with him personally. 
 Wliere the contract is made with the agent personally, whether 
 as a result of the failure to nse apt and sufficient language to 
 bind the principal, or of a deliberate intention to deal with the 
 agent alone, the latter is, as has been seen, personally liable upon 
 the contract. And this obligation is reciprocal, — the other party 
 is bound to the agent, and in him vests the legal interest in the 
 contract, and, consequently, the right of action upon it. It is, 
 therefore, a general rule that where a contract, whether written 
 or unwritten, is, in terms, made with the agent personally, he 
 may sue npon it.* This rule is unquestioned where the fact of 
 
 10 Mass. 360; Lowell e. Morse, 1 « Cocke t>. Dickens, 4 Yerg. (Tenn.) 
 
 Mete. (Mas3.) 475; Barlow©. Congro- 29. 26 Am. Dec. 214; Sherherd e. 
 
 gational Society, 8 Allen (Mass.) 462; Evans, 9 Ind. 2(50; Rutherford e. 
 
 GuQU V. Cantine, 10 Johns. (N. Y.) MitcheU, Mart. & Yerg. (Tcnn.) 2G1. 
 
 387; Thatcher®. Winslow, 5 Mason » See i^osf, § 757. 
 
 (U. S. C. C.) 58. * Colburn v. Phillips, 13 Gray 
 
 ' Chitty on Pleadings, 2. (Mass.) 64. This case contains an 
 
 606
 
 Chap. VI.] LIABILITY OF THIRD TEESON TO AGENT. 
 
 §T55. 
 
 the agency and the name of his principal are both concealed by 
 the agent. In such a case the agent is, in contemplation of law, 
 the real contracting party, to whom the promises of the other 
 party were made and who is entitled to enforce them.' But the 
 rule also applies although both the fact of the agency and the 
 name of the principal were disclosed. If the fact that the agent 
 acts as such appears, but the name of the principal does not 
 appear, the action may be sustained in the name of the agent as 
 the only party disclosed to whom the promise is made.* And 
 so, although the name of the principal appears, this fact is not 
 conclusive of the absence of the agent's right of action. The 
 question here, as in the cases that have been considered, is, are 
 the words used in respect to the principal descriptive of the per- 
 son merely, or do they declare that the promise runs to the prin- 
 cipal directly.' 
 
 exhaustive review of the earlier cases. 
 "Van Staphorstu. Pearce, 4 Mass, 258; 
 Harp V. Osgood, 2 HiU (N. Y.) 216; 
 Grigsby v. Nance, 3 Ala, 347; Buff urn 
 V. Chadwick, 8 Mass. 103; Bird «. 
 Daniel, 9 Ala, 302; Doe v. Thompson, 
 22 N. H. 217; Potter v. Yale College, 
 8 Conn, 60; Alsop v. Caines, 10 
 Johns. (N. Y.) 396; Borrowscale «. 
 Bosworth, 99 Mass. 378, 383; United 
 States Tel. Co. «. Gildersleve, 29 Md. 
 232, 96 Am, Dec. 519; Sharp «. Jones, 
 18 Ind, 314, 81 Am. Dec. 359; Good- 
 man V. Walker, 30 Ala. 482, 68 Am. 
 Dec, 134; Albany «fe Rensselaer Co. v. 
 Lundberg, 121 U. S, 451; Packard v. 
 Nye, 2 Mete, (Mass.) 47; Kennedy «, 
 Gouveia, 3 Dowl. & R. 503; Parker 
 t. Winlow, 7 El. & Bl. 942; Dutton 
 i). Marsh, L. R. 6 Q, B. 361 ; Ludwig 
 V. GiUespie, 105 N, Y. 653. 
 
 In Rowe v. Rand, 111 Ind. 206, 
 NiBLACK J., lays down the rule as 
 follows: "An agent may sue in his 
 own name: First, When the contract 
 is in writing, and is expressly made 
 with him, although he may have been 
 known to act as agent. Secondly, 
 
 607 
 
 When the agent is the only known or 
 ostensible principal, and is, therefore, 
 in contemplation of law the real con- 
 tracting party. Thirdly, When, by 
 the usage of trade, he is authorized 
 to act as owner or as a principal con- 
 tracting party, notwithstanding his 
 well known position as agent only. 
 But this right of an agent to bring an 
 action, in certain cases, in his own 
 name is subordinate to the rights of 
 the principal, who may, unless in 
 particular cases, where the agent has 
 a lien or some other vested right, 
 bring suit himself, and thus suspend 
 or extinguish the right of the agent." 
 Upon this latter point see post, § 757. 
 
 'Simsv. Bond, 5 B. (Ss Ad. 389; 
 Fisher v. Marsh, 6 B, »& S. 411; 
 Evans v. Evans, 3 Ad. & El. 132; 
 Laphara «, Green, 9 Vt, 407. 
 
 > Clap V. Day, 2 Greenl. (Me.) 305, 
 11 Am. Dec, 99; Cocke v. Dickens, 4 
 Yerg. (Tenn.) 29, 26 Am. Dec. 214; 
 Buffum e. Chadwick, 8 Mass. 103. 
 
 » See Albany & Rensselaer Co, ». 
 Lundberg, 121 U. S. 451, and cases 
 cited.
 
 § 755. THE LAW OF AGENCY. [Book IV. 
 
 These principles are of frequent application to the case of 
 commercial paper. Thus upon a note or bill payable to "A. B., 
 agent," or to " A. B., agent for C. D.," or to " A. B., trustee," or 
 to "A. B., executor," etc., or to "A. B. for the use of C. D.," the 
 action may be maintained in the name of A. B.' 
 
 The same rule applies to a promise made to " A. B., cashier," 
 or " A. B., president of C. D. Company." In such cases the 
 action may be brought in the name of the officer, although it is 
 now generally held that the corporation may sue also.* 
 
 But where the promise is made to the " agent of 0. D." or the 
 " Cashier of the E. bank," or to the " treasurer of the F. Co.," 
 and the like, the name of the agent or officer not being dis- 
 closed, it is usually regarded as made to the principal directly.' 
 
 So where an agent carries on business for his principal and 
 appears to be the proprietor and sells goods as the apparent 
 owner, he can sustain an action in his own name for the price.* 
 And where the principal carries on business in the name of the 
 agent, actions may be sustained in the name of the agent upon 
 contracts made to him in that name.* So where an agent ships 
 goods, taking the bill of lading in his own name, he may sue 
 upon the contract of carriage for damages arising from a breach 
 of it.* So one who describes himself as agent, but covenants 
 
 » Clap V. Day, 2 Greenl. (Me.) 305, 88; Pratt c. Topeka Bank, 13 Kana. 
 
 11 Am. Dec. 99; Buffum ». Chad- 570. 
 
 wick, 8 Mass. 103 ; Goodman v. Wal- » Commercial Bank «. French, 21 
 
 ker, 30 Ala. 483; Pierce v. Robie, 89 Pick. (Mass.) 486, 33 Am. Dec. 280; 
 
 Me. 305; Rutland, &c. R. R. Co. v. Ewing «. Medlock, 5 Port. (Ala.) 82; 
 
 Cole, 34 Vt. 39; Cocke v. Dickens, 4 Alston v. Heartman, 3 Ala. 699; Har- 
 
 Yerg. (Tenn.) 29, 26 Am. Dec. 214; per ». Ragan, 3 Blackf. (Ind.) 39; 
 
 Van StaphorsttJ. Pearce, 4 Mass. 358; Crawford© Dean, 6 Id. 181; Ver- 
 
 Shepherd v. Evans, 9 Ind. 360; Rose mont Central R. R. Co, v. Clayes, 31 
 
 V. Laffan, 3 Speers. (S. C.) 434; Als- Vt. 31; Pigott v. Thompson, 3 Bos. 
 
 tone. Heartman, 2 Ala. 699; Horah «& P. 147. 
 
 V. Long, 4 Dev. & Bat. (N. C.) 274. * Gardiner v. Davis, 2 Car. &P. 49; 
 
 •Fairfield v. Adams, 16 Pick. Dancer c. Hastings, 4 Bing. 2; United 
 
 (Mass.) 381; Johnson v. Catlin, 27 Vt. States Tel. Co. v. Gildersleve, 29 Md. 
 
 87. That principal also may sue, see 232, 96 Am. Dec. 519. 
 
 Baldwin v. Bank of Newbury, 1 » Alsop v. Caines, 10 Johns. (N. Y.) 
 
 Wall. (TJ. S.) 239; First Nat. Bank v. 396. 
 
 Hall, 44 N. Y. 395; Garton v. Union 'Joseph v. Knox, 3 Camp. 320; 
 
 City Bank, 34 Mich. 279; Barney v. Blanchard v. Page, 8 Gray (Mass.) 
 
 Newcomb, 9 Cash. (Mass.) 46; Rut- 281; Hooper c. Chicago. &c. Ry Co., 
 
 land, &c. R. R. Co. e. Cole, 24 Vt. 27 Wis. 81, 9 Am. Rep. 439; Dunlop 
 
 608
 
 Chap. YI.] LIABILITY OF THIRD PERSON TO AGENT. 
 
 §756. 
 
 as in his own right, may maintain an action in his own name 
 against the other party upon the covenants.* And a broker may 
 sue a telegraph company in his own name for a breach of con- 
 tract to transmit an order, in his name though on behalf of his 
 principal, for the purchase or sale of goods ;" so an agent who, 
 having sold his principal's land, remits the money by express, 
 may sue the express company for a loss of the money through its 
 negligence.* 
 
 An agent who sells his principal's goods, not as agent but as 
 principal, may sue the purchaser for the price.* And on a con- 
 tract made in the agent's own name for an undisclosed principal, 
 whether the agent describes himself as such or not, either the 
 agent or the principal may sue.* 
 
 § 756. Agent may sue when he has a beneficial Interest. 
 Mr. Chittt lays down the rule " which has been often cited, that 
 " when an agent has any beneficial interest in the performance of 
 the contract, as for commission, etc., or a special property or 
 interest in the subject-matter of the agreement, he may support 
 an action in his own name upon the contract,' as in the case of 
 
 V. Lambert, 6 CI. & Fin. 600; South- 
 era Express Co. v. Craft, 49 Miss. 
 480, 19 Am. Rep. 4; Finn v. Western 
 R, R. Co., 112 Mass. 524. 17 Am. 
 Rep. 128. 
 
 In action sounding in tort, the 
 action must be brought by the party 
 having an interest in tlie goods. 
 Thompson v. Fargo, 49 N. Y. 188, 10 
 Am. Rep. 342; Krudler v. Ellison, 47 
 N. Y. 36, 7 Am. Rep. 403. 
 
 » Potts V. Rider, 3 Ohio 70, 17 Am. 
 Dec. 581. Upon a contiact made be- 
 tween "Gustaf Lundberg, agent for 
 N. M. Hoglund's Sons & Co.," and 
 " Albany and Rensselaer Iron and 
 Steel Co.," signed "Gustaf Lund- 
 berg," " Albany & Rensselaer Iron & 
 Steel Co.," Lundberg may sue in his 
 own name. Albany & Rensselaer Co. 
 V. Lundberg, 121 U. S. 451, citing 
 Kennedy v. Gouveia, 3 D, & R. 5U3; 
 Parker v. Winlow, 7 E. &_B. 942; 
 Dutton V. Marsh, L. R. 6 Q.' B. 361 ; 
 Buffum V. Chad wick, 8 Mass. 103; 
 
 39 609 
 
 Packard v. Nye, 2 Mete. (Mass.) 47; 
 distinguishing Gadd v. Houghton. 1 
 Ex. Div. 357, 18 Eng. Rep. 361; and 
 Oelricks v. Ford, 23 How. (U. S.) 49. 
 
 2 United States Tel. Co. v. Gilder- 
 sieve, 29 Md. 232. 96 Am. Dec. 519. 
 
 3 Snider v. Adams Express Co., 77 
 Mo. 523. 
 
 * Keown v. Vogel, 25 Mo. App. 35. 
 •Ludwig «. Gillespie, 105 N. Y. 
 
 653; Considerant v. Brisbane, 22 N. 
 Y. 389; Schaefer v. Henkel, 75 N. Y. 
 378. 
 
 • Chitty on Pleadings, 8, 16 Am. 
 Ed. 
 
 T Citing Porter v. Raymond, 53 N. 
 H. 519; Treat v. Stanton, 14 Conn. 
 445; Barnes v. Insurance Co., 45 N. 
 H. 21 ; Underbill v. Gibson, 2 N. H. 
 352; Tankersville v. Graham, 8 Ala. 
 245; Butts v. Collins, 13 Wend. (N. Y.) 
 139; Colburn v. Phillips, 13 Gray 
 (Mass.) 64; Borrowscale v. Bosworth^ 
 99 Mass. 378, 383.
 
 § 756. THE LAW OF AGENCY. [Book IV. 
 
 a factor or a broker,* or a warehouseman or carrier,' an auction- 
 eer,' a policy broker whose name is on the policy,* or the captain 
 of a ship for freight." • 
 
 A mere interest in commissions to be earned, however, would 
 not, of itself, be sufficient,* but the rule must be limited to those 
 cases in which the contract was in the agent's name, or in which 
 he has a lien upon, or a special property in, the subject-matter.' 
 
 Thus cotton factors who have sold cotton consigned to them 
 may, in their own names, recover the damages resulting from a 
 breach of the contract by the buyer, although they may be 
 bound to pay the damages, when recovered, to their consignors. 
 The factors have a special property in the cotton, and have a lien 
 upon it for their commissions, which commissions attach on the 
 very damages they may recover, and would be increased there- 
 by.' So a broker may sue in his own name, for the breach of 
 contract to transmit a telegraph message sent by him, and direct- 
 ing the sale of property of his principal, in which the broker has 
 a special interest and for the sale of which he is entitled to a 
 commission.* And agents who have a special interest In goods 
 by reason of advances made for freight upon them, may maintain 
 an action in their own names against a carrier by whose negli- 
 gence they were injured." 
 
 So an auctioneer has such a special property in the goods sold 
 by him, that he may maintain an action for the price, though 
 
 » Citing Grove v. Dubois, 1 T. R. Forester, 1 M. «& S. 497; Mellish v. 
 
 112; Atkyns v. Amber, 2 Esp. 493; Bell, 15 East, 4; Ward v. Wood, 13 
 
 Williams v. Millingtoa, 1 H. Bl. 82; Mass. 539; Lazarus®. Commonwealth 
 
 George v. Clagett, 7 T. R. 355; John- Ins. Co., 5 Pick. (Mass.) 76; Farrow 
 
 son V. Hudson, 11 East, 180; Sadler v. v. Commonwealth Ins. Co.. 18 Id. 53; 
 
 Leigh, 4 Camp. 195; Morris t>. Rider c. Ocean Ins. Co., 20 Id. 259; 
 
 Cleasby, 1 M &. S. 581; Sailly «• Williams u Ocean Ins. Co, 2 Mete. 
 
 Cleveland, 10 Wend. (N. Y.) 156. (Mass.) 303; Somes v. Equitable Ins. 
 
 s Citing per Lord Ellenborough Co. 12 Gray (Mass.) 531. 
 
 in Martinis. Coles, 1 M. & S. 147. » Citing Shields v. Davis, 6 Taunt. 
 
 8 Citing Williams v. Millington, 1 65; Brown v. Hodgson, 4 Taunt. 189. 
 
 H. Bl. 81; Coppin v. Craig. 2 Marsh. • Fairlie v. Fentou, L. R. 5 Ex. 169. 
 
 501; Farebrother v. Simmons. 5 B. «fc ' United States Tel. Co. v. Gilder- 
 
 Ald. 333; Grice v. Kenrick, L. R. 5 sieve, 29 Md. 232, 96 Am. Dec. 519. 
 
 Q. B. 840. • Groover v. Warfield, 50 Ga. 644. 
 
 « Citing Park on Ins. 403; Grove •United States Tel. Co. «. Gilder- 
 
 •. Duboia, 1 T. R. 112; Hagedorn v. sieve, supra. 
 
 Oliverson, 2 M. & S. 485; Garrett v. " Steamboat Co. v. Atkins; 23 
 
 Handley, 4 B. & C. 666; Camming v. Penn. St. 522. 
 
 610
 
 Ohap. VI.] LIABILITY OF THIRD PKRSON TO AGKNT. § 759. 
 
 they were sold as the goods of a named principal.* A fortiori 
 is this true where by the terms of the sale, the purchase price if. 
 to be paid to him.* 
 
 So a factor has such an interest as will enable him to sue foi 
 the price of the goods he sells.' But a mere broker can not 
 sue.* 
 
 § 757. Same Subject— Principal may sue or control Action. 
 It is not to be inferred, however, that the agent is the only party 
 who may maintain the action, for, as will be seen in the follow- 
 ing chapter, it is a well settled rule that when a contract, not 
 under seal, is made by an agent for his principal, even though 
 the latter were not disclosed, the principal may sue upon it instead 
 of the agent. And this right of the principal to sue upon the 
 contract takes precedence over that of the agent; the principal 
 being always at liberty to interfere and bring the action in his 
 own name to the exclusion of the agent's right,' except where 
 the a^ent, by lien or otherwise, has an interest or estate in the 
 subject-matter of the action.* 
 
 S 758. Agent only may sue on sealed Contract made with him 
 personally. But where a contract under seal is made by the 
 at>-ent in his own name, the agent alone is the party in whose 
 name a recovery upon it can be had.^ 
 
 § 759. Agent's Rights depend upon the Contract. Tl»e liabil- 
 ity of third persons to an agent, upon a contract made with him, 
 is to be ascertained by that contract alone, and cannot be enlarged 
 by reference to any agreement between the agent and the princi- 
 pal by which their mutual rights are to be determined.' 
 
 > Bleecker «. Franklin, 2 E. D. Yates, 11 Johns. (N. Y.) 23; Yates «. 
 
 Smith (N. Y.) 9;j; Mintura v. Main, 7 Foot, 12 John. (N, Y.) 1; Kelley ». 
 
 N. Y. 220; Hulset>. Young, 16 Johns. Munson, 7 Mass. 318, 324; Corlies v. 
 
 (N. Y.)l. Gumming, 6 Cow. (N. Y.) 181; Bor- 
 
 * Thompson «. Kelly, 101 Mass. rowscale t;. Bosworlh, 99 Mass. 383; 
 291, 3 Am. Rep. 353. Ludwig ». Gillespie, 105 N. Y. 653; 
 
 » Graham t. Duckwall, 8 Bush. Considerant o. Brisbane, 22 N. Y. 
 
 (Ky.) 12; Johnson v. Hudson, 11 East 389; Schaefer c. Henkel, 75 N. Y. 
 
 180.' 878. 
 
 « Fairlie e. Fenton, L. R., 5 Ex. • Rowe e. Rand, 111 Ind. 206 
 
 Igg^ 7 Shack «. Anthony, 1 Maule & Sel. 
 
 • 1 Chitty on Pleading, 9; Morris e. 672; Berkeley e. Hardy, 5 B. & 0. 
 Cleasby, 1 M. & Sel. 579; Bickerton 855; Dancer v. Hastings, 4 Bing, 3. 
 
 •. Burrell, 5 M. & Sel. 385; Vischer » Evrit e. Bancroft, 22 Ohio St. 172. 
 
 611
 
 § 700. THE LAW OF AGENCY. [Book TV. 
 
 § 760. Bight of assumed Agent to show himself Principal. 
 The question of the right of one, who lias contracted in the char- 
 acter of an agent, to throw off this character and show himself 
 to be the real principal in the transaction, is one attended with no 
 little difficulty. Every man has the right to determine for him- 
 self with whom he will deal, and he cannot have another person 
 thrust upon him without his consent. It may be of importance 
 to him who performs the contract, as when he contracts with 
 another to paint a picture, or write a book, or furnish articles of 
 a particular kind, or relies upon the character or qualities of an 
 individual, or has reasons why he does not wish to deal with a 
 particular party. In all these cases, he may select the person to 
 whom he will entrust the performance, and, having selected one, 
 he can not be compelled, against his will, to accept performance 
 from another.' 
 
 It is obvious, also, that an attempt to enforce the performance 
 of a contract which is purely executory, involves different con- 
 siderations than an endeavor to recover from a third person the 
 stipulated return for a performance fully executed b}-^ or on behalf 
 of the agent. Equally manifest is it that the fact whether the 
 agent assumed to act for a named, or for an unnamed pi-incipal, 
 is an important element. These considerations suggest a division 
 of the question thus : The right of an assumed agent to show 
 himself to be the real principal, 1. Where he contracted for a 
 named principal and the contract is, a. executory, or, h. executed 
 2. Where he contracted for an unnamed principal and the con- 
 tract is, a. executory, or, b. executed. 
 
 1. a. A person who has assumed as the agent of a named prin- 
 cipal, to pledge the performance of that principal to a third per- 
 son, can not, while the contract remains unperformed, insist upon 
 substituting himself as the real principal, without the consent of 
 the other party, in any case in which it may reasonably be con- 
 sidered that the skill, ability or solvency of the named principal 
 was a material ingredient in the contract.* If A contract with B 
 
 * Boston Tee Co. v. Potter, 123 (Q. B.) 655. "In many such cases, 
 Mass. 28, 25 Am. Rep. 9; Boulton v, such as, for instance, the case of con- 
 Jones, 2 H. & N. 564; Schmaliug v. tracts in which the skill or sol- 
 Thomlinson, 6 Taunt. 147. vency of the person who is named as 
 
 > Rayner v. Grote,15 Mees. «& Wels. the principal may reasonably be con- 
 
 859; Schmaltz v. Avery, 16 Ad. & Ell. sidered as a material ingredient in th© 
 
 612
 
 Chap. VI.] LIABILITY OF THIRD PERSON TO AGENT. § 760. 
 
 as the assumed agent of C for the personal services of C, B can 
 not, by offering to perform the contract himself, recover the sti- 
 pulated compensation from A. This principle is too plain to 
 require illustration. 
 
 1. 5. A person who has assumed, as the agent of a named prin- 
 cipal, to pledge the performance of that principal to a third per- 
 son, may, if the contract has been performed by himself as prin- 
 cipal with the knowledge and express or implied consent of such 
 third person, compel performance to himself on the part of such 
 third person, although personal considerations may have entered 
 into the making of the contract ; but where such personal consid- 
 erations are involved, he can not recover if the performance by 
 himself as principal has been without the knowledge or consent 
 of the other party,' If A contracts with B for the personal ser 
 vices of C, and B offers to perform and does perform as being 
 himself C, with the knowledge and without the dissent of A, — 
 hence with A's implied consent, — B may recover of A the sti- 
 pulated compensation ; but not if the performance was without 
 the knowledge, — and hence without the express or implied con- 
 sent, — of A. 
 
 Whether, where the contract can not reasonably be considered 
 to have been entered into from any consideration of personal 
 skill, solvency or other personal reason, it is competent for one, 
 who has contracted as the assumed agent of a named principal, to 
 show himself to be the real principal, and recover upon the con- 
 tract, whether executed or executory, is not clear from doubt. It 
 has been intimated in one or two cases,* that this might be done 
 if notice of the true state of the case were given to the other 
 party before the action was begun, but no case has been discov- 
 
 contract, it is clear that the agent Schmaltz «. Avery, 16 Q. B. 655; 
 
 cannot then show himself to be the Eggleston p. Boardman, 37 Mich. 14; 
 
 real principal, and sue in his own Boston Ice Co. v. Potter, 123 Mass. 
 
 name; and perhaps it may be fairly 28, 25 Am. Rep. 9; Winchester v. 
 
 urged that this, in all executory con- Howard, 97 Mass. 303; 93 Am. Dec. 
 
 tracts, if wholly unperformed, or if 93;MudgeB. Oliver, 1 Allen (Mass.) 
 
 partly performed without the knowl- 74; Orcutt v. Nelson, 1 Gray (Mass.) 
 
 edge of who is the real principal, 5oO Smelting Co. v. Belden Co., 
 
 may be the general rule." Alder- 127 U. S. 387. 
 
 BON, B. in Rayner v. Grote, supra *Bickerton v. Burrell, 5 Maule & 
 
 at p. 865. Pel. 383; Foster v. Smith, 2 Cold. 
 
 > Rayner v. Grote, 15 M. & W. 359; '1 e nn.) 475, 88 Am. Dec. 604. 
 
 613
 
 § 761. THE LAW OF AGENCY. [Book IV. 
 
 ered in which this precise question was presented for adjudica- 
 tion, and no satisfactory reason is apparent which will permit one, 
 who, in express terms, has made another than himself the party to 
 the contract, by any mere notice to change the essential nature of 
 the agreement, or be permitted to recover, as a party, when he 
 has in terms made himself not a party.' The true rule would 
 seem to be that it can not be, in any case, while the contract 
 remains executory, and that, if it can be done where the contract 
 is executed, it can only be to the extent that the execution, by 
 tlie assumed agent as the real principal, has been with the knowl- 
 edge and consent of the other party.* 
 
 2. Where the contract is entered into by the assumed agent, 
 as agent for an unnamed principal, no personal considerations 
 can arise, because as no particular principal is named or known, 
 no particular elements of skill, solvency or ability, are involved. 
 In most of such cases, the words referring to a principal 
 would, in accordance with established rules, be regarded as 
 mere desGrijptio personcB, or be rejected as surplusage. In such 
 a case, the third person must be deemed to be liable to some 
 one, and as no one else is designated, it must be presumed that 
 he is liable to the person who in fact sustained the relation of 
 principal in the transaction, and this principal may as well be the 
 assumed agent as a stranger. In either event, the rights of the 
 third person are not impaired, because he has contracted to ans- 
 wer to any one who might be entitled.' 
 
 In cases of this nature, it is immaterial whether the claim be 
 made while the contract remains executory or after it is fully 
 executed. The other party is, of course, entitled to be informed 
 as to who the real principal is, whether the agent or a stranger, 
 that he may have opportunity to avail himself of any rights which 
 he may have against such principal. 
 
 S 761. Agent may recover Money paid by him Tinder Mistake 
 or illegal Contract. Where an agent pays out the money of his 
 principal to a third person under a mistake of fact,* or where 
 
 * Bickerton v. Burrell, 5 M. & S. « See cases in preceding note. 
 
 383. See also Boston Ice Co. v. Pot- • Schmaltz v. Avery, 16 Q. B. 655. 
 
 ter, siLpra. ; Hills v. Snells, 104 Mass. * Lord Mansfield laid down the 
 
 173; Boulton 1?. Jones, 2 H. & N. 564; rule in an early case as follows; 
 
 Schmaling «. Thomlinson, 6 Taunt. " Where a man pays money by his 
 
 147_ agent, which ought not to have 
 
 614
 
 Ohap. VI.] LIABILITY OF THLBD PERSON TO AGENT. § 762. 
 
 he pays it upon a contract whicli subsequently proves to be illegal, 
 if the agent was ignorant of its illegality at the time, ' he may 
 sue for and recover it in his own name. Such an action is, ordi- 
 narily, the only remedy by whicli an agent, who has parted with 
 his principal's money under a mistake of fact, and for which he 
 is answerable to his principal, can reimburse himself.* 
 
 In such cases, however, as will be seen, the principal, being 
 the party to whom the money belongs, and for whose benefit it is 
 to be recovered, may ordinarily sue instead of the agent.* 
 
 Thus an agent who, not being authorized to exchange money 
 of his principal in his hands, has so exchanged it and received in 
 exchange a worthless counterfeit bill, may maintain an action in 
 his own name to recover the money so paid out by him.* 
 
 But an agent who has carelessly or mistakenly sold the prop- 
 erty of his principal, entrusted to him for sale, for less than the 
 proper price, the purchaser not being in fault, can not recover of 
 such purchaser the difference between the selling price and the 
 real price, although the agent may have paid such difference to 
 his principal in the settlement of the mistake." 
 
 § 762. What Defenses open to third Person. " Where the 
 agent sues in his own name,'" says Mr. Evans, " the defendant 
 may avail himself of all defenses which would be good at law 
 and in equity : 
 
 a. As against the agent who is the plaintiff on the record ;* or 
 
 been paid, either the agent, or prin- lenboroxtgh ruled that the agent 
 
 cipal, may bring an action to recover having effected the insurance without 
 
 it back. The agent may, from the any consciousness of its illegality at 
 
 authority of the principal; and the the time was entitled to recover back 
 
 principal may, as proving it to have the premium paid, as mouey had and 
 
 been paid by his agent." Stevenson received by the defendant to the 
 
 «. Mortimer, Cowp. 805. plaintiff's use. and without consider- 
 
 ' Oom V. Bruce, 12 East, 225. In alion as the risk never attached, 
 
 this case an insurance had been made "^ Kent v. Bornstein, 12 Allen 
 
 on goods from a port in Russia to (Mass.) 342. 
 
 London, by an agent residing in » Stevenson ». Mortimer, Cowp. 805. 
 
 London for a Russian subject. The * Kent v. Bornstein, aujira. la 
 
 insurance was in fact made after the such a case it is not necessary to 
 
 commencement of hostilities between tender back the worthless bill before 
 
 Russia and England, but before bringing the action, 
 
 knowledge of it reached London, and » Hungerford v. Scott, 37 Wis. 341. 
 
 after the ship had sailed and been • Evaks on Agency, 387. 
 
 confiscated. At the trial Lord El- "> Gibson v. Winter, 5 B. & Ad. 96. 
 
 615
 
 § 763. THE LAW OF AGENCY. [Book lY. 
 
 h. As against the principal for whose use the action is brought, 
 provided, of course, a principal exists." ' 
 
 § 763. What Damages Agent may recover on Contract. 
 Where the action is brought by the agent upon the contract, he 
 may, unless the principal intervenes, recover the full measure of 
 damages for its breach, in the same manner as though the action 
 had been brought by the principal.* The fact that the damages, 
 when recovered, will belong to the principal does not affect this 
 right.' 
 
 But where the principal intervenes, the agent, when permitted 
 to sue at all, can only recover to the extent of his special interest, 
 by virtue of which the action is maintained. 
 
 II. 
 
 IN TORT. 
 
 § 764. Agent may sue for personal Trespass. For all tres- 
 passes and injuries committed by third persons to the agent per- 
 sonally in the course of his employment, the agent may sue and 
 recover in his own name. In a proper case the principal might 
 recover his damages also. 
 
 Thus an agent, selling goods upon commission, may recover 
 damages from a third person for a libel upon him in reference 
 to the subject-matter of his agency, by reason of which he lost 
 customers and was deprived of the natural gains and profits of 
 the business.* 
 
 § 765. When Agent may sue for Injuries to Principal's Prop- 
 erty. The possession by a mere servant of his master's goods is 
 ordinarily deemed to be so far the possession of the master, as to 
 give the servant no right of action against one who disturbs that 
 possession,* but where the party in possession has a special prop- 
 See also Leeds v. Marine Ins. Co., 6 Davis, 2 C. & P. 49; Dancer v. Hast- 
 Wheat. (U. S.) 565. ings, 4 Bing. 2. 
 
 ' Qrice c. Kenrick L. R. 5 Q. B. » Groover «, Warfleld, supra; 
 
 344; Smith v. Lyon, 3 Camp. 465. United States Tel. Co. v. Gildersleve. 
 
 » Groover v. Warfleld, 50 Ga. 644; supra. 
 United States Tel. Co. v. Gildersleve, * Weiss ti.Whittemore, 28 Mich. 866. 
 
 29 Md. 232, 96 Am. Dec. 519; Joseph • Faulkner v. Brown, 13 Wend, (N. 
 •. Knox, 3 Camp. 320; Gardiner v. Y.) 63; Tuthill t. Wheeler, 6 Barb. 
 
 (N. Y.) 362. 
 
 616
 
 Chap. YI.] LIABILITY OF THIED PERSON TO AGENT. § 765. 
 
 erty or interest in thera, the rule is different. Thus an agent 
 wlio is in possession of his principal's goods, having a special 
 property or interest therein, as in the case of a factor, may main- 
 tain an action in his own name against any person who wrong- 
 fully injures or converts the goods,' though such person were the 
 absolute owner.' As to all persons except the owner, or those 
 claiming under him, the agent may thus recover the full value 
 of the goods ; • but as against such owner, or those claiming under 
 him, he can recover only to the extent of his interest.* The 
 defendant who has disturbed the agent's possession will not be 
 permitted to set up the rights of a third party in defense, unless 
 he can show that he acted under the authority of such third 
 party.* Where, however, such an agent is not in possession, he 
 may, if he can show that he is entitled to immediate possession, 
 recover from one who wrongfully denies him the right.* As 
 against a mere wrong doer, he would in tliis case as in the other, 
 be entitled to recover the full value of the goods ; ' but as against 
 the owner, or one claiming under him, only to the extent of his 
 special property.* 
 
 ' Robinson v. Webb, 11 Bush (Ky.) < Littell v. Fossett, mpra. White v. 
 
 464; Beyer v. Bush, 50 Ala. 19; Fitz- Webb, supra; Ingersoll v. Vau Boli- 
 
 hugh V. Wiman, 9 N. Y. 559; Little kelin, 7 Cow, (N. Y.) 670; Davidson 
 
 V. Fossett, 34 Me. 545, 56 Am. Dec. ». Gunsolly, 1 Mich. 388; Burk v. 
 
 671 ; Harker t). Dement. 9 Gill (Md.) Webb, 32 Mich. 173; Tread well ». 
 
 7, 52 Am. Dec. 670. Davis, 34 Cal. 601; Schley v. Lyon, 8 
 
 » Little V. Fossett, supra. White Qa. 530. 
 
 «. Webb, 15 Conn. 305. » Barker v. Dement, 9 Gill (Md.) 7, 
 
 3 Little V. Fossett, supra; Harker v. 62 Am. Dec. 670; Duncan «. Spear, 
 
 Dement, supra; Mechanics', «S;c. Bank 11 Wend. N. Y. 54. 
 
 «. Farmers', &c. Bank, 60 N. Y. 40; • Cooley on Torts. 443-447. 
 
 Pomeroy v. Smith, 17 Pick. (Mass.) » See cases in note 3, supra. 
 
 85; Cullen v. O'Hara, 4 Mich. 132; • See cases in note 4, «upra. 
 Finn v. W estern R.R. Co. , 1 12 Mass. 524. 
 
 ei7
 
 TH£ LuA.W OF AOttNOY. 
 
 [Book lY. 
 
 CHAPTER VII. 
 
 THE DUTIES AND LIABILITIES OF THIRD PERSONS TO 
 THE PRINCIPAL. 
 
 g 766. la general. 
 
 767. The Rule stated. 
 
 /. 3^ Right to Sue on Contract made 
 by Agent. 
 
 768. May sue on Contracts made in 
 
 Name of Principal. 
 
 769. May sue on Contracts made in 
 
 his Behalf but in Agent's 
 Name. 
 
 770. Same Subject — How when 
 
 Contract involves Elements 
 of personal Trust and Con- 
 fidence. 
 
 Same Subject — Principal can 
 not sue where Contract 
 solely with Agent person- 
 ally. 
 
 Same Subject — Principal's 
 Right superior to Agent's. 
 
 Principal subject to Defenses 
 which could have been made 
 against Agent. 
 
 Same Subject — Limitations of 
 Rule. 
 
 How Principal affected by 
 Agent's Fraud. 
 
 Third Person can not dispute 
 Principal's Right When — 
 
 Summary of Rules. 
 
 771. 
 
 772. 
 773. 
 
 774. 
 775. 
 776. 
 
 777. 
 
 9. Right to Recover Money ■paid or 
 used by Agent. 
 
 778. In general. 
 
 A. 
 
 779. Right in Cases of first Class. 
 
 B. 
 
 780. Principal's Right to follow 
 
 trust Funds 
 
 § 781. Same Subject — Illustrations. 
 
 782. Same Subject— Further Illus- 
 
 trations — Restrictive In- 
 dorsements. 
 
 783. Right to recover Money 
 
 wrongfully paid by Agent. 
 
 S. Right to Recover Property. 
 
 784. In general — Principal may 
 
 recover Property wrongfully 
 applied or disposed of by 
 Agent. 
 
 785. Principal's Title can not be 
 
 divested except by his Con- 
 sent or voluntary Act. 
 
 786. When Possession is Evidence 
 
 of Authority. 
 
 787. Possession coupled with In- 
 
 dicia of Ownership. 
 
 788. Same Subject — Illustrations. 
 
 789. Principal may recover Prop- 
 
 erty appropriated to Agent's 
 Uses. 
 
 790. Right to recover Securities 
 
 wrongfully released. 
 
 791. Right to recover Property 
 
 wrongfully sold. 
 
 J^ Right to Recover for Torts. 
 
 793. 
 
 793. 
 794. 
 
 795. 
 
 796. 
 
 May recover for Injuries occa- 
 sioned by third Person's 
 Torts. 
 
 For enticing Agent away. 
 
 For preventing Agent from 
 performing. 
 
 For personal Injury to Agent 
 causing Loss of Service. 
 
 Third Person not liable for 
 Agent's Fraud or Neglect 
 
 618
 
 Chap-YII.] LTABTLTTT OF THIRD PERSON TO PRINCIPAL. 
 
 § 767. 
 
 6. Bemedies for double Dealing. 
 
 797. How when third Person con- 
 
 spires with Agent. 
 
 798. How when Agent in secret 
 
 Employment of the other 
 Party. 
 
 , Conclusiveness of Judgment against 
 Agent. 
 
 799. Principal not bound by Judg- 
 ment against Agent to which 
 he was not a Party 
 
 § 766. In general The profits, benefits and advantages re- 
 sulting from the agency belong to the principal. To secure them 
 to him was the object for which the agency was created, and it is 
 therefore his right, not only as against the agent, but as against 
 third persons who have dealt with the agent as such, to obtain 
 and enjoy them. The right, however, is based upon the agent's 
 acts and contracts, and is limited by them. The principal can 
 not avail himself of the advantages of these acts and contracts^ 
 and relieve himself of the responsibilities attaching to them. 
 What is said or done by the agent within the scope of hie author 
 Ity is, as has been seen, binding upon the principal. What k 
 said or done by the agent without the scope of his authority, is, as 
 has been seen, not binding upon the principal, unless ratified and 
 approved by him. Such subsequent ratification is equivalent tc 
 precedent authorization. One of the most unequivocal evidences 
 of such ratification has been seen to be the fact that the princi- 
 pal, with knowledge of the facts, appropriates to himself the bene- 
 fits of the agent's unauthorized acts or contracts. These general 
 principles are essential to be borne in mind in considering the 
 questions involved in the subject of this chapter. 
 
 § 767. The Rule stated. Keeping in mind these principles it 
 may be said that, subject to certain exceptions and modifications 
 which grow out of them and which will be fully dealt with in 
 the following sections, the principal is entitled to demand, receive 
 and recover from third persons all the rights, profits, benefits and 
 advantages based upon or growing out of his agent's dealino-s 
 with them, in the same manner and to the same extent as thouo-h 
 the same dealings had been had with him in person.' 
 
 These rights, profits, benefits and advantages may be sought 
 nnder such circumstances as to involve : 
 
 1. The principal's right to sue on contracts made by his agent. 
 
 > See Story on Agency, § 418. See, generally, the caseB cited in the follow- 
 ing sections. 
 
 619
 
 § 768. THE LAW 07 AGENCY. [Book lY. 
 
 2. His right to recover money paid or used by the agent. 
 
 3. His right to recover his property. 
 
 4. His right to recover for torts to person or property. 
 
 5. His remedies for double dealing between the agent and third 
 persons. 
 
 6. The conclusiveness of judgments against the agent. 
 
 1. The Bight to Sue on Contracts made hy Agent. 
 
 § 768. May sue on Contracts made in Name of Principal. 
 The principal's right to sue upon contracts made by the agent in 
 the name, and for the benefit and advantage of tlie princi- 
 pal is, of course, unquestioned.' Here the principal is the 
 nominal, as well as the real party in interest, and is as much 
 entitled to enforce the contract as though it had been executed 
 by him in person. It has been seen to be the general duty of 
 the agent, authorized to execute a contract in behalf of his prin- 
 cipal, to BO execute it that it shall be in fact, what it was intended 
 it should be, — a contract running from and to the principal as the 
 party in interest. But, as has been likewise seen, this general 
 duty of the agent is not always performed, and cases are frequent 
 where from a disregard of duty, or a failure to use appropriate 
 language, the contract appears to be one made with the agent 
 rather than with the principal, and it is this class of cases in which 
 difficulties arise. 
 
 8 769. May sue on Contracts made in his Behalf but in 
 Agent's Name. It has been seen in the preceding chapter that 
 where the agent contracts for the principal, but in his own name, 
 the agent may, in general, maintain an action upon the contract 
 against the other party. But this right to sue has also there been 
 seen to be subservient to the principal's superior right to main- 
 tain the action in his own name upon all simple contracts. Such 
 contracts, though made in the agent's name without the disclos- 
 ure of his principal, are binding upon the principal, and 
 actions may be maintained upon them by the other party 
 against him when discovered. Being thus liable upon them, 
 he should be entitled to reciprocal rights against the other 
 party. And such is the general rule. All simple contracts 
 made by the agent in the execution of his agency, though 
 
 » Sharp ». Jones, 18 Ind. 314, 81 Am. Dec. 359. 
 
 620
 
 Chap. VII.] LIABILITY OF THIRD PERSON TO PRINCIPAL. 
 
 §769. 
 
 made in his own name without disclosing his principal or the 
 fact of the agency, and although the agent acted under a del 
 credere commission, may be enforced by the principal, whether 
 he be foreign or domestic, b}" appropriate actions brought in his 
 own name.' Where, however, the contract was under seal, the 
 action should be brought by the principal in the name of the 
 agent.* In order to maintain an action it is, of course, necessary 
 for the principal to show the fact of the agency and that the 
 agent, either through previous authorization or a subsequent rati- 
 fication, had power to bind him to the contract, else there would 
 be no mutuality and consequently no contract.' For the purpose 
 of showing that the ostensible party was really but an agent, 
 resort may be had to parol evidence.* 
 
 » Tutt f>. Brown, 5 Littell (Ky.) 1, 
 15 Am. Dec. 33; Pitts t). Mower, 18 
 Me. 361, 36 Am. Dec. 727; Gilpin n. 
 Howell, 5 Penn. St. 41; 45 Am. Dec. 
 720; Girard n. Taggart, 5 S. «& R. 
 (Penn.) 19, 9 Am. Dec. 327; Arling- 
 ton «. Hinds, 1 D. Chip. (Vt.) 431, 12 
 Am. Dec. 704; Bsiyley ?;. Onondaga 
 Co. Mut. lus. Co. G Hill (N. Y.) 476, 
 41 Am. Dec. 759; Violett v. Powell. 
 10 B. Hon. (Ky.) 347, 53 Am. Dec. 
 548; Ruiz. V. Norton, 4 Cal. 355, 60 
 Am. Dec. 618; Ilsley b. Merriam, 7 
 Cush. (Mass.) 242, 54 Am. Dec. 721; 
 Eastern R. R. Co. «. Benedict, 6 
 Gray (Mass.) 561; 66 Am. Dec. 384; 
 Taintor v. Prendergast, 3 Hill (N. Y) 
 72, 38 Am. Dec. 618; Huntington v. 
 Knox. 7 Cush. (Mass.) 371; Edwards 
 V. Golding, 20 Vt. 30; Salmon Falls 
 Mnfg Co. v. Goddard, 14 How. (U. 
 S.) 446; Foster v. Smith, 2 Cold. 
 (Tenn.) 474, 88 Am. Dec. 604; Win- 
 chester V. Howard, 97 Mass. 303, 
 93 Am. Dec. 93; Ford v. Williams, 21 
 How. (U. S.) 287; New Jersey Steam 
 Nav. Co. V. Merchants' Bank, 6 Id. 
 344, 381; Woodruff v. McGehee, 30 
 Ga. 158; Ames v. St. Paul &c. R. R. 
 Co. 12 Minn. 413; Mildred v. Her- 
 mano, 8 App. Cases 874,36 Eng. Rep. 
 (Moak) 97; Norfolk ». Worthy, 1 
 
 Camp. 837; Wilson «. Hart, 7 Taunt. 
 295 ; Bickerton v. Burrell, 5 Maule & 
 Sel. 383; El kins t>. Boston &c. R. R., 
 19 N. H. 337. 
 
 s Violett ®. Powell, 10 B. Mon. 
 (Ky.) 347, 52 Am. Dec. 548. 
 
 8 Ruiz V. Norton, 4 Cal. 355, 60 
 Am. Dec. 618. 
 
 < " It is now well settled by authori- 
 ties," said Chief Justice Su.\w of 
 Massachusetts, "that when the prop- 
 erty of one is sold b}'' another, as 
 agent, if the principal give notice to 
 the purchaser, before payment to pay 
 to himself, and not to the agent, the 
 purchaser is bound to pay the princi- 
 pal, subject to any equities of the 
 purchaser against the agent. 
 
 AA'"hen a contract is made by deed 
 under seal, on technical grounds, no 
 one but a party to the deed is liable 
 to be sued upon it, and therefore, if 
 made by an agent or attorney, it must 
 be made in the name of the principal, 
 in order that he may be a party, be- 
 cause otherwise he is not bound by 
 it. 
 
 But a different rule, and a far more 
 liberal doctrine, prevails in regard to 
 a written contract not under seal. In 
 the case of Higgins «. Senior, 8 Mees. 
 «& Wels. 834, it is laid down as a gen- 
 
 621
 
 §769. 
 
 THB LAW OF AGENCY. 
 
 [Book IV. 
 
 This right to sue upon the contract embraces every appropri- 
 ate action by which the rights of the principal can be protected 
 under it, or by wliich he can secure to himself the benefits and 
 advantages which flow from it. Subject to the exceptions to be 
 hereafter noted, all rights and remedies are open to the principal 
 as though he were in fact, that which he is in contemplation of 
 law, — the actual party to the contract. He may thus not only 
 sue for and recover the direct fruits of the transaction, as the 
 price of his property sold by his agent;* or the benefits of an 
 insurance effected by the latter;* but he may recover upon col- 
 
 eral proposition, that it is competent 
 to show that one or both of the con- 
 tracting parties were agents for other 
 persons, and acted as such agents in 
 making the contract of sale, so as to 
 give the benefit of the contract on 
 the one hand to, and charge with 
 liability 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. 
 But the court mark the distinction 
 broadly between such a case and a 
 case where an agent, who has con- 
 tracted in his own name, for the ben- 
 efit, and by the authority of a princi- 
 pal, seeks to discharge himself from 
 liability, on the ground that he con- 
 tracted in the capacity of an agent. 
 The doctrine proceeds on the ground 
 that the principal and agent may 
 each be bound; the agent, because by 
 his contract and promise he has ex- 
 pressly bound himself; and the prin- 
 cipal, because it was a contract made 
 by his authority for his account. 
 Paterson v. Gandasequi. 15 East. 63; 
 Magee v. Atkinson, 2 Mees. & Wels. 
 440; Trueman v. Loder, 11 Ad. & Ell. 
 589; Tain tor v. Prendergast, 3 Hill 
 (N. Y.) 72, 38 Am. Dec. 618; Ed- 
 wards V. Golding, 20 Vt. 80. It is 
 analogous to the ordinary' case of 
 a dormant partner. He is not named 
 or alluded to in the contract; yet as 
 the contract is shown in fact to be 
 
 made for his benefit, and by his au- 
 thority, he is liable. 
 
 So, on the other hand, where 
 the contract is made for the bene- 
 fit of one not named, though in 
 writing, the latter may sue on 
 the contract jointly with others, 
 or alone, according to the interest. 
 Garrett v. Handley. 4 B. & C. 664; 
 Sadler v. Leigh, 4 Campb. 191; Cop- 
 pin V. Walker, 7 Taunt. 237; Story 
 on Agency, § 410. The rights and 
 liabilities of a principal, upon a writ- 
 ten instrument executed by an agent, 
 do not depend upon the fact of the 
 agency appearing on the instrument 
 itself, but upon the facts; 1, that the 
 act is done in the exercise, and 2, 
 within the limits, of the powers dele- 
 gated; and these are necessarily in- 
 quirable into by evidence. Mechan- 
 ics' Bank v. Bank of Columbia, 5 
 Wheat. (U. S.) 326;" Huntington v. 
 Knox, 7 Cush. (Mass.) 371. See also 
 that parol evidence is admissible. 
 Salmon Falls Mnfg Co. v. Goddard, 
 14 How. (U. S.) 446; Briggs v. Mun- 
 chon, 56 Mo. 467; Bank of Odessa v. 
 Jennings, 18 Mo. App. 651; Oelrichs 
 V. Ford, 21 Md. 489. 
 
 » Merrick's Estate,5 W.& S (Penn.) 
 9; Winchester v. Howard, 97 Mass. 
 803, 93 Am. Dec. 93. 
 
 « An undisclosed principal may re- 
 cover upon an insurance policy taken 
 by the agent in his own name, if the 
 
 622
 
 Chap.YlI.] LIABILITY OF THIRD PERSON TO PRINCIPAL. § 770. 
 
 lateral obligations, as upon a warranty of quality or title made to 
 the agent.* So where an agent lends the money of his principal 
 taking notes payable to his own order secured by mortgages, the 
 principal may enforce or transfer the notes and mortgages.' 
 
 § 770. Same Subject— How when Contract involves Elements 
 of personal Trust and Confidence. Where the contract, upon 
 which the principal seeks to recover, is one wliich may reason- 
 ably be supposed to have been made with the agent in consider- 
 ation of some element of personal trust and confidence, a difficult 
 question is raised and one analogous to that, already discussed in 
 the preceding chapter, where an assumed agent proposes to show 
 himself to be the real principal, and to recover upon a similar 
 contract. 
 
 The fact that the elements of trust or confidence moved from 
 the other party alone, — that he was to do some act involving per- 
 sonal considerations, — could not defeat the principal's right to 
 sue, because it would be no hardship, and involve no prejudice, 
 to the other party, to be required to render his performance to 
 the real principal. But if, on the other hand, these elements 
 moved from the agent, — if they involved the performance by 
 him, as a condition precedent to the right to sue, of some act 
 which must fairly be considered as having been stipulated for in 
 contemplation of his personal skill, influence or solvency, — a 
 different question is presented. And here it would seem that the 
 question whether the contract on the part of the agent was exe- 
 cuted or executory must be the test. 
 
 For it is certain that if the doing of some personal act, not yet 
 done, is a condition precedent to the right to recover, no undis- 
 closed principal can force his own performance upon the other 
 party in substitution for that of the person for whose individual 
 
 agent had no insurable Interest. New the execution of the contract, rests in 
 Orleans Ins. Co. «. Spruance, 18 111. the principal; and the right of action 
 App. 576; DeVignier v. Swanson, 1 upon an implied warranty or on 
 Bos. & Pul. 346, note; Browning «. fraudulent representations made to 
 Provincial Ins. Co., L. R. 5 Priv. the agent is in the principal, for the 
 Coun. App. 263, 8 Eng. Rep. 217 damages which ground the action 
 ' " In case of a purchase or ex- follow the property." 1 Am. Lead, 
 change of goods by an agent even if Cas. 643; Gushing c. Rice, 46 Me. 303, 
 the principal be not disclosed, or the 71 Am. Dec. 579; Odessa Bankc, Jen- 
 bill of sale be made to the agent him- nings, 18 Mo. App. 651. 
 self, the property, immediately upon * Caldwell t>. Meshew, 44 Ark. 564. 
 
 623
 
 § 771. THE LAW OF AGENCY. [Book IV. 
 
 performance the other party had stipulated.' If, for example, A 
 contracts with lawyer B to argue A's case in court for a stipu- 
 lated compensation, lawyer C cannot, against A's will, assert that 
 B was but his agent, and therefore insist upon arguing the cause 
 himself and recovering the compensation.' Nor would it make 
 any difference that other people might think or know that 
 could argue the case a great deal better than B. A having em- 
 ployed B, has a clear right to B's services. If, however, A should, 
 knowingly and without dissent, permit C to make tlie argument 
 in the place of B, A's right to a personal argument from B must 
 be considered to be waived.' 
 
 But if, on the other hand, the contract has been fully per- 
 formed on the part of the agent, no objection could be made to 
 permitting the real principal to require the other party to render 
 performance to him. Thus, in the illustration used, if B, who 
 is in reality C's agent, personally argues A's cause as he agreed, 
 A can suffer no hardship if C should be permitted to recover the 
 compensation.* The right of the other party to make the 
 defenses against the principal which he could have made against 
 the agent, had the latter brought the action, is considered in a 
 subsequent section. 
 
 § 771. Same Subject— Principal cannot sue where Contract is 
 solely with Agent personally. The right of the principal to sue 
 upon the contract made by the agent in his own name flows from 
 the fact that the agent made the contract in reality, though per- 
 haps this may have been unknown to the other party, as the 
 agent of the principal, and by his authority ; and the principal 
 is, therefore, entitled to enforce the contract, not only upon the 
 ground that the benefits of his agent's acts accrue to him, but also 
 upon the ground that he is himself, — when discovered, — liable 
 upon the contract to the other party. If, therefore, as is compe- 
 tent to be done, the other party with knowledge of the agency, 
 dealt with the agent as being in fact the principal, and the agent 
 pledged his individual credit, there, as has been seen, the princi- 
 pal is not bound, — is not a party to the contract and cannot 
 enforce it. Every man has a right to determine for himself 
 
 > Boston Ice Co v. Potter, 123 «Eggleston«. Boardman,37Micb.l4 
 
 Mass. 28, 35 Am. Rep. 9; Boultoa v. » Eegleston v. BoardmaD, supra. 
 
 Jones, 2 H. & N. 5G4; King v. Bat- < Grojan v. Wade. 2 Stark. 443; 
 
 terson, 13 R. I. 117, 43 Am. Rep. 13. Warder v. White, 14 111. App. 50. 
 
 624
 
 Chap.YIL] LIABILITY OF THIRD PERSON TO PRINCIPAL. § 773. 
 
 what parties he will deal with, and if the other party has ex- 
 pressly dealt with the agent, to the exclusion of the principal, he 
 cannot be made liable to the principal.' 
 
 § 772. Same Subject — Principal's Right superior to Agent's. 
 The principal's right to bring the action takes precedence of the 
 agent's, and in all cases where either may sue, the principal, by 
 giving notice of his rights to the other party and demanding per- 
 formance to himself, may cut off the agent's right to sue,* except 
 m those cases in which the agent has a lien upon the subject- 
 ir)atter of the contract equal to or greater than the claim of the 
 principal.* 
 
 Thus if an agent sells goods of his principal but in his own 
 name, the principal may interpose before payment and forbid it 
 to be made to his agent ; and a payment made to the agent after 
 such notice will not bind the principal.* The mere fact that the 
 agent takes from the purchaser a promissory note payable to the 
 agent personally, will not defeat the principal's right." Of 
 course if the note were negotiable and came into the hands of a 
 lona fide holder, such a holder would be protected. But if the 
 note were not so negotiated, or if, by the laws of the state, it did 
 not constitute payment, the principal might bring his action upon 
 the contract of sale,* but in such a case he should be prepared to 
 tender back the note upon the trial. 
 
 After the principal has interposed and given notice of his 
 claim, his right to sue cannot, of course, be afterwards defeated 
 or impaired by any dealings between the other party and the 
 agent.' 
 
 § 773. Principal subject to Defenses which could have been 
 made against Agent. But if the principal would avail himself 
 
 > Humble v. Huuter, 13 Q. B. 810; » A principal may sue in his own 
 
 Winchester «. Howard, 97 Mass. 303; name on a promissory note, not ne- 
 
 93 Am. Dec. 93. gotiable made for his benefit although 
 
 'Sadler v. Leigh, 4 Camp. 195; payable to his agent. National Life 
 
 Pitts V. Mower, 18 Me. 361, 36 Am. Lis Co. v. Allen, 116 Mass. 393. 
 
 Dec. 727; Huntington «. Knox, 7 • Pitts v. Mower, supra. 
 
 Cush, Mass. 371; Warder v. White, » Norcross ». Pease, 5 Allen (Mass.) 
 
 14 111. App. 50. 831; Jones v. Witter; 13 Mass. 304; 
 
 8 Hudson t». Granger, 5 B. «fc Aid. Eastman®. Wright, 6 Pick. (Mass.) 
 
 27. 322; Sigourney v. Seveny, 4 Cush. 
 
 * Pitts V. Mower, aupra'. Hunting- (Mass.) 176; Rockwood c. Brown, 1 
 
 ton 0. Knox, supra. Gray (Mass.) 261. 
 
 40 625
 
 R 773. THB LAW OF AGENC3T. [Book IV. 
 
 of the benefits of a contract made bj an agent in his own name 
 witliout disclosing his principal, he must also assume the respon- 
 sibilities of the contract. Re must take the contract as it exists 
 at the time he interposes, and subject to all the rights which the 
 other party then possesses against the agent. In the homely but 
 expressive language of a learned judge, the principal must " step 
 into the shoes of the agent." Hence where a third person, who 
 has entered into a contract with the agent in ignorance of the 
 fact that he was not the real principal as he assumed to be, is sued 
 upon the contract by the principal, he may avail himself, as 
 against the principal, of every defense, whether it be by common 
 law or statute, which existed in his favor against the agent at 
 the time the principal first interposed and demanded perform- 
 ance to himself.' This right is not affected by the fact that the 
 agent in thus entering into the contract in his own name without 
 disclosing his principal, acted in contravention of the express 
 directions of his principal.' 
 
 If, therefore, before he has knowledge that the assumed prin- 
 cipal was but the agent of another, the other party has made pay- 
 ments to the agent upon the contract, such payments will bind 
 the principal ; ^ so if, in such a case, and before the real princi- 
 pal has interposed, the other party has acquired a set-off against 
 the agent, the principal will be bound by the set-off.* 
 
 This rule, however, does not apply where an agent, as for 
 instance, a mere broker, is authorized to sell the goods of his 
 principal, but is not entrusted either with the possession of the 
 
 » Rabonee. Williams, 7 T. R. 356, 365; Woodruff t. McGehee, 30 Ga. 
 
 note; George B. Clagett, 7 T. R. 355; 158; Baltimore Coal Tar Co. v. 
 
 Semenza «. Brinsley, 18 C. B. (N. S.) Fletcher, 61 Md. 288; Amann v. 
 
 467, 477; Borries ». Imperial Ottoman Lowell, 66 Cal. 306; Bernshouse v. 
 
 Bank, L. R. 9, C. P. 38, 7 Eng. Rep. Abbott, 16 Vroom (N. J.),531, 46 Am. 
 
 (Moak) 138; Ex parte Dixon, 4 Ch. Rep. 789. 
 
 Div. 133, 19 Eng. Rep. (Moak) 724; ' Ex parte Dixon, 4 Ch. Div. 133, 
 
 Mildred t;. Hermano, 8 App. Cas. 874, 19 Eng. Rep. (Moak) 724; Peel v. 
 
 36 Eng. Rep. (Moak) 97 and note; Shepherd. 58 Ga. 365; Eclipse Wind 
 
 TuttD. Brown, 5 Littell (Ky.) 1, 15 Mill Co. c. Thorson, 46 Iowa, 181. 
 
 Am. Dec. 33; Taintor v. Prendergast, » Peel v. Shepherd, supra. 
 
 8 Hill (N. Y.)72, 38 Am. Dec. 618; < Bernshouse ®. Abbott, 16 Vroom 
 
 Ruiz V. Norton, 4 Cal. 355, 60 Am. (N. J.) 531, 46 Am. Rep. 789, 30 Alb. 
 
 Dec. 618; Ilsley v. Merriam, 7 Cush. L. Jour. 51; Baring v. Corrie, 3 B. & 
 
 (Mass.) 243, 54 Am. Dec. 721; Poster Aid. 137; Crosby v. Hill. 39 Ohio St. 
 
 «. Smith, 2 Cold. (Tenn.) 474. 88 Am. 100; Harrison v. Ross, 44 N.Y. Super. 
 
 Dec. 604; Peel v. Shepherd, 68 Ga. Ct. 230. 
 
 626
 
 Chap.YII.] LIABILITY OF THIRD PERSON TO PRINCIPAL. § 774. 
 
 goods or other indicia of property therein. In such a case the 
 purchaser, when sued by the principal, cannot set off a debt due 
 from the agent.' Where, on the other hand, as in the case of a 
 factor, the agent is entrusted with the possession of goods sold, 
 and makes the sale in his own name without disclosing his prin- 
 cipal, the other party, when sued by the principal upon the con- 
 tract may set off against him a debt due from the agent. 
 
 In order to establish such a set-off the defendant must show ; — 
 
 1. That the contract was made by a person whom the plaintiff 
 had intrusted with the possession of the goods with power to 
 sell them. 
 
 2. That the person sold them as his own goods and in his own 
 name as principal. 
 
 3. That the defendant dealt with him as, and believed him to 
 be, the principal in the transaction, up to the time that the set-off 
 accrued.* 
 
 § 774. Same Subject— Limitations of this Bule. It is obvious 
 that this rule is intended for the protection of third parties who 
 have acquired riglits while dealing with the agent as the real 
 principal in ignorance of any other, and who would be preju- 
 diced by permitting another person to interpose and appropriate 
 the benefits of the dealing without recognizing their rights. But 
 where the reason of the rule fails, the rule itself does not apply. 
 Hence if, before the right accrued which they seek to apply 
 against the principal, the other parties had knowledge, or what 
 is equivalent to knowledge, reasonable ground to believe, that 
 the person with whom they were dealing was but an agent, 
 whether the principal was disclosed or not, the rights so acquired 
 cannot be interposed against the action of the principal.* 
 
 • Bernahouse v. Abbott, supra; Ra- » Hogan u. Shorb, 24 Wend. (N. Y.) 
 
 done V. Williams, 7 T. R 356, note; 458; Bliss v. Bliss, 7 Bosw. (N. Y.) 
 
 Semenzac. Brinsley, 18 C. B. (N. S.) 339; Baring v. Corrie, 2 B. & Aid. 
 
 467; Borries v. Imperial Ottoman 137; Childers ». Bowen, 68 Ala. 221; 
 
 Bank, L. R. 9 C. P. 38, 7 Eng. Rep. Wright ©.Cabot 47 N.Y. Super Ct. 229, 
 
 (Moak) 138; Ex parte Dixon, 4 Ch. s. c. 89 N. Y. 570; Frame v. William 
 
 Div. 133, 19 Eng. Rep. (Moak) 724; Penn Coal Co., 97 Penn. St. 309; 
 
 Pratt V. Collins, 20 Hun (N. Y. ) 126. Mildred v. Hermano, 8 App. Cas. 
 
 «Mr. Justice WiLLES in Semeuza 874, 36 Eng. Rep. (Moak) 97; I^Ic- 
 
 V. Brinsley. 18 C. B. (N. S.) 467, 477, Lachlin v. Brett, 105 (N.Y.) 391; New 
 
 as modified by Brett, J., mEx parts Zealand Land Co. v. Ruston, 5 Q. B. 
 
 Dixon, 4 Ch. Div. 133, 19 Eng. Rep. Div. 474, 29 Eng. Rep. 399. 
 (Moak) 724. 
 
 627
 
 R 775. THE LAW OF AGENCY. [Book IV. 
 
 So in a recent case ^ it is said, " the buyer must be cautious, 
 and not act regardless of the rights of the principal, though 
 nndisclosed, if he has any reasonable grounds to believe that the 
 party with whom he deals is but an agent. Hence, if the char- 
 acter of the seller is equivocal, — if he is known to be in the habit 
 of selling sometimes as principal and sometimes as agent, a pur- 
 chaser who buys with a view of covering his own debt and 
 availing himself of a set-off, is bound to inquire in what character 
 he acts in the particular transaction ; and if the buyer chooses to 
 make no inquiry, and it should turn out that he has bought of 
 an undisclosed principal, he will be denied the benefit of his 
 set-off.* If by due diligence the buyer could have known in 
 what character the seller acted, there would be no justice in 
 allowing the former to set off a bad debt at the expense of the 
 principal." ' The defendant is a competent witness upon the 
 question whether he had such knowledge or not.* 
 
 § 775. How Principal affected by Agent's Fraud, But not- 
 only is the principal's action thus subject to the right of set-off 
 which existed as against the agent, but it is also subject to cer- 
 tain defenses and equities growing out of or based upon the 
 agent's fraud, imposition, misrepresentation and misconduct. As 
 has been stated, if the principal would avail himself of the advan- 
 tages of the agent's acts, he must also assume the responsibilities. 
 Hence it is a rule of universal application, whether the principal 
 be disclosed or not at the time of entering into the contract, that 
 the principal is affected by, and is subject to, every defense 
 which the other party may have, based upon such fraud, imposi- 
 tion, misrepresentation, concealment or other misconduct of the 
 agent as is, either by the prior authorization or a subsequent rati- 
 fication, properly chargeable to the principal as having been done 
 or committed by the agent within the scope of his author- 
 ity, although the principal himself may have been entirely 
 innocent.* 
 
 » Miller «. Lea, 35 Md. 396, 6 Am. 15 North E. Rep. 459; Byne e. 
 
 Rep. 417. Hatcher, 75 Ga. 289 ; Elwell v. Cham- 
 
 8 Citing Addison on Cont. 1191. berlin, 31 K Y. 611; Mundorff u. 
 
 8 Citing Fish v. Kempton, 7 M. G. "Wickersham, 63 Penn. St. 87; Haskit 
 
 & S. 687. «. Elliott, 58 Ind. 493; Bennett v. 
 
 * Frame v. William Penn Coal Co., Judson, 21 N. T. 238; Law v. Grant, 
 97 Penn. St. 309. 37 Wis. 548; Bowers v. Johnson, 18 
 
 • DuSouchet 9. Dutcher, — Ind. — Miss. 169; Lawrence v. Hand, 23 
 
 628
 
 Cbap.YII.] LIABILITY OF THIRD PBB80N TO PRINCIPAL. § 777. 
 
 8 776. Third Person can not dispute Principal's Bight— When. 
 Where the contract made by the agent has been executed by the 
 principal, the other party can not, when called upon for per- 
 formance on his part, defeat the principal's right by showing 
 that as between the principal and the agent, the contract was 
 unauthorized. Thus one who borrows money from the princi- 
 pal's agent is estopped to deny the agent's authority to lend it, 
 when called upon by the principal for its repayment.* 
 
 So where a contract has been made with a subagent for the 
 principal, the party making it can not defeat the principal's action 
 npon it by showing that the appointment of the subagent was 
 unauthorized. Having dealt with him as having authority, he 
 is estopped to deny it.* 
 
 § 777. Summary of Rules. The following summary of the 
 rules governing the right of the principal to sue upon contracts 
 made by his agent, is adapted from that of Mr. Evans. 
 
 I. He may take advantage of all such contracts, whether his 
 name has been disclosed or not, except — 
 
 1. "Where the contract was in the agent's own name and was 
 under seal. 
 
 2. Where the contract is executory and involved considera- 
 tions personal to the agent. 
 
 3. Where the other party, with knowledge of the real prin- 
 cipal, elected to deal with the agent exclusively. 
 
 4. Where the agent has a lien upon or special property in 
 the subject-matter of the agency, exceeding or equal to 
 the value. 
 
 II. This right of the principal is subject to the following qual- 
 ifications : — 
 
 1. Defenses founded upon the fraud of the agent are equally 
 valid against the principal. 
 
 2. Where the agent has been allowed to contract as princi- 
 pal, the real principal takes the contract subject to all the 
 equities and rights of which the other party, who has had 
 no notice of the agency, might have availed himself had 
 the agent been in fact the principal. 
 
 Miss. 103; National Life Ins Co. v. Mt. Nat. Bank, 3 Col. 248. 8. c. 96 
 Minch, 5 Thomp. & Cook (N. Y.) U. 8. 640. 
 
 645. « Mayer v. McLure, 36 Miss. 389, 
 
 > See Union Mining Co. v. Rocky 73 Am. Dec. 190. 
 
 629
 
 § 778. THE LAW OF AGENCY. [Book IV, 
 
 3. Right to recover Money paid or used hy Agent. 
 
 § 778. In general. The question of the principal's right to 
 recover money belonging to him and paid out or used by his 
 agent may arise under two general states of fact: {a.) Where 
 the agent, in the attempted performance of a legitimate 
 and authorized act, has paid out the money by mistake, or 
 under coercion, or without consideration; and (b.) Where the 
 agent has, in violation of his duty, paid out or applied the money 
 of his principal to the agent's own uses or purposes. 
 
 A. 
 
 § 779. Right in Cases of first Class. The right of the prin- 
 cipal to recover money paid by his agent to a third person under 
 a mistake of facts ; or which was obtained from the agent by 
 fraud or compulsion; or which was extorted from him by unjust 
 and oppressive proceedings ;' or which was deposited by him upon 
 an illegal wager, or an illegal contract not executed ; or whicli 
 was paid by him upon a consideration which has failed, depends 
 upon the same rules which would apply were the money paid 
 out by the principal himself under the like circumstances, and 
 the principal may recover it wherever he could have recovered 
 it, if paid by him in person.* 
 
 B. 
 
 § 780. Prineipal's Right to follow trust Funds. The cases of 
 the second class present questions of greater difficulty. When- 
 ever the principal confides to his agent money for the accom- 
 plishment of a particular object, or to be appropriated in a speci- 
 fied manner, and whenever money of the principal comes into 
 the hands of the agent which it is his duty to pay over to his 
 principal or to apply in any other designated manner, the law 
 impresses upon that money, for the benefit of the principal, a trust 
 for the performance of the object contemplated which can only 
 be satisfied by its devotion to that object, unless the principal 
 directs it otherwise. While the money remains in the hands of 
 the agent, as has heretofore been seen, he cannot shake off the 
 
 »Holman v. Frost, 26 S. C. 290, Ancher v. Bank of England, 2 Doug. 
 
 •Sadler «. Evans, 4 Burr. 1984; 687; Sigourney v. Lloyd, 8 B, & 0. 
 Stevenson «. Mortimer, Cowp. 805; 622. 
 
 C30
 
 Chap.YIL] LIABILITY OF THIRD PERSON TO PRINCIPAL. § 780. 
 
 trust by any manner or number of alterations or changes in its 
 specific character, unless all trace of it be completely lost, for it 
 is well settled that equity will follow the fund through any num- 
 ber of transmutations and preserve it for the owner as long as 
 it can be identified/ As was said by Lord Ellenborough," " it 
 makes no difference in reason or law into what other form, dif- 
 ferent from the original, the change may have been made, 
 whtther it be into that of promissory notes for the security of 
 the money which was produced by the sale of the goods of the 
 principal, as in Scott v. Surman,' or into other merchandise, as 
 in Whitecomb v. Jacob ; * for the product of or substitute for 
 the original thing still follows the nature of the thing itself, as 
 long as it can be ascertained to be such, and the right only ceases 
 •when the means of ascertainment fail." Neither does it matter 
 in whose name the legal title stands. If the money be converted 
 into a chose in action, the legal right to it may have changed, 
 but equity regards the beneficial ownership. 
 
 And this trust is not confined to the period during which the 
 money remains in the possession of the agent, but follows the 
 fund into the hands of whomsoever it may come, until it reaches 
 the possession of one who has an equity superior to that of the 
 principal. Such an one is a bona fide holder for value without 
 notice of the trust. For if the fund comes into the hands of a 
 third person who receives it without consideration as a gift, or 
 without parting with value, or with actual or constructive notice 
 of the trust, the principal may recover it from such third person 
 as well 'as from the agent.' 
 
 It is not necessary that the third person into whose hands the 
 trust fund may be traced, should be an active wrong doer, or 
 that he should have attempted to defeat the trust. It is enough 
 
 'Farmers' & Mechanics' Bank*. National Bank, supra; National Bank 
 
 King, 57 Penn. St. 202, 98 Am. Dec. «. Insurance Co., supra; Jaudon v. 
 
 215; Van Alen c. American National City Bank, 8 Blatchf. (U. S. C. C.) 
 
 Bank, 52 N. Y. 1; National Bank v. 430; Fifth National Bank v. Village 
 
 Insurance Co., 104 U. 8. 54. of Hyde Park, 101 111. 595. 40 Am. 
 
 « In Taylor «. Plumer, 8 M. «& S. Rep. 218; Riehl v. Evansville Foun- 
 
 663. dry Assn, 104 Ind. 70, 3 North E. 
 
 •Willes, 400. Rep. 633; Baker v. New York Nat. 
 
 « 1 Salk. 161. Bank, 100 N. Y. 31, 53 Am. Rep. 
 
 "Farmers' & Mechanics' Bank v. 150. 
 King, supra; Van Alen v. American 
 
 631
 
 § 781. THE LAW OF AGENCY. [Book IV. 
 
 that he is not a bona fide holder for value without notice.* So 
 it 18 not necessary that such third person should have had notice 
 of the trust character of the fund at the time it carae into his 
 hands. If he receive notice in time to protect himself, it is suf- 
 ficient.* Neither is it necessary that he should have had any 
 notice of its trust character at all up to the time that the princi- 
 pal demands it of him, if he acquired it without consideration.* 
 
 § 781. Same Subject— Illustrations. These principles have 
 received illustration in a number of cases. Thus, in a leading 
 case in the Supreme Court of the United States, where the gen- 
 eral agent of an insurance company, whose business it was to 
 collect and remit to it premiums accruing within the territory 
 assigned to him, deposited such premiums from time to time in 
 a bank to his credit as such " general agent," from which he 
 remitted to his principal by check twice a month, and the bank 
 knew that he was such agent and that the fund so accumulated 
 was made up chiefly of premiums due to the company, it was 
 held that the bank was chargeable with notice of the company's 
 rights therein, although the agent had also deposited some other 
 money therein, and that the company might, in equity, enforce 
 its claim thereon against the bank which claimed a lien upon the 
 deposit for a debt due to it by the agent in his individual 
 •capacity. 
 
 Said the court : "A bank account, it is true, even when it is a 
 trust fund and designated as such by being kept in the name of 
 the depositor as trustee, differs from other trust funds which are 
 permanently invested in the name of trustees for the sake of 
 bein<y held as such ; for a bank account is made to be checked 
 ao-ainst, and represents a series of current transactions. The con- 
 tract between the bank and the depositor is, that the former will 
 pay according to the checks of the latter, and when drawn in 
 proper form, the bank is bound to presume that the trustee is in 
 the course of lawfully performing his duty, and to honor them 
 accordingly. But when against a bank account, designated as 
 one kept by the depositor in a fiduciary character, the bank seeks 
 to assert its lien as a banker for a personal obligation of the de- 
 positor, known to have been contracted for his private benefit, it 
 
 » Fifth Nat.Bankt).HydePark,«M;)ra. 'Fifth Nat. Bank t». Hyde Park, 
 
 » Farmers* «fc Mechanics' Bank •. tupra. 
 King, supra. 
 
 632
 
 Chap. VII.] LIABILITY OF THIRD PERSON TO PRINCIPAL. § 7S1. 
 
 must be held as having notice that the fund represented by the 
 account is not the individual property of the depositor, if it is 
 shown to consist, in whole or in part, of funds held by him in a 
 trnst relation." * 
 
 So in a recent case in New York* it appeared that a firm of 
 commission merchants, who were insolvent, iiad deposited in a 
 bank in their own name with the word " agents " added, the 
 proceeds of certain sales made by them for various principals. 
 The deposit was made in this form for the purpose of protecting 
 their principals, which purpose was known to the bank at the 
 time. Upon this deposit, the agents drew a check in favor of 
 the plaintiff, one of the principals, in settlement of a balance due 
 him on sales made by them. In an action brought by the plain- 
 tiff on the check, the bank sought, with the consent of the agents, 
 to charge against this deposit an individual debt due from the 
 agents to the bank, but the court held that this could not be 
 done. " It is clear upon the facts," said Andrews, J., " that the 
 fund represented by the deposit account was a trust fund, and 
 that the bank had no right to charge against it the individual 
 debt of Wilson & Bro. (the agents.) The bank having notice of 
 the character of the fund, could not appropriate it to the debt of 
 Wilson & Bro., even with their consent, to the prejudice of the 
 <;esiui que trusts. The supposed difficulty in maintaining the 
 action arising out of the fact that the money deposited was not 
 the specific proceeds of the plaintiff's goods, is answered by the 
 <jase of Yan Alen v. American National Bank.' Conceding 
 that Wilson & Bro. used the specific proceeds for their own pur- 
 poses, and their identity was lost, yet when they made up the 
 amounts so used, and deposited them in the trust account, the 
 amounts so deposited were impressed with the trust in favor of 
 the principals, and became substituted for the original proceeds 
 and subject to the same equities." The objection that the de- 
 posit account represented not only the proceeds of the plaintiffs' 
 goods, but also the proceeds of goods of other persons, and that 
 the other parties interested are not before the court and must be 
 brought in in order to have a complete determination of the con- 
 troversy, was held to be not well taken. The objection for 
 
 • National Bank ». Insurance Co., * Baker v. New York Nat. Bank, 
 
 104 U. S. 64. 100 N. Y. 31, 53 Am. Rep. 150. 
 
 8 53 N. Y. 1. 
 
 633
 
 §T81. 
 
 THE LAW OF AGENCY. [Book IV. 
 
 defect of parties was not taken in the answer, and moreover, it 
 did not appear that there were any unsettled accounts of Wilson 
 & Bro. with any other person or persons for whom they were 
 agents. The check operated as a setting apart of so much of the 
 deposit account to satisfy the plaintiffs' claim. It did not appear 
 that the plaintiffs were not equitably entitled to this amount 
 out of the fund, or that there was any conflict of interest between 
 the plaintiffs and any other person or persons for whom Wilson 
 & Bro. acted as consignees. The presumption, in the absence of 
 any contrary indication, was that the fund was adequate to pro- 
 tect all interests, and that Wilson & Bro. appropriated to the 
 plaintiffs only their just share. • 
 
 But where a village treasurer, who stated that he wished to 
 use it to pay warrants drawn in anticipation of the collection of 
 taxes, borrowed at a bank, upon his own note secured by his own 
 collaterals, a sum of money which was placed to the credit of his 
 account as treasurer, and most of it drawn out in payment of 
 proper warrants ; and afterwards, when the tax money came in, 
 the treasurer drew a check upon his account as treasurer in pay- 
 ment of the note which was thereupon surrendered to him with 
 the collaterals, it was held by the Supreme Court of Illinois that 
 the village could not recover the amount of the check from the 
 bank, the treasurer having become a defaulter. In this case, 
 although the public money was thus appropriated to the payment 
 of a debt private upon its face, yet the bank assumed and had 
 reason to assume, that it was being used to pay a debt which was 
 in reality a proper charge against the village.' 
 
 Ao-ain where an agent had deposited money of his principal in 
 a bank, in his own name, where it was attached by a creditor of 
 the agent, but the principal gave immediate notice of his rights 
 in the fund, it was held that the attaching creditor stood in no 
 better situation than the agent, and could recover only what the 
 agent could. Said the court : " It is undeniable that equity 
 will follow a fund through any number of transmutations and 
 preserve it for the owner so long as it can be identified. And it 
 does not matter in whose name the legal right stands. If money 
 has been converted by a trustee or agent into a chose in action, 
 the legal right to it may have been changed, but equity regards 
 
 » Fifth National Bank©. Village of Hyde Park, 101 111. 595, 40 Am. Rep. 218. 
 
 634
 
 Oiiap.YlI.] LIABILITY OF THIRD PERSON TO PRINCIPAL. 
 
 §781. 
 
 the beneficial ownership. It is conceded, for the cases abun- 
 dantly show it, that when the bank received the deposits, it 
 thereby became a debtor to the depositor. The debt might have 
 been paid in answer to his checks, and thus the liability have 
 been extinguished, in the absence of interference by his principals 
 to whom the money belonged. But surely it cannot be main- 
 tained that when the principals asserted their right to the money 
 before its repayment and gave notice to the bank of their owner- 
 ship and of their unwillingness that the money should be paid 
 to their agent, his right to reclaim it had not ceased. A bank 
 can be in no better situation than any other debtor." * 
 
 So where a bookkeeper and salesman embezzled the funds of 
 his principal to a large amount, and, with the money, bought 
 real estate which he caused to be conveyed to his wife, and built 
 a house thereon, the wife knowing the source from which her 
 husband obtained the money, it was held that the principal was 
 entitled in equity to recover the property so purchased with his 
 funds.* 
 
 ' Farmers' & Mechanics' Bank v. 
 King, 57 Penn. St. 202, 98 Am. Dec. 
 215. 
 
 « Riehl®. Evansville Foundry Assn, 
 104 Ind. 70, 3 North E. Rep. 633. 
 
 In National Bank «. Ins. Co., 104 
 U. 8. 54, Mr. Justice Matthews 
 gives the following review of the 
 cases: " In the case of Pannell v. 
 Hurley, 2 Col. C. C. 241, the depos- 
 itor, having two accounts, one in 
 trust, the other in his own name, 
 drew his check as trustee to pay his 
 private debt to the banker. The Vice 
 Chancellor, Knight Bruce, put the 
 case thus: 'Money is due from A to 
 B in trust for C. B is indebted to A 
 on his own account. A, with 
 knowledge of the trust, concurs with 
 B in setting one debt against the 
 other, which is done without C's con- 
 sent. Can it be a question in equity 
 whether such a transaction stand? ' 
 
 In Bodenham v. Hoskyns, 2 DeG., 
 M. & G. 903, the principle was stated 
 to be one, acted upon daily by courts 
 
 of equity, 'according to which a per- 
 son who knows another to have in 
 his hands or under his control mon- 
 eys belonging to a third person can- 
 not deal with those moneys for his 
 own private benefit, when the effect 
 of that transaction is the commission 
 of a fraud upon the owner.' 
 
 In the case of Ex parte Kingston, 
 In re Gross, Law Rep. 6 Ch. App, 
 633, a county treasurer had two bank 
 accounts, one headed ' Police Ac- 
 count.' Some of the items to his 
 credit in this account could be traced 
 as having come from county funds, 
 but most of them could not. The 
 checks which he drew upon it were 
 all headed 'Police Account,' and ap- 
 peared to have been drawn only for 
 county purposes. For the purposes 
 of interest, the bank treated the ac- 
 counts as one account, and the interest 
 on the balance in his favor was carried 
 to the credit of his private account. 
 The manager of the bank knew he 
 was county treasurer, and understood 
 
 635
 
 §781. 
 
 THE LAW OF AGENCT. 
 
 [Book TV. 
 
 But where an agent collected money belonging to his princi- 
 pal, and without authority loaned it to certain persons to whom 
 he was indebted personally in an amount larger than the sum 
 
 that he had been in the habit of pay- 
 ing county moneys into the bank. 
 He absconded, his private account 
 being overdrawn, and the police ac- 
 count being in credit. It was held 
 that the bank was not entitled to set- 
 off the one account against the other, 
 but that the county magistrates could 
 recover the balance standing to the 
 credit of the police account. Sir W. 
 M. James, L. J., said: ' In my mind 
 this case is infinitely stronger than 
 those referred to during the argu- 
 ment, in which a similar claim on the 
 part of bankers was disallowed ; for 
 in those cases the bankers relied on 
 cheques drawn by the customers; and 
 if a banker receives from a custom- 
 er, holding a trust account, a cheque 
 drawn on that account, he is not 
 in general bound to inquire whether 
 that cheque was properly drawn. 
 Here the customer has drawn no 
 cheque, and the bankers are f^eeking 
 to set off the balance on his private 
 account against the balance in his 
 favor on what they knew to be a trust 
 account.' • * ♦ 
 
 In the case of Pennell v. Deffell, 4 
 DeG., M. and G. 373, 388, Lord Jus- 
 tice Turner said: " It is, I appre- 
 hend, an undoubted principle of this 
 court, that as between cestui que trust 
 and trustee and all parties claiming 
 under the trustee, otherwise than by 
 purchase for valuable consideration 
 without notice, all property belonging 
 to a trust, however much it may be 
 changed or altered in its nature or 
 character, and all the fruit of such 
 properly, whether in its original or in 
 its altered state, continues to be sub- 
 ject to or affected by the trust.' In 
 the same case Lord Justice Knight 
 Bruce said, (p. 388): ' When a trus- 
 
 tee pays trust money into a bank to 
 his credit, the account being a simple 
 account with himself, not marked or 
 distinguished in any other manner, 
 the debt thus constituted from the 
 bank to him is One which, as long as 
 it remains due, belongs specifically 
 to the trust as much and as effectually 
 as the money so paid would have 
 done, had it specifically been placed 
 by the trustee in a particular reposi- 
 tory and so remained ; that is to say, 
 if the specific debt shall be claimed 
 on behalf of the cestuis que trustent, 
 it must be deemed specifically theirs, 
 as between the trustee and his execu- 
 tors, and the general creditors after 
 his death on one hand, and the trust 
 on the other.' He added, (p. 384): 
 ' This state of things would not, I 
 apprehend, be varied by the circum- 
 stance of the bank holding also 
 for the trustee, or owing also to 
 him, money in every sense his own.* 
 Vice-chancellor Sir W. Pagk 
 Wood, in Frith v. Cartland, 2 Hem. 
 and M. 417, 420, said that Pennell t>. 
 Deffell rested upon and illustrated 
 two established doctrines. One was 
 that ' so long as the trust property 
 can be traced and followed into other 
 property into which it has been con- 
 verted, that remains subject to the 
 trust;' the second is, 'that if a man 
 mixes trust funds with his own, the 
 whole will be treated as the trust 
 property, except so far as he may be 
 able to distinguish what is his own.' 
 The case of Pennell v. Deffell, supra, 
 was the subject of comment by Fry, 
 J., in In re West of England and 
 South Wales District Bank, Ex parte. 
 Dale & Co., 11 Ch. D. 772, 32 Eng. 
 Rep. 810. Strongly approving the 
 decision in principle, he felt bound 
 
 636
 
 Cbap.YII.] LIABILITY OF THIKD PEKSON TO PKINOIPAL. 
 
 §781. 
 
 loaned, without their having any notice tliat it was not his, it was 
 held that they had a legal right to appropriate it to the payment 
 of the agent's debt to them, and that the principal could not 
 
 nevertheless, by what he considered 
 the weight of authority, not to apply 
 it, in the circumstances of the case 
 before him, where there had been a 
 mingling of trust money with indi- 
 vidual money. He said however: 
 ' Does it make any difference that, in- 
 stead of trustee an(i cestui que trust, 
 it is a case of fiduciary relationship? 
 What is a fiduciary relaJionship? It 
 is one in which, if a wrong arise, 
 the same remedy exists against the 
 ■wrong-doer on behalf of the principal 
 as would exist against a trustee on 
 behalf of the cestui que trust. 
 
 If that be a just description of the 
 relationship, it would follow that 
 wherever fiduciary relationship exists, 
 and money coming from the trust 
 lies in the hands of persons standing 
 in that relationship, it can be followed 
 and separated from any money of 
 their own.' 
 
 The whole subject of this discus- 
 sion was very elaborately and with 
 much learning reviewed by the Court 
 of A-ppeal in England, in the very 
 recent case of KnatchbuU v. Hallett, 
 Jn re Halletfs Estate, 13 Ch. D. 696. 
 (36 Eng. Rep. 779). It was there de- 
 cided that if money held by a person 
 in a fiduciary character, though not 
 as trustee, has been paid by him to 
 his account at his banker's, the person 
 for whom he held the money can fol- 
 low it, and has a charge on the bal- 
 ance in the banker's hands, although 
 it was mixed with his own moneys; 
 and in that particular the court over- 
 ruled the opinion in Ex parte Dale 
 and Co., supra. It was also held 
 that the rule in ClaytorCs Case, 1 Mer. 
 673, attributing the first drawings out 
 to the first payments in, does not 
 ispply ; and that the drawer must be 
 
 taken to have drawn out his own 
 money in preference to the trust 
 money, and in that particular Pen- 
 nell V. Deflell was not followed. The 
 Master of the Rolls, Sir George 
 Jessel, showed that the modern doc- 
 trine of equity, as regards property 
 disposed of by persons in a fiduciary 
 position, is that, whether the disposi- 
 tion of it be rightful or wrongful, 
 the beneficial owner is entitled to the 
 proceeds, whatever be their form, 
 provided only he can identify them. 
 If they cannot be identified by reason 
 of the trust money being mingled 
 with that of the trustee, then the 
 cestui que trust is entitled to a charge 
 upon the new investment to the ex- 
 tent of the trust money traceable into 
 it; that there is no distinction between 
 an express trustee and an agent, or 
 bailee, or collector of rents or any 
 body else, in a fiduciary position, and 
 that there is no difference between 
 investments in the purchase of lands, 
 or chattels, or bonds, or loans, or 
 moneys deposited in a bank account. 
 He adopts the principle of Lord 
 Ellenborouoh's statement in Taylor 
 V. Plumer, 8 M. & S. 502, that * it 
 makes no difference, in reason or law, 
 into what other form different from 
 the original, the change may have 
 been made, whether it be into that of 
 promissory notes for the security of 
 money which was produced by the 
 sale of the goods of the principal, as 
 in Scott V. Surman, (Willes 400) or 
 into other merchandise, as in White- 
 comb c. Jacob, 1 Salk. 161; for the 
 product or substitute for the original 
 thing still follows the nature of the 
 thing itself, as long as it can be ascer- 
 tained to be such, and the right only 
 ceases when the means of ascertain- 
 
 637
 
 ft 732. THE LAW OF AGENCY. [Book lY. 
 
 recover it of them, even after notice that it did not belong to the 
 agent.* "The only question," said Wilde, J., "therefore is, 
 whether after notice the defendants could lawfully detain the 
 money ; and we are of opinion that they could. As Parkhurst 
 (the agent) was indebted to them in a sum exceeding the loan, 
 they had a legal right of set-off as against Parkhurst, of which 
 they could not be deprived by the intervention of the plaintiffs' 
 claim ; and however disingenuous the defendants' conduct may be 
 considered in relation to Parkhurst, they had a legal right thus to 
 secure their own debt. Their refusal to repay the loan according 
 to agreement was a breach of promise ; but against this the de- 
 fendants could set off a breach of promise by Parkhurst, and this 
 set-off is allowed by law. The defendants, therefore, had a legal 
 right to appropriate the money lent, to the payment of their own 
 debt. This distinguishes the present case from that of Mason v. 
 Waite, where the money came into the defendant's hands unlaw- 
 fully, and he had no legal or equitable right to retain it ; and 
 also from that of Clarke v. Shee.* But the law as laid down by 
 Lord Mansfield, in the latter case, is decisive against the plain- 
 tiff's claim. ' Where money or notes,' it is said, 'are paid bona 
 fide, and upon a valuable consideration, they never shall be 
 brought back by the true owner ; but where they come mala fide 
 into a person's hands, they are in the nature of specific property, 
 and if their identity can be traced and ascertained, the party has 
 a right to recover.' " 
 
 8 782. Same Subject— Further Illustrations— Restrictive In- 
 dorsements. This question frequently arises in the case of those 
 who have received from a bank, or other agent, negotiable paper 
 which the principal has entrusted to the agent for collection. 
 Where such paper, bearing no indication upon its face of the 
 
 ment fail.' But he dissents from the mark must be taken as subject to the 
 
 application of the rule made by Lord application of this rule. The Court 
 
 Ellenborough, when the latter of Appeals had previously applied 
 
 added, ' which is the case when the the very rule as here stated in the 
 
 subject is turned into money and con- case of Birt t). Burt, reported in a 
 
 founded in a general mass of the note to Ex 'parte Dale and Co., 11 
 
 same description;' for equity will Ch. D. 773, 32 Eng. Rep. 812 n." 
 
 follow the money even if put into a * Lime Rock Bank «. Plimpton, 17 
 
 bag or an undistinguishable mass, by Pick. (Mass.) 159, 28 Am. Dec. 286. 
 
 taking out the same quantity. And • Cowp. 200. 
 the doctrine that money has no ear- 
 
 638
 
 Chap.YII.] LIABILITY OF THIKl) PERSON TO PKINUirAL. § 784. 
 
 trust impressed upon it in the agent's hands, comes into the hands 
 of a third person who, in good faith, parts with vahie for it, in 
 reliance upon the agent's apparent title, such third person will, in 
 accordance with well settled rules, be protected.' But where the 
 paper bears, upon its face, evidence that the agent holds it for a 
 special purpose merely, as if it be indorsed " for collection," ' or 
 "for collection for account of" the principal,' such an indorse- 
 ment is notice to all who may take the paper of the restricted 
 nature of the agent's title, and the principal may recover the 
 paper or its proceeds from one who claims an adverse title through 
 the agent.* 
 
 § 783. Right to recover Money wrongfully paid by Agent. 
 So payments received from an agent by one knowing the agent 
 to be unauthorized to make them, may be recovered by the prin- 
 cipal as money wrongfully had and received.' A fortiori may 
 the principal recover money illegally exacted, or compulsorily 
 obtained, by such third person, from the agent.* 
 
 3. Right to recover Property. 
 § 784. In general— Principal may recover Property wrongfully 
 applied or disposed of by Agent. Analogous to the question 
 considered under the last subdivision, is that of the right of the 
 principal to recover property, which has been applied or disposed 
 of by his agent, without the authority or assent of the principal. 
 The general rule is, that a purchaser of property takes only such 
 title as his seller has, and is authorized to transfer ; that he acquires 
 precisely such interest as the seller has, and no greater or other. 
 Nemo plus juris ad allinn transferre potest quam ipse hdbet, is 
 the maxim of the law. If the agent has no authority to trans- 
 fer the title, he can, as a rule, confer none upon his transferee. 
 
 » Hackett ». Reynolds, 114 Penn. Farmers' Bank, 22 Md. 148; Blaine e. 
 
 St. 328. Bourne, 11 R. I. 119, 23 Am. Rep. 
 
 « Sweeny t>. Easter, 1 Wall. (U. S.) 429; Sigourney v. Lloyd, 8 B. & C. 
 
 166. 632; Treuttel v. Barandon, 8 Taunt. 
 
 » First Nat. Bk of Crown Point v. 100. 
 
 First Nat. Bk of Richmond, 76 Ind. * See cases cited in notes 2 and 8 
 
 661. 40 Am. Rep. 261; Sherman Bank supra. 
 
 t. Weiss, 67 Tex. 331, 60 Am. Rep. « Demarest v. Barbadoes, 40 N. J. 
 
 29; First Nat. Bk ». Bank of Monroe. L. 604. 
 
 33 Fed. Rep. 408; In re Armstrong. • Holman v. Frost, 26 S. Car, 290. 
 33 Fed. Rep. 405; Cecil Bank v. 
 
 C39
 
 I 785. THE LAW OF AGENCY. [Book IV. 
 
 "Wherever, therefore, the agent has, without the authority of his 
 principal, sold, assigned, transferred or disposed of the princi- 
 pal's property to a third person, the principal may, by appropri- 
 ate action, recover either the property itself, or its value, from 
 such third person, if he refuses to recognize the rights of the 
 principal therein.* 
 
 This rule is, however, subject to certain exceptions to be here- 
 after noticed,' founded upon the principle that where one of two 
 innocent persons must suffer, the loss must fall upon that one 
 whose act enabled the loss to be incurred. 
 
 § 785. Principal's Title can not be divestad except by his 
 Consent or voluntary Act. It is a general principle that no man 
 can be divested of his property, without his own consent or vol- 
 untary act.' Hence whoever claims to have acquired the title to 
 goods of the principal, through some dealing with his alleged 
 agent, must be prepared to show, not only that the agency existed, 
 but that the agent had authority so to transfer the property. 
 Without the co-existence of both of these elements, the title must 
 fail. The question of authority here is the same as in other 
 cases which have been considered. The act must be within the 
 scope of the authority which the principal has held the agent 
 out to the world as possessing. 
 
 This rule of apparent authority, is, as has been seen, one 
 intended for the protection of innocent parties who have acquired 
 rights, while relying thereon in good faith, which would be imper- 
 illed if the principal were to be permitted to assert that the real 
 authority was less than he had caused or permitted it to appear. 
 "When no such rights exist, there is, therefore, nothing to prevent 
 the principal from asserting the actual fact. 
 
 " Two things," says Judge Allen, " must concur to create an 
 estoppel by which an owner may be deprived of his property, by 
 the act of a third person, without his assent; 1. The owner must 
 
 I Boisblanc's Succession, 32 La. * See §§ 786, 787, post. 
 
 Ann. 109; Manning v. Keenan, 73 N. « Barker v. Dlnsmore, 72 Penn. St. 
 
 Y. 45; Meiggs v. Meiggs, 15 Hun (N. 427; Saltus v. Everett, 22 Wend. (N. 
 
 Y.) 453; Loomisu Earlier, 69 111. 360; Y.) 366, 32 Am. Dec. 541; Quina v. 
 
 Bert hoi. v. Quinlan, 68 III. 207; Davis, 78 Penn. St. 15; McMahon v. 
 
 Thompson v. Barnum; 49 Iowa, 392; Sloan, 12 Penn. St. 229, 61 Am. Dec. 
 
 McGoldrick v. Willi ts, 52 N. Y. 602. 
 612; Bercich v. Marye, 9 Nev. 312. 
 
 640
 
 Chap.YII.] LIABILITT OF THIRD PERSON TO PRINCIPAL. § 780. 
 
 clothe the person assuming to dispose of the property with tlie 
 apparent title to, or authority to dispose of it ; and 2. The per- 
 son alleging the estoppel must have acted and parted with value, 
 upon the faith of such apparent ownership or authority, so that 
 he will be the loser if the appearances to which he trusted are 
 not real." ' 
 
 8 786. When Possession is Evidence of Authority. As a 
 general rule the mere possession by the agent of his principal's 
 property, is not sufficient evidence of authority in the agent to 
 dispose of it.' Such possession is as consistent with any one of a 
 variety of purposes, as that the agent should sell or dispose of it. 
 
 Thus the property may be in the agent's possession for safe 
 keeping, or for transportation, or for repair, or it may have been 
 borrowed or hired by the agent for some purpose of his own, or 
 the possession may have been tortiously acquired by the agent in 
 violation of his duty to his principal ; but in none of these cases, 
 as a rule, could the agent transfer any title to the property, as 
 against the true owner, even to a hona fide purchaser.* As has 
 been stated in a previous section, Nemo dat quod non habet. To 
 this rule, however, there are two well recognized exceptions. 
 
 One relates to the case in which the property in the agent's 
 possession consists of money or of negotiable paper. The other 
 to the case in which the principal entrusts the possession of his 
 goods to one whose business it is to sell similar property as the 
 agent of the owners. 
 
 The first exception depends upon principles of public policy 
 and the necessities of commerce. Money itself bears no ear- 
 mark of peculiar ownership, and its primary purpose is to pass 
 from hand to hand, as the medium of exchange, without other evi- 
 dence of its title, as against those who receive it in good faith for 
 valuable consideration in the usual course of business, than its mere 
 possession. And so in regard to negotiable paper. It is intended, 
 so far as this is possible, to represent money, and, like it, to be a 
 means of commercial intercourse unfettered by any qualifications 
 or conditions not appearing on its face. When payable to bearer, 
 
 » In Barnard v. Campbell, 55 N. Y. 46 N. Y. 325, 7 Am. Rep. 341. 
 
 456, 14 Am. Rep. 289. » The borrower of a chattel can 
 
 »Covill ». Hill, 4 Denio (N.Y.)323; confer no title against the lender. 
 
 Ballard v. Burgett, 40 N. Y. 314 ; Me- McMahon v. Sloan, 13 Penn. St 229» 
 
 Neil «. Tenth National Bank, 51 Am. Dec. 603. 
 
 41 641
 
 § 786. THE LAW OF AGENCY. [Book lY. 
 
 or endorsed in blank, it passes by mere delivery, and it is a well 
 settled principle of commercial law that he who takes such paper, 
 in good faith, before dishonor and for a valuable consideration, 
 shall not be affected by defects in the title of him from whom it 
 was so obtained, of which the taker had no notice.* If, there- 
 fore, an agent has in his possession the money of his principal, 
 or his principal's negotiable paper payable to bearer or endorsed 
 in blank, although he has no authority to transfer it, or although 
 he may have acquired its possession tortiously or against the 
 rights of his principal, his transfer of it to one who takes it in 
 the usual course of business, in good faith, before maturity and 
 for valuable consideration, will confer upon such transferee a 
 title which the principal cannot defeat.* Bnt in order to effect 
 this result, all of the elements mentioned must co-exist. In 
 default of these the principal, as has been seen in the preceding 
 subdivision, may pursue his property through any number of 
 transmutations so long as he can trace it. If the paper were payable 
 to the order of the principal and was not endorsed, its mere posses- 
 sion would, of course, be no evidence of title in the agent.' 
 
 The second exception rests upon well recognized principles of 
 estoppel. If a man voluntarily places his property in the pos- 
 session of one, whose ordinary business it is to sell similar prop- 
 erty as the agent of the owners, it is a warrantable inference, in 
 the absence of anj^thing to indicate a contrary intent, that he 
 intends his property to be sold also. Lord Ellenborough perti- 
 nently inquires : "If the owner of a horse send it to a reposi- 
 tory of 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 keeping ? " * Bnt here, unlike the case of the possession of 
 money or negotiable paper, it is necessary that the agent shall 
 have acquired the possession of the property by the act of the 
 
 1 See Daniel on Neg. Insts, §§769, » Gibson v. Miller, 29 Mich. 355; 
 
 862, 51 Am. Dec. 602. Morton v. Preston, 18 Mich. 60; Lan- 
 
 « A principal can not recover from caster National Bank v. Taylor, 100 
 
 a third party who received it in good Mass. 18, 97 Am. Dec. 70; "Whistler v. 
 
 faith, money of the ordinary currency Forster, 14 C. B. (N. S.) 248; Central 
 
 of the country, intrusted by the princi- Bank v. Hammett, 50 N. Y. 158. 
 
 pal to the agent for special purposes * In Pickering «. Busk, 15 East, 
 
 and misapplied by the agent. Burn- 38. 
 ham V. Holt, 14 N. H. 367. 
 
 642
 
 Chap.YII.] LIABILITY OF THIRD PERSON TO PRINCIPAL. 
 
 §786. 
 
 principal ; possession wrongfully obtained would not enable the 
 agent to confer title even upon a hona fide purchaser.' And it 
 is also necessary that the business of the person to whom it is so 
 confided, be to sell as agent^ and that the property should appear 
 to have been intrusted to him in the line of his business. If, on 
 the other hand, his business is to sell his own goods, as the owner, 
 something more than mere possession is necessary. There must 
 be some act or conduct, on the part of the real owner, whereby 
 the party selling is clothed with the apparent ownership, or author- 
 ity to sell, which the real owner will not be heard to deny or ques- 
 tion to the prejudice of an innocent third party dealing on the 
 faith of such appearance. " If it were otherwise," said a learned 
 judge, " people would not be secure in sending their watches or 
 articles of jewelry to a jewelry establishment to be repaired, or 
 cloth to a clothing establishment to be made into garments." * 
 So, too, it is necessary that the business of the agent be to sell 
 similar property. The mere fact that one puts his horse into the 
 possession of an agent, whose occupation it is to sell jewelry 
 only, would be no evidence of authority to sell the horse.* This 
 
 » Saltus «. Everett, 20 Wend. (N. 
 Y.) 366, 32 Am. Dec. 541; Fitch «. 
 Newberry, 1 Doug. (Mich.) 1, 40 Am. 
 Dec. 33. 
 
 » Wilkinson «. King, 2 Camp. 335; 
 Pickerings Busk, 15 East. 38; Cole 
 ». Northwestern Bank, L. R. 10 C. P. 
 854, 12 Eng. Rep. (Moak) 418; Levit). 
 Booth, 58 Md. 305, 43 Am. Rep. 332; 
 Johnson v. Credit Lyonnais, 2 C. P. 
 Div. 224, 20 Eng. Rep. 486; S. C. on 
 appeal, 3 C. P. Div. 26, 30 Eng Rep. 
 19. 
 
 » '• 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 bro- 
 ker; and if a person authorize another 
 to assume the apparent right of dis- 
 posing 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, limi- 
 ted to his actual authority, the reality 
 of which is afterwards to be tried by 
 the fact. It is clear that he may 
 bind his principal within the limits of 
 the authority with which he has been 
 apparently clothed by the principal 
 in respect to the subject-matter, and 
 there would be no safety in mercan- 
 tile transactions if he could not. If 
 the principal send his commodity to 
 a place, where it is the ordinary busi- 
 ness of the person to whom it is con- 
 fided to sell, it must be intended thai 
 the commodity was sent thither for 
 the purpose of sale. If the owner of 
 a horse send it to a repository of sale, 
 can it be implied that he sent it 
 thither for any other purpose than 
 that of sale ? Or if one send goods 
 to an auction room, can it be sup- 
 posed that he sent them thithe/ 
 merely for safe custody T Where thb 
 commodity is sent in such a way, and 
 and to such a place, as to exhibit an 
 
 643
 
 §786. 
 
 THE LAW OF AGENCT. 
 
 [Book lY. 
 
 rule, like the other, is for the protection of those only who have, 
 in good faith, parted with value in the usual course of business 
 upon the strength of the authority which the principal has caused 
 or permitted to appear. If the purchaser be in this situation, he 
 is protected and the principal is estopped, as against him, to 
 assert that the agent had no power to sell.' But if the pur- 
 chaser had notice of the agent's want of authority, or if he acted 
 collusively with the agent, or if he has parted with no value, or 
 if he purchased the property out of the usual course of business, 
 he has no equities which are superior to those of the true 
 
 owner. 
 
 The authority implied in such a case is not to be extended 
 beyond its legitimate scope. The authority implied is an 
 authority to sell and not an authority to exchange, pledge or 
 mortgage. Hence a transferee claiming title to the property 
 
 apparent purpose of sale, the princi- 
 pal will be bound, and the purchaser 
 safe." Lord Ellenborough, C. J., 
 in Pickering v. Busk, 15 East, 33. 
 See also Folsom v. Batchelder, 23 
 N. H. 51; Nixon v. Brown, 57 N. H. 
 34. 
 
 This rule is well illustrated by the 
 recent case of Smith «. Clews, 105 
 N. Y. 283, 59 Am. Hep. 502. In that 
 case it appeared that one Miers was 
 a dealer in diamonds in New York. 
 His business was to procure diamonds 
 from the larger dealers and sell them 
 to his customers. He obtained from 
 the plaintiff a pair of diamonds for 
 which he gave them a receipt staling 
 that they were received by him, " on 
 approval to show to my customers, 
 said knobs to be returned to said A. 
 H. Smith & Co. on demand." Hav- 
 ing obtained the diamonds he sold 
 them to defendant who purchased 
 them in good faith, supposing Miers 
 to be the owner and paying him the 
 price. Miers not paying the plaintiffs, 
 they sought to recover them from the 
 defendant, but the court held that 
 plaintiffs, by intrusting them to Miers, 
 
 a known dealer in such articles, to be 
 shown to a prospective purchaser, 
 had clothed him with apparent au- 
 thority to sell, and that defendant got 
 a good title. The provision that the 
 diamonds were to be returned upun 
 demand was held by the court to 
 mean that they were to be reiurned if 
 the purchaser in view did not buy 
 them. 
 
 But where the owner of a diamond 
 ring put it into the hands of a jeweler 
 to match it, or failing in that, to get 
 an offer for it, and the jeweller sold it 
 to one who bought in good faith, it 
 was held that the purchaser got no 
 title as against the owner. Authority 
 to get an offer did not confer power 
 to sell. The owner had the right to 
 pass upon the offer himself. Levi 
 V. Booth, 58 Md. 805, 42 Am. Rep. 
 332. 
 
 1 Where the person dealing with 
 the apparent owner of property has 
 actual notice of the rights of the true 
 owner, he can claim no other or 
 greater rights tlierein than the appar- 
 ent owner can lawfully convey. Por- 
 ter V, Parks, 49 N. Y. 564. 
 
 644
 
 Chap. VII.] LIABILITY OF THIRD PERSON TO PRINCIPAL. § 787. 
 
 through such a transaction could not defeat a recovery by the true 
 owner.' 
 
 § 787. Possession coupled with Indicia of Ownership. So 
 where, in addition to the possession of the property, the princi- 
 pal has conferred upon the a^ent the documents which constitute 
 the usual indicia of ownership, or has otherwise held him out as 
 possessed of the ownership, or power of disposal of the prop- 
 erty, a question is presented, similar to the one last under con- 
 sideration. For where the principal has intentionally or negli- 
 gently caused or permitted his agent to hold himself out to the 
 world as the owner of property, clothed with the evidences 
 of title, or as having competent authority to transfer the 
 title, and innocent third parties have, in good faith, acquired 
 rights in the property upon the strength of the appearance, the 
 plainest dictates of right and justice require that the principal 
 should not be permitted to deny that the agent was the owner, 
 although as between himself and the agent, the fact may have 
 been otherwise.' 
 
 "It must be conceded," said Judge Eapallo, in dealing with 
 the question, "that, as a general rule, applicable to property 
 other than negotiable securities, the vendor or pledgor can con- 
 vey no greater right or title than he has. But this is a truism, 
 predicable of a simple transfer from one party to another where 
 no other element intervenes. It does not interfere with the well 
 established principle, that where the true owner holds out another, 
 or allows him to appear, as the owner of, or as having full power 
 of disposition over the property, and innocent third parties are 
 
 * Agent to sell cannot pledge. som v. Thornton, 6 East 17; Taylor 
 Loring v. Brodie, 134 Mass. 453; Mc- v, Kymer, 3 B. & Ad. 320; Saltus v. 
 Creary «. Gaines, 55 Tex. 485, 40 Everett, 20 Wend. (N. Y.) 267, 32 
 Am. Rep. 818; City Bank c. Barrow Am. Dec. 541; McNeil©. Tenth Na- 
 5 App. Cas. 664, 34 Eng, Rep. 41; tional Bank, 46 N.Y. 325,7 Am. Rep. 
 Voss V. Robertson, 46 Ala. 483; 341; Moore v. Metropolitan National 
 Wheeler & Wilson Mfg. Co., ^.Givan, Bank, 55 N. Y. 41, 14 Am. Rep. 173; 
 65 Mo. 89. Root V. French, 13 Wend. (N.Y.) 570, 
 
 Nor mortgage: — Switzer v. Wil- 28 Am. Dec. 482; Nixon v. Brown, 
 
 vers, 24 Kan. 384, 36 Am. Rep. 259. 57 N. H. 34; Barnard v. Campbell, 
 
 Nor exchange:— Bertholf ®. Quin- 55 N. Y. 456, 14 Am. Rep. 289, 8. c. 
 
 Ian, 68 111. 297. 58 N.Y.73, 17 Am. Rep. 208; Walker 
 
 • Pickering «. Busk, 15 East. 38; v. Detroit Transit Ry Co., 47 Mich. 
 Gregg u Wells, 10 Ad. & Ell. 90; 838. 
 
 Dyer v. Pearson, 3 B. «& C. 38; New- 
 
 645
 
 § 788. THE LAW OF AGENCY. [Book lY. , 
 
 thus led into dealing with such apparent owner, thej will be pro- 
 tected. Their rights in such cases do not depend upon the actual 
 title or authority of the party with whom they deal directly, but 
 are derived from the act of the real owner, which precludes him 
 from disputing, as against them, the existence of the title or 
 power, which through negligence or mistaken confidence, he 
 caused or allowed to appear to be vested in the party making 
 the conveyance." * 
 
 The fact that the act of the agent is a fraud upon his princi- 
 pal, does not alter the rule. Indeed, in every case in which the 
 question here under consideration can arise, the act of the agent 
 must have been either a negligent or a willful violation of his 
 duty to his principal, because if the act were in fact authorized, 
 no necessity would exist for the application of the principle of 
 estoppel. But the principal has appointed the agent and put him 
 in motion, and given him the means by which to accomplish the 
 act, and although the principal may be entirely innocent of 
 wrong intention, yet, in accordance with the well settled rule, 
 that where one of two innocent parties must suffer, the loss must 
 fall upon him by whose act it was made possible to occur, the 
 principal must be held bound.* 
 
 But this rule operates only for the protection of those who, in 
 dealino- with the agent, have exercised ordinary caution and pru- 
 dence, and who have dealt in the ordinary way and in the usual 
 course of business, upon the ordinary evidences of right and 
 authority.* So its protection extends only to those who, in reli- 
 ance upon the apparent ownership, have in good faith acquired 
 interests therein for a valuable consideration. If they have 
 parted with no valre, they are entitled to no protection. Tiie 
 payment, or parting with value for the property, by the purchaser, 
 lies at the foundation of the estoppel, for if he has parted with 
 nothino", he can lose nothing if the true owner retakes the goods; 
 and that payment must be occasioned by the acts or omissions of 
 such owner. It is the payment or the parting with value which 
 creates the estoppel, and if that is not done in reliance upon the 
 appearance given by the principal, the latter will not be estopped.* 
 
 §788. Same Subject— lUustrations. These principles find 
 
 » In McNeil v. Tenth National » Barnard v. Campbell, supra. 
 
 Bank, supra. * Barnard v. Campbell, supra. 
 
 « Barnard v. Campbell, tupra. 
 
 64:6
 
 Chap.YII.] LIABILITY OF THIRD PERSON TO PRINCIPAL. § 788. 
 
 frequent illustration in the decided cases, a few of which will 
 serve to show the occasion and extent of their application. 
 Among these, Pickering v. Busk ' is a leading case. In that case 
 it appeared that a broker, named Swallow, had purchased for the 
 plaintiff, Pickering, a quantity of hemp, which by the plaintiffs 
 request was transferred upon the books of the wharfinger to the. 
 name of Swallow. Another lot subsequently purchased, was 
 transferred to the names of Pickering or Swallow, which the 
 court held to be the same, so far as the question there involved 
 was concerned, as though it stood in Swallow's name alone. The 
 plaintiff paid for the hemp. Swallow afterwards wrongfully 
 sold it to defendant's assignors in bankruptcy who relied upon 
 the entry in the wharfinger's books and who paid him for it ; and 
 Pickering sued the assignees in trover for the value. But the 
 court held that, by permitting the hemp to appear upon the 
 books of the wharfinger as the property of Swallow, the plain- 
 tiff had authorized third persons, who relied upon Swallow's 
 apparent ownership, to believe that he had authority to sell the 
 hemp, and that he could not recover. 
 
 McNeil V. The Tenth National Bank " is also a well considered 
 and valuable case upon this subject. There the plaintiff, who 
 was the owner of bank shares, delivered to his brokers to secure 
 a balance of account, the certificate of the shares, indorsed with 
 an assignment in blank and an irrevocable power of transfer 
 signed and sealed by himself. The brokers, without his knowl- 
 edge, pledged the shares to the defendant to secure advances 
 made to them, the defendant having no knowledge of the plain- 
 tiff's interest. The plaintiff brought an action against the defen- 
 dant to compel the latter to deliver the shares to him, but it was 
 held that the defendant was entitled to hold the stock as against 
 the plaintiff for the full amount of the advances made and remain- 
 ing unpaid. In delivering the opinion of the court, Rapallo, 
 J,, said: "Simply entrusting the possession of a chattel to an- 
 other as depositary, pledgee or other bailee, or even under a con- 
 ditional executory contract of sale, is clearly insufficient to pre- 
 clude the real owner from reclaiming his property, in case of an 
 unauthorized disposition of it by the person so intrusted.' 'The 
 mere possession of chattels, by whatever means acquired, if there 
 
 ' 15 East, 88. » Citing Ballard v. Burgett, 40 N. 
 
 •46 N. Y. 325, 7 Am. Rep. 341. Y. 314. 
 
 647
 
 § 788. THE LAW OF AGENOT. [Book lY. 
 
 he no other evidence of property or authority to sell from 
 the true owner, will not enable the possessor to give a good 
 title/ ' 
 
 But if the owner intrusts to another, not merely the possession 
 of the property, but also written evidence over his own signature 
 of title thereto, and of an unconditional power of disposition 
 over it, the case is vastly different. There can be no occasion 
 for the delivery of such documents, unless it is intended that 
 they shall be used, either at the pleasure of the depositary or 
 under contingencies to arise. If the conditions upon which this 
 apparent right of control is to be exercised are not expressed on 
 the face of the instrument, but remain in confidence between the 
 owner and the depositary, the case cannot be distinguished in 
 principle from that of an agent who receives secret instructions 
 qualifying or restricting an apparently absolute power. * * * 
 
 The holder of such a certificate and power possesses all the 
 external indicia of title to the stock, and an apparently unlimi- 
 ted power of disposition over it. He does not appear to have, 
 as is said in some of the authorities cited, concerning the assignee 
 of a chose in action, a mere equitable interest, which is said to be 
 notice to all persons dealing with him that they take subject to 
 all equities, latent or otherwise, of third parties; but, apparently, 
 the legal title and the means of transferring such title in the 
 most effectual manner. 
 
 Such, then, being the nature and effect of the documents with 
 which the plaintiff intrusted his brokers, what position does he 
 occupy towards persons who, in reliance upon those documents, 
 have in good faith advanced money to the brokers or their 
 assigns on a pledge of the shares ? When he asserts his title, and 
 claims as against them that he could not be deprived of his prop- 
 erty without his consent, cannot he be truly answered that by 
 leaving the certificate in the hands of his brokers, accompanied 
 by an instrument bearing his own signature, which purported to 
 be executed for a consideration and to convey the title away 
 from him, and to empower the bearer of it, irrevocably to dispose 
 of the stock, he, in fact 'substituted his trust in the honesty of 
 his brokers for the control which the law gave him over his own 
 property,' and that the consequences of a betrayal of that trust 
 
 » Citing Bbonbon, C. J. in Covill v. Hill, 4 Den. (N. Y.) 323. 
 
 648
 
 Chap. VII.] LIABILITY OF THIRD PERSON TO PRINOIPAL. § 7^58. 
 
 should fall upon him who reposed it, rather than upon innocent 
 strangers from whom the brokers were thereby enabled to obtain 
 their money?" * 
 
 So in Calais Steamboat Co. v. Yan Pelt,' it appeared that Yan 
 Pelt, who resided in California, instructed his agent in New 
 York to cause a steamboat to be built, giving the agent express 
 directions to hold himself, the agent, out as owner, and to cause 
 the vessel to be enrolled in his, the agent's, own name, as the 
 principal did not wish to appear, or to be known, as the owner. 
 The agent followed these instructions, but upon the completion 
 of the vessel, sold her to the Steamboat company, who pur- 
 chased her in good faith witliout knowledge of Yan Pelt's inter- 
 est, in reliance upon the agent's apparent ownership, and paid the 
 agent her full value. The agent converted the money to his own 
 use, and Yan Pelt brought an action against the Steamboat 
 company to establish his title. But the Supreme Court of the 
 United States held that, having held the agent out to the world 
 as owner, and having intentionally clothed him with the docu- 
 mentary evidences of ownership, he could not recover from 
 one who, in good faith, had purchased the property relying 
 upon such apparent ownership. 
 
 Nixon V. Brown* presents another illustration of this princi- 
 ple. Nixon had employed an agent to purchase a horse. The 
 agent made the purchase, but took the bill of sale in his own 
 name. He informed Nixon of the purchase, showed him the bill 
 of sale, and said he would execute a bill of sale to Nixon which 
 would make it all right, but did not do so. It was then arranged 
 that the agent should keep the horse in his possession for the 
 purpose of training him, and the agent went away taking with 
 him the bill of sale. Afterwards the agent sold the horse to 
 Brown who purchased in good faith in reliance upon the appar- 
 ent title conferred by the bill of sale, and paid the agent the 
 money, with which the latter decamped. Nixon thereupon sued 
 Brown in trover, but was not permitted to recover. The trouble 
 with the plaintiff's claim, said the court, was that he suffered his 
 agent to carry off with him the evidence as to the ownership oi 
 
 ' For similar or analogous cases, 623; Bartlett p. Board of Education, 
 
 see Commercial Bank v. Kortriglit, 59 111. 371. 
 
 22 Wend. (N. Y.) 348, 34 Am. Dec. '« 2 Black. (U. S.) 373. 
 
 317; Holbrook v. Zinc Co., 57 N. Y. »57 N. H, 34. 
 
 649
 
 § 78S, THE LAW OF AGENCY. [JBook IV. 
 
 the horse, which was directly calculated to mislead and deceive 
 an innocent purchaser. He selected, as his agent, a person who 
 proved to be a thief. And inasmuch as one of two innocent 
 persons must suffer, it must, in this case, be the plaintiff, because 
 he put it in the power of his agent to deceive the defendant, 
 when it was possible for him to have prevented it. 
 
 But in order to estop the true owner it is, as has been seen, 
 indispensable not only that he has clothed the person assuming 
 to dispose of the property, with the apparent title to it, or with 
 apparent authority to dispose of it, but also that the person alleg- 
 ing the estoppel must have acted, and parted with value, upon 
 the faith of such apparent ownership or authority, so that he will 
 be the loser if the appearances to which he trusted are not real. 
 This principle is well illustrated by a case which received elab- 
 orate consideration in the Court of Appeals of New York.^ 
 There defendants bought of one Jeffries, on the 21st of August, 
 a quantity of linseed, and, at his request, forwarded to him their 
 notes in payment, which he at once pledged as collateral to a 
 loan. Jeffries did not have the linseed at the time, but on the 
 24th of August, he purchased it of the plaintiffs, and, by false 
 and fraudulent representations, induced them to deliver it to him 
 without payment. He sent the linseed to the defendants on 
 the 24th of August, and on the next day mailed them the bill of 
 lading. On the 27th of August, Jeffries failed, not having paid 
 for the linseed, and plaintiffs, on account of the fraudulent repre- 
 sentations, rescinded the sale, and demanded the linseed of the 
 defendants. Upon their refusing to surrender it, the plaintiffs 
 brought replevin, and were permitted to recover. Defendants 
 assumed the position of honafide purchasers for value, and, claim- 
 ing that they had purchased upon the faith of the possession con- 
 ferred by the plaintiffs upon Jeffries, invoked the principle of 
 estoppel for their protection. But the court held that every ele- 
 ment of estoppel was wanting. At the time defendants pur- 
 chased the property and parted with their notes, Jeffries had 
 neither the possession of the property nor the right of possession, 
 nor had he any documentary evidence of title, or any indicia of 
 ownership or of dominion over the property of any kind. The 
 plaintiffs had then done nothing to induce the defendants to 
 
 ' Barnard e. Campbell, 55 N. Y. motion for rehearing, 58 N. Y. 73, 17 
 456. 14 Am. Rep. 289, 8. c, on Am. Rep. 208. 
 
 650
 
 Chap. Vll.] LIABILITY OF THIKD PKK80N TO PBLNCIl'Al.. § TUl. 
 
 put their faith in, or give credit to, the claim of Jeffries of the 
 right to sell the property. The defendants parted with the con- 
 sideration for the seed, not upon the apparent owuersliip of Jeff- 
 ries, but upon his assertion of a right of which the plaintiffs had 
 no knowledge, and for which they were in no way responsible. 
 
 § 789. Principal may recover Property appropriated to Agent's 
 Uses. As has been seen, an agent having property of his prin- 
 cipal in his possession to be disposed of by sale or otherwise for 
 the principal's benefit, can not tnrn it out to a third person in 
 payment of a debt due such third person by the agent, and, if 
 he does so, the principal may recover it.' The fact that the prin- 
 cipal also has a right of action against the agent for the wrong- 
 ful disposition of the property, does not prevent the principal's 
 recovery from the third person who has received it.' 
 
 So the property of the principal in the agent's hands can not 
 be taken by legal process for the agent's debts, and, if so taken, 
 the principal may recover it.' 
 
 § 790. Right to recover Securities wrongfully released. 
 Where an agent, without authority, releases security belonging 
 to his principal, the principal may recover it, and his right of 
 action is not lost by mere neglect to dissent, if the other party is 
 not prejudiced thereby.* 
 
 So where an agent authorized only to sell, collect and take 
 notes, surrendered, before they were due, certain notes running 
 to his principal and took notes payable to himself, it was held 
 that the principal could recover on the original notes.* 
 
 But where an agent having authority to " assign, satisfy and 
 discharge" all mortgages of his principal in his possession, sold 
 and assigned one to A, and used the money for his own purposes, 
 it was held that A having acted in good faith, was not liable over 
 to the principal.* 
 
 § 791. Right to recover Property wrongfully sold. As has 
 also been seen, an agent employed to sell his principal's property, 
 whether it be real or personal, cannot, without the principal's 
 
 > Thompson v. Barnum, 49 Iowa, * Whittemore v. Hamilton, 51 Conn. 
 
 392. 153. 
 
 » Bertholf v. Quinlan, 68 111. 297. » Robinson v. Anderson, 106 Ind. 
 
 • Loomis «. Barker, 69 111. 360; 252. 
 
 Farmers' & Mechanics' Bank v. King, • Chestwood v. Berrian, 39 N. J. 
 
 57 Penn. St. 202, 98 Am. Dec. 215. Eq. 203. 
 
 651
 
 8 792. THE LAW OF AGENCY. [Book J V. 
 
 full knowledge and consent, sell it to himself. And what he can 
 not thus do directly, he will not be permitted to do indirectly. 
 If therefore, the agent, in violation of his duty, sell the property 
 ostensibly to a third person,' or to a third person in conjunction 
 with himself,* but in reality for his own benefit; or if he sells it 
 to a partnership of which he is a member; ' the sale is voidable 
 at the election of the principal, and the latter may, if he acts 
 within a reasonable time after the facts have come to his knowl- 
 edge, and if the rights of an innocent third party have not inter- 
 vened, avoid the sale, upon returning or tendering back the con- 
 sideration received, and recover the property from such third 
 person or any one to whom it been conveyed with knowledge of 
 the facts.* That the principal was not injured, or the property 
 was not sold under its value,' or that it was sold for the price 
 fixed by the principal,' does not, as has been seen, defeat the 
 principal's right. 
 
 4. Right to Recover for Torts. 
 8 792. May recover for Injuries occasioned for third Person's 
 Torts. For wrongs done or injuries committed by third persons 
 to the property or interests of the principal which he has com- 
 mitted to his agent, the principal may ordinarily recover in the 
 same manner and to the same extent as though no agency had 
 existed. Except where the agent has a special interest in the 
 subject-matter of the agency, the possession of the agent is the 
 possession of the principal, who may maintain actions based upon 
 such possession. For the maintenance of those actions which 
 depend upon the right of property, the principal's title to the 
 
 1 Eldridge v. Walker, 60 111. 230; istrator; Ives v. Ashley, 97 Mass. 198; 
 see Haynie v. Johnson, 71 Ind. 394. Greene*. Haskell, 5 R. I. 447. 
 
 2 Hughes V. Washington, 72 111. 84. Agent's clerk can not lawfully pur- 
 8 Francis v. Kerker, 85 111. 190. chase and if he does principal may 
 * Norris e. Tayloe, 49 111. 17, 95 compel him to recover or account for 
 
 Am. Dec. 568. proceeds; Gardner v. Ogden, 22 N. Y. 
 
 « Lewis V. Hillman. 8 H. L. Gas. 327, 78 Am. Dec. 192; Lingke v. Wil- 
 
 607; Trevelyan «. Charter, 9 Beav. kinson, 57 N. Y, 451; Cheeseman v. 
 
 j4o' Sturges, 9 Bows. (N. Y.) 255; Levy v. 
 
 BRuckman e. Bergholz, 37 N. J. L. Brush, 8 Abb. Pr. N. S. 431; New- 
 
 437 comb v. Brooks, 16 W. Va. 71. 
 
 Same principle was applied to a Nor his partner; Fulton v. Whit- 
 
 sale by an administrator to a third ney, 5 Hun (N. Y.) 19; Francis ». 
 
 person in secret trust for the admin- Kerker, 85 111. 190. 
 
 652
 
 Oliap.yiL] LIABILITY OF THIRD PERSON TO PRINCIPAL. § 794, 
 
 thing involved is, of course, suflBcient, though the actual custody 
 may have been confided to another. 
 
 Hence if, in the dealings through the agent, the principal is 
 injured by the fraud, deceit, negligence or trespass of third per- 
 sons, he may maintain his action in the same manner as though 
 he had dealt in person.' 
 
 If the agent has co-operated with the third person in the com- 
 mission of the injury, the principal may sue both or either of 
 them.* 
 
 § 793. For entioing Agent away. A principal may maintain 
 an action against a third person who wrongfully induces his 
 agent to abandon his undertaking.' Said Rodman, J., in a recent 
 case : " We take it to be a settled principle of law, that if one 
 contracts upon a consideration to render personal services for 
 another, any third person who maliciously, that is, without a law- 
 ful justification, induces the party who contracted to render the 
 service to refuse to do so, is liable to the injured party in an 
 action for damages. It need scarcely be said that there is noth- 
 ing in this principle inconsistent with personal freedom, else we 
 should not find it in the laws of the freest and most enlightened 
 States in the world. It extends impartially to every grade of 
 service, from the most brilliant and best paid, to the most 
 homely, and it shelters our nearest and tenderest domestic rela- 
 tions from the interference of malicious intermeddlers. It is not 
 derived from any idea of property by the one party in the other, 
 but is an inference from the obligation of a contract freely made 
 by competent persons." * 
 
 § 794. For preventing Agent from performing. For similar 
 reasons the principal may recover against one who wrongfully 
 
 « White V. DoUiver, 113 Mass. 400, Johnsbury, &c. R R. Co. v. Hunt, 55 
 
 18 Am. Rep. 503; Holly v. Hugge- Vt. 570, 45 Am. Rep. 639; Walker©, 
 
 ford, 8 Pick. (Mass.) 73, 19 Am. Dec. Cronin. 107 Mass. 555; Hart v. Ald- 
 
 303. Where the agent of a purchaser ridge, Cowp. 54; Gunter v. Astor, 4 
 
 of land was deceived by a false entry J. B. Moore, 12; Lumley v. Gye, 2 
 
 made by a public officer, the princi- El. & Bl. 216, 20 Eug. Law & Eq. 
 
 pal may sue for damages. Perkins®. 168; Jones v. Blocker, 43 Ga. 331; 
 
 Evans, 61 Iowa, 35. Salter t). Howard. 43 Ga. 601; Bixby 
 
 a Taylor v. Plumer, 3 M. & S. 562. «. Dunlap, 56 N. H. 456, 22 Am. Rep. 
 
 « Haakins ». Roysler, 70 N. C. 601, 475; Daniel «. Swearengen, 6 S. C. 
 
 10 Am. Rep. 780; Huff v. Watkins, 297, 24 Am. Rep. 471. 
 15 S. C. 82, 40 Am. Rep. 680; St. « In Hiiskins v. Royster, supra. 
 
 G53
 
 § 795. THE LAW OF AGENCY. [Book iV, 
 
 prevents the agent from performing his undertaking, whereby 
 the principal suffers injury. Thus it has been held that a railroad 
 company may maintain an action against one who maliciously 
 causes the arrest of its engineer while running a train, with 
 intent to delay the train and injure the company.' 
 
 § 795. For personal Injury to Agent causing Loss of Service. 
 So an action may be maintained against a third person for a per- 
 sonal injury, committed by him upon the agent, and which causes 
 such a disability as prevents the agent from performing his 
 stipulated undertaking, thereby causing injury to the principal.' 
 
 § 796. Third Person not liable for Agent's Fraud or Neglect. 
 A third person, however, who deals with an agent, is not liable 
 to the principal for a fraud perpetrated by the agent upon his 
 principal in that transaction unless such third person was a party 
 to the fraud ;' nor does the neglect or want of skill of the agent 
 in the transaction, by which the principal suffers loss or injury, 
 entitle the principal to relief against the other party who has 
 been guilty of no wrong upon his part.* If the principal does 
 not obtain as good a bargain, or derive as much benefit from the 
 transaction, as if a more skilful or experienced agent had been 
 employed, he cannot complain if the other party has taken no 
 undue advantage of the agent. 
 
 5. Remedies for Double Dealing. 
 8 797. How when, third Person conspires with Agent. But 
 where the third person conspires with the agent to perpetrate a 
 fraud upon the principal, he is undoubtedly liable. So where 
 the third person, by surreptitious dealing with the agent, or by 
 corrupting him or leading him astray from his duty, has obtained 
 the property of the principal, or has secured, from the principal, 
 contracts, obligations or rights in action, the defrauded principal, 
 if he acts promptly and before the rights of innocent third parties 
 have intervened, is entitled to recover his property, and to have 
 
 * St, Johnsbury. &c. R. R. Co. v. Burgess «. Carpenter, 2 8. C. 7, 16 
 
 Hunt, 55 Vt. 570, 45 Am. Rep. 639. Am. Rep. 643, as explained in Daniel 
 
 » Robert Mary's Case, 9 Coke 113; v. Swearengen, 6 S. C. 297, 24 Am. 
 
 Ames V. Union Ry Co., 117 Mass. 541, Rep. 471, is not contra. 
 
 19 Am. Rep. 426; Kennedy «. Shea, » Mason v. Bauman. 62 HI. 76. 
 
 110 Mass. 147. 14 Am. Rep. 584; Mc- * Bacon v. Markley, 46 Ind. 116. 
 Carthy v. Guild, 12 Mete. (Mass.) 291; 
 
 654
 
 Cliap.YII.] LIABILITY OF THIRD PP:RS0N TO PRINCIPAL. § 797. 
 
 the contracts, obligations or rights of action rescinded, or, if he 
 elects not to have it rescinded, to have such other adequate relief 
 as a court of equity may deep proper under the circumstances.^ 
 
 > These principles are admirably 
 illustrated in a recent case in the 
 English Court of Chancery, Panama, 
 «fcc. Telegraph Co. «. India Rubber, 
 &c. Co.. L. R. 10 Ch. App. 515, 14 
 Eng. Rep. (Moak) 759. In this case 
 it appears that a telegraph works 
 company agreed with a telegraph 
 cable company to lay a cable, the 
 cable to be paid for by a sum payable 
 when the cable waa begun, and by 
 twelve installments payable on cer- 
 tificates by the cable company's 
 engineer, who was named in the con- 
 tract. Shortly afterwards the engi- 
 neer, who was engaged to lay other 
 cables for the works company, agreed 
 with them to lay this cable, also for a 
 sum of money to be paid to him by 
 installments payable by the works 
 company when they received the in- 
 stallments from the cable company. 
 Held, that, under the circumstances, 
 the agreement between the engineer 
 and the works company was a fraud, 
 which entitled the cable company to 
 have their contract rescinded, and to 
 receive back the money which they 
 had paid under that contract. 
 
 Sir W. M. James, L. J. said. 
 " According to my view of the law of 
 this court, I take it to be clear that 
 any surreptitious dealing between one 
 principal and the agent of the other 
 principal, is a fraud on such other 
 principal, cognizable in the court. 
 That, I take to be a clear proposition, 
 and I take it, according to my view, 
 to be equally clear that the defrauded 
 principal, if he comes in time, is enti- 
 tled, at his option, to have the con- 
 tract rescinded, or, if he elects not to 
 have it rescinded, to have such oilier 
 adequate relief as the court may 
 think right to give him. 
 
 It is said that there is no authority 
 and no dictum to that effect. The 
 clearer a thing is, the more diflScult it 
 is to find any express authority or 
 any dictum exactly to the point. I 
 doubt whether there could be found 
 any authority or any dictum exactly 
 laying down the first of the two pro- 
 positions which I have mentioned, 
 and which nobody has, in the course 
 of the argument, ventured to dispute 
 — that is, that any surreptitious deal- 
 ing between one principal and the 
 agent for the other principal is a 
 fraud on such other principal cogniz- 
 able in this court. The other propo- 
 sition, as to the relief, may perhaps 
 not be found stated in so many terms 
 in any case or in any dictum, but 
 many cases may be suggested which 
 probably will be equally without any 
 authority, either in decision or 
 dictum. If a man hired a vetturino 
 to take him from one place to 
 another, and found that the vetturino, 
 after he had accepted the hiring, had 
 conspired with his servant to rob him 
 on the way, he would be entitled to 
 get rid both of the vetturino and the 
 servant. So, if a man sits down to a 
 tavern or osteria to play at cards or 
 dice with anotlier man for a stake, 
 and finds that his opponent has pro- 
 vided himself with cogged dice or 
 marked cards, the man would be im- 
 mediately entitled to leave the table, 
 and would not be obliged to procure 
 proper cards or honest dice. I am 
 not aware, however, of any express 
 decision on either of the cases I have 
 suggested. 
 
 I am of opinion that where any- 
 thing in the nature of a fraud in the 
 eye of this court is committed, a man 
 has the right at once to sever the con- 
 
 655
 
 §798. 
 
 THE LAW OF AGENCY. 
 
 [Book iV, 
 
 § 798. How when Agent in secret Employment of the other 
 Party. As has been seen, an agent who is relied upon to exer- 
 cise, in behalf of his principal, his skill, knowledge or influence, 
 
 nection; and I cannot bring my mind 
 to doubt, that if you find a case 
 where, in the contemplation of this 
 court, a principal ia conspiring with 
 the servant of the other principal to 
 cheat his master in the execution of a 
 contract, then in common sense, 
 common justice, common honesty, 
 and in this court, the master is enti- 
 tled to say, ' I will have nothing 
 more to do with the business;' and in 
 this court a surreptitious subcontract 
 with the agent is regarded as a bribe 
 to him for violating or neglecting his 
 duty" 
 
 Sir G. Mellish, L. J. said: " I 
 am not quite certain that I go the full 
 length to which the Lord Justice has 
 L;;one in thinking that, because a 
 person has been party to a fraudulent 
 act of this kind after the contract was 
 made, the mere fact of his having 
 betn guilty of such fraudulent con- 
 duct, supposing that a full remedy 
 for the fraud could be other- 
 wise obtained, would entitle the 
 other party to say, ' Because you 
 acted fraudulently, therefore I will 
 have nothing more to do with you, 
 and I will not carry out my contract 
 with you.* I am not aware of any 
 authority which has gone to that 
 extent. As far as I know, the con- 
 sequence of fraud is, that the court 
 will see that the party defrauded 
 obtains, as far as can be given, full 
 redress for the fraud, and I have 
 thought it, therefore, necessary on 
 this part of the case to consider 
 whether the plaintiffs could be 
 relieved from the consequences of 
 this fraud by anything short of the 
 relief which the Vice Chancellor has 
 given to them. 
 
 Now I do not think it necessary to 
 
 give a conclusive opinion whether at 
 law there would be a defense on the 
 ground, that by the act of the defend- 
 ants, the performance of the contract 
 has been rendered impossible. No 
 doubt it is a clear principle of law, 
 that if by any act of one of the 
 parties, the performance of a contract 
 is rendered impossible, then the other 
 ■ side may, if they choose, rescind the 
 contract, and, certainly, according to 
 the case of Planche v. Colburn, 8 
 Bing. 14, and other cases, it appears 
 sufficient if the contract cannot be 
 performed in the manner stipulated, 
 though it may be performed in some 
 other manner not very different. 
 Still there may be a question of law 
 in a case of this kind as to how far 
 the certificate of the engineer would 
 be considered so much of the essence 
 of the contract that the plaintiffs, 
 having been deprived of that, would 
 be entitled at law to rescind the con- 
 tract. But whether it is so or not, I 
 am clearly of opinion that if any 
 fraudulent misconduct of the defend- 
 ants in entering into an agreement 
 with Sir Charles Bright, which had 
 the effect of making it impossible to 
 keep him as a disinterested engineer 
 — if by that it is rendered impossible 
 that the plaintiffs can have the full 
 benefit of the contract, then it 
 appears to me that there is sufficient 
 to enable them to rescind the con- 
 tract. " 
 
 See, also, Atlee v. Fink, 75 Mo. 
 100, 42 Am. Rep. 385, where an 
 agreement secretly made by a lumber 
 dealer with one employed to super- 
 vise the erection of buildings for 
 another and to pass upon accounts 
 for materials, but not to make pur- 
 chases, by which the lumber dealer 
 
 656
 
 Chap.VlL] LIABILITY OF THIRD PKRSON TO PRIXOIPAL. 
 
 §799. 
 
 ■will not be permitted without his principal's full knowledge and 
 consent, to undertake to represent the other party also in the 
 same transaction.' Such conduct is a fraud upon his principal, 
 and not only will the agent not be entitled to compensation for 
 services so rendered,' but the contract or dealings made or had 
 by the agent, while so acting also for the other party without the 
 knowledge or consent of the principal, are not binding upon the 
 latter, and if they still remain executory, he maj' repudiate them 
 on that ground, or if they have been executed in whole or in 
 part, he may by acting promptly and before the rights of inno- 
 cent parties have intervened, restore the consideration received, 
 rescind the contract and recover back the property or rights with 
 which he has parted under it.* 
 
 It makes no difference that the principal was not in fact 
 injured,* or that the agent intended no wrong, or that the other 
 party acted in good faith ; the double agency is a fraud upon the 
 principal and he is not bound.' 
 
 agreed to pay him a commission on 
 sales made to the employer through 
 his influence, was held void as 
 against public policy. 
 
 So where a secret gratuity is 
 given to the agent with the intention 
 of influencing his mind in favor of 
 the giver of the gratuity, and the 
 agent on subsequently entering into a 
 contract with such giver on behalf of 
 his principal, is actually influenced 
 by the gratuity in assenting to stipu- 
 lations prejudicial to the interests of 
 his principal, although the gratuity 
 was not given directly with relation 
 to that particular contract, the trans- 
 action is fraudulent as against the 
 principal and the contract i:^ voidable 
 at his option. Smith «. Sorby, 3 Q. 
 B. Div. 552. 28 Eng. Rep. 455. Even 
 though the agent was not in fact in- 
 fluenced against his principal's inter- 
 ests, the contract is corrupt. Har 
 rington v. Victoria Graving Dock Co. 
 3 Q. B. Div. 549, 28 Eng. Rep. 453. 
 See also Bollman v. Loomi3,41 Conn. 
 
 581 ; Western Union Tel. Oo. v. Rail- 
 road Co. 1 McCrary (U. 8. 0. 0.) 418. 
 
 See also Hegenmyer v. Marks, 87 
 Minn. 6, 5 Am. St. Rep. 808; Miller 
 V. Louisville, etc, R. R. Co. 83 Ala. 
 274, 3 Am. St. Rep. 722; note to Pot- 
 ter's Appeal, 7 Am. St. Rep. 280. 
 
 1 See ante, %% 66-68. 
 
 « See ante, §§ 643, 644. 
 
 * New York Cent. Ins. Co. v. Na- 
 tional Ins. Co., 14 N. Y. 85; Mercan- 
 tile Ins. Co. v. Hope Ins. Co., 8 Mo. 
 App. 408; Utica Ins. Co. v. Toledo 
 Ins. Co., 17 Barb. (N. Y.) 13'i; Her- 
 man V. Martineuu, 1 Wis. 151, 60 Am. 
 Dec. 368; Wapsell v. Reardon, 11 
 Ark. 705, 54 Am. Dec. 245; Harrison 
 e. McHenry, 9 Ga. 164, 52 Am. Dec. 
 435; Switzerc. Skiles, 3 Gilm. (111.) 
 529, 44 Am. Dec. 723. 
 
 *New York Central Ins. Co. e. 
 National Ins. Co. »upra. 
 
 » United States Rolling Stock Co. 
 V. Atlantic, etc. R. R. Co., 34 Ohio 
 St. 450, 33 Am. Rep. 380. 
 
 42 
 
 657
 
 I 799, THE LAW OF AGENCY. [Book IV. 
 
 6. Condusiveness of Judgment against Agent. 
 
 § 799. Principal not bound by judgment against Agent to 
 which he was not a Party. A principal and his agent are not in 
 privity with each other respecting property rights, and a judg- 
 ment against tlie agent cannot settle the rights of the principal, 
 if he is not made a party to the action in which it was obtained, 
 and has not intervened or appeared therein.' Hence it is held 
 that one whose property has been replevied, by a writ against 
 his agent, may retake it by replevin against the plaintiff in the 
 first suit, even during the pending of that action/ So he may 
 maintain trover against the plaintiff in the action against the 
 agent, and his right is not barred by the fact that he acted as the 
 attorney for the agent in the action against the latter.* 
 
 1 White V. Dolliver, 113 Mass. 400, « White v. Dolliver, supra. 
 
 18 Am. Rep, 502; Warner v. Com- • Warner v. Comstock, mpra, 
 stock, 55 Mich. 616. See Phillips ». 
 Moir, 69 111. 155. 
 
 658
 
 ATT0KNET8 AT LAW. 
 
 BOOK Y. 
 
 PARTICULAR CLASSES OF AGENTS. 
 
 CHAPTER I. 
 
 OP ATTORNEYS AT LAW. 
 
 § 800. Scope of Chapter. 
 
 I. Of thb Office. 
 
 801. Who meant by Attorney at 
 
 Law. 
 803. Attorney at Law defined. 
 
 803. Is an Officer of the Court. 
 
 804. Who may be. 
 
 805. Party may appear in Person. 
 
 806. May not appear by Agent. 
 
 II. Of the Relation of Attouney 
 
 AND Client. 
 
 1. A Relation, of Agency. 
 
 807. Rules of Agency govern. 
 
 S. Bow Created. 
 
 808. No formal Power necessary. 
 ni. Appearance presumptively 
 
 Authorized. 
 
 809. Presumption of Authority. 
 
 810. This Presumption not con- 
 
 clusive. 
 rV. Implied Authority of Attor- 
 neys. 
 
 811. Has general Control of Con- 
 
 duct of Suit. 
 
 812. Same Subject — What in- 
 
 cluded. 
 
 818. Same Subject — What not in- 
 cluded. 
 
 814. Can not delegate his Powers. 
 
 § 815. May employ Subordinates. 
 
 816. Authority to bind Client by 
 
 Bonds. 
 
 817. Authority to receive Payment. 
 
 818. Same Subject — After Judg- 
 
 ment. 
 
 819. Same Subject — What consti- 
 
 tutes Payment. 
 
 820. Authority to enforce Judg- 
 
 ment. 
 
 V. Duties and Liabilities of 
 Attorney to Client. 
 
 821. Bound to highest Honor and 
 
 Integrity. 
 
 832. Duty to disclose adverse Inter- 
 
 ests. 
 
 833. Duty to remain loyal. 
 
 834. Duty to use reasonable Care 
 
 and Skill. 
 
 825. Same Subject — Errors in Law 
 
 or Judgment. 
 
 826. Same Subject — Negligence in 
 
 Collecting. 
 
 827. Same Subject — Negligence in 
 
 bringing Suit. 
 
 828. Same Subject — Negligence in 
 
 Trial of Action. 
 
 829. Same Subject — Negligence in 
 
 examining Titles. 
 
 830. Same Subject — Neglect in 
 
 preparing Contracts, «fcc. 
 
 659
 
 THE LAW OF AGENCY. 
 
 [Book Y. 
 
 § 831 . Same Subject — Neglect of 
 Partners, Clerks, &c. 
 
 832. Liability for exceeding Au- 
 
 thority or violating Instruc- 
 tions. 
 
 833. Liability for Money collected- 
 
 Liability for Interest. 
 
 834. Attorney liable though acting 
 
 gratuitously. 
 885. The Measure of Damages. 
 
 VI. Liability of Attorney to 
 Third Person. 
 
 836. Not liable for Breach of Duty 
 owing to Client only. 
 
 887. Liable where he contracts Per- 
 sonally. 
 
 838. Liability for Clerk's, Officer's 
 
 and Witness' Fees. 
 
 839. Liability to third Person in 
 
 Tort. 
 
 Vn. Liability of Client to 
 Attorney. 
 
 1. Attorney's Right to Reimbursement 
 and Indemnity. 
 
 840. Attorney entitled to Reim- 
 
 bursement and Indemnity. 
 
 g. Attorney's Right to Compensation. 
 
 841. Attorney entitled to Compen- 
 
 sation. 
 843. Attorney may sue for Com 
 
 pensation. 
 
 a. Where there was a special Con- 
 
 tract. 
 
 843. Parties may agree upon 
 
 Amount of Compensation. 
 
 844. Contracts for contingent Com- 
 
 pensation. 
 
 845. What Contracts charapertoua. 
 
 846. Such Contracts do not prevent 
 
 Settlen:ient by Client. 
 
 847. But Attorney may recover 
 
 from Client. 
 
 b. Where there was no special Con- 
 
 tract. 
 
 848. Attorney entitled to reasonable 
 
 Value of his Services. 
 
 g 849. What Evidence admissible. 
 
 850. What Evidence not admissible. 
 
 851. Lack of Success no Defense. 
 
 852. Negligence or bad Faith may 
 
 be shown. 
 
 853. Fees forfeited by Breach of 
 
 Trust. 
 
 854. How when Attorney abandons 
 
 Service. 
 
 855. What will justify Abandou- 
 
 mcnt. 
 
 856. When discharged by Client. 
 
 857. What will justify Discharge. 
 
 858. When Attorney's Claim barred 
 
 by Limitation. 
 
 S. Attorney's Right of Lien. 
 
 859. Two kinds of Lien. 
 
 1. The General or Retaining Lien. 
 
 860. General Nature of this Lien. 
 
 861. Declared by Statute in some 
 
 States. 
 
 862. What this Lien adheres ta 
 
 a. Upon Papers. 
 
 b. Upon Property. 
 
 c. Upon Money. 
 
 863. What Charges the Lien se- 
 
 cures. 
 
 864. Against what Parties Lien 
 
 prevails. 
 
 865. How Lien may be lost. 
 
 866. How Lien may be waived. 
 
 867. Enforcement of Lien. 
 
 2. The Special or Charging Lien. 
 
 868. General Nature of this Lisn. 
 
 869. In what States it exists. 
 
 870. What this Lien protects. 
 
 871. When Lien attaches. 
 
 872. To what Lien attaches. 
 
 873. How Lien protected. 
 
 874. How Lien enforced. 
 
 875. How Lien lost or waived. 
 
 876. By what Law governed. 
 
 VIII. Dealings between Attor- 
 ney AND Client. 
 
 877. In general — Good Faith and 
 
 perfect Fairness required. 
 
 878. Purchases from, and Sales to 
 
 Client — Adverse Purchases, 
 
 660
 
 Chap. I.] 
 
 ATl'ORNEYS AT LAW. 
 
 §801. 
 
 § 879. Relation of Attorney and 
 Client must exist. 
 
 IX. Pritilegkd Commukications. 
 
 880. Confidential Communications 
 
 privileged. 
 
 881. Under what Circumstances 
 
 privileged. 
 
 882. Same Subject. 
 
 883. Relation of Attorney and 
 
 Client must exist. 
 
 884. Communications must have 
 
 been made to an Attorney. 
 
 885. Privilege is the Client's. 
 
 886. How long it continues. 
 
 887. Attorney may disclose for his 
 
 own Protection. 
 
 X. Termination of the Rela- 
 tion. 
 
 888. By Operation of Law. 
 
 889. By Act of the Parties. 
 
 § 800. Soopo of Chapter. It is not within the scope of this 
 work, to go extensively into the relations of attorneys at law 
 to the State or to the Court. Space will not permit a discussion 
 of this public side of their character, but an attempt will be 
 made to give some of the general rules which govern their 
 relation to their clients and their client's business, viewing thera 
 only in the character of private agents. 
 
 I. 
 
 or THE OFFICE. 
 
 § 801. Who meant by Attorney at Law. Under the English 
 system, legal practitioners are divided into a variety of classes, 
 with distinct powers and duties, and some of these distinctions 
 have been recognized or adopted in several of the United States. 
 As a rule, however, so far as they imply distinct rights and duties 
 pertaining only to distinct classes of practitioners, they have, in 
 the United States become practically obsolete, and the same per- 
 son is daily seen exercising functions which, under the English 
 system, would be distributed among several. Indeed, it is com- 
 mon for the same person, with propriety, to hold himself out to 
 the public as qualified to act in the several capacities of attorney 
 and counselor at law, and solicitor and counselor in chancery, and 
 proctor in admiralty. In common parlance, such a person is ordi- 
 narily spoken of as a lawyer or more frequently as an attorney 
 at law. For the purposes of this chapter, the latter term will be 
 adopted, and, under it, will be considered the rules of law applic- 
 able to the relations of one man with his agent or representative 
 in law to whichsoever of the special classes he may technically 
 belong. 
 
 661
 
 § 802. THE LAW OF AGENCY. [Book Y. 
 
 § 802. Attorney at Law defined. For the present purposes, 
 therefore, an attorney at law may be defined to be an officer of a 
 court of justice who is qualified to conduct the cause of a liti- 
 gant therein.' Although he may be and frequently is, employed 
 to take part with others in, or to conduct, the trial only, yet his 
 functions are not confined to that. In ordinary cases, his duties 
 begin with the commencement of the legal controversy and end 
 only with its termination. He is usually employed before 
 any step in the legal procedure is taken, and from that time on, 
 he consults with his client regarding the cause of action or the 
 matter of his defense ; he determines upon the nature of relief 
 to be sought and the court in which the remedy is to be pursued ; 
 he prepares the necessary preliminary papers and directs the issue 
 and service of process ; he prepares, files and serves the plead- 
 insrs; examines and consults with the witnesses; takes minutes 
 of their expected testimony, and, usually, directs the issue and 
 service of the process for their attendance at the trial ; he makes 
 or resists the interlocutory motions and applications incident to 
 the progress of the cause ; he prepares the briefs and papers ; 
 gives the necessary notice and procures the cause to be placed 
 upon the calendar for trial ; he conducts the trial and attends to 
 the subsequent motions and hearings; he directs the issue and 
 service of the process to enforce the judgment ; and receives the 
 proceeds and satisfies the judgment on the record. 
 
 In addition to these duties, incident to the trial of causes, the 
 attorney at law, in practice, undertakes a great variety of duties 
 having a very remote, if any, connection with the business of 
 courts. Thus he acts as a conveyancer or scrivener, putting into 
 appropriate form the agreements and undertakings of his clients ; 
 he searches records, makes abstracts of title, and gives opinions 
 thereon ; he gives advice and counsel as to legal questions sub- 
 mitted to him ; he attends to the making of loans, and the per- 
 fecting and recording of securities ; he collects and seen res claims; 
 and performs many duties which, in the multiform phases of 
 business transactions, require the attention of one skilled in the 
 knowledge and application of legal principles. 
 
 § 803. Is an Ofiacer of the Court. He is not a private agent 
 only, but he is also an otficer of tlie court, owing to it the dis- 
 
 ' See Weeks on Attorneys, § 28, et aeq. 
 662
 
 Chap. L] 
 
 ATTORNEYS AT LAW. 
 
 §804. 
 
 charge of a variety of high and important duties, designed and 
 imposed for the furtherance of justice and the legal and orderly 
 conduct of its business. For a violation of these duties, as well 
 as for others which are due more directly to his client, he is lia- 
 ble to be suspended or removed from his office. 
 
 Whether his office is to be regarded as, in all respects, a public 
 one, is a question upon which the courts are not fully agreed, 
 but he is, at all events, a quasi officer of the State whose justice 
 is administered by the court.' 
 
 § 804. Who may be. As an officer of the court, the power 
 of the attorney to act as such depends upon the license or permission 
 of the court. The persons to whom such license may be granted, 
 and the terms upon which it shall be granted, are usually pre- 
 scribed by the legislatures of the States. These provisions are 
 generally acquiesced in by the courts, but whether they are bind- 
 ing upon the courts has been doubted.' 
 
 • "The bar is no unimportant part 
 of the court; and its members are 
 officers of the court. Thomas v. 
 Steele, 22 Wis. 207; Cothren v. Con- 
 naughton, 24 Id. 134. See Bacon's 
 Abr. Attorney H. ; 1 Tidds Pr. 60; 
 3 Black. 25; 1 Kent, 306; Ex parte 
 Garland, 4 Wall. 833. And if officers 
 of the court, certainly, in some sense, 
 officers of the state for which the 
 court acts. Be Wood. Hopk. 6. 
 This is not really denied in (In the 
 matter of Oaths, &c.) 20 Johns. 492, 
 decided in the same year. And if it 
 ■were, we have no doubt that the Chan- 
 cellor was correct, and that attorneys 
 and counselors of a court, though not 
 properly public officers are quasi offi- 
 cers of the state whose justice is ad- 
 ministered by the court." IIyan, C. 
 J , in Matter of Mosness,39 Wis. 509, 
 20 Am. Rep. 55. 
 
 "An attorney at law is not indeed, 
 in the strictest sense, a public officer. 
 But he comes very near it. As was 
 said by Lord Holt, ' the office of an 
 attorney concerns the public, for it is 
 for the administration of justice.' 
 White's case, 6 Mod. 18; Bradley's 
 
 case, 7 Wall. 364, 378, 379." Gray, 
 C. J., in Robinson's case, 131 Mass. 
 376, 41 Am. Rep. 289. See also 
 Austin's case, 5 Rawle (Penn.) 191, 
 28 Am. Dec. 657. 
 
 ' In a Wisconsin case it is said by 
 Ryan, C. J., " The constitution 
 makes no express provision for the 
 bar. But it establishes courts, 
 amongst which it distributes all tlie ju- 
 risdiction of all of the courts of West- 
 minster Hall, in equity and at com- 
 mon law. Putnam v. Sweet, 2 Pin. 
 302. And it vests in the courts all 
 the judicial power of the state. The 
 constitutional establishment of such 
 courts appears to carry with it the 
 power to establish a bar to practice in 
 them. And admission to the bar ap- 
 pears to be a judicial power. It may 
 therefore become a very grave ques- 
 tion for adjudication here, whether 
 the constitution does not entrust the 
 rule of admission to the bar, as well 
 as of expulsion from it, exclusively to 
 the discretion of the courts." In 
 Matter of Goodell,39 Wis. 232, 239, 20 
 Am. Rep. 42. 
 
 663
 
 § 805. THE LAW OF AGENCY. [Book Y. 
 
 While the conditions fixed in the several States are not uni- 
 form, the provision is common, if not universal, that the appli- 
 cant shall be a citizen of the State ; that he shall be of the age of 
 twentj'-one years or upwards, that he shall be of good moral char- 
 acter, and that he shall appear to possess sufficient legal learning 
 and ability. 
 
 Whether women are entitled to be admitted to the bar is a 
 question which has been discussed under various statutes, and 
 while their right has in some cases been denied, the tendency of 
 modern legislation and of its judicial interpretation is to regard 
 them as eligible.' 
 
 An alien can not be admitted under a statute providing for the 
 admission of "citizens,"* nor can a nop-resident of the State 
 claim the right to a license.' 
 
 § 805. Party may appear in Person. In every criminal pros- 
 ecution the right of the accused to counsel for his defense is 
 declared by the Constitution, but the accused may none the less 
 conduct his own defense if he prefers ; but as a rule the defense 
 cannot be conducted by both the accused and his counsel.* 
 
 In civil cases, there is no such constitutional guarantee of coun- 
 sel. There is, however, in the Constitutions of many of the 
 States a declaration of the party's right to conduct his suit in per- 
 son or by attorney. 
 
 §806. May not appear by Agent. But under a constitutional 
 provision that any suitor "shall have the right to prosecute or 
 defend his suit, either in his own proper person or by an attorney 
 or agent of his choice," the Supreme Court of Michigan held 
 that a party can not appear in a court of record by an agent who 
 is not an attorney duly licensed to practice as such.* 
 
 • They are not eligible in Massa- of Columbia, Maine, Ohio, Illinois, 
 
 chusetts. Robinson's case, 131 Mass. Indiana, Kansas, Minnesota, Califor- 
 
 376, 41 Am. Rep. 239; Oregon, In nia, Nebraska, Washington Territory 
 
 re Leonard 12 Oreg. 93, 53 Am. Rep. and Pennsylvania. 
 
 323; New York, see note to 53 Am. « Matter of O'Neill, 90 N, Y. 584. 
 
 Rep. p. 325. They are admitted in » Matter of Mosness,39 Wis. 509, 20 
 
 Connecticut, Matter of Hall,50 Conn, Am. Rep. 55. In this case it is said 
 
 131, 47 Am. Rep. 625; Wisconsin, that the legislature has no power to 
 
 Matter of Goodell, 48 Wis. 693, and, authorize nonresidents to be admitted. 
 
 says Judge Landon in a case referred * See Bishop's Grim. Proc. §962. 
 
 to in the note above cited, in Iowa, • Cobb v. Judge of Superior Court, 
 
 Missouri, Michigan, Utah, District 43 Mich. 289. 
 
 664
 
 Chap. I.] ATTORNEYS AT LAW. § 808. 
 
 II. 
 OF THE RELATION OF ATTORNEY AND CLIENT. 
 
 1. A Relation of Agency. 
 
 § 807. Rules of Agency govern. The relation of attorney 
 and client is a relation of agency, and, in its general features, is 
 governed by the same rules which apply to other agencies. 
 Many of the applications of these rules to the case of attorneys 
 have been noted in the general development of the principles of 
 agency, to which the earlier portion of this work has been 
 devoted ; but the importance of the subject, and the large num- 
 ber of special applications, seem to warrant a more extended 
 examination in this place. 
 
 2. How Created. 
 
 § 808. No formal Power necessary. It was formerly con- 
 sidered necessary that the authority of the attorney to appear for 
 his client should be conferred by a formal warrant of attorney,* 
 but, although there are many reasons of convenience and pro- 
 priety, if not of safety and protection to the parties, which com- 
 mend this as a desirable course to be pursued in many cases, it 
 can no longer be regarded as necessary. In practice, the mere 
 request of the client is the common method, and is undoubtedly 
 a sufScient authorization, in the absence of a statute or rule of 
 procedure requiring more.* 
 
 And the rule may be stated still more broadly, for an express 
 request is not indispensable, but the attorney's authority may be 
 inferred from the words or conduct of his client, or his unauthor- 
 ized appearance and action may be subsequently ratified and con- 
 firmed. In this respect, the ordinary rules which govern the 
 appointment of agents generally, apply, and the same kind of 
 evidence which would be admissible to establish the authority of 
 any agent may be used to establish the authoritj'' of an attorney.' 
 
 ' McAlexander v. Wri^iht, 3 T. B. Bunton v. Lyford, 37 N. H 512, 75 
 
 Mon. (Ky.)18a, 16 Am. Dec. 93. Am. Dec. 144; Henck v. Todhunter, 
 
 « Smith V. Black, 51 Md, 247; Eick- 7 H. & J. (Md.) 275, 16 Am. Dec. 
 
 man v. Troll, 29 Minn. 124; Manches- 300. 
 
 ter Bank v. Fellows, 28 N. H. 802; 3 See ante, §§ 109, 182. 
 
 665
 
 § 809. THE LAW OF AGENCY. [Book Y. 
 
 III. 
 APPEARANCE PRESUMPTIVELT AUTHORIZED. 
 
 8 809. Presumption of Authority. An attorney, as has been 
 seen, is an officer of the court, and is responsible to the court for 
 the propriety of his professional conduct, and for the proper 
 exercise of his privileges as such. It is the presumption of the 
 law that he does not violate his duty, or impose upon the court 
 with a false appearance of authority. Wherever, therefore, a 
 regularly admitted attorney appears for a party in a cause, the 
 presumption is that such appearance is authorized.' And this 
 rule applies whether the attorney appears for a natural person or 
 a corporation.' 
 
 8 810. The Presumption not conclusive. This presumption, 
 however, is not conclusive, but the fact of the authority may, in 
 a proper case, be inquired into. The occasion for this inquiry 
 may arise under several states of fact. Thus the authority of 
 the attorney may be questioned during the pendency of the suit 
 in which he assumes to appear, and this may be done either by 
 his alleged client, or by the opposite party. Or the question of 
 his authority may arise, either directly or collaterally, in a subse- 
 quent action in which the judgment obtained upon his appear- 
 ance may be called in question. 
 
 a. While Proceedings are Pending. 
 1. Opposite party may require joroduction of authority. The 
 opposite party in a pending suit, having reasonable grounds to 
 doubt the attorney's authority to appear, may apply to the court 
 to require him to produce his authority. But before the court 
 will interfere in such a case, the party making the application 
 
 lOsborn?). The United States Bank, Miss, 567; Dorsey v. Kyle. 30 Md. 
 
 9 Wheat. (U.S.) 738; Schlitz i). Meyer, 512, 96 Am. Dec. 617; Hamilton v. 
 
 Gl Wis. 418; Low v. Settle, 22 W. Wright, 37 N. Y. 502; Proprietors e. 
 
 Va. 387; Esley v. People, 23 Kan. Bishop, 2 Vt. 231; Thomas v. Steele, 
 
 510; Piggott 7). Addicks, 3 G. Greene 23 Wis. 207; Pillsbury o. Dugan. 9 
 
 (Iowa) 427, 56 Am. Dec. 547; Denton Ohio 117; Leslie e. Fischer, 62 IlL 
 
 T. Noyes.'e Johns. (N. Y.) 208, 5 118; Hager u Cochran, 66 Md. 253; 
 
 Am. Dec'. 237; Arnold v. Nye, 23 Norberg u Heineman, 59 Mich. 210. 
 Mich. 286; Harshey v. Blackmarr, 20 s Penobscot Boom Co. p. Lamson, 
 
 Iowa, 161,' 89 Am. Dec. 520; Hardin 16 Me. 224, 33 Am. Dec. 656. 
 t). Ho-Yo-Po-Nubby's Lessee, 27 
 
 666
 
 Chap. I.] 
 
 ATTOENEYS AT LAW. 
 
 §810. 
 
 must adduce some facts showing or tending to show that the 
 attorney does not in fact possess the authority which he assumes 
 to exercise. The court will not proceed in such a case upon lii^lit 
 or frivolous grounds, but where the facts alleged raise a reason- 
 able presumption that the attorney is acting in the case without 
 authority from the party he assumes to represent, the court will 
 require him to produce his authority.' 
 
 This showing is usually made upon affidavits," and the burden 
 of proof rests upon him who denies the authority.* The ques- 
 tion should be raised upon the earliest practicable opportunity. 
 It cannot be raised for the first time on appeal.* 
 
 2. What evidence sufficient. In some cases, the statement of 
 the attorney that he does, in fact, represent the party for whom 
 he assumes to act, has been held sufficient," and the affidavit of 
 the attorney that he was duly authorized, either by the party or 
 his agent, would be competent proof of his authority.* So, 
 where the alleged client resides at a distance, letters coming or 
 purporting to come, in due course from himself or his agent, 
 authorizing the commencement of the suit would be sufficient.' 
 
 1 Tally V. Reynolds, 1 Ark. 99, 31 
 Am. Dec. 737; Keith v. Wilson, 6 
 Mo. 435, 35 Am. Dec. 443; McAlex- 
 snder v. Wright, 3 T. B. Mon. (Ky.) 
 189, 16 Am. Dec. 93; West v. Hous- 
 ton, 3 Harr. (Del.) 15; McKierman v. 
 Patrick, 4 How. (Miss.) 333; People 
 V. Mariposa Co. 39 Cal. 683; Leslie v. 
 Fischer, 62 111. 118; Hamilton «. 
 Wright, 37 N. T. 503. 
 
 Showing of authority will not be 
 required on mere demand. Norberg 
 V. Heinemau, 59 Mich. 210. 
 
 s Dockham d. Potter, 27 La Ann. 
 73; Tally v. Reynolds, supra. 
 
 3 Thomas v. Steele, 22 Wis. 207; 
 Schlitz V. Meyer, 61 Wis. 418; Low 
 v. Settle, 23 W. Va. 387; Esley v. 
 People, 23 Kan. 510. 
 
 * State V. Carothers, 1 G. Greene 
 (Iowa) 464. 
 
 6 Penobscot Boom Co. Lamson, 16 
 Me. 224, 33 Am. Dec. 656; Manches- 
 ter Bank v. Fellows, 28 N. H. 802; 
 Bridgton v. Bennett, 23 Me. 430. 
 
 • Eickman v. Troll, 29 Minn. 124. 
 Hughes V. Osborn, 43 Ind, 450. 
 
 1 Hardin «. Ho-Yo-Po-Nubby'a 
 Lessee, 27 Miss. 567. " The presump- 
 tion," said the court in this case, at p. 
 579, "is in favor of his authority, 
 and though he may be required to 
 show it, yet if he acts in good faith 
 and the want of authority is not mani- 
 fest, he will not be held to have acted 
 without authority, because it is not 
 shown according to strictly legal rules. 
 If this were not so, the greatest in- 
 convenience in practice would con- 
 tinually occur both to clients and at- 
 torneys; for suits are frequently 
 instituted by attorneys under the au- 
 thority of letters from their clients, 
 who are strangers, and whose hand- 
 writing is unknown to them, and 
 could not be proved without great 
 trouble and delay. If required in 
 such a case to produce his authority, 
 the production of the letter, though 
 hs lai^ht be wnable to prove the hand- 
 
 667
 
 § 810. THE LAW OF AGENCY. [JJook Y. 
 
 3. Client may dispute authority. It has been held in some 
 cases, that an appearance bj an attorney binds the party for 
 whom he appears, whether the attorney was employed by the 
 party or not,' and that the only remedy of the party, in such a 
 case, was by a proceeding against the attorney.* That this is a 
 harsh rule, and that it affords in many cases no security whatever 
 to the party, is too manifest to require argument. That it is 
 opposed to every principle of the law of agency, binding a party 
 who has neither expressly authorized or tacitly consented to the 
 appearance, is equally obvious, and a number of courts have 
 sought to modify it, by holding it to be applicable, only in cases 
 where the attorney is pecuniarily responsible.* While the rule, 
 thus modified, would afford relief in some cases, it is also emi- 
 nently unsatisfactory and unreasonable. No rule of law ought 
 to rest upon the uncertain and shifting conditions of any man's 
 pecuniary responsibility. 
 
 And it is believed that no such distinction can be sustained. 
 A party may, by his laches, deprive himself of the right to 
 object, or he may, by acquiescence, give apparent validity to an 
 unauthorized appearance, but these cases stand upon other and 
 familiar ground. The true rule is believed to be that, while the 
 appearance of a regularly admitted attorney is presumed to be 
 
 writing, would be sufficient, and so Peck, 17 Vt. 802; Denton v. Noyes, 
 
 of a letter written by a party pur- 6 Johns. (N. Y.) 298, 5 Am. Dec. 237. 
 
 porting to be the agent of the plain- This case has been followed in New 
 
 tiff. All that is required to be shown York, though often under protest. 
 
 in such cases in the first instance, is, See Meachara v. Dudley, 6 Wend, 
 
 that the attorney has acted in good 515; Ingalls v. Sprague, 10 Wend, 
 
 faith and under an authority appear- 673; Gaillard c. Smart, 6 Cow. 386; 
 
 ing to be genuine, though informal. It Acker v. Ledyard, 8 N. Y. 65; Brown 
 
 then devolves upon the party impeach- «. Nichols, 42 K Y. 26; Everett v. 
 
 ing the authority, to show by positive Warner Bank, 58 N. H. 340; Cyphert 
 
 proof, that it is invalid, and insuffl- v. McLune, 22 Penn. St, 195; Eng- 
 
 cient in substance." To same effect, land v. Garner, 90 N. C. 197; Univer- 
 
 see Savery «. Savery, 8 Iowa, 217; sity t). Lassiter, 83 Id. 38; Dorsey ». 
 
 Bushi). Miller, 13 Barb. (N. Y.) 481; Kyle, 30 Md. 512, 96 Am. Dec. 617. 
 Grignon t». Schmitz, 18 Wis. 620. « Anonymous, 1 Salk. 86; Denton 
 
 This presumption does not apply v. Noyes, supra; Bnnton v. Lyford, 
 
 to inferior courts. 37 N. H. 512, 75 Am. Dec. 144; Mun- 
 
 » Abbott V. Dutton, 44 Vt. 546, 8 nikuyson v. Dorsett, 2 H. & G. (Md.) 
 
 Am. Rep. 394; St. Albans ». Bush, 4 878; Dorsey v. Kyle, supra. 
 Vt. 58,23 Am. Dec. 246; Spaulding 'Anonymous, 1 Salk. 86; Denton 
 
 V. Swift. 18 Vt. 214; Newcomb v. v. Noyes, supra. 
 
 068
 
 Chap. I.] 
 
 ATT0ENEY8 AT LAW. 
 
 §810. 
 
 authorized, this presumption is not conchisive upon a party who 
 has given no authority or color of authority for it, and tliat the 
 proceeding taken by the unauthorized attorney will be suspended, 
 or a judgment obtained upon his unauthorized appearance or 
 consent, will be vacated by the court upon a timely application 
 of the party for whom the attorney assumed to act.' This relief 
 is usually obtained by motion to the court showing the facts, or, 
 if the defect appear upon the record, by writ of error, and not 
 by audita querela.* 
 
 b. In Actions upon the Judgment. 
 1. Foreign Judgments. The rule is now well settled that in 
 actions brought upon judgments, recovered in other states or 
 countries, it is competent for the defendant to show, notwith- 
 standing any recitals in the judgment record to the contrary, that 
 he was not in fact served with process, and that the appearance 
 entered for him by the attorney was unauthorized.' This rule 
 does not conflict with the Constitution of the United States, for 
 it is only when the court had, in fact, jurisdiction of the cause. 
 
 > Harshey t>. Blackmarr, 20 Iowa, 
 161, 89 Am. Dec. 520; Marvel v. 
 Manouvrier, 14 La. Auu. 3, 74 Am. 
 Dec. 424; Sherrard v. Nevius, 2 Ind. 
 241, 52 Am Dec 50S; Wiley?;. Pratt, 
 23 Ind. 633; Brinkman v. Shaffer, 23 
 Kan. 528; Reynolds v. Fleming, 30 
 Kan. 106, 46 Am. Rep. 85; Crichfield 
 V. Porter, 3 Ohio, 518; DeLouia v. 
 Meek, 3 Q. Greene, (Iowa) 55, 50 Am. 
 Dec. 491; Ridge v. Alter, 14 La. Ann, 
 866; Hefiferman v. Burt, 7 Iowa, 321. 
 71 Am. Dec. 445. 
 
 « Arno V. Wayne Circuit Judge, 42 
 Mich. 362, where a default entered 
 for not replying to a plea filed by un- 
 authorized attorney was set aside on 
 motion. Where an attorney brings 
 an action without the authority of 
 the plaintiff, it will be stayed on mo- 
 tion of plaintiff without costs. Rey- 
 nolds V. Howell, L. R. 8 Q. B. 398, 6 
 Eng. Rep. 129. Remedy is by appli- 
 cation direct to the court which ren- 
 
 dered the judgment, or by a writ of 
 error, and not by audita querela. 
 Abbott e. Dutton, 44 Vt. 546, 8 Am. 
 Rep. 394; Spaulding t). Swift, 18 Vt. 
 214. 
 
 3 Gleason v. Dodd, 4 Mete. (Mass. ) 
 833; Phelps v. Brewer, 9 Gush. (Mass.) 
 890; Carleton v. Bickford, 13 Gray 
 (Mass.) 591; McDermott c. Clary, 107 
 M:is9. 501; Gilman c. Oilman, 126 
 Mass. 36, 30 Am. Rep. 646; Mastin v. 
 Gray, 19 Kan. 458, 27 Am. Rep. 149; 
 Norwood V. Cobb, 24 Tex. 651 ; Star- 
 buck V. Murray, 5 Wend. (N.Y.) 148, 
 21 Am. Dec. 172; Aldrich v. Kinney, 
 4 Conn. 380, 10 Am. Dec. 151 ; Fer- 
 guson V. Crawford, 70 N. Y. 25:^, 2(5 
 Am. Rep. 589; Latterett t>. Cook, 1 
 Iowa 1. 63 Am. Dec. 428; Baltzell v. 
 Nosier, 1 Iowa, 588, 63 Am. Dec. 
 466; Harshey v. Blackmarr, 20 Iowa, 
 101, 89 Am. Dec. 520; Rape v. Hea- 
 ton, 9 Wis. 328, 76 Am. Dec. 269. 
 
 669
 
 § 811. THE LAW OF AGENCY. [ liu(jk V. 
 
 and of the parties, that its judgment is entitled to full faith and 
 credit.' 
 
 2. Domestic Judgments. Some doubt has been raised whether 
 this rule applies also to domestic judgments, but the later and 
 better considered cases hold that there is no distinction, and that 
 any judgment rendered without jurisdiction, when assailed 
 directly, may be impeached, and that, in doing so, anything con- 
 tained in the record purporting to give or prove jurisdiction, — 
 as the appearance of an attorney, — may be contradicted by any 
 evidence, extrinsic as well as intrinsic, and may be shown to be 
 untrue and false.' 
 
 lY. 
 
 IMPLIED AUTHORITY OF ATTORNEY. 
 
 § 811. Has general Control of Conduct of Suit. A party em- 
 ploys an attorney to conduct and manage his cause in court 
 because he himself lacks the learning, experience and ability 
 necessary to its successful prosecution, and because he believes 
 that the attorney possesses these qualifications. The object 
 sought is the prosecution or defense of the cause, and the author- 
 ity to accomplish this is confided to the attorney. As in other 
 cases, this authority must carry with it all the incidental and 
 auxiliary powers which are reasonable and proper to carry the 
 main power into effect. Much of the procedure in the case is 
 governed by rules of court with which the attorney is familiar, 
 and which it is his duty to observe. The orderly conduct of the 
 cause requires that the settled course of practice shall be adhered 
 to, with which the attorney, and not the client, is presumed to 
 be acquainted. 
 
 When, therefore, a party puts his cause into the hands of an 
 attorney, the latter is necessarily vested with large, if not exclu- 
 sive authority, to control the conduct and management of the 
 suit in all matters which pertain to the remedy, and which do 
 not involve the substantial rights of the client. For the due and 
 
 » Oilman «. Gilman, 126 Mass. 26, « Reynolds v. Fleming, 30 Kan. 
 
 80 Am. Rep. 646; Penny wit t). Foote, 106, 46 Am. Rep. 86; Ferguson t>. 
 
 27 Ohio St. 600, 22 Am. Rep. 340, Crawford, 70 N. Y. 253, 26 Am. Rep. 
 
 which contains a full review of the 589 ; Harshey v. Blackmarr, 20 Iowa, 
 
 cases. 161, 89 Am. Dec. 520. 
 
 670
 
 CJiap. J.J 
 
 ArrORNEYS AT LAW. 
 
 §blli. 
 
 orderly conduct of the cause, the court holds the attorney respon- 
 sible, and these matters the client, while he has an attorney of 
 record, has no right to interfere with or to control.^ So what- 
 ever the attorney does in the prosecution of the remedy, if it be 
 not done fraudulently or collusively, is binding upon the client, 
 although it may result disastrously to hitn.' 
 
 And this rule is not confined to the proceedings had in court, 
 but includes all acts, whether done in or out of court, necessary 
 or incidental to the prosecution or defense of the suit, and which 
 aflfect the remedy only and not the cause of action,' 
 
 § 812. Same Subject— "What included. As incidental to his 
 authority to manage and control the general course and conduct 
 of the cause, the attorney of record has implied power : — 
 
 a. To make such affidavits as are required in the progress of 
 the cause, when tlie facts are within his knowledge.* 
 
 ' "A party to an action may appear 
 in his own proper person or by at- 
 torney, but he cannot do both. If he 
 appears by attorney, he must be heard 
 through him, and it is indispensable 
 to the decorum of the court, and the 
 due and orderly conduct of a cause 
 that such attorney shall have the 
 management and control of the action, 
 and his acts go unquestioned by any 
 one except the party whom he repre- 
 sents. So long as he remains attor- 
 ney of record, the court cannot recog- 
 nize any other as having the manage- 
 ment of the cause." Sanderson, C. 
 J., in Board of Commissioners «. 
 Younger, 29 Cal. 147, 87 Am. Dec. 
 164. To same effect see Mott v. 
 Foster, 45 Cal. 72; Nightingale v. 
 Oregon Central Ry Co., 2 Sawyer, 
 (U. S. C. C.) 338. But where the 
 client has stipulated in person to set- 
 tle the cause, he cannot defeat it by 
 insisting that his attorney and not 
 himself was the person who should 
 have signed. McBratney v. Rome, 
 &c. R. R. Co., 87 N. Y. 467. 
 
 «Beck «, Bellamy, 93 N. C. 129; 
 Foster v. Wiley, 27 Mich. 244; Lee v. 
 Grimes, 4 Col. 185; Moulton v. Bow- 
 
 ker, 115 Mass. 36, 15 Am. Rep. 72; 
 Clark V. Randall, 9 Wis. 135, 76 Am, 
 Dec. 252; Pierce v. Strickland, 2 
 Story (U. S. C. C.) 292; Nightingale 
 V. Oregon Cent. Ry Co., 2 Sawyer 
 (U. S. C. C.) 338; Jenney v. Deies- 
 dernier, 20 Me. 183 ; Benson v. Carr, 
 73 Id. 76; Burgess v. Stevens. 76 Id. 
 559; Levyw. Brown. 56 Miss. 83; Mc- 
 Cann v. McLennan. 3 Neb. 25; Edger- 
 ton V. Brackett, 11 N, H. 218; Lewis 
 V. Sumner. 13 Metc.(Mass.) 269; Shores 
 e. Caswell, Id. 413; Wieland ®. White, 
 109 Mass. 392; DeLouis v. Meek, 2 
 G. Greene (Iowa) 55, 50 Am. Dec. 
 491 ; Howe v. Lawrence, 22 N. J. L. 
 99. 
 
 * Moulton u. Bowker, 115 Mass. 36, 
 15 Am. Rep. 72. 
 
 * He may verify, by affidavit, a 
 petition in scire facias. Wright v. 
 Parks, 10 Iowa, 342. He may make 
 an affidavit to obtain an order of 
 siezure and sale. Simpson v. Lom- 
 bas, 14 La. Ann. 103; or to obtain an 
 attachment, Clark v. Morse, 16 La. 
 575; Austin v. Latham, 19 Id. 88; 
 Willis V. Lyman, 22 Tex. 268; Manley 
 e. Headley, 10 Kan. 88. 
 
 671
 
 gbili. 
 
 TllK LAW OF AGENCY. 
 
 [Book V. 
 
 h. To waive a verification.' 
 
 0. To serve, and accept service of, all necessary and proper 
 papers, notices, etc., during the progress of the cause.' 
 
 d. To waive formal notice of proceedings in the cause.* 
 €. To waive or extend the time fixed for any motion or pro- 
 ceeding.* 
 
 f. To consent to a reference of the cause.* 
 
 g. To submit the cause to arbitrators.* 
 
 h. To dismiss or discontinue the action.' 
 i. To consent to a nonsuit.' 
 j. To appeal the case.* 
 
 k. To admit facts for the purposes of trial, either on the trial 
 or before.'* 
 
 1. To stipulate as to the issues to be tried." 
 m. To waive informalities and technicalities." 
 
 n. To release an attachment lien before judgment." 
 
 » Smith e. Mulliken, 2 Minn. 319. 
 
 2 Anderson v. Watson, 3 C. & P. 
 214; Richardson v. Daly, 4 M. & W. 
 384. 
 
 9 Hefferman v. Burt, 7 Iowa, 320, 
 71 Am Dec. 445. 
 
 * Hefferman v. Burt, supra. 
 
 s Stokely v. Robinson, 84 Penn. St. 
 315; Woder v. Powell, 31 Ga. 1; 
 Smith V. Bossard, 2 McCord's (S. C.) 
 Ch. 406; Tiffany v. Lord, 40 How. 
 (N. Y.) Pr. 481. 
 
 « Sargeant v. Clark, 108 Penn. St. 
 583; Holker v. Parker, 7 Cranch (U. S.) 
 436; Connett v. Chicago, 114 111. 233; 
 Tilton V. United States Life Ins. Co., 
 8 Daly (N. Y.) 84; Lee v. Grimes, 4 
 Col. 185; Morris ®. Grier. 76 N. C. 
 410; Williams v. Tracey, 95 Penn. St. 
 308; Alton v. Gilmanton, 2 N. H. 
 520; Yates v. Russell, 17 Johns. (K 
 Y.) 401; Ha.skelltJ. Whitney, 12 Mass. 
 47; Buckland v. Conway, 16 Mass. 
 396: Fernald v. Ladd, 4 N. H. 370; 
 Pikec. Emerson, 5 N. H. 393, 22 
 Am. Dec. 468; Jenkins v. Gille?pie, 
 10 8m. & M. (Miss.) 31, 48 Am. Dec. 
 732; Beverly t». Stephens. 17 Ala. 
 
 701 ; Brooks v. New Durham, 55 N. 
 H. 559; contra McPherson v. Cox, 86 
 N. Y. 472. 
 
 TPaxton^. Cobb, 2 La. 137; Mc- 
 Leran v. McNamara, 55 Cal. 508; 
 Rogers t). Greenwood, 14 Minn, 333; 
 Gaillard v. Smart, Cow. (N. Y.) 
 385; Barrett v. Third Ave. R. R. Co., 
 45 N. Y. 028; Davis v. Hall, 90 Mo. 
 659. 
 
 8 Lynch v. Coel, 12 L. T. 548. 
 
 •Grosvenor v. Danforth, 16 Mass. 
 74; Bach v. Ballard. 13 La. Ann. 487. 
 
 '0 Starke v. Kenan, 11 Ala. 819; 
 Farmers' Bank v. Sprigg, 11 Md 389; 
 Pike V. Emerson, 5 N. H. 393; Talbot 
 T. McGee, 4 T, B. Mon. (Ky.) 377; 
 Lewis V. Sumner, 13 Mete. (IVlass.) 
 269. 
 
 Admissions to bind the client must 
 be distinct and formal, and made for 
 the purpose of dispensing with proof. 
 Treadway v. Sioux City, &c. R. R. 
 Co., 40 Iowa, 526. 
 
 " Bingham v. Supervisors, 6 Minn. 
 136. 
 
 " Hanson v. Hoitt, 14 N. H. 66. 
 
 >» Benson t). Carr, 73 Me. 76; Moul- 
 
 672
 
 Chap. L] 
 
 ATTORNEYS AT LAW. 
 
 §813. 
 
 o. To stipulate that judgment in the cause be the same as in 
 another cause then pending involving the same questions.' 
 
 jp. To get necessary briefs printed at client's expense.* 
 
 q. To bring a new action after a nonsuit.' 
 
 r. To agree that upon judgment being entered for his client, 
 he will suspend the issue of execution.* 
 
 8. To remit damages after a verdict.' 
 
 § 813. Same Subject— "What not included. Such an attorney 
 has, however, no implied power : — 
 
 a. To admit or accept service of original process by which 
 the court acquires jurisdiction for the first time of the person of 
 his client* 
 
 h. To confess or consent to judgment against bis client.' 
 
 c. To enter a retraxit when it is a final bar.' 
 
 d. To stipulate that the dismissal of an action shall bar an 
 action for malicious prosecution.* 
 
 6. To compromise the claim of his client.** 
 
 ton t>. Bowker, 115 Mass. 36, 15 Am. 
 Rep. 72; Jenney v. Delesdernier, 20 
 Me. 183; Pierce v. Strickland, 2 Story 
 (U. 8. C. C.) 292. 
 
 * North Missouri R. R. Co. v, 
 Stephens, 36 Mo. 150, 88 Am. Dec. 
 138; or that the result in one of 
 several similar causes determine all. 
 Ohlquest v. Farwell — Iowa — 32 N, 
 W. Rep. 277. 
 
 « Weisse v. New Orleans, 10 La. 
 Ann. 46; Williamson, &c. Paper Co. 
 V. Bosbyshell, 14 Mo. App. 534. 
 
 » Scott V. Elmendorf, 12 Johns. (N. 
 T.) 317. 
 
 * Union Bank v. Geary., 5 Pet. (U. 
 S.)99; Wieland». White, 109 Mass. 
 392. 
 
 * Lamb v. Williams, 1 Salk. 89. 
 
 * Masterson v. Le Claire, 4 Minn. 
 163; Reed v. Reed, 19 S. C. 548; Starr 
 «. Hall, 87 N. C. 381. 
 
 ' People V. Lambom, 2 111. 123; 
 Wadhamsr). Qay,73Ill. 415; Edwards 
 «. Edwards, 29 La. Ann. 597; Pfister 
 «. Wade, 69 Cal. 133; Swinfenc. Swin- 
 fen, 24 Beav. 549. 
 
 • Lambert «. Sandford, 2 Blackf. 
 and.) 137, 18 Am. Dec. 149. 
 
 • Marbourg v. Smith, 11 Kans. 554. 
 '• The English rule is otherwise, 
 
 but the rule stated in the text is sup- 
 ported by an overwhelming mass of 
 authority in the United States. See 
 Fritchey B. Bosley, 56 Md. 96; Isaacs 
 «. Zugsmith, 103 Penn. St. 77; Jones 
 V. Inness, 32 Kan. 177; Kelly v. 
 Wright, 65 Wis. 236; Roberts v. Nel- 
 son, 22 Mo. App. 28; Whipple o. 
 Whitman, 13 R. I. 512, 43 Am. Rep. 
 42; Mackey «. Adair, 99 Penn, St. 
 143; North Whitehall v. Keller, 100 
 Penn. St. 105, 45 Am. Rep. 361; 
 Granger v. Batchelder, 54 Vt. 248, 41 
 Am. Rep. 846; Ambrose v. McDon- 
 ald, 53 Cal. 28; Pickett «. Merchants' 
 Nat. Bank, 32 Ark. 346; Mandeville 
 V. Reynolds, 68 N. T. 538; Wadhams 
 e. Gay, 73 111. 415; Roller v. Woold- 
 ridge, 46 Tex. 485; Preston v. Hill, 50 
 Cal. 43; Maddux v. Bevan, 39 Md. 
 485;Walden v. Bolton, 55 Mo. 405; 
 Spears v. Ledergerber, 56 Mo. 4G5; 
 Vanderline v. Smith, 18 Mo. App. 65; 
 
 43 
 
 673
 
 §813. 
 
 THE LAW OF AGENCY. 
 
 [Book Y. 
 
 f. To release his client's cause of action.* 
 g. To stipulate not to appeal or move for a new trial.' 
 A. To release the property of the defendant from the lien of a 
 judgment,* or from the levy of an execution.^ 
 
 *'. To release his client's security without payment.* 
 /. To discharge or release a surety ' or indorser.' 
 Ic. To discharge a defendant in custody on a ca. sa.^ without 
 the plaintiff's consent or without satisfaction.* 
 
 I. To agree to suspend proceedings on a judgment.* 
 m. To release a garnishee from the attachment of money or 
 property in his hands." 
 
 n. To release the interest of parties so as to make them com- 
 petent as witnesses." 
 
 0. To give an extension of time upon the demand." 
 
 p. To assign or transfer the demand or suit to a third person." 
 
 Grumley «. Webb, 48 Mo. 563; 
 Wetheibeet). Fitch, 117 111. 67; Moye 
 V. Cogdell, 69 N. C. 93; Adams t». 
 Roller, 35 Tex. 711. Contra, Bon- 
 ney e. Morrill, 57 Me. 368. But a 
 fair and judicious compromise made 
 by the attorney with the assent of the 
 real party in interest though' without 
 the knowledge of the plaintiff of 
 lecord will not be disturbed. Whip- 
 ple V. Whitman, 13 R. I. 512, 43 
 Am. Rep. 43. Authority to com- 
 promise a claim does not imply au- 
 tiiority to assign it to a third person. 
 Mayer v. Blease, 4 S. C. 10. 
 
 ' Mandeville v. Reynolds, 68 N. Y. 
 538; Cox'P. New York, &c. R. R. Co., 
 63 N. Y. 414; Gilliland v. Gasque, 6 
 y. C. 406; Wadhams v. Gay, 73 111. 
 415. 
 
 'People V. Mayor, &c. of New 
 York, 11 Abb. Pr. 66, contra. Pike ». 
 Emerson. 5 N. H. 393, 22 Am. Dec. 
 468. 
 
 8 Phillips V. Dobbins, 56 Ga. 617; 
 Fritcheyi;. Bosley, 56 Md. 94; Horsey 
 V. Chew, 65 Md. 555 
 
 « Banks «. Evans, 10 Sm. & M. 
 (Miss.) 35, 48 Am. Dec. 784; Benedict 
 «. Smith, 10 Paige (N. Y.) 126. 
 
 • Terhune v. Colton, 2 Stock. (N, 
 J.) Eq. 21; Tankersley v. Anderson, 4 
 Desaus. (S. C.) 45. 
 
 • Savings Inst. «. Chinn, 7 Bush 
 (Ky.) 539; Givens «. Briscoe, 3 J. J. 
 Marsh. (Ky.) 529; Union Bank v. 
 Govan, 10 Sm. & M. (Miss.) 333; 
 Stoll «. Sheldon, 13 Neb. 207. 
 
 ■^ East River Bank v. Kennedy, 9 
 Bosw. (N. Y.) 548; Kellogg v. Gil- 
 bert, 10 Johns. (N. Y.) 220; York 
 Bank v. Appleton, 17 Me. 55. 
 
 8 Kellogg V. Gilbert, 10 Johns. (N. 
 Y.) 220, 6 Am. Dec. 335; Treasurers 
 V. McDowell, 1 Hill (S. C.) 184, 26 
 Am. Dec. 166. 
 
 » Pendexter t>. Vernon, 9 Humph. 
 (Tenn.) 84. 
 
 »» Quarles «. Porter, 12 Mo. 76. 
 
 " York Bank v. Appleton, 17 Me. 
 55; East River Bank v. Kennedy, 9 
 Bosw. (N. Y.) 543; Murray v. Hon.se, 
 11 Johns. (N. Y.)464; Shores v. Cas- 
 well, 13 Mete. (Mass.) 413; Ball v. 
 Bank of Alabama, 8 Ala. 690, 43 
 Am. Dec. 649. 
 
 12 Lockhart v. Wyatt, 10 Ala. 231, 
 44 Am. Dec. 481. 
 
 18 Child ®, Eureka Powder Works, 
 44 N. H. 354; Russell v. Drummond, 
 
 674
 
 Chap. I.] ATTORNEYS AT LAW. § 814. 
 
 q. To consent to stay the execution if lieu will be lost.* 
 
 r. To waive the right to an inquisition.' 
 
 B. To give up tlie demand and take other security.' 
 
 t. To employ counsel at client's expense.* 
 
 u. To stipulate that case shall not be tried during certain 
 periods.' 
 
 V. To undertake journeys on client's behalf and at his ex- 
 pense.* 
 
 § 814. Can not delegate his Powers. The relation of attor- 
 ney and client is pre-eminently one of trust and confidence. 
 The client employs a particular attorney because he relies upon 
 his skill, learning, ability or integrity. The attorney, in the 
 management of the cause, has from necessity a large discretion 
 and authority as to the general course and conduct of the pro- 
 ceedings, and this fact the client has presumably taken into con- 
 sideration in making his selection. In accordance with weH 
 settled principles of agency, therefore, the rule is rigidly adhered 
 to that those powers committed to an attorney, which involve 
 the exercise on his part of judgment or discretion, or which are 
 based upon considerations of his personal skill or ability, can not 
 be delegated by him to another without the consent of his 
 client.' 
 
 6 Ind. 216; Craig t». Ely, 5 Stew, «& bound by the acts done in the discre- 
 
 P. (Ala.) 354. tion of one to whom the agent 
 
 » Reynolds », Ingersoll, 11 Sm. «fe attempts to delegate his authority. 
 
 M. (Miss.) 249, 49 Am. Dec. 57. The rule is based upon the consider- 
 
 3 Hadden ». Clark, 2 Grant (Penn.) ation that to the agent is confided the 
 
 l!07. personal trust and confidence which 
 
 » Tankersley «. Anderson, 4 controlled his appointment or selec- 
 
 Desau. (S. C.) 44. tion, and is essential to the existence 
 
 < Voorhies ». Harrison, 23 La. of the relation of principal and agent. 
 
 A.nn. 85; Youngs. Crawford, 23 Mo. We know of no rule excepting from 
 
 A.pp. 433. the operation of this doctrine any 
 
 6 Robert c. Commercial Bank, 13 attorney at law, whose duties, re- 
 La. 528, 33 Am. Dec. 570. sponsibilities and liabilities arise from 
 
 ^ In re Snell., 5 Ch. Div. 815, 22 the relation of agency exi.sting 
 
 Eng. Rep. 4S5. between him and his client, though 
 
 T "A. familiar and general rule of they are varied from those of other 
 
 law," says Beck, J. "applicable to agents by consideration of the pecu- 
 
 the relation of principal and agent is, liar service he is required to perform, 
 
 that the agent cannot delegate the Indeed it would appear, in view of 
 
 authority conferred upon him to the fact that attorneys are cho.>;en 
 
 another, so that the principal will be by reason of their peculiar capacities 
 
 675
 
 § 814. THE LAW OF AQBNOT. [Book V. 
 
 Thus the client who has employed an attorney to take charge 
 of his case at the trial, or to argue it in an appellate court, or to 
 undertake to secure a compromise, or to endeavor to collect an 
 account, or to do any other act involving judgment, skill, ability 
 or discretion, is entitled to have the personal services of the 
 attorney for which he stipulated, and the attorney has no right 
 or power to bind his client by subletting or delegating the work 
 to another.' If such a delegation were attempted, the client 
 would have the undoubted right to summarily intercept its exe- 
 cution," and if it were fully executed, without his knowledge or 
 consent, the execution would render him liable neither to the 
 original attorney nor to his substitute.' But if, having knowl- 
 edge of the substitution, he should permit the substitute to per- 
 form the services without objection, he would be deemed to 
 have assented to it.* 
 
 So third persons dealing with such a substitute would acquire 
 no riirhts against the client, inasmuch as the substitute is the 
 agent of the attorney only, and not of his client.' Thus if the 
 client entrusts to his attorney a claim or note for collection, and 
 the attorney employs another to do it for him, the latter stands in 
 no relation of privity to the client, and a payment made to the sub- 
 stitute will not be a payment to the client unless actually received 
 by him.* 
 
 If, however, the note were payable to bearer, or was endorsed 
 in blank, and was paid at maturity to one having the possession 
 
 and character, and other personal « Eggleston t>. Boardman, #upra. 
 
 qualities, that the principles we have • Eggleston c. Boardman, supra. 
 
 stated should be rigidly applied in A client is not liable for costs made 
 
 cases of this kind." In Autrobus v. by an attorney employed by his attor- 
 
 Sherman, 65 Iowa 230, 54 Am. Rep. ney. Antrobus v. Sherman. 65 Iowa, 
 
 7. To same effect: Dickson v. 230, 54 Am. Rep. 7. 
 Wright, 53 Miss. 585, 24 Am. Rep. * Eggleston v. Boardman, supra. 
 
 677; Danley v. Crawl, 28 Ark. 95; Briggs b. Georgia, 10 Vt. 68. 
 Kellogg V. Norris, 10 Ark. 18; « See ani£, § 197. 
 
 Smalley v. Greene, 52 Iowa 241, 35 « Kellogg v. Norris, 10 Ark. 18; 
 
 Am. Rep. 267. Danley v. Crawl., 28 Ark. 95. At 
 
 ' Eggleston v. Boardman, 37 Mich. any rate if the debtor knew of the 
 
 14. An agreement by an attorney to substitution and the substitute did 
 
 turn over to another attorne}', notes not have possession of the note, 
 
 which the former holds for collection, Dickson v. Wright, 52 Miss. 585,24 
 
 is invalid. Smalley v. Greene, supra. Am. Rep. 677. 
 
 676
 
 Chap. L] ATTOKNBrs at law. § 816. 
 
 of it, ready to be delivered upon payment, such payment would 
 be valid and discharge the debtor.' 
 
 The client may, however, either expressly or by implication 
 authorize the attorney to employ a substitute, or he may subse- 
 quently ratify and confirm such delegation, and, in either of these 
 cases, the substitute is the attorney of the client. 
 
 The employment of one of a firm of attorneys is an employ- 
 ment of them all, and, unless otherwise stipulated, the cause may 
 be tried, or the business performed, by any one of them.* 
 
 § 815. May employ Subordinates. But this rule does not 
 require that the attorney should personally perform all of the 
 mechanical and routine labor involved in the cause. From the 
 very necessities of the case, much of this must be done by clerks 
 and subordinates under his direction, and such a performance 
 does not violate the principle under consideration. As has been 
 seen, what is ministerial and mechanical merely may be dele- 
 gated ; but that which involves discretion, judgment or other 
 personal considerations may not. As the rule is sometimes 
 stated, an attorney may employ subordinates but not substitutes.* 
 
 § 816. Authority to bind Client by Bonds. The necessity for 
 the execution of bonds and other undertakings by the client, 
 frequently arises in the progress of the cause, and it becomes 
 material in many cases, particularly where the client is a non- 
 resident, to determine what authority the attorney possesses by 
 virtue of his general retainer, to execute such bonds in the name 
 of the clients. These bonds and undertakings are often required 
 to be under seal, and it has been seen to be a general rule that 
 authority to execute an instrument under seal can only be con- 
 ferred by an instrument of like solemnity.* Where, therefore, a 
 seal is required, the power to execute the bond could not, where 
 this rule prevails, be implied from a mere general retainer," but 
 if the seal were not required, it could, as has been seen,* be 
 rejected as a mere redundancy and the bond, if otherwise 
 authorized, might be given force as a simple contract or under- 
 taking.' 
 
 1 Wheeler ». Guild, 20 Pick. (Mass.) * See ante, % 93. 
 545, 32 Am. Dec. 231. • See Clark v. Courser, 29 K H. 170. 
 
 * Eggleston v. Boardman, supra. • See ante, % 95. 
 
 » Eggleston v. Boardman, 37 Mich. f Schoregge v. Gordon, 29 Minn. 
 
 14 ; McEwen v. Mazyck, 3 Rich (S. C.) 367. 
 L. 210. 
 
 67"
 
 § 816. THE LAW OF AGBNOT. [Book Y, 
 
 The question of authority must depend largely upon circum- 
 stances. Authority to do a given act carries with it implied 
 authority to do those things which are necessary in order to 
 accomplish the main end, and what is necessary must be deter- 
 mined in many cases by reference to the particular facts. Thus 
 if a party sends a claim to an attorney in a distant town for collec- 
 tion, there is implied authority in the attorney to take those steps 
 which are usually taken under like circumstances, and which are 
 necessary to accomplish the purpose. If in such a case there was 
 reasonable ground to believe that the claim would be lost unless 
 the debtor's property was attached or levied upon at once, and 
 there was not sufficient time to communicate with the client, the 
 attorney would undoubtedly be authorized to make the necessary 
 affidavit and execute the proper undertaking in the name of the 
 client to obtain the writ.' But it has been held that an attorney 
 under such circumstances is under no obligation to make the affi- 
 davit or execute the bond." If the client were on the ground 
 where he could be personally consulted, the attorney's authority 
 to bind him would be doubtful. 
 
 So it has been held that an attorney authorized to collect for a 
 non-resident client has implied authority to execute in the 
 client's name an undertaking to the sheriff to indemify him 
 against the consequences of levying the client's execution, and 
 that the attorney, acting in good faith may himself indemnify 
 the sheriff, and, if compelled to pay damages thereon, may 
 recover the amount so paid from his client.' 
 
 • D wight V. Weir, 6 La. Ann, 706; gave him their own personal bond. 
 
 Fulton V. Brown, 10 La. Ann. 350. A judgment having been rendered 
 
 Clark V. Randall, 9 Wis. 135, 76 Am. against the marshal at the suit of the 
 
 Dec 252; Schoregge v. Gordon, 29 parties who established a superior 
 
 Minn. 867. title to the goods, he took legal steps 
 
 > Foulks V. Falls, 91 Ind. 315. to collect of the attorneys, and they 
 
 » Clark V. Randall, 9 Wis. 135, 76 having paid him brought an action 
 
 Am. Dec. 252, is a leading case upon against their clients, contending that 
 
 this question. In this case attorneys the latter were bound to reimburse 
 
 at Milwaukee acting for clients in them for all damages which they had 
 
 New York in order to induce the sustained in consequence of giving 
 
 marshal, who insisted upon indem- the indemnifying bond. The court 
 
 nity, to levy an execution for their in its opinion per Cole, J. said: " It 
 
 clients upon a stock of goods which is obvious, therefore, that we have to 
 
 the attorneys believed in good faith consider whether the defendants, by 
 
 to belong to the judgment debtor, virtue of their general authority as 
 
 678
 
 Chap. L] 
 
 ATTOENETS AT LAW. 
 
 §816. 
 
 If, however, the levy were fully completed and the proceeds 
 realized, before the indemnity were given, there would be no 
 
 attorneys, and under the circum- 
 stances in which they were employed, 
 had the right to give the indemnify- 
 ing bond, and whether, if so, the 
 plaintiffs in error are bound to save 
 them harmless from any damage they 
 may have sustained thereby. 
 
 The general rights, duties, and 
 powers of attorneys in suits brought 
 by non-residents must evidently, we 
 think, be more extensive in this state 
 than they are in England. This 
 arises from the nature and character 
 of the business intrusted to them, 
 and the absolute necessity that they 
 should have full power to promptly 
 do all acts proper and conducive to 
 the collection and security of the 
 debt. As in the present case, a mer- 
 chant living at a distance of hun- 
 dreds of miles, sends a claim to an 
 attorney in this state instructing him 
 to be vigilant in looking after it, and 
 to urge payment without fear or 
 favor. We place no further stress 
 upon the precise language used by 
 the plaintiffs in error in their letter 
 addressed to the defendants in error, 
 than to say that we suppose they con- 
 tain substantially the instructions 
 given in most cases by non-residents 
 to their attorneys here. Living at a 
 distance, they are unable to give 
 i-'oeiflc instructions as to the means 
 to he employed, or the steps to be 
 taken, to secure and collect their 
 claims. Neither are they at hand to 
 give special directions to officers as 
 to the levying of executions or serv- 
 ing attachments, when such direc- 
 tions are absolutely necessary to 
 secure the debts. Besides, unforeseen 
 emergencies frequently arise which 
 require the adoption of some decided 
 line of action to prevent some tricky 
 and dishonest debtor from placing 
 
 his means entirely beyond the reach 
 of his creditors. In such cases, it is 
 manifestly for the interests of the 
 client that the fullest and largest dis- 
 cretion be given to attorneys in the 
 transaction of the business intrusted 
 to them. They are generally author- 
 ized to secure and collect debts, and 
 are clothed with the power of em- 
 ploying all the necessary and usual 
 means for the accomplishment of this 
 object. An authority is always to be 
 construed as including the usual 
 means of executing it with effect. 
 Paley on Aa:ency, c. 3, pt. 1, sec. 5; 
 Story on Agency, sec. 58. 
 
 Now, we presume it to be the gen- 
 eral understanding and quite uniform 
 practice of the profession in this 
 state, when prosecuting suits for non- 
 residents, to give directions to ofH- 
 cers about serving attachments and 
 levying executions, when any in- 
 structions are called for. We do not 
 suppose it is customary to write to 
 clients living at a great distance, who 
 can possibly know but little, if any- 
 thing, of the situation of their debt- 
 or's property, for special directions 
 upon these points. The attorney on 
 behalf of and as the agent of the 
 principal gives all proper instructions; 
 and great prejudice, inconvenience, 
 and loss would ensue to the latter if 
 the attorney did not do so. And we 
 think all this comes fairly within the 
 scope of his authority, in order to 
 protect and preserve the interests of 
 his foreign client. 'My own opin- 
 ion,' says Justice Story in the case 
 of Pierce v. Strickland, 3 Story, 292, 
 ' strongly is that the attoruey with 
 us is, by implication, clothed with 
 authority, in all cases of this sort, to 
 do all the acts which are usual and 
 proper to protect the interests of his 
 
 679
 
 §816. 
 
 THE LAW OF AGBNOT. 
 
 [Book Y. 
 
 such necessity as would justify the attorney in giving it, nor 
 would there be any consideration for it. 
 
 client, in any attachment, as a part 
 of his ordinary duty. It is for the 
 interests of all clients that this 
 authority should exist; for it would 
 be impracticable, in many cases, 
 without great expense and delays, to 
 do many acts which might be indis- 
 pensable to the security of the clients; 
 and for any abuse or misuse of his 
 authority the attorney would doubt- 
 less be liable to his client. ' See also 
 Gordon v. Coolidge, 1 Sumn. 537; 
 Union Bank v. Geary, 5 Pet. 99; 
 Holker v. Parker, 7 Cranch. 436; 
 Gorham v. Gale, 7 Cow. 739, 17 Am. 
 Dec. 549; Lynch v. Commonwealth, 
 16 Serg. & R. 368, 16 Am. Dec. 582; 
 Scott V. Seller, 5 Watts, 235; Gower 
 V. Emery, 18 Me. 79; Rice v. Wilkins, 
 21 Id. 558; Briggs v. Georgia, 10 Vt. 
 68; Hopkins v. Willard, 14 Id. 474; 
 Kimball v. Perry, 15 Id. 414. 
 
 We think, therefore, that the de- 
 fendants in error had an implied au- 
 thority, by virtue of their employment 
 as attorneys in the suit8,to indemnify 
 the marshal, when about to make a 
 levy under the execution; and that 
 their acts in this behalf were binding 
 upon their clients. And if they exe- 
 cuted their own indemnifying bond 
 to the officer, and have, in conse- 
 quence, suffered from it, it is no 
 more than just and proper that their 
 clients reimburse them for all dam- 
 ages they have sustained thereby." 
 
 This case was followed and relied 
 upon in Schoregge v. Gordon, 29 
 Minn. 367. Here an attorney acting 
 for non-resident clients, having 
 obtained judgment, caused an execu- 
 tion to be issued and levied upon 
 property supposed to belong to the 
 debtor. The property being claimed 
 by third parties, the sheriff refused to 
 retain it unless indemnified, the stat- 
 
 ute giving him the right to insist 
 upon it. Thereupon the attorney, 
 without their express direction or 
 consent, executed, to the sheriff a 
 bond of indemnity, in the name of 
 his clients by himself as their attor- 
 ney. The third parties established 
 their claim and the sheriff brought an 
 action upon the bond and the ques- 
 tion arose whether it was binding 
 . upon the clients. Vanderburgh, J. 
 said: " Having authority to proceed 
 to the enforcement and collection of 
 the judgment, was he also authorized 
 to bind his absent clients by this in- 
 strument without their express direc- 
 tion or consent ? It must be assumed 
 from the record that the levy was 
 made by the sheriff in good faith, 
 upon property in the possession of 
 the judgment debtor and colorably 
 his, and that the proper demand was 
 made upon him by the claimants 
 under the statute. It is also to be 
 presumed (nothing appearing to the 
 contrary) that the attorney acted in 
 good faith and with reasonable dis- 
 cretion in seeking to retain the levy, 
 and secure his client's claim. The 
 sheriff, under such circumstances, 
 would naturally notify him of the 
 demand and of the necessity for the 
 required indemnity, and look to him 
 for direction in the premises. At 
 the time of the demand, neither the 
 sheriff nor attorneys had incurred 
 any liability by reason of the levy. 
 Barry v. McGrade, 14 Minn. 163. 
 But, after the proper statutory 
 demand, the sheriff might abandon 
 the levy unless his request for indem- 
 nity was complied with, however 
 lawful or proper it may have been. 
 
 The effect of the statute which is 
 thus interposed for the sheriff's pro- 
 tection is quite material in the con- 
 
 680
 
 Chap. I.] 
 
 ATT0RNET8 AT LAW. 
 
 §816. 
 
 But it has been held that the attorney has no implied author- 
 ity to bind his client by a bond on appeal,' or by a bond in 
 
 siileration of this case. A8 the re- 
 sult of it, when the exigency arises, 
 unless the plaintiff in execution, or 
 some one in his behalf, actively inter- 
 vene, he may lose the benefit of a 
 valid levy. The execution of the 
 required instrument of indemnity in 
 this case was, therefore, directly in 
 the line of proceedings for the collec- 
 tion of the judgment, and was doubt- 
 less considered by the attorney bene- 
 ficial to his client. Under such cir- 
 cumstances, we are of the opinion 
 that his acts in the matter of the exe- 
 cution of the undertaking should not 
 be deemed to be beyond the scope of 
 his employment. Clark v. Randall, 9 
 Wis. 135 (76 Am. Dec. 252); Whar- 
 ton on Agency, §§ 585-9; Moulton v. 
 Bowker, 115 Mass. 36; Weeks on 
 Attorneys, § 218; Nelson v. Cook, 19 
 111. 440; Gorham v. Gale, 7 Cow. 739 
 (17 Am. Dec. 549); Union Bank ^;. 
 Geary, 5 Pet. 99; Newberry v. Lee, 3 
 Hill, 523; Oestrich v. Gilbert, 9 Hun 
 (N. Y.)242; Jenney ■?). Delesdernier, 
 20 Me. 183. The attorney is answer- 
 able to his clients in damages for any 
 abuse of his trust, or the consequences 
 of his ignorance, negligence, or indis. 
 cretion; but he is no more likely to 
 abuse his discretion in a proceeding 
 of this kind than in many others of 
 equal importance in the progress of 
 the suit. And, to off.set the liability 
 60 incurred, the execution creditors 
 will retain the fruits of the levy. The 
 'undertaking' provided for by the 
 section of the statute under consider- 
 ation—Gen. St. 1878, c. 66, § 154 
 (which is a transcript of N. Y, Code, 
 § 216) — need not be executed by the 
 plaintiffs in the suit personally, 1 
 Wait's Practice, 743-4." 
 Speaking of Clark v. Randall, supra, 
 
 the court say: " We believe the doc- 
 trine of that case to be sound and rea- 
 sonable. We have not omitted to con- 
 sider the distinction between the 
 power and aut hority of an attorney be- 
 fore and after judgment. We believe, 
 however, that this distinction is less 
 marked than formerly, in view of the 
 remedies which may be employed 
 after judgment (such as garnishment, 
 supplementary proceedings, &c.), and 
 the extent and variety of the services 
 which may be required to secure and 
 collect the same. If he is employed 
 for such purpose, he must be deemed 
 vested with reasonable discretion in 
 the selection and use of remedies to 
 accomplish the object in view. An 
 exigency arising in the absence of his 
 client, requiring the exercise of his 
 discretion, it may be his duty to act 
 as he would advise his client to act if 
 present, and when he simply adopts 
 a remedy which the law provides, or 
 uses customary expedients or pro- 
 cesses to secure and collect the debt, 
 his acts should not be permitted to 
 prejudice public officers and others 
 who are entitled to regard him as the 
 adviser and representative of his 
 client. Jenney v. Delesdernier, supra, 
 191; Wieland v. White, 109 Mass. 
 392; Wharton on Agency, i 589. In 
 Butler V. Knight, L. R. 2 txch 109, 
 113, the court said, that it would be 
 mischievous to hold 'in any case 
 where evidence existed of the rela- 
 tion of attorney and client having 
 been continued or recreated (after 
 judgment), that the attorney had not 
 authority to act according to the 
 exigency of the case.' " 
 
 1 Ex parte Holbrook, 5 Cow. (N.Y.) 
 35; Clark®. Courser, 29 N. H. 170. 
 But see Adams v. Robinson, 1 Pick. 
 
 681
 
 § 817. THE LAW OF AGENCY. [Book Y. 
 
 replevin.' So it has been held that the employment of an attor- 
 ney to prosecute an injunction suit, gave him no implied author- 
 ity to bind his client to indemnify a third person who becomes 
 surety on the injunction bond.' The unauthorized execution of 
 the bond or other undertaking could, of course, be subsequently 
 ratified and confirmed by the client, and such a ratification would 
 be conclusively presumed, if the client, with full knowledge of 
 the facts, accepted and retained the proceeds derived from the 
 levy or other act.' 
 
 § 817. Authority to receive Payment. An attorney to whom 
 a debt or demand is intrusted for collection has undoubted 
 authority to receive payment, and payment to him will discharge 
 the debtor.* 
 
 Authority to receive payment carries with it, as a necessary 
 incident, the power to deliver to the debtor such discharges, 
 acquittances or evidences of payment as the debtor, upon pay- 
 ment, is entitled to receive.* The attorney would also be author- 
 ized to accept partial payments to apply on the debt,* but he has 
 no implied authority to accept part in satisfaction of the whole, 
 or to grant to the debtor, in consideration of a partial payment, 
 any extensions or other indulgences as to the balance.^ 
 
 This power to receive payment depends upon the fact that the 
 attorney is authorized to collect, and this authority may be with- 
 drawn by the client at any time. It is the duty of a debtor who 
 would make payments to an attorney, to ascertain that the attor- 
 ney is authorized to receive them, and if he does not, he pays at 
 his peril. If the client has held the attorney out as authorized 
 to receive payment, third persons may rely upon the authority as 
 in other cases, until they have notice that it is withdrawn.' 
 
 (Masa.) 4G2, where it was held that Varley v. Garrard, 2 Dowl. 490; 
 
 the attorney might execute a recog- Powel ®. Little, 1 W. Black. 8; Hud- 
 
 nizance on appeal. son v. Johnson, 1 "Wash. (Va.) 10; 
 
 • Narraguagua Land Proprietors v. Carroll County v. Cheatham, 48 Mo. 
 Wentworth, 36 Me. 339. 385. 
 
 » Whitf3 V. Davidson, 8 Md. 169, » See ante, § 385. 
 
 63 Am. Dec. 699. « Pickett v. Bates, 3 La Ann. 627; 
 
 9 Bank of Augusta «. Conrey, 28 Rogers v. McKenzie, 81 N. C. 164. 
 Miss. 667; Dove v. Martin, 23 Miss. ' See ante, § 378. 
 
 588. • See ante, % 373. 
 
 * Yates V. Freckleton, 2 Doug. 623;
 
 Chap. I.] ATTORNEYS AT LAW. § 818. 
 
 Before such notice, payment to the attorney binds his client, 
 but after such notice, it does not.' 
 
 in ordinary cases the authority of the attorney may be shown, 
 either by direct evidence of his appointment or by acquiescence or 
 ratification or course of dealing.* But where money is due upon 
 a written security, a more stringent rule applies. In such cases 
 it is incumbent upon the debtor, if he pays to an attorney, either 
 to have express authority to pay to him, or to see to it, in each 
 instance, that the attorney then has the security in his possession; 
 for if the possession of the securities be withdrawn, although 
 the debtor may have had no notice of the withdrawal, the attor- 
 ney's authority to receive payment upon them ceases with their 
 withdrawal.' The fact that the attorney negotiated the loan, or 
 transacted the business, for which the securities were given, fur- 
 nishes no exception to this rule.* 
 
 § 818. Same Subject— After Judgment. Although the early 
 cases lay down the rule that the attorney's authority ceases with 
 the rendition of the judgment, the modern rule is well established 
 that his authority, by virtue of his general retainer, continues for 
 the collection of the judgment,' and he may receive the money on 
 it, even after the levy of the execution until the debtor's right to 
 redeem has expired.' 
 
 Payment of the judgment to him, even by a stranger, is bind- 
 ing upon the client, and upon payment the attorney is author- 
 ized to execute and deliver to the debtor a proper satisfaction and 
 discharge of the judgment.^ 
 
 But this rule applies only to the attorney of record in the case. 
 Payment to an attorney who was employed for some specific 
 
 ' Weist V. Lee, 8 Yeates (Penn.) 164; Miller v. Scott, 21 Ark. 396; 
 
 47. Frazier v. Parks, 56 Ala. 363; Wycofl 
 
 8 Smith V. Kldd, 68 N. T. 130, 23 v. Bergen, 1 N. J. L. (Coxe) 214; Mc- 
 
 Am. Rep. 157, Carver d. Nealey, 1 G. Greene, (Iowa) 
 
 » Williams ®. Walker, 2 Sandf. (N. 360; Yoakum v. Tilden, 3 W. Va. 
 
 Y.) Ch. 325; Doubleday v. Kress, 50 167; White v. Johnson, 67 Me. 287; 
 
 N. Y. 410, 10 Am. Rep. 502; Smith Gray v. Wass, 1 Me. 257; Conway 
 
 V. Kidd, 63 N. Y. 130, 23 Am. Rep. County v. Little Rock,&c. Ry Co., 39 
 
 157. Ark. 50; Smyth v. Harvie, 31 111. 62, 
 
 * Henn v. Conisby, 1 Ch. Cas. 93; 83 Am. Dec. 203. 
 
 Smith V. Kidd, supra. • White v. Johnson, 67 Me. 287. 
 
 • Rogers v. McKenzie, 81 N. C. » Miller v. Scott, 21 Ark. 896. 
 
 683
 
 §819. 
 
 THE LAW OF AGENCY. 
 
 [Book Y. 
 
 purpose, as to assist upon the trial only, or to argue a motion, or 
 to collect the evidence, would not be payment to the client.' 
 
 It is understood also that the question is now as to the power 
 implied from a general retainer. The client, may, of course, 
 expressly confer more ; or he may limit the implied power by 
 notice of a contrary purpose. 
 
 § 819. Same Subject— What constitutes Payment. But this 
 authority of the attorney to receive payment is authority to 
 receive payment in full only, and in money alone. He has no 
 authority to release or discharge his client's claim or judgment 
 without the actual payment of its full amount." And the pay- 
 ment must be in money.' The attorney can neither sell, assign 
 or compromise the debt or judgment, nor receive notes, warrants, 
 goods, chattels or land in payment.* The money he receives 
 must also be that which, by the common consent of the com- 
 munity, passes as such at its par value.' Thus he may not 
 receive in payment, a county warrant ; * or a bond ; ' or the note 
 of the debtor or of a third person ; ' or a draft on a third person 
 payable in the future ; • or a judgment against another ;" nor can 
 
 » Cameron v. Stratton , 14 111. App. 
 270. 
 
 » Beers v. Hendrickson, 45 N. T. 
 665; Mandeville v. Reynolds, 68 K Y. 
 628; Rice v. Troup, 63 Miss. 186; 
 Miller v. Lane, 13 111 App. 648; Rob- 
 inson t). Murphy, 69 Ala. 543; Har- 
 row V. Farrow's Heirs, 7 B. Mon. 
 (Ky.) 126, 45 Am. Dec. 60; Gilliland 
 9. Gasque, 6 S. 0. 406; Tankersleyu. 
 Anderson, 4 Desau. (3. C.) 44; De- 
 Mets ». Dagron, 53 N. Y. 635; Jew- 
 ett D. Wadleigh, 33 Me. 110; Vail v. 
 Conant, 15 Vt. 314; Bigler v. Toy, 63 
 Iowa 687. 
 
 3 Herriman e. Shomon, 24 Kan.387; 
 86 Am. Rep. 261; Walker u Scott, 13 
 Ark. 644; McCarver v. Nealey, 1 G. 
 Greene (Iowa) 360; Wiley v.Mahood, 
 10 W. Va. 206;Kent v. Chapman, 
 18 W. Va.485; Lord v. Burbank, 18 
 Me. 178; Vanderline v. Smith, 18 Mo. 
 App. 55. 
 
 ♦ Herriman v. Shomon, 24 Kan. 
 
 387. 36 Am. Rep. 261; Miller tJ.Lane, 
 13 111. App. 648; Fassitt v. Middle- 
 ton, 46 Penn. St. 214, 86 Am. Dec. 
 535; Campbell's Appeal, 29 Penn. St. 
 401, 72 Am. Dec. 641; Rowland v. 
 Slate, 58 Penn. St. 198; Kirk's Ap- 
 peal, 87 Penn. St. 243, 30 Am. Rep. 
 357; Boren © McGehee, 6 Port. (Ala.) 
 432, 31 Am. Dec. 695. 
 
 * See cases cited under notes 1 and 
 2, p. 685 post. 
 
 • Herriman v. Shomon, supra. 
 
 ^ Smock v. Dade.5 Rand. (Va.) 639; 
 16 Am. Dec. 780; Kirk v. Glover, 5 
 Stew &. P. (Ala.) 340. 
 
 8 Jeter ». Haviland, 24 Ga. 253; 
 Langdon v. Potter, 13 Mass. 319; 
 Garvin v. Lowry, 7 Smed. & M. 
 (Miss.) 24; Jones v. Ransom, 3 Ind. 
 337; Baldwin v. Merrill, 8 Humph. 
 (Tenn.) 132. 
 
 » Moye V. Cogdell, 69 N. C. 93. 
 
 '" Clark V. Kingsland, 1 Smed. & 
 M. (Miss.) 248. 
 
 684
 
 Chap. I.] ATTORNEYS AT LAW. § 820. 
 
 he accept real estate in satisfaction of a money judgment ; ' nor 
 may he receive Confederate notes * in payment or depreciated 
 bills of any kind.' 
 
 So the attorney has no authority to apply his client's claim or 
 judgment in payment of any debt of his own, or to receive his 
 own note or obligation in payment, or to permit a debt owing 
 from himself to be set off against his client's claim.* 
 
 The client may of course expressly authorize any of these 
 modes of payment to be adopted, but the authority does not flow 
 from the general retainer. 
 
 The client may also, as in other cases, ratify an unauthorized 
 act of the attorney, thus giving it validity from the beginning. 
 
 §820. Authority to enforce Judgment. And not only has 
 the attorney authority to receive payment of the judgment, but 
 he has also general authority to take the steps necessary to enforce 
 its payment. For this purpose he may sue out the necessary 
 execution or other process,' direct its service by the proper offi- 
 cer,* and. as had been seen, may, in some cases, indemnify the 
 officer against liability on account of the service.' The authority 
 of the attorney to control the execution is quite plenary. Thus he 
 may give the officer directions relative to his management of the 
 execution ;*he may direct the time and manner of enforcing it ;• 
 
 * Stackhouse v. O'Hara, 14 Penn. (N. C.) Eq. 171; Wenans ©. Lindsey, 
 
 St. 88; Huston v. Mitchell, 14 S. »S5 1 How. (Miss.) 577; Cost v. Genette, 
 
 R. (Penn.) 307; Stokely v. Robinson, 1 Port. (Ala.) 212; GuUett?). Lewis, 3 
 
 34 Penn. St. 315; Kirk's Appeal, 87 Stew. (Ala.) 28; Craig o. Ely, 5 Stew. 
 
 Penn. St. 243; 80 Am. Rep. 357. &P. (Ala.) 854. 
 
 « Harper t). Harvey, 4 W. Va. 539; « White v. Johnson, 67 Me. 287; 
 
 Railey v. Bagley, 19 La Ann. 172; Union Bank v. Geary, 5 Pet. (U. S.) 
 
 Davis t). Lee, 20 La. Ann. 248. 98; Conway County v. Little Rock 
 
 3 West V. Ball, 12 Ala. 346; &c. Ry Co., 39 Ark. 50; Farmers' 
 Chapman v. Cowles, 41 Ala. 103; Bank ■». Mackall, 3 Gill. (Md.)447. 
 
 91 Am. Dec. 508; Lawson v. Bettison, • Willard v. Goodrich, 31 Vt. 597; 
 
 12 Ark. 401; Trumbull v. Nicholson, Gorham u Gale. 7 Cow. (N. Y.) 739; 
 27 111, 149; Commissioners ». Rose, 1 17 Am. Dec. 549; Lynch v. Common- 
 Desau. (S. C.) 464; Walker v. Scott, wealth, 16 Serg. & R. (Penn.) 368; 16 
 
 13 Ark. 648. Am. Dec. 582; Brackett v. Norton, 4 
 
 4 Wiley V. Mahood, 10 W. Va. 206; Conn. 517, 10 Am. Dec. 179. 
 Keller v. Scott, 2 Smed & M. (Miss.) i See ante, 816. 
 
 81; Hamrick «. Combs, 14 Neb, 381; « Brackett v. Norton, 4 Conn. 517, 
 
 Wilkinson v. Holloway,7 Leigh (Va.) 10 Am. Dec. 179. 
 
 277; Child v. Dwight, 1 Dev. & Bat. « Gorham v. Gale, 7 Cow. (N. Y.) 
 
 685
 
 § 820. THE LAW OF AGENCY. [Book V. 
 
 he may agree to delay its issue for a limited time/ or may 
 stay proceedings under it, when issued, during a reasonable 
 period,* if it be done honestly and in the exercise of a reasonable 
 discretion ; and, if the lien of the judgment or execution will not 
 thereby be lost, he may direct its return to be delayed;' he 
 may direct a sale under it to be suspended ; * and may direct a 
 postponement of the sale after a levy.' 
 
 But it is held in New York that the attorney has no implied 
 authority to direct the officer as to what property he shall levy 
 upon, and that, if he does so, his client incurs thereby no 
 liability.' 
 
 But the attorney has no implied authority to release the lien 
 of the judgment, or the execution upon goods,^ or land,' or 
 discharge the defendant from imprisonment, without full pay- 
 ment or satisfaction ; » nor has he authority to stay the issue of 
 the execution for so long a period that the lien of the judgment 
 will be lost ; " nor can he postpone his client's lien to that of 
 others." Neither has the attorney authority to bid for, or pur- 
 chase, property for his client at an execution sale, or to author- 
 ize any one else to bid or purchase for him." 
 
 The authority of the attorney to issue execution extends to 
 
 739, 17 Am. Dec. 549 ; Lynch « Com- • Fritchey v. Bosley, 66 Md. 96; 
 
 monwealth, 16 Serg. & R.(Penn.) 368 Phillips v. Dobbins, 56 Ga. 617; 
 
 16 Am. Dec. 582. » Kellogg v. Gilbert, 10 Johns, (N. 
 
 » Wieland v. White, 109 Mass. 393; T.) 220; 6 Am. Dec. 335; Treasurers 
 
 Silvis e. Ely, 3 W. .Ss S. (Penn.) 420; v. McDowell, 1 Hill (S. C.) 184, 26 
 
 White V. Johnson, 67 Me. 287. Am. Dec. 166 ; Jackson «. Bartlett, 8 
 
 2 Wieland «. White, su^a; White Johns. (N. T.) 361; Scott e. Seller, 5 
 
 u Johnson, mpra. Watts, (Penn.) 235; Lewis w.Gamage, 
 
 3McClure e, Colclough, 5 Ala. 65; 1 Pick. (Mass.) 347; Savory®. Chap- 
 Bee Walker «. Goodman, 21 Ala. man, 11 Ad. & Ell. 829; Connop c. 
 657; Crenshaw t>. Harrison, 8 Ala. Challis, 2 Exch. 484. 
 242 '* Reynolds v. Ingersoll, 11 Smed. 
 
 4 Lynch «. Commonwealth, mpra. & M. (Miss.) 249, 49 Am. Dec. 57. 
 
 6 Albertson «. Goldsby, 28 Ala. " Fritchey v. Bosley. 56 Md. 96; 
 711, 65 Am. Dec. 380. Phillips v. Dobbins, 56 Ga. 617. 
 
 • Averill v. Williams, 6 Denio (N. " Beardsley v. Root, 11 Johns (N. 
 
 Y.)295;47 Am. Dec. 252. Welsh*. Y.) 464, 6 Am. Dec. 386; Averill v. 
 
 Cochran, 63 N. Y. 185; Oestrich v. Williams, 4 Denio, (N. Y.) 295, 47 
 
 Gilbert, 9 Hun (N. Y.) 244. Am, Dec. 252; Washington e. John- 
 
 7 Banks v. Evans, 10 Smed. & M. son, 7 Humph. (Tenn.) 568; Saverye. 
 (:Miss.) 38, 48 Am. Dec. 734; Jewett r, Sypher, 6 Wall. (U. S.) 157. 
 Wadleigh, 32 Me. 110. 
 
 686
 
 Chap. I.] ATT0KNEY8 AT LAW. § 822. 
 
 the issuing of an alias, when that becomes necessary.* So in a 
 proper case, he may institute supplementary proceedings,' or 
 autliorize the issue of a scire facias^ to facilitate or enforce the 
 collection.' 
 
 V. 
 
 DUTIES AND LIABILITIES OF ATTORNEY TO CLIENT. 
 
 § 821. Bound to highest Honor and Integrity. The exigencies 
 of life require not only that the client should often entrust to his 
 attorney, the care and management of important affairs of busi- 
 ness, involving, perhaps, the client's entire property and posses- 
 sions, but also, in many cases, that the client's reputation, liberty 
 or life should depend upon the skill, judgment and ability, and 
 above all, upon the integrity, honor and devotion, of the attorney 
 to whom he has confided them. The proper discharge of his 
 duty demands also, in many cases, that the attorney should be 
 made the confidant to whom the secrets of individuals and fami- 
 lies, cherished often like life or reputation, or concealed from all 
 other eyes, must be disclosed and communicated. The necessi- 
 ties of the client, too, are known, often, only to his attorney, and 
 strong temptations may present themselves to the latter to make 
 profit from his knowledge and advantages. 
 
 These considerations, and many others which readily suggest 
 themselves, demand that he, who holds himself out to the public 
 as one qualified to accept and perform these important trusts, 
 responsibilities and duties, should not only bring to their per- 
 formance an adequate degree of skill, learning and ability, but 
 that he should also be bound to exercise towards his client, in his 
 relations with him, the highest degree of honor, integrity and 
 fidelity to his client's interests. And this is the law.* The rela- 
 tion is one of trust and confidence and the rules which govern the 
 conduct of other persons standing in fiduciary relations, apply 
 with special force to the dealings of the attorney with his client 
 
 § 822. Duty to disclose adverse Interests. It is a necessary 
 
 » Cheever «. Mirrick, 2 N. H. 376. * Cox v. Sullivan, 7 Ga. 144, 50 
 
 t Ward v. Roy, 69 N. T. 96. Am. Dec. 386. See Pomeroy's Eq. 
 
 » Dearborn ». Dearborn, 15 Mass. Jnr. §902. §§1075-1078. 
 
 816; Nichols v. Dennis, R. M. Charlt. 
 
 (Qa.) 188. 
 
 687
 
 § 823. THE LAW OF AQENOT. [Book IV. 
 
 corollary to the principles of the preceding section, that it is the 
 duty of the attorney to freely and fully disclose to his client any 
 interest which he may have in the subject-matter, any previous 
 obligation which he has incurred in reference to it, and every 
 other bias, interest and undertaking which may disqualify or dis- 
 able him from rendering to his client that full and perfect alle- 
 giance which this relation requires.* 
 
 § 823. Duty to remain loyal. Equally obvious and impera- 
 tive is the duty of the attorney to keep himself, during the con- 
 tinuance of the relation, free from entangling or compromising 
 alliances. Like every other servant, he can not serve two mas- 
 ters, and, having undertaken the service of one, he is bound, by 
 all legal and moral rules, to absolutely refrain, not only from 
 putting himself voluntarily in a situation where his duty and his 
 own interest will conflict, but from undertaking or accepting any 
 duties or obligations to those whose interests are opposed to 
 those of his client. 
 
 § 824. Duty to use reasonable Care and Skill. "It is the mis- 
 fortune of members of the learned professions," says Judge 
 CooLET, " that, in a very considerable proportion of all the cases 
 in which their services are employed, their efforts must neces- 
 Barily fall short of accomplishing the purpose desired, so that if 
 they do not disappoint expectations, they must at least fail to 
 fulfill hopes. For this reason they are peculiarly liable to the 
 charge of failure in the performance of professional duty, and it 
 is therefore important to know exactly what it is that the pro- 
 fessional man promises when he engages his services." * 
 
 The proper performance of the duties of the attorney at law, 
 particularly where, as in the United States, the same practitioner 
 often undertakes to act in all of the various departments of the 
 profession, — requires upon the part of the attorney the possession 
 and exercise of an adequate degree of learning, skill and dili- 
 gence. The law, however, is not free from doubt, and it is im- 
 possible for any man to know it all. The wisest men in the 
 profession differ, not only as to what the law is, but also as to 
 how it shall be applied. No attorney, therefore, can be rightly 
 held to infallibility.' At the same time, there are certain rules 
 
 » Williams v. Reed, 8 Mason (U. S. • Cooley on Torts, p. 648. 
 0. C.) 404. ■ " No attorney," said Abbott, 0. 
 
 688
 
 Chap. I.] ATT0KNET8 AT LAW. § S2i. 
 
 and principles of which no one, who undertakes to practice the 
 profession, should be permitted to be ignorant. So it is impossi- 
 ble for any man to exercise perfect care and diligence, but there 
 are also certain things which no man, who assumes the responsi- 
 bilities of attorney, could be allowed to overlook. Again, it is 
 not unreasonable to expect that the attorney whose practice lies 
 in the courts of the metropolis should be chargeable with a 
 higher degree of skill, in certain departments, than the members 
 of a rural bar,* but, on the other hand, the latter, as to the gen- 
 eral principles of the profession, should be no more ignorant 
 than the former. It is obvious, therefore, that there must be a 
 rule of responsibility which will neither impose upon the prac- 
 titioner an unreasonable and hazardous responsibility, nor relieve 
 him from all responsibility whatever. 
 
 This rule of responsibilit}'' may be stated as follows : A person 
 who holds himself out to the public for employment, as an attor- 
 ney at law, impliedly contracts with those who employ him : 
 
 1. That he possesses that reasonable degree of learning, skill 
 and experience which is ordinarily possessed by attorneys at law, 
 and which is ordinarily regarded by the community and by those 
 conversant with that employment, as necessary and sufficient to 
 qualify him to engage in that business. 
 
 2. That he will use reasonable and ordinary care and diligence 
 in the exertion of his skill and the application of his knowledge 
 to accomplish the purpose for which he is employed. But he 
 does not undertake for extraordinary care or diligence or for 
 uncommon skill. 
 
 3. That, in exerting his skill and in applying such care and 
 diligence, he will exercise his best judgment.* 
 
 J. "is bound to know all the law; N. H. 460. 59 Am. Dec. 388, upon 
 
 God forbid that it should be imagined which the rule given iu the text is 
 
 that an attorney, or a counsel, or even based. See generally that attorney is 
 
 a judge is bound to know all the law; bound to the possession and exercise 
 
 or that an attorney is to lose his fair of reasonable skill, care and diligence, 
 
 recompense on account of an error, Goodman v. Walker, 30 Ala. 482, 63 
 
 being such an error as a cautious man Am. Dec. 134; Penniugtou v. Yell, 11 
 
 might fall into." In Montriou v. Ark 213, 53 Am. Dec. 362; Fitch v. 
 
 Jetforys, 3 C. & P. 113. Scott, 3 How. (Miss.) 314, 34 Am. 
 
 ' Weeks on Attorneys, § 289. Dec. 86; Eggk-ston v. Boardman, 37 
 
 2 See Cooley on Torts, p. 649, where Mich. 14; Holmes v. Peck, 1 R. I. 
 
 the learned author approves the rule 243; Gilbert v. Williams, 8 Mass. 51, 
 
 laid down in Leighton ». Sargent, 27 5 Am. Dec. 77; Caverly v. McOwen, 
 
 U 689
 
 iS-20. 
 
 THE LAW OF AGENCY. 
 
 [Book y. 
 
 In other words, he agrees that he possesses at least the average 
 degree of skill and learning in his profession in that part of the 
 country in which he practices, and that he will exercise that 
 learning and skill with reasonable care and diligence.' 
 
 § 825. Same Subject— Errors in Law or Judgment. The law 
 is not only the most comprehensive of sciences, but it is also a 
 constantly progressing one. The daily demands made upon it, 
 by the necessities of our modern civilization, require not only 
 that it should be called upon to adjust new phases of old ques- 
 tions, but that it should prove adequate to the determination of 
 problems entirely new in the history of jurisprudence. Under 
 our complex political system, each State is, within certain limits, 
 the final arbiter of the legal rules which shall prevail within its 
 jurisdiction, and it is inevitable that more or less of conflict 
 should exist. Although the decisions of other States are looked 
 upon with respect, and frequently followed, they are not author- 
 itative, and until a question has been directly passed upon by the 
 court of last resort, the practitioner in any State can feel no abso- 
 lute certainty as to what the law in his State is upon the ques- 
 tion. Upon certain questions, too, the decisions of the State 
 courts are subject to review by the Supreme Court of the United 
 
 123 Mass. 574; Stevens v. Walker, 55 
 111. 151; Chase v. Heaney, 70 111. 268 
 Reilly v. Cavanaugh, 29 Ind. 435 
 Morrill v. Graham, 27 Tex. 64G 
 Evans v. Watrous, 2 Port. (Ala.) 205 
 Mardis v. Shackleford, 4 Ala. 493 
 Sevier v. Holliday, 2 Ark. 512; Pal 
 mer v. Ashley, 8 Ark. 75; Wilson v. 
 Russ. 20 Me. 421; Pitt v. Yalden, 4 
 Burr. 2060; Kemp v. Burt, 4 B. & 
 Ad. 424; Godefroy v. Dalton 6 Bing. 
 460; Laidler v. Elliott, 3 B. & C. 738; 
 Lee v. Dixon, 3 Fost. & F. 744; Par- 
 ker u. Rolls, 14 Com. B. 601; Mon- 
 triou V. Jefferys, 2 Car. & P. 113; 
 Elkington v. Holland, 9 M. & W. 658. 
 » Cooley on Torts, p. 649. The 
 rule is frequently laid down, partic- 
 ularly in the older cases, that the 
 attorney is liable only for gross ignor- 
 ance or neglect. Gross negligence 
 has been well said to be simply negli- 
 
 gence with an epithet. The expres- 
 sion is not accurate. " Some law- 
 writers and some adjudged cases are 
 guilty of inaccuracy in the employ- 
 ment of the phrase ' gross negligence.' 
 Our own court fell into this error in 
 the case of Evans v. Watrous, 2 Port. 
 205. It is there said that an attorney 
 is not liable ' unless he has been 
 guilty of gross negligence.' In the 
 same paragraph it is asserted that he 
 ' is bound to use reasonable care and 
 skill,' and the meaning attributed by 
 the writer of that opinion to the ex- 
 pression 'gross negligence' is the 
 want or absence of ' reasonable care 
 and skill.' Thus explained, that 
 opinion defines the true measure of 
 an attorney's duty and liability.'' 
 Stone, J. , in Goodman v. Walker, 30 
 Ala. 482, 6S Am. Dec. 134. 
 
 690
 
 Chap. I.] ATTORNEYS AT LAW. § 825. 
 
 States. Solemn decisions pronounced by the court at one period 
 are not unfreqnently overruled by the same court at a later 
 period, and rules which have been regarded and acted upon, as 
 sound, for years, are often found to have been erroneous. 
 
 With that part of the law which has been made the subject 
 of statutory enactment, less uncertainty exists, but statutes are 
 frequently declared to be unconstitutional by the courts, or are 
 repealed by subsequent legislatures. 
 
 It is, therefore, not only impossible for any man to know all 
 the law, but it is also, in many cases, impossible for him to say 
 with certainty what is the law in reference to a particular 
 flubject. 
 
 But at the same time, the main body of the law is reasonably 
 definite, and there certainly are principles so well established 
 that no lawyer could be permitted to remain in ignorance of 
 them. Thus, in one case,' it is said that he is liable for the want 
 of proper knowledge of all matters of law in common use, or of 
 such plain and obvious principles as every lawyer is presumed to 
 understand. So, in another case," it has been said that he is 
 bound to understand the leading and fundamental principles of 
 the common law, and cannot be excused for ignorance of tlie 
 public statutes of the State. Many attempts have been made to 
 state a comprehensive rule upon this subject, and, in a well con- 
 sidered case,* the court lay down the rule to be that, if the law 
 governing the matter in question was well and clearly defined, 
 both in the text-books and in the decisions of his own State, and 
 if it has existed and been published long enough to justify the 
 belief that it was known to the profession, then a disregard of it, 
 by an attorney at law, renders him accountable for the losses 
 caused by such negligence or want of skill ; — negligence, if, 
 knowing the rule, he disregarded it; want of skill, if he was 
 ignorant of it. 
 
 But in general, no more definite rule upon the subject can be 
 laid down than that already given ; — that the attorney contracts 
 for reasonable skill and reasonable diligence, but not for infalli- 
 bility, or freedom from error. He cannot, therefore, be held 
 liable for an error of law or judgment such as a cautious man 
 
 > Morrill v. Graham, 27 Tex. 646. » Goodman v. Walker, 30 Ala. 482. 
 
 'Estate of A. B., 1 Tucker (N. Y. 68 Am. Dec. 134. 
 
 Surrogate) 247. 
 
 691
 
 e 826. THE LAW OF AGENCY. [Book V. 
 
 mio-ht fall into ; ' nor for an error in construing a doubtful act 
 of the legislature;" nor for an error upon a point of law upon 
 which a reasonable doubt may be entertained ; ' nor for an error 
 of judgment upon points of new occurrence, or of nice or doubt- 
 ful construction.* So he cannot be held chargeable with negli- 
 gence if he accepts, as a correct exposition of the law, a solemn 
 decision of the supreme court of his State, in the absence of a 
 contrary decision of the Supreme Court of the United States, 
 upon a question there subject to review.' He is, however, liable 
 for the consequences of ignorance or non-observance of the ordi- 
 nary rules of practice of the courts in which he undertakes to do 
 business ; for the want of reasohable care in the preparation of 
 his cases for trial, in his attendance at the court with his wit- 
 nesses, and in the management of so much of the conduct of the 
 cause as is entrusted to him.* 
 
 So he is bound to take notice of changes in or by the public 
 statutes of his State, and will be liable to his client for losses 
 caused by his neglect to do so.' 
 
 5 826. Same Subject— Wegligenoe in Collecting. It is the 
 duty of the attorney, who undertakes the collection of a claim, 
 to prosecute that object with reasonable diligence. He does not 
 undertake at all events to make the money, nor does he guaran- 
 tee the solvency of the debtor. Neither does he impliedly agree 
 that he will resort to all or any means to secure the money, or 
 that he will pursue the debtor with unceasing exertions. Pie 
 does, however, agree that he will use all reasonable and proper 
 means to make the money, and that he will not permit the claim 
 to be lost through his negligent inattention to his duty.' 
 
 This undertaking imposes upon the attorney the duty to sue 
 out all process, mesne as well as final, which may be necessary to 
 
 • Montriou v. Jefferys, 2 Car. & P. • Godefroy v. Dalton, 6 Bing. 460. 
 113 T Estate of A. B., 1 Tucker (N. Y. 
 
 a Elkington v. Holland, 9 M. & W. Surrogate) 247. 
 
 653; Bulmer ». Gilman, 4 Man. & s Cox ». Sullivan, 7 Ga. 144, 50 Am. 
 
 Gra'ng. 108. Dec. 3S6; Goodman v. Walker, 30 
 
 8 Kemp V. Burt, 1 Nev. & Man. Ala. 482, 68 Am. Dec. 134; Cox v. 
 
 263_ Livingston, 2 W. & S. (Penn.) 103, 
 
 * Godefroy v. Dalton, 6 Bing. 4G0. 37 Am. Dec. 48(5; Gilbert -». Williams, 
 
 6 Marsh v. Whitmore, 21 Wall (U. 8 Mass. 51, 5 Am. Dec. 77; Fitch v. 
 8.) 178; Hastings v. Halleck, 13 Cal. Scott, 3 How. (Miss.) 314, 34 Am. 
 203. Dec. 86. 
 
 692
 
 Chap. I.] ATTORNEYS AT LAW. § 826. 
 
 effect the object ; and to pursue the cause, through all its stages, 
 until the money is made or it is demonstrated that it can not be 
 made by legal process.* This rule, however, is subject to the 
 exception that the attorney may be justified in ceasing to proceed 
 with the cause, unless specially instructed otherwise, when he is, 
 in good faith, influenced to this course by a prudent regard for 
 the interests of his client.* Such delay must, however, be pru- 
 dent, and reasonable in duration, and must not contravene posi 
 tive directions. 
 
 In accordance with this rule it is his duty to sue out execution 
 and alias writs if necessary ; to pursue the bail, and all those who 
 have become bound with the defendant, either before or after 
 judgment in the progress of the suit ; to pursue the sureties on 
 a forthcoming bond ; and to take all such other steps as may rea- 
 sonably be necessary, either before or after judgment, to recover 
 from any party who has become liable.' 
 
 The attorney is not, however, bound to institute new collateral 
 suits without special instructions to do so, — as actions against the 
 clerk or sheriff for neglect in the issuing or serving of process. 
 Nor is he bound to attend, in person, to the levy of the execu- 
 tion, or to search for property upon which to make the levy. 
 That is the business of the sheriff.* Nor is he liable for the 
 neglect of the sheriff. 
 
 So, it has been held, that, where a writ of attachment issues 
 only upon the filing of the necessary affidavit and bond, the attor- 
 ney is under no obligation to swear to his client's cause of action 
 or to furnish the required bond.' 
 
 It has been stated that, in the absence of peremptory instructions, 
 the attorney may exercise a reasonable discretion as to when to 
 sue; and what is reasonable is a question to be determined from 
 all the facts and circumstances of the case.* But this discretion 
 can not overrule express directions, and if the attorney is 
 instructed to sue at once and fails to do so, he will be liable for a 
 consequent loss of the debt, notwithstanding the attorney may, 
 in good faith, have believed that the delay would promote the 
 
 ' Pennington «. Yell, 11 Ark. 213, » Pennington ®. Yell, supra. 
 
 52 Am. Dec. 262; Crooker v. Hutch- * Pennington v. Yell, supra. 
 
 inson 2 D. Chip. (Vt.) 117. » Foulks v. Falls, 91 Ind. 315. 
 
 2 Pennington v. Yell, supra; Crook- • Rhines v. Evans, 66 Penn. St. 193. 
 er V. Hutchinson, supra. 
 
 693
 
 § 827. THE LAW OF AGENCY. [Book Y. 
 
 interests of his client.' So if the attorney delays action until the 
 statute of limitations has run against the claim, he will be liable 
 for the loss sustained.* 
 
 § 827. Same Subject— Negligence in bringing Suit. The 
 same degree of skill and diligence is requisite here as in other 
 cases : — that which is reasonable under the circumstances. The 
 negligence complained of may consist, (a) in not bringing the 
 action in the proper court, or, (J) in omitting or disregarding a 
 rule of law or practice in commencing the action, or (c) in suing 
 out or using defective process or papers. 
 
 a. It is reasonable and proper .to hold the attorney chargeable 
 with knowledge of the ordinary and well settled rules, which 
 govern and determine the jurisdiction of the courts in which he 
 practices, and if, through ignorance or inattention, he violates 
 them, thereby causing injury to his client, he is liable.' Thus it 
 is held, that if an attorney takes out a writ and proceeds thereon, 
 in a court of special and peculiar jurisdiction, he is bound to 
 acquaint himself with the machinery by which the practice of 
 that court is regulated, and to see that it is adequate to the carry- 
 ing out of the objects of the suit ; and if he fails to do so, and 
 the client suffers loss from a subsequent discovery that the pro- 
 cess of the court is not sufficient for the well known needs of the 
 action, the attorney is liable.* So if he brings an action in a 
 court of limited jurisdiction on a cause of action arising beyond 
 that jurisdiction, he has been held to be liable.' 
 
 h. An attorney may also reasonably beheld bound to know and 
 observe the well settled rules of law and practice which govern 
 and determine the form of action, the joinder of parties, and the 
 form and sufficiency of the pleadings ; and a failure to do so 
 would constitute actionable negligence. 
 
 Thus where an attorney filed a declaration in the name of a 
 plaintiff different from the one in whose favor the writ was issued, 
 
 • Gilbert «. Williama, 8 Mass. 51, 5 he permitted one term to go by with- 
 
 Am. Dec. 77; Cox v. Livingston, 3 out commencing suit, 
 
 W. & S. (Penn.) 103, 37 Am. Dec. « Oldham ». Sparks, 28 Tex. 425; 
 
 486; Livingston v. Cox. 6 Penn. St. Hunter®. Caldwell, 10 Q. B. CD. 
 
 360; in which six months delay • Godefroy v. Dalton, 6 Bing. 468. 
 
 against a failing debtor was held un- « Cox?;. Leech, 1 Com. B. (N S.)617. 
 
 reasonable; Fitch v. Scott, 3 How. « Williams ®. Gibbs, 6 Ne v. »& Man. 
 
 (Miss.) 314, 34 Am. Dec. 86, where 788. 
 
 694
 
 Chap. I.] ATTORNEYS AT LAW. § 828. 
 
 the Supreme Court of Alabama, referring to the well known rule 
 laid down by Mr. Chitty, and adopted by that court nearly 
 twenty years before, that " the declaration must pursue the writ 
 in regard to the Christian and surnames of the parties," ^ said : 
 "This rule, then, had existed and been defined, both in the text- 
 books and our own decisions, for a period of time, before the 
 commencement of this suit, long enough to justify the belief 
 tliat it was known to the profession. The disregard of so plain 
 a rule betrayed a palpable want of reasonable skill or of reason- 
 able diligence," * and the attorney was held liable.* 
 
 So where an attorney being instructed to bring an action, under 
 a statute, against apprentices, proceeded specifically under a sec- 
 tion which applied to servants only, he was held to be liable for 
 a loss resulting from the error. < 
 
 c. It is also the duty of the attorney to use a reasonable degree 
 of skill and diligence in the preparation of the process, notices, 
 and other papers, which he issues or uses in the institution of 
 or progress of the suit.' And although the paper be one which 
 it was not his duty, as the attorney, to prepare, yet if he does 
 undertake to prepare it, he is bound to reasonable care.^ Thus 
 where an attorney in preparing a writ, made use of a printed 
 blank containing the common counts, with blank spaces for the 
 insertion of the amounts, but which omitted the word " hundred" 
 which had formerly been printed in the blank, and the attorney, 
 not noticing the omission, neglected to write in the word hund- 
 red, thus reducing the amount claimed from twelve hundred dol- 
 lars to twelve dollars, it was held that he was liable for a loss of 
 the demand occasioned by the error. It appeared that the new 
 blank had been in use for about a year, and that the attorney, in 
 filling out a similar writ for one of the same parties, had inserted 
 the word hundred in its proper place.' 
 
 § 828. Same Subject— Negligence in Trial of Action. The 
 attorney, who undertakes the trial of a cause in court, does not 
 thereby agree that he will win it at all events, or that he will 
 
 > 1 Chitty's Pleading, 279. « Goodman v. Walker, 30 Ala. 483, 
 
 s Citing Chapman v. Spence, 22 68 Am. Dec, 134; Varnum d. Martin, 
 
 Ala. 588. 15 Pick. (Mass. ) 440. 
 
 3 Goodman v. Walker, 30 Ala. 482, • Goodman v. Walker, supra. 
 
 68 Am. Dec. 134. ' Varnum v. Martin, supra. 
 
 * Hart V. Frame, 6 CI. & Fin. 193. 
 
 695
 
 § 829. THB LAW OF AGENCY. [Book V. 
 
 conduct it with the highest degree of learning, skill or eloquence; 
 but his contract is simply for a reasonable degree, as in other 
 cases. But if the attorney fails without good cause to attend the 
 trial at all,' or if he permits tlie cause to be called on without see- 
 ing that it is in readiness for trial,* or if, without suflficient reason, 
 he abandons the action,' or withdraws the defense,* or if the action 
 or defense fails by reason of his neglect to make that preparation, 
 or to take those steps, which the circumstances reasonably 
 required, and his client thereby suffers loss, the attorney is 
 responsible." 
 
 § 829. Same Subject— Negligence in examining Titles. An 
 attorney who undertakes the examination of titles to real estate, 
 the searching of the records, the preparation of abstracts thereof 
 or the giving of opinions upon such titles, impliedly contracts, 
 with those who employ him, that he possesses that reasonable 
 degree of knowledge and skill which is requisite and necessary 
 under such circumstances ; and that he will perform the duty 
 with reasonable and ordinary care and diligence. His failure to 
 possess such reasonable knowledge and skill, or, if possessing it, 
 his failure to exercise it, or his failure to use such reasonable care 
 and diligence, constitutes negligence, and he will be liable to his 
 client for a loss or injury occasioned thereby.* 
 
 ' Swannell v. Ellis, 1 Bing. 347. for the loss occasioned by such neg- 
 
 9 Reece v. Righy, 4 B. & Aid. 202. lect or want of care and skill. Ad. 
 
 9 Tenney v. Berger, 93 N. Y. 524, dison on Contracts (6th Ed.) 400. 
 45 Ana. Rep. 263; Evans v. Watrous, Like care and skill are also required 
 
 2 Port. (Ala.) 205. of attorneys when employed to inves- 
 
 * Godefroy v. Jay, 5 Moo. &P. 284. tigate titles to real estate to ascertain 
 
 5 De Roufigny v. Peale, 3 Taunt. whether it is a safe or sufScient se- 
 484. Walsh v. Shumway, 65 111. 471. curity for a loan of money, the rule 
 
 6 Mr. Justice Cmfford in Savings being that if the attorney is negligent, 
 Bank v. Ward, 100 U. S. 195, lays or fails to exercise reasonable care 
 down the rules as follows: "Attorneys and skill, in the performance of the 
 emploj'ed by the purchasers of real service, and a loss results to his em. 
 property to investigate the title of ployers from such neglect or want of 
 the grantor, prior to the purchase, care and skill, he shall be responsible to 
 impliedly contract to exercise reason- them for the consequences of such loss. 
 able care and skill in the perform- Addison on Torts (Wood's Ed.), 615." 
 ance of the undertaking, and if they See also Chase v. Heaney, 70 111. 
 are negligent, or fail to exercise such 268; Ritchey v. West. 23 111. 385; 
 reasonable care and skill in the dis- McNevins v. Lowe, 40 111. 210; Clark 
 charge of the stipulated service, they v. Marshall, 35 Mo. 429, Rankin v. 
 are responsible to their employers Schaeffer, 4 Mo. A pp. 108. 
 
 696
 
 Chap. I.] ATTORNEYS AT LAW. § 830. 
 
 He does not, unless by express contract, warrant the title to be 
 good, or the search or abstract to be perfect, but he does agree 
 that it is subject to no incumbrances and omits no material fact 
 which, with reasonable and ordinary care and diligence upon his 
 part, might have been discovered.' He is not liable for the un- 
 soundness of an opinion upon a matter upon which a reasonable 
 doubt might be entertained,* but, upon the other hand, his neg- 
 lect to observe a plain and ordinary precaution, as to look for 
 judgments where they are made a lien upon the land, would 
 render him responsible for the consequences.' 
 
 § 830. Same Subject— Neglect in preparing Contracts, etc. 
 The same rule applies to the attorney who undertakes to prepare 
 deeds, contracts, or other conveyances or agreements, for parties 
 who employ him for that purpose. The attorney is not bound 
 to make the contract for the parties, — that they must do for them- 
 selves ; but he does undertake that he possesses reasonable knowl- 
 edge and skill in such matters, and will use due and reasonable 
 care and diligence in so framing the written evidence of their 
 agreement as to give it binding and legal force and effect.* 
 
 The extent to which the attorney is bound, under such circum- 
 stances, for the sufficiency of the instruments which he prepares, 
 must depend upon the circumstances of each case. If he be, for 
 instance, employed as a mere scribe only, to commit to writing 
 that which is dictated to him by the parties, his liability would be 
 limited to the performance of that undertaking, and if the instru- 
 ment failed to express the true intention of the parties, the attor- 
 ney could not be blamed. But if, on the other hand, he is em- 
 ployed to prepare, in due and legal form, accordingto his knowl- 
 edge and judgment, an instrument which shall effect a named 
 result, as, for instance, the conveyance of a given interest or 
 estate in lands, his liability would, within the limits of the rule 
 
 ' Rankin c. Schaeffer, 4 Mo. App. a well settled and obvious rule, the 
 
 108. fact that he consulted an eminent at- 
 
 * As where being in doubt whether torney, is no defense. Goodman «. 
 
 an apparent incumbrance was valid, Walker, 30 Ala, 482, 68 Am. Dec. 
 
 he took the precaution to obtain the 134. 
 
 written opinion of an eminent coun- 3 Oilman t. Hovey, 26 Mo. 880. 
 
 eel, who declared it to be invalid. < Parker v. Rolls, 14 Cora. B. 691 ; 
 
 Watson v. Muirhead, 57 Penn. St. Taylor «. Gorman, 4 Ir. Eq. 550; 
 
 161. But where an attorney ignores Stott i;. Harrison, 73 Ind. 17. 
 
 697
 
 § 831. THE LAW OF AGENCY. [Book Y. 
 
 Stated, be commensurate with that undertaking. If, therefore, 
 in such a case the instrument failed to accomplish the desired 
 result, from the attorney's neglect to observe the necessary and 
 established forms, or from his careless misdescription of the prop- 
 erty, or from his neglectful failure to use apt and appropriate 
 language to express the real agreement of the parties, he would 
 undoubtedly be liable for the injury,* It is, ordinarily, no part 
 of the attorney's duty to see to the recording of the conveyances 
 which he prepares, but if he undertakes that duty he will be lia- 
 ble for an injury which may result, either from his neglect to 
 liave them recorded at all,* or not until another party has acquired 
 priorities by record.' 
 
 § 831. Same Subject— Neglect of Partners, Clerks, etc. Part- 
 nerships of attorneys are governed by the same rules, in respect to 
 the liability of one partner for the acts of another, which apply 
 to trading partnerships. All the members of the "firm are liable 
 for the negligence, misconduct or default of each partner in the 
 transaction of the partnership business,* and the liability con- 
 tinues notwithstanding a subsequent dissolution of the partner- 
 ship.* If, therefore, one partner receives, professionally, money 
 belonging to a client, and embezzles it ; • or if any injury occurs 
 from the negligence or lack of skill or knowledge of one partner,' 
 all are liable for the loss. 
 
 So the attorney is responsible for the negligence or default 
 of his clerk, agent or servant, in the same manner as for his own 
 personal neglect or default,' and it is no defense that the clerk 
 was himself a competent attorney.* An attorney is not, how- 
 ever, liable for the neglect of a substitute or associate appointed 
 
 1 As where he prepares a simple Simon, 4 La Ann. 490; Poole v. Qiot, 
 
 contract when a sealed one was neces- 4 McCord (S. C.) 259. 
 
 i^ary, as in Parker v. Rolls, supra; or » Smyth v. Harvie, 31 111. 63; 83 
 
 misdescribes the premises, as in Tay- Am. Dec. 202. 
 
 lor t. Gorman, supra; or omits a • McFarland v. Crary, 8 Cow. (N. 
 
 requisite formality in the acknowl- Y.)25ii; Livingston v. Cox, 6 Penn. 
 
 edgment, as in Stott v. Harrison, St. 360. 
 
 supra. '' Warner v. Griswold, 8 Wend. 
 
 « Stott V. Harrison, 73 Ind. 17. (N.Y.) 665; Livingston?;. Cox, supra. 
 
 • Miller v. Wilson, 24 Penn. St. s Floyd v. Nangle, 3 Atk. 563; 
 
 114. Birkbeck v. Stafford, 14 Ab. (N. Y.) 
 
 < Livingeton v. Cox, 6 Penn. St. Pr. 285; Walker v. Stevens, 79 111, 
 
 860; Wilkinson v. Griswold, 12 193. 
 
 Smcd. & M. (Miss.) 669; D wight V. • Walker t). Stevens, supra. 
 
 698
 
 Chap. I. J ATTOBNEYS AT LAW. § 833. 
 
 or employed by him with the client's conseut or authority if he 
 used due care in his selection;* nor would he be liable for the 
 neglect or default of a mere associate, not a partner or clerk, 
 employed by the client.' 
 
 § 831a. Same Subject— Neglect of Subagent in ooUecting. 
 This question has been discussed in an earlier chapter to which 
 the reader is referred.* 
 
 § 832. Liability for exceeding Authority, or violating Instruc- 
 tions. An attorney at law, like any other agent, is liable to his 
 principal for losses which the latter may sustain, by reason of 
 the attorney's exceeding his authority or acting in violation of 
 express instructions. Thus, if an attorney appears in an action 
 without authority, and the assumed client incurs costs thereby;* 
 or if the attorney, without authority, enters a satisfaction of a 
 judgment without full payment, whereby the client loses the 
 balance;* or if he neglects to bring an action immediately, as 
 directed, whereby the debtor evades the jurisdiction, or becomes 
 insolvent, or the statute of limitations operates against the claim ;• 
 or otherwise occasions loss to his client by failing to observe the 
 limits set to his authority, or the instructions given to him, he is 
 liable for the loss. 
 
 § 833. Liability for Money collected. It is the duty of an 
 attorney who receives money for his client, to pay it to him 
 within a reasonable time, and, at all events, upon proper 
 demand.' Without express authority from his client, the attor- 
 ney should neither use the money himself, nor commingle it 
 with his own. If it becomes necessary to deposit it, he should 
 make the deposit in the name of his client, for if he deposits it 
 in his own name, though in a separate account, it has been held 
 to be his loss, if the bank fails before payment." 
 
 If the attorney neglects or refuses to pay the money to his 
 
 1 See ante, %% 504, 575. » Cox v. Livingston, 3 Walts. & S. 
 
 s Godefroy v. Dalton, 6 Bing. 468; 103; 37 Am. Dec. 486; Gilbert v. 
 
 Watson V. Muirhead, 57 Penn. St. Williams, 8 Mass. 51, 5 Am. Dec. 
 
 247. 77. 
 
 » See ante, % 515 and notes. • People v. Cole, 84 lU. 327. 
 
 * O'Hara v. Brophy, 24 How. (N. » Lillie v. Ho}t, 5 Hill. (N. Y.) 395, 
 
 T.) Pr. 379; Mudry v. Newman, 1 40 Am. Dec. 360. 
 
 Cromp. Mees. & Rose. 403; Hubbart » Naltner v. Dolan, 108 Ind. 500, 
 
 e. Phillips, 13 Mees.& W. 703. 58 Am. Rep. 61. 
 
 699
 
 § 834. THE LAW OF AGENCT. [Book Y. 
 
 client, the latter may maintain an action against the attorney for 
 its recovery.^ Ordinarily such action will not lie until after a de- 
 mand has been made upon the attorney for the money, and he has 
 neglected or refused to comply with it ; * but where the attorney 
 lias retained the money for an unreasonable time and its reten- 
 tion is unexplained,* and where he converts it to his own use,* it 
 is held that an action may be maintained without a previous 
 demand. 
 
 Liahility for Interest. — The same rules govern the liability of 
 the attorney for interest upon the money received by him. 
 Ordinarily he will not be chargeable with interest until a demand 
 has been made for the money ; * but if he retains it unreasonably 
 without explanation,' or if he uses it himself,' or if he wrong- 
 fully converts it to his own use,* or if, upon a dispute arising as 
 to the amount due the client, the attorney makes the client a 
 tender which proves, upon a suit brought, to be insufficient,* the 
 client may recover interest. 
 
 § 834. Attorney liable though acting gratuitously. It is no 
 defense to an action against an attorney for negligence or mis- 
 conduct that he acted gratuitously. He is under no obligation to 
 80 act, but if he does undertake the performance, he must answer 
 for his negligence or default in the same manner as though he 
 were to receive a reward." 
 
 This rule is in accordance with the well settled rule applicable 
 to agents generally which has been discussed in an earlier portion 
 of this work. 
 
 § 835. The Measure of Damages. The measure of damages, 
 in an action against the attorney, is the actual loss sustained as 
 
 * See cases cited in following notes. • Chapman v. Burt, supra; Dwight 
 8 Roberta v. Armstrong, 1 Bush v. Simon, 4 La Ann. 490. 
 
 (Ky.) 263, 89 Am. Dec. 624; Black v. ' Mansfield v. Wilkerson, 26 Iowa, 
 
 Hersch. 18 Ind. 342, 81 Am. Dec. 482. 
 
 363; Taylor©. Bates, 5 Cow. (K Y.) » Walpole v. Bishop, 31 Ind. 156; 
 
 376 Chapman v. Burt, 77 111. 337. Chapman v. Burt, 77 111. 337. 
 
 But see Lillie v. Hoyt, 5 Hill (N. • Ketcham v. Thorp, 91 111. 611. 
 
 Y.) 395, 40 Am. Dec. 360; Schroeppel '» Eccles c. Stephen'^on, 3 Bibb. 
 
 «, Corning. 6 N. Y. 117. (Ky.) 517; Stephens «. White,3 Wash. 
 
 • Chapman t>. Burt, 77111. 337. (Va.) 203; Bradt v. Walton, 8 Johns. 
 
 ' Chapman c. Burt, sii?wa. See also (N. Y.) 298; O'Hara v. Brophy, 24 
 
 Jordan t. Westerman, 62 Mich. 170. How. Pr. (N. Y.) 379; Bourne 9. 
 
 ■ Wa]|)ole V. Bishop, 31 Ind. 15G; Diggles. 2 Chit. 311: Whitehead «l 
 
 Jobuson V. Sempie, 31 Iowa, 49. Greetham, 2 Bing. 464. 
 
 700
 
 Chap. I.] ATTORNEYS AT LAW. § 836. 
 
 the natural, direct and proximate result of his negligence or 
 default.^ Compensation to the client is the result aimed at, and 
 it is to be compensation for something which, but for the attor- 
 ney's negligence, he would have enjoyed. The burden of prov- 
 ing negligence, and that, by it, he has sustained loss, is upon the 
 client.' If, therefore, though the attorney may have been negli- 
 gent, the client has suffered no injury, there is no cause of 
 action.* And in an action against the attorney for negligence 
 in collecting, the amount of the debt is not necessarily the meas- 
 ure of damage. In order to make it so, the client must show 
 that it was a valid subsisting debt, that the debtor was solvent, 
 and that the attorney, with reasonable diligence, might have col- 
 lected the full amount.* And it is only for the proximate results 
 of his own negligence, that the attorney is liable. Thus after 
 a client has taken a claim out of the hands of one attorney, that 
 attorney is not responsible for a loss subsequently resulting from 
 the delay or negligence of the client or of another attorney to 
 whom the claim is entrusted.' 
 
 VI. 
 
 LIABILITT OF ATTORNEY TO THIRD PERSONS. 
 
 § 836. Not liable for Breach of Duty owing to Client only. 
 The duties of the attorney which arise from the relation of attor- 
 ney and client, are due from the attorney to his client only, and 
 not to third persons. The latter have not retained or employed 
 the attorney, nor has he rendered any service for them, at their 
 request or in their behalf. No privity of contract exists between 
 them and the attorney. For such injuries, therefore, as third 
 
 • Pennington v. Yell. 11 Ark. 213. (Ky.) 517; Rootes ». Stone, 2 Leigh 
 
 52 Am. Dec. 262; Mardis t). Shackle- (Va.) 650. 
 
 ford, 4 Ala. 505; Dearborn v. Dear- 'Pennington ». Yell, svpra. See 
 
 born, 15 Mass. 316; Crocker ?;. Hutch- all cases cited in preceding note, 
 
 inson, 2 D. Chip. (Vt.) 117; Cox v. » Harter c. Norris, 18 Ohio St. 492. 
 
 Sullivan, 7 Ga. 144, 50 Am. Dec. 386; * Pennington v. Yell, supra; Cox d. 
 
 Nisbet t). Lawson, 1 Ga. 275: Stevens Sullivan, «iij9ra; Eccles v. Steplien- 
 
 V. Walker, 55 111. 151; Grayson v. son, «wpm; Crooker v. Hutchinson, 
 
 Wilkinson, 5 Smed.& M. (Miss.) 268; supra; CoW'ier v. Pulliam, 13 Lea 
 
 Suydara v. Vance, 2 McLean (U. S.C. (Tenn.) 114; Bruce v. Baxter,? Id. 477. 
 
 C.) 99; Eccles v. Stephenson, 3 Bibb. « Read v. Patterson, 11 Lea (Tenn.) 
 
 430; See Batty v. Fout, 54 Ind. 482. 
 
 701
 
 § 837. THE LAW OF AGENCY. [Book V. 
 
 persons may sustain by reason of the failure or neglect of the 
 attorney to perform a duty which he owed to his client, they 
 have no right of action against the attorney.^ 
 
 Thus one who purchases real estate in reliance upon an opinion 
 of its title given to the vendor by the latter's attorney,' or who 
 purchases a mortgage given to secure a loan made upon the 
 strength of a search made by the attorney of the original mort- 
 gagee,' cannot maintain an action against the attorney for dam- 
 ages if the title prove defective or the search incomplete. 
 
 Cases in which the attorney has been guilty of fraud or collu- 
 sion with intent to injure or deceive the third person, stand upon 
 a different footing. These do not' rest upon a privity of contract, 
 but upon intentional wrong doing, and the victim of the wrong 
 has undoubtedly a remedy for it against the attorney as in 
 other cases.* 
 
 § 837. Liable where he contracts personally. As has been 
 seen, it is the presumption that an agent while acting for his 
 principal, intends to bind the latter and not himself by the con- 
 tracts which he makes; but it is always competent for the agent 
 to charge himself personally if he so elects.* The same rule 
 applies to attorneys and their clients. The attorney occupies a 
 position of greater prominence than agents generally, but his 
 duty requires, and his position gives him, less authority to enter 
 into contracts than is usually conferred upon business agents. 
 He acts primarily for his client and his authorized engagements 
 should be held binding upon the client rather than upon him- 
 self, in the absence of evidence that he intended to bind himself.' 
 
 § 838. Liability for Clerk's, OJOacer's and Witness's Fees. While 
 recognizing this general rule, (and in pursuance of it, as is 
 said in some cases, though others declare it an exception,) it is 
 held that the attorney is personally liable to clerks of courts and to 
 sheriffs for services performed by these officers, at the attorney's 
 
 » Savings Bank o. Ward, 100 U. 8. Hughes, supra; Houseman v. Girard, 
 
 195; Dundee Mortg. & Trust Co. v. &c. Ass'n, supra. 
 
 Hughes, 20 Fed. Rep. 39; Fish v. < Savings Banls «. Ward, ««pra. 
 
 Kelly, 17 C. B. (N. S.) 194; House- » See ante % 558. 
 
 man v. Girard &c. Ass'n, 81 Penn. « Preston v. Preston, 1 Doug, 
 
 St. 256. (Mich.) 292; Wires v. Briggs, 6 Vt. 
 
 2 Savings Bank v. "Ward, supra. 101, 2G Am. Dec. 284. 
 
 » Dundee Mortg. & Trust Co. v. 
 
 702
 
 Chap. I.] 
 
 ATTOKNEY8 AT LAW. 
 
 § 838. 
 
 request, in issuing, filing and serving writs and other papers in 
 the cause.* 
 
 ' Heath «, Bates, 49 Conn. 342 ; 44 wait till he can hear from the plain- 
 
 Am. Rep. 234; Tilton v. Wright, 74 
 Me. 214, 43 Am. Rep. 578; Adams v. 
 Hopkins, 5 Johns. (N. Y.) 252; Ous- 
 terhout t Day, 9 Id. 113; Trustees of 
 Watertown «. Cowen, 5 Paige (N.Y.) 
 610; Camp v. Garr, 6 Wend. (N.Y.) 
 635; Campbell v. Cothran, 5() N. Y. 
 279; Towle v. Hatch, 43 N. H. 
 270; Tarbell v. Dickinson. 3 Cush. 
 CBIass.) 345. 
 
 In Heath v. Bates, supra. Park, 
 C. J. says: " In most cases of agency 
 the principal is what the name im- 
 ports — the leading person in the trans- 
 action. The agent is, as the term 
 implies, a mere subordinate, im- 
 portant only as the representative 
 of the principal ; often representing 
 only one principal. An altorney at 
 law, on the other hand, occupies a 
 position of recognized importance in 
 itself, not infrequently of great prom- 
 inence before the public, in which he 
 often has a large number of clients, 
 his relations to whom are full of de- 
 tail, and who are little noticed by the 
 public. In these circumstances, if 
 every officer who serves a writ at the 
 attorney's request, if every clerk of 
 court who enters a case for hini upon 
 the docket, is to look only to his 
 clients as their debtors, an inconven- 
 ience will be wrought that has no 
 commensurate good to counterbal- 
 ance it. It is true that an officer can 
 refuse to serve a writ unless his fees 
 are paid or secured, but this right is 
 practically of little advantage to him. 
 A writ is sent him by mail by an at- 
 torney of some other town or county. 
 It requires immediate service. The 
 officer desires to be prompt and faith- 
 ful. It is putting upon him an un- 
 necessary burden to require him to 
 take the risk of losing his fees, or to 
 
 tiff or his attorney at the risk of 
 losing all opportunity to make service 
 of the writ. It is perfectly easy for 
 the attorney, if he does not wish to 
 be personally responsible, so to in- 
 form the officer wlien he gives liim 
 the writ. It is to be borne in mind 
 that the attorney knows the plainliti, 
 while the officer may know nothing 
 of him. It is generally the case that 
 an attorney has a running account 
 with certain officers who serve a large 
 number of writs for him, and who 
 would be put to great inconvenience 
 if compelled to make their charges in 
 each case to the plaintiff, especially 
 when they have no knowledge that 
 the attorney has received actual au- 
 thority to bring the suit. The attor- 
 ney has already his account with his 
 client, knows what the fact is as to 
 his authority to bring the suit, and 
 could, without inconvenience, have 
 required a prepayment of the expen- 
 ses of instituting the suit, and ought 
 to have done so. In every view of 
 the case, the rule seems a reasonable 
 one, and the only reasonable one, 
 that an attorney placing a writ in an 
 officer's hands fur service is to be re- 
 garded as personally requesting the 
 service and as personally liable for it, 
 unless he expressly informs him that 
 he will not be personally liable, or there 
 are circumstances which make it 
 clear that that was the understanding 
 of the parties. 
 
 This is really no departure from 
 the general law of agency. An agent 
 can always bind himself personally, 
 where vsuch is his intention. Here it 
 is merely held to be a fair inference 
 from the act of the attorney in plac- 
 ing the writ in an officer's hands and 
 giving no notice to the contrary, 
 
 703
 
 § 839. THE LAW OF AGENCY. [JBook V. 
 
 This liability is based, in some cases, upon the ground that it 
 is a fair inference from his so doing, without giving notice to the 
 contrary, that he intends to be personally liable ; while in others, 
 it is sustained only upon the ground of usage or convenience. 
 In a few States the rule is denied altogether.^ 
 
 But the attorney is not presumably liable for witness fees,' or 
 the fees of a referee,' or of a stenographer employed in the case.* 
 
 § 839. Liability to third Person in Tort. For such wrongs and 
 injuries as an attorney may commit in his private and individual 
 capacity, he is, of course, liable like any other person. The fact 
 that a wrong-doer happens to be,. by profession, an attorney at 
 law, furnishes no more justification than as if he were engaged 
 in any other occupation. 
 
 But an important question arises how far an attorney is liable 
 to third persons, for injuries which they may sustain from the act 
 of the attorney, committed while he was acting either really or 
 ostensibly for his client and in his cause. 
 
 This question may present itself under two states of fact : — 1. 
 Where the attorney is acting in good faith for the benefit of his 
 client, and 2. Where the attorney, though acting ostensibly for 
 his client, is really instigated by private malice against the other 
 party, or becomes a party to his client's malice. 
 
 Each of these questions, also, subdivides itself into two 
 branches : a. How far the attorney is liable for the institution, 
 conduct and result of the suit ; and h. How far he is liable for 
 process which he causes to be served. 
 
 1. a. An attorney at law, who acts in good faith and is 
 prompted only by professional duty and fidelity to his client, is 
 not liable to the other party for injuries which the latter may sus- 
 tain from the fact that the action was begun or prosecuted, by 
 the attorney's client, either maliciously or without probable cause. 
 The wrong intentions of the client are not to be imputed to his 
 
 that he intends to be personally liable Dec. 284; Preston v. Preston, 1 Dong, 
 
 for his fees. And this inference un- (Mich ) 292. 
 
 doubtedly accords with the actual « Robins v. Bridge, 3 Mees.& Wels. 
 
 fact in the great majority of cases. 114. 
 
 Indeed the exceptions are probably » Judson v. Gray, 11 N. Y. 408. 
 
 BO few as hardly to be entitled to con- « Bonynge v. Field, 44 N. Y. iSuper. 
 
 Bideration." Ct. 681; B. c. 81 N. Y. 159. 
 I Wires v. Briggs, 5 Vt. 101, 26 Am. 
 
 704
 
 Chap. I.j ATTORNEYS AT LAW. § 839. 
 
 attorney who was ignorant of them, and who, himself, had no 
 Boch intentions. This rule is absolutely imperative for the attor- 
 ney's protection. He can rely in the first instance only upon the 
 advice and instructions of his client, and it would impose upon 
 the attorney a perilous responsibility if he could justify his par- 
 ticipation in the suit only by its result. As is said by a learned 
 judge : " When the client will assume to dictate a prosecution 
 upon his own responsibility, the attorney may well be justified in 
 representing him so long as he believes his client to be asserting 
 what he supposes are his rights, and is not making use of him to 
 satisfy his malice." * 
 
 2. a. " But," proceeds the same judge, " when an attorney sub- 
 mits to be made the instrument of prosecuting and imprisoning 
 a party against whom he knows his client has no just claim, or 
 cause of arrest, and that the plaintiii is actuated by illegal or mali- 
 cious motives, he is morally and legally just as much liable as if 
 he were prompted by his own malice against the injured party. 
 If he will knowingly sell himself to work out the malicious pur- 
 poses of another, he is a partaker of that malice as much as if it 
 originated in his own bosom." ^ 
 
 In order, however, to render the attorney liable for a malicious 
 prosecution by his client, it must not only appear that the attor- 
 ney knew that the prosecution was malicious, but that he also 
 knew that it was without cause. It is not enough that he might, 
 with reasonable diligence, have ascertained that there was no prob- 
 able cause for the prosecution. The attorney has a right, in 
 good faith, to advise and act upon the facts which he gets from 
 his client, and it is not his duty to go elsewhere for information.' 
 
 An attorney who while acting ostensibly for his client, but 
 actuated by his own personal malice, commences or carries on a 
 malicious prosecution in order to gratify some private purpose of 
 his own is undoubtedly liable to the party injured for the wrong 
 inflicted.* In such a case there is neither good faith nor advice 
 of client to justify the action. 
 
 * Burnap v. Marsh, 13 111, 535 ; Peck « In Burnap v. Marsh, supra. 
 
 V. Chouteau, 91 Mo. 140, 60 Am. Rep. • Peck v. Chouteau, supra; Burnap 
 
 236; Stockley v. Hornidge, 8 Car. & v. Marsh, supra; Hunt v. Printup, 28 
 
 P. 16, 34 Eng. C. L. 276; Lynch v. Ga. 297. 
 
 Commonwealth, 16 S. &. R. (Penn.) * Stockley*. Hornidge, 8upra;B\iT- 
 
 368, 16 Am. Dec. 582. nap v. Marsh, supra. 
 
 45 705
 
 § 839. THE LAW OF AGENCY. [Book V. . 
 
 1. b. All persons who direct, cause or participate in a trespass 
 upon another party are, in accordance with well settled rules, lia- 
 ble to that party for the injury inflicted. An attorney who 
 delivers to an officer a writ for service impliedly, if not expressly, 
 directs the oflBcer to proceed to serve the process in accordance 
 with its command. If, therefore the writ be illegal or void, so 
 as to furnish the officer no protection for his proceedings under 
 it, he is, of course, a trespasser, and the attorney is liable with 
 him to the person injured as having directed the commission of 
 the trespass.* The party for whom both the attorney and the 
 officer were acting is also liable, as the principal in the transac- 
 tion.* The liability of the parties, in this event, does not depend 
 upon their motive. Although each may have acted in entire 
 good faith, — the client in the prosecution of his supposed rights, 
 the attorney in rendering professional assistance to the client, and 
 the officer in undertaking to execute the writ, — yet mere good 
 faith will not excuse the trespass.' The attorney would not be 
 liable to the person injured, if tlie client delivered the writ to 
 the officer and directed its service, or if the attorney merely com- 
 municated to the officer the instructions of his client.* 
 
 But the attorney by the delivery of the writ directs the officer 
 to proceed according to its command only, and if the officer 
 exceeds its command, or does anything which the writ, if legal, 
 would not justify,— as if he seizes property exempt from execu- 
 tion, or levies upon goods of anotlier than the defendant, — the 
 attorney would not be liable." Even in this case, however, if 
 the attorney directs or advises the act which constitutes the tres- 
 pass, or if he participates in the act, either in person or by his own 
 clerk, servant or agent, the attorney is liable with the officer to 
 the person trespassed upon for the injury inflicted.* The client 
 
 1 Burnap v. Marsh, mpra; Cook v. s Ford v. Williams, supra; Cook v. 
 Hopper, 23 Mich. 511. But see Ross Hopper, supra; Seatoa v. Cordray, 
 e. GriffiQ, 53 Mich. 5. Wright (Ohio) 103; Averill v. Wil- 
 
 2 Foster o. AVilcy, 27 Mich. 244, 16 Hams, 1 Denio (N. Y.) 501; Adams v. 
 Am. Rep. 1H5; Newberry t>. Lee, 3 Freeman, 9 Johns. (N. Y.) 118; Van- 
 Hill (N. Y.)535; Barker v. Braham, derbilt v. Richmond Turnpike Co., 
 8 Wils. 368; Bates v. Pilling, 6 B. & 2 N. Y. 479. 51 Am. Dec. 315. 
 
 Q gg 6 Hardy v. Keeler. SO 111. 153, where 
 
 » See Cooley on Torts, Chap. 23, the attorney sent his clerk; Cook v. 
 
 <Cook V. Hopper, 33 Mich. 511; Hopper, 23 Mich. 511, where the 
 Ford B. Williams. 13 N. Y. 577, 67 attorney refused to coasent that prop- 
 Am. Dec. 83. T06
 
 Chap. I.] ATTORNEYS AT LAW. § 840. 
 
 would not, however, be liable in this ease unless he advised, 
 directed, participated in or ratified the act.* In this case, too, the 
 trespassers are none the less liable because they acted in good 
 faith.* 
 
 2. h. A fortiori will the attorney be liable where he causes, 
 directs or participates in, the service of process, whether it be 
 valid or invalid, without the instruction or knowledge of his 
 client, and without any reasonable or probable cause for so doing, 
 but simply to gratify some malicious purpose of his own.' 
 
 He would also be liable with his client where, knowing that 
 the client was acting maliciously and without probable cause, he 
 co-operated with or assisted him in the issuing or serving of pro- 
 cess.* 
 
 VII. 
 
 LIABILITY OF CLIENT TO ATTORNEY. 
 
 1. Attorney's Right to Beimhursement and Indemnity. 
 
 § 840. Attorney entitled to Reimbursement and Indemnity. 
 Like other agents, the attorney is entitled to be reimbursed by 
 his client for costs, charges and expenses which the attorney has 
 fairly and in good faith incurred in the prosecution of his client's 
 business, and which were not rendered necessary by the attorney's 
 own negligence or default, or which were not incurred in violation 
 of the express instructions of his client.* So if the attorney for 
 his client's benefit and within the scope of his authority, has 
 incurred a contingent liability, as by indemnifying an officer from 
 the consequences of levying the client's process, he is entitled to 
 be idemnified by his client.* 
 
 arty unlawfully seized should be re- Stockley v. Hornidge, 8 Car. & P. 16, 
 
 leased. 34 Eag. C. L. 276; Wood v. Weir. 5 
 
 > Welsh V. Cochran, 63 K Y. 181, B Mon. (Ky.)544; Warfield v. Caoip- 
 
 20 Am. Rep, 519; Averill u. Williams, bell, 33 Ala. 349; Kirksey b. Jones, 7 
 
 4 Denio (N. Y.) 295, 47 Am. Dec. Ala. 622. 
 
 253; Vanderbilt v. Richmond Turn- < Burnap v. Marsh, supra; Peck v. 
 
 pike Co., 2 N. Y. 479, 51 Am. Dec. Chouteau, 91 Mo. 140, 60 Am. Rep. 
 
 315; Freeman v. Rosher, 18 Q. B. 236. 
 
 780; Kirksey v. Jones, 7 Ala. 622; » Clark u Randall, 9 Wis. 135, 76 
 
 Pollock V. Gantt, 09 Ala. 373. Am. Dec. 252; Champin v. King, 6 
 
 * See note 3 p. 706, ujite. Jur. 35. 
 
 ^Burnap v. Marsh, 13 111. 535; « Clark v. RandaW, supra. 
 
 707
 
 § 841. THE LAW OF AGENCY. [Book Y 
 
 2. Attorney's Right to Compensation. 
 
 8 841. Attorney entitled to Compensation. An attorney at 
 law is prima facie entitled to compensation for the services 
 which he renders for his client. He may specially agree that he 
 will serve gratuitously, or that he will make no charge unless suc- 
 cessful, or unless his services are satisfactory to his client ; and 
 such agreements, when fairly made, will be enforced. But when 
 an attorney is employed to render services in the course of his 
 profession, the presumption is that the party who employs him 
 expected to pay him,^ and if such is not the case the burden of 
 proving it is upon the client.* 
 
 The fact that the attorney was mayor of the city for which the 
 services were rendered ; ' or was a stockholder in the corporation 
 which employed him ;* or was also employed to negotiate loans 
 for the insurance company for which he rendered other pro- 
 fessional services ; • will not defeat his right to compensation. 
 
 § 842. Attorney may sue for Compensation. Attorneys at 
 law of all grades in the United States, though a different rule at 
 one time prevailed, may maintain an action at law to recover their 
 compensation.' 
 
 a. Where there was a special Contract. 
 § 843. Parties may agree upon Amount of Compensation. 
 It is entirely competent for the parties to agree, at the time of 
 the employment of the attorney, not only upon the amount of 
 his compensation, but also as to the time, manner and medium of 
 its payment, and such an agreement is highly desirable, both to 
 the client and the attorney, as obviating many of the unpleasant 
 and unseemly controversies which sometimes occur when the 
 amount is left unfixed until the termination of the employment. 
 "Where such a contract is fairly made it is conclusive upon both 
 
 1 Hallett v. Oakes, 1 Gush. (Mass.) » Insurance Co. «. Buchanan, 100 
 296; Webbt!. Browning, 14 Mo. 354; Ind. 63. 
 
 Smith V. Davis, 45 N. U. 566; Vilas « Stanton v. Embiey, 93 U. S. 548; 
 
 e. Downer, 21 Vt. 419. Wylie v. Coxe, 15 How. (U. S.) 415; 
 
 2 Brady v. Mayor, 1 Sandf. (N. Y.) Smith v. Davis, 45 N. H. 506; Nichols 
 569. V. Scott, 12 Vt. 47; Eggleston v. 
 
 » Niles V. Muzzy, 33 Mich. 61, 20 Boardman. 37 Mich. 14; Miller ». 
 
 Am. Rep. 670. Beal, 26 Ind. 234; Webb v. Brown- 
 
 * Reynolds v. McMillan, 63 111. 46. ing, 14 Mo. 354; Foster ». Jack. 4 
 
 See Ward v. Craig, 87 N. Y. 550. Watts. (Penn.) 334. 
 
 708
 
 Chap. I.] ATT0BNEY8 AT LAW. § 845. 
 
 parties, unless its provisions have been waived ; * and where law- 
 ful conditions have been imposed, it is incumbent upon the attor- 
 ney to show, either that he had fully performed the contract 
 according to its terms,* or that such performance has been pre- 
 vented by the client.' 
 
 § 844. Contracts for ooatingent Compensation. A contract 
 by which the attorney agrees to render professional services upon 
 the condition that, if unsuccessful, he shall receive no, or little, 
 compensation ; while if successful, he shall receive a large, or 
 increased, compensation, is valid.* And it is none the less valid 
 that the attorney is to receive as his compensation a portion of 
 the money or thing recovered.' Whatever may be thought of 
 the moral or ethical effects of such contracts, it is quite generally 
 held in modern times, that they are not invalid. Indeed it is 
 urged, with mucli plausibility, that such contracts, under the 
 peculiar and unequal conditions of many of the parties to modern 
 litigation, are absolutely indispensable to the maintenance and 
 administration of justice. Contracts of this nature, however, to 
 be enforced, must appear not to be excessive or extortionate, and 
 to have been fairly made, without undue advantage being taken 
 of the ignorance or necessities of the client.* 
 
 § 845. What Contracts champertous. In many cases it has 
 
 * Stanton v. Embrey, 93 U. S. 548; Am. Rep. 99; Allard v. Lamirande, 
 
 Planters' Bank «. Hornberger, 4 Cold. 27 Wis. 502; Kusterer v. City of 
 
 (Tenn.) 531; Bright v. Taylor, 4 Beaver Dam, 56 Wis. 471, 43 Am, 
 
 Sneed. (Tenn.) 159; Tapley ®. Coffin, 725; Perry ». Dicken, 105 Penn. St 
 
 12 Gray (Mass.) 430; Yates v. Robert- 83, 51 Am. Rep. 181; Miles v. O'Hara, 
 
 son, 80 Va. 475; Badger©. Gallagher, 1 S. &. R. (Penn.) 33; Boulden v 
 
 113 111. 663; Ripley v. Bull, 19 Conn. Hebel, 17 Id. 313; Strohecker v. Hoff 
 
 56; Walker v. Clay, 21 Ala. 797; man, 19 Penn. St. 233, 237; Dicker 
 
 Allard v. Lamirande, 29 Wis. 503; son v. Pyle. 4 Phila. 259; Chester 
 
 Hitchings «. VanBrunt, 38 N.Y. 335; County®. Barber, 97 Penn. St. 4G3 
 
 Broadman ®. Brown, 25 Iowa, 489. Stewart v. Houston, «&c. Ry Co., 63 
 
 a Moses v. Bagley. 55 Ga. 2S3. Tex. 246. 
 
 9 Myers tJ. Crockett, 14 Tex. 257; s Duke v. Harper, supra; contra 
 
 Kersey v. Garton, 77 Mo. 645; Bates Blaisdell v. Ahem. 144 Mass. 393, 59 
 
 V. Desenberg, 47 Mich. 643. Am. Rep. 99; contra, when for part 
 
 « Wylie V. Coxe, 15 How. (U. S.) of land recovered ; Stanton b. Ha^kin, 
 
 415; Wright v. Tebbitts, 91 U. S. 253; 1 McAr. (D. C.) 558, 29 Am. Rep. 
 
 Stanton v. Embrey, 93 U. S. 548; Tay- 612. 
 
 lor ». Bemiss, 110 U. S. 43; Duke v. « See Taylor v. Bemiss, 110 U. S. 
 
 Harper, 66 Mo. 51, 27 Am. Rep. 314; 42; Wright v. Tebbetts, 91 U. S. 252. 
 Blaisdell v. Ahern, 144 Mass. 393, 59 
 
 709
 
 §845. 
 
 THE LAW OF AGENCY. 
 
 [Book v., 
 
 been considered that the mere agreement that the attorney sliould 
 receive part of the money or thing recovered, rendered the con- 
 tract champertous and void ;* bat it is now generally held that 
 this alone is not enough, and that, to vitiate the contract on this 
 account, it is essential that it should also appear that the attorney 
 was to carry on the suit at his own expense ; " although in some 
 cases, however, it has been said that the attorney who furnished 
 his services upon the contingency of success was, in a measure, 
 sustaining the suit at his own expense. • In a recent case in 
 
 « See Thurston «. Percival, 1 Pick. 
 (Mass.) 415; Brown u Beauchamp, 5 
 T. B. Mon. (Ky.) 413, 417; Lathrop 
 «. Amherst Bank. 9 Mete. (Mass.) 
 489; Scobey v. Ross, 13 Ind. 117; 
 Rust ». Larue, 4 Litt. (Ky.) 419; 
 Davis V. Sharron, 15 B. Mon. (Ky.) 
 64; Backus v. Byron, 4 Mich. 535. 
 
 In Ware's Adm. v. Russell, 70 Ala. 
 174, 45 Am. Rep. 82, Brickbll, C. 
 J., said: "Champerty, with us, is 
 the unlawful maintenance of a suit in 
 consideration of some bargain to have 
 a part of the thing in dispute, or 
 some profit out of it; and covers all 
 transactions and contracts, whether 
 by counsel or others, to have the 
 ■whole or part of the thing or dam- 
 ages recovered; Foe v. Davis, 29 Ala. 
 683; Hollo way «. Lowe, 7 Port. (Ala.) 
 488." 
 
 »Duke V. Harper, 66 Mo. 51, 27 
 Am. Rep. 314; Martin e. Clarke, 8 R. 
 I. 389, 5 Am. Rep. 586; Moses v. 
 Bagley, 55 Ga. 283 ; Arden v. Patter- 
 eon, 5 Johns. (N. Y.) Ch. 44; Allard 
 V. Lamirande, 29 Wis. 502; Bayard o. 
 McLane, 3 Harr. (Del.) 212; Coleman 
 V. Billings, 89 111. 183; Orr v. Tanner, 
 12 R. I. 94. 
 
 3 In Backus e. Byron, 4 Mich. 535, 
 an agreement by which the client 
 was to pay the expenses and the at- 
 torney was to have part of the recov- 
 ery was held void. Said Gueen, J. . 
 " That champerty was regarded as 
 malum in se, and an offense of a 
 
 high grade at the common law, which 
 rendered void all contracts tainted 
 with it, cannot be questioned. Bar- 
 ratry and maintenance (of which lat- 
 ter champerty was regarded as the 
 most odious species) were offenses of 
 a kindred character, tending to strife, 
 oppression and injustice, and the per- 
 petrators thereof were visited with 
 grievous punishments. Hawkins P. 
 C, ch. 84; Coke's Inst. 368. b; 4 Bl. 
 Com., 134; 2 Chitty's C. L.. 234, note 
 a; 4K. Com., 6th ed., 449, note a. 
 Our attention will first be directed to 
 the inquiry what constitutes cham- 
 perty at the common law. Hawkins 
 defines it to be: ' The unlawful main- 
 tenance of a suit in consideration of 
 an agreement to have part of the 
 thing in dispute, or some profit out of 
 it.' Hawkins P. C. ch. 84 § 1. 
 Lord Coke says, it is ' to maintain to 
 have part of the land, or part of the 
 debt, or other thing in plea or suit.' 
 Co. Lit, 368, b. Chitty defines it to 
 be 'a bargain to divide tlie land 
 (eampum partire) or other subject in 
 dispute, on condition of his carrying 
 it on at his own expense,' and this is 
 the definition given by Sir Wm. 
 Blackstone: 2 Chitty's Cr. L., 234, 
 note a; 4 Bl. Com., 135. Sir Wm, 
 Grant, in 15 Vesey, lo9, sa\s: 
 ' Champerty is the unlawful main- 
 tenance of a suit in consideration of 
 s bargain for a part of the thing, or 
 some profit out of it,' and this defini- 
 
 710
 
 Chap. I.] 
 
 ATT0BNEY8 AT LAW. 
 
 §845. 
 
 Massachusetts, the contract is said to be cliampertous where the 
 attorney agrees to look solely to the fund or thing recovered, 
 with no personal claim against the client.* 
 
 tion is quoted by Tindall, Ch. J., 
 in Stanley v. Jones, 7 Bing., 369. 
 
 Mr. Bouvier, in his institutes of 
 American law, vol. 4, p. 236, says: 
 'By champerty is meant a bargain 
 with a plaintiff or defendant, eampum 
 partire, to divide the land or the 
 thing sued for between them if they 
 prevail at law, the champertor agree- 
 ing to carry on the suit at his own 
 expense. It differs from maintenance 
 in this that in the latter the person 
 assisting the suitor receives no part of 
 the benefit, while in the former he 
 receives one-half, or other proportion 
 of the thing sued for,' and Mr, Tay- 
 lor, in his law glossary, defines it to 
 be the purchasing of a right, or pre- 
 tended right, under a condition that 
 part, when obtained by suit, shall 
 belong to the purchaser. 
 
 Although there is considerable di- 
 versity in the language used by these 
 and other authors in describing this 
 offense, yet I think that, upon exam- 
 ination, it will appear that they all 
 agree in substance. When it is con- 
 sidered that champerty is a species of 
 maintenance, it is clear that all these 
 definitions import that the party bar- 
 gaining for an interest in the thing in 
 dispute, undertakes to aid in the 
 prosecution of the suit for its recov- 
 ery, and whether such aid is furnished 
 in money by a layman, who pays the 
 expenses of the suit, or by an attor- 
 ney or solicitor, in services rendered 
 in its prosecution, it is the same, and 
 each alike in effect and in contem- 
 plation of law, is a maintainer of the 
 suit, and prosecutes it in whole or in 
 part, at his own expense. The con- 
 sideration paid in the latter case 
 would be equally as valuable as in 
 the former, and the inducement to 
 
 prosecute a doubtful or unconscion- 
 able claim would be the same, and 
 the evil, if any, the same. It is 
 equally champerty whether the con- 
 tract be for one half, one-quarter, 
 or one-eighth of the thing in dispute: 
 and it would be strange, indeed, if 
 the validity or invalidity of the con- 
 tract of this character were made to 
 depend upon the amount of the con- 
 sideration to be paid, or, in other 
 words, upon the payment of a part 
 or the whole of the expenses of the 
 suit." 
 
 * Biaisdell v. Ahern, 144 Mass. 398, 
 59 Am. Rep. 99. In this case it was 
 held that a contract by which an at- 
 torney depends on the contingency of 
 success for payment for all services, 
 and the client agrees to furnish evi- 
 dence and pay all actual costs, and 
 that the attorney shall be entitled to 
 a large and liberal fees, not to exceed 
 fifty per cent of the amount col- 
 lected, is not champertous nor void 
 for maintenance. 
 
 W. Allen, J. says: "There was 
 no agreement that the plaintiff should 
 receive a share of the amount recov- 
 ered as compensation for his services. 
 It is immaterial that the avails of the 
 suit were the means or the security 
 on which he relied for payment, if it 
 was to be payment of a debt due 
 from the defendants. Thurston v. 
 Percival, 1 Pick. 415; Lathrop v. 
 Amherst Bank, 9 Mete, 489. 
 
 Ackertw. Barker, 131 Mass. 436, and 
 Belding v. Smythe, 138 Mass. 530, are 
 cases of champerty, where a part of 
 the amount recovered was to be re- 
 ceived in compensation for services, 
 and there was to be no personal lia- 
 bility. Where the right to compensa- 
 tion is not confined to an interest in the 
 
 711
 
 §846. 
 
 THE LAW OF AGENCY. [Book Y. 
 
 In some of the States, statutes have been enacted leaving the 
 client and his attorney free to make such contracts in reference 
 to the latter's compensation as they deem best.' 
 
 S 846. Such Contracts do not prevent Settlement by Client. 
 A contract for a contingent compensation, in the absence of a 
 statute, gives the attorney no such interest in the cause of action, 
 before judgment, as will defeat a settlement made by the client 
 with the opposite party in disregard of the attorney, although the 
 opposite party had notice of the contract.' In order to protect 
 the attorney before judgment there must be an assignment to 
 him of an interest in the cause of action, of which notice must 
 be given to the other party, and this method will avail only in 
 those cases in which the cause of action is legally assignable. 
 
 S 847. But Attorney may recover from Client. But the client 
 will not be permitted, by settling with the adverse party, to 
 deprive the attorney of his compensation ; and if the client thus 
 prevents the attorney from completing his contract by settling 
 and dismissing the suit, the attorney will be entitled to recover 
 from the client as if the contract had been fully performed, 
 where there are any means of determining what full perform- 
 ance would have realized,' and, in any event, what the services 
 rendered were reasonably worth.* 
 
 thing recovered.but gives a right of ac- 56 Wis. 471, 43 Am. Rep. 735; 
 
 lion against the party, though pledging Coughlia ». New York Central, «&c. 
 
 the avails of the suit, or a part of them, R. R. Co. , 71 N. Y. 443, 27 Am. Rep. 
 
 as security for payment, the agreement 75; Lamont v. Washington, &c. R. R. 
 
 is not champertous. Tapley c. Coffin, Co., 2 Mackey (D. C.) 502, 47 Am. 
 
 12 Gray, 420; Scott v. Harmon. 109 Rep. 268; McBratney ». Railroad Co., 
 
 Mass. 237; s.c, 12 Am. Rep. 685; Mc- 17 Hun (N. Y.) 385; Quincey v, Fran- 
 
 Pherson v. Cox. 96 U. S. 404; Christie cis. 5 Abb. (N. Y.) N. C. 286; Sull- 
 
 «. Sawyer, 44 N. H. 298; Anderson©. ivan v. O'Keefe, 53 How. Pr. 426; 
 
 Radcliffe,E.. B. «& E. 806, 817." Swanston v. Mining Co., 13 Fed. 
 
 » Thus in Michigan it is provided Rep. 215; Pulver t). Harris, 62 Barb, 
 
 by How. Stats. § 9004 " That all ex- (N. Y.) 500, affirmed, 53 N. Y. 73. 
 isting laws, rules, and provisions of Even after verdict, if before judg- 
 
 law, restricting or controlling the meut; Miller b. Newell, 20 8. C. 123, 
 
 right of a party to agree with an attor- 47 Am. Rep. 833. 
 ney, solicitor, or counsel, for his com- "Kersey v. Garton, 77 Mo. 645; 
 
 pensation, are repealed, and hereafter Myers v. Crockett, 14 Tex. 257; Pols- 
 
 the measure of such compensation ley v. Anderson, 7 W, Va. 202, 23 
 
 shall be left to the agreement, express Am. Rep. 613. 
 or implied, of the parties." < Quint v. Ophir Mining Co., 4 
 
 » Kusterer v. City of Beaver Dam, Nev. 305. 
 
 712
 
 Chap. I.] 
 
 ATTORNEYS AT LAW. 
 
 §849. 
 
 ft. Where there was no special Contract. 
 
 § 848. Attorney entitled to reasonable Value of his Services. 
 Where no express contract is made fixing the amount which the 
 attorney is to receive from his client, he is entitled to recover 
 the reasonable value of the services rendered.' 
 
 § 849. What Evidence admissible. In determining what this 
 reasonable value is, a variety of elements are to be taken into 
 consideration. The nature of the controversy and the questions 
 involved; the amount at issue; the skill and labor required; the 
 responsibility imposed ; the standing, experience, learning, repu- 
 tation, tact, assiduity and integrity of the attorney ; the success 
 achieved ; all of these are properly to be considered in determin- 
 ing the value of the service rendered.' 
 
 ' Eggleston v. Boardman, 87 Mich. 
 14, and cases cited in following 
 note. 
 
 2 Eggleston v. Boardman, 37 Mich. 
 14; Bruce v. Dickey, 116 111. 527; 
 Campbell v. Goddard, 17 111. App. 
 885; Smith v. Chicago, &c. Ry Co., 
 60 Iowa, 515; Phelps v. Hunt, 40 
 Conn. 97; People v. Bond Street Sav- 
 ings Bank, 10 Abb. N. Cas. 15; Vilas 
 «. Downer, 21 Vt. 419; Kentucky 
 Bank v. Combs, 7 Penn. St 543; 
 Stanton v. Embrey, 93 U. S. 557. 
 
 In Eggleston v. Boardman, supra, 
 the court said: " Counsel insist that, 
 in the absence of a special contract, 
 one day's work in an important cause 
 is worth no more than the same ser- 
 vices in a suit of less magnitude; that 
 as well might any laborer or mechanic 
 charge extra wages per day when 
 fortunate enough to secure a large 
 job; that where work requires a dif- 
 ferent kind of skill or workmanship, 
 then, of course, such charge should 
 be made as the skill required would 
 command, but the same skill and 
 workmanship upon an important 
 piece of work, would bring no more 
 per day then when it was applied to 
 a lesser job; and that the same knowl- 
 edge of practice and rules of law are 
 
 required of the attorney or solicitor 
 in one case as the other. 
 
 We cannot concur in this reason- 
 ing, the effect of which, if adopted, 
 would be to establish a scale of com- 
 pensation for professional services, 
 when the amount to be paid was not 
 specially agreed upon, dependent 
 upon the skill and professional stand- 
 ing of the person employed, and the 
 actual time by him devoted to the 
 work, but without any reference to 
 the real nature of the questions he 
 was called upon to investigate, or the 
 amount in controversy, and the in- 
 creased care and responsibility aris- 
 ing therefrom. 
 
 Whenever an attorney or solicitor 
 is retained in a cause, it becomes liis 
 implied duty to use and exercise rea- 
 sonable skill, care, discretion and 
 judgment in the conduct and man- 
 agement thereof. It would be very 
 difficult to lay down any definite rule 
 or principle, applicable alike to all 
 cases, as to the care and skill required. 
 Each case must be governed by its 
 own peculiar facts and circumstances, 
 and the amount in controversy must 
 in every case play a very important 
 part in the determination of this 
 question. The lapidary who cuts, 
 
 713
 
 §849. 
 
 THE LAW OF AGENCY. 
 
 [Book Y. 
 
 For the purpose of aiding the court or jury in arriving at the 
 value, the testimony of attorneys or others having knowledge of 
 it, as to what, in their opinion, the services were reasonably 
 
 polishes and engraves a precious 
 stone of exceedingly great value, 
 must exercise much more care, skill 
 and judgment than would be required 
 in the performance of like work 
 upon one of but ordinary or little 
 value, and he would be entitled to 
 demand and receive a correspond- 
 ingly increased compensation in the 
 former case, than he would in the 
 latter, although the time spent by 
 him in each case was the same. 
 The common carrier charges much 
 more for carrying jewels, gold, bank- 
 bills or valuable papers, than for 
 more bulky and less valuable things, 
 although the latter may be vastly 
 more heavy, cumbersome, and in 
 fact much more expensive to trans- 
 port. 
 
 The right to increased compensa- 
 tion in these cases and in many others 
 that might be mentioned, is univer- 
 sally recognized. No one questions 
 such right, yet what causes the differ- 
 ence in compensation? Nothing but 
 the increased responsibility depend- 
 ent upon the value of the article, in 
 the case of the carrier; in the other 
 case, the same fact, coupled, perhaps, 
 with the skill of the person who per- 
 forms the work. 
 
 The artist who transfers to the 
 cauvas the living likeness, destined, 
 perhaps, to become immortal as a 
 work of art, is entitled to a vastly 
 higher compensation than he would 
 be for spending the same time in 
 painting buildings, even although the 
 quantum of work done in the latter 
 case might be estimated by the square 
 yard. The ri^umpense to be paid 
 the sculptor who conceives, molds 
 and produces his masterpieces of form 
 cannot be measured and fixed by a 
 
 standard based alone upon the time 
 he spent in their production. Nor in 
 cases where they were merely exe- 
 cuted under his direction, could his 
 reward be fixed upon the same stand- 
 ard as of those who performed the 
 manual labor under his personal 
 supervision. The productions of the 
 composer, the poet and the author, 
 cannot be valued by the time appar- 
 ently spent in their preparation. 
 They are formed of a combination of 
 ideas which may have cost their 
 authors years of application to com- 
 plete. 
 
 The lawyer, who in order to excel 
 in his profession, has devoted years 
 to preliminary studies and has spent 
 much labor and money to thoroughly 
 fit him for his calling, so that he 
 might be able to act as an advocate 
 in court, or as a counsellor to guide 
 and direct others — to furnish them 
 from his vast storehouse of knowl- 
 edge, ripened and perfected from 
 long experience, with such ideas and 
 suggestions which, when carried out 
 and followed up, would lead to suc- 
 cess — how shall his services be esti- 
 mated? 
 
 It is very evident that the responsi- 
 bility, the care, anxiety and mental 
 labor is much greater in a case where 
 the amount in controversy is large 
 than where it is insignificant, 
 although, perhaps the same questions 
 might be raised in each case, or the 
 more difficult questions arise in the 
 case where the amount was of but 
 slight consequence. Nor is this re- 
 sponsibility, care and mental labor 
 dependent alone upon the number of 
 hours or days which may be given to 
 the preparation and trial or argument 
 of a case. This responsibility and 
 
 714
 
 Chap. I.] 
 
 ATTORNEYS AT LAW. 
 
 850. 
 
 worth under the circumstances, is properly admissible.* And so 
 it is proper to receive evidence as to the price usually charged 
 and received for similar services by other persons of the same 
 profession, practicing in the same court.* 
 
 Where an attorney was employed in a number of cases involv- 
 ing a large amount, and a few only of these cases were selected 
 and tried, as test cases, it was held that the entire amount in- 
 volved was to be considered and not that alone which was repre- 
 sented by the test cases.' 
 
 § 850. What Evidence not admissible. Evidence of the 
 amount paid by the opposite party to his attorney is not admis- 
 sible,* nor, in general, is the amount which one attorney receives, 
 any criterion as to the value of the services of another attorney, 
 in the absence of evidence that the services were similar, the 
 skill, standing and experience equal, and the labor the same.* 
 
 mental anxiety is not so imaginative 
 aud shadowy that it should not be 
 considered in arriving at a proper 
 compensation to be allowed in fixing 
 the value of the services rendered. 
 Nor is the number of days which 
 may be given to the preparation of a 
 case alone, even if the exact time 
 could be ascertained in any given 
 case, a governing test. Twelve hours 
 spent in the study of a novel will not 
 usually be as exhausting as the same 
 time devoted to the study of Coke 
 upon Littleton would be, even 
 although a great deal more ground 
 might be gone over in the former, 
 than would in all probability be in 
 the latter case. 
 
 We can see no analogy between 
 this kind or class of work and that 
 performed by the ordinary laborer, 
 nor can the creditable fact, that 
 attorneys generally, where the 
 amount in controversy is small, or 
 their client is poor, charge and 
 receive much less than their services 
 may in fact have been worth, prevent 
 their recovering a reasonable com- 
 pensation in proportion to the mag- 
 nitude of the interests committed to 
 
 their care. In fact in all cases, the 
 professional skill and standing of the 
 person employed, his experience, the 
 nature of the controversy, both in 
 regard to the amount involved and 
 the character and nature of the ques- 
 tions raised in the case, as well as the 
 result, must all be taken into con- 
 sideration in fixing the value of the 
 services rendered." 
 
 * Thompson v. Boyle, 85 Penn. St. 
 477, Williams v. Brown, 28 Ohio St. 
 547: Covey v. Campbell, 52 Ind. 157; 
 Hart V. Vidal, 6 Cal. 56; Lamoure v. 
 Caryl, 4 Denio (N. Y.) 370. 
 
 See upon this subject the exhaustive 
 discussions in Kelley v. Richardson, 
 — Mich. — , 14 West. Rep. 416, and 
 Turnbull v. Richardson, — Mich. — , 
 14 West. Rep. 444. 
 
 * Thompson v. Boyle, supra; Vilas 
 V. Dowuer, 21 Vt. 419; Stanton v. 
 Embrey, 93 U. S. 557. 
 
 3 Bruce v. Dickey, 116 111. 527. 
 
 * Ottawa University v. Parkinson, 
 14 Kans. 159. 
 
 » Ottawa University v. Parkinson, 
 14Kiins. 159; Ottawa University «. 
 Welsh, Id. 164. 
 
 715
 
 § Sol. THE LAW OF AGENCY. [Book V. 
 
 Local bar rules, prescribing rates of compensation, are not 
 binding upon the client unless it be shown that he had such 
 knowledge of them as to warrant the presumption that he em- 
 ployed the attorney with reference to them.' 
 
 § 851. Lack of Success no Defense. It is no part of the im- 
 plied contract of the attorney that he will be successful in every- 
 thing which he undertakes. He may stipulate that unless 
 successful he shall have no pay ; but unless he does so, the fact 
 that his efforts were unsuccessful will not deprive him of his 
 compensation, if he brought to the task a reasonable degree of 
 skill and learning, and performed the service with reasonable 
 care and diligence.' 
 
 § 852. Negligence or bad Faith may be shown. But the 
 client may always show, either in bar or in mitigation of dam- 
 ages, that the attorney so negligently performed his undertaking, 
 or so abused the confidence and trust which were imposed in 
 him, that his services were of no, or little, value to his client.' 
 This may be done whether the amount of the attorney's compen- 
 sation were fixed by special contract or not. 
 
 The general rules, heretofore considered, which govern the 
 recoupment of damages in other cases, are applicable here.* 
 
 § 853. Fees forfeited by Breach of Tru^t.— An attorney who 
 collects or receives money for his client, and neglects or refuses, 
 without cause, to pay it to him, thereby compelling the client to 
 resort to an action to recover it, will not be allowed fees for 
 making the collection. If the client be compelled to employ 
 and pay other attorneys and enter into litigation with an attorney 
 to enforce performance of a duty which the latter should have 
 performed voluntarily, it would be highly unjust that he should 
 be obliged to pay the defaulting attorney also.^ 
 
 § 854. How when Attorney abandons Service. An attorney 
 who is retained generally to conduct a legal proceeding, is pre- 
 
 •Boylanu. Holt, 45 Miss. 277. Nixon ». Phelps, 29 Vt. 198; Porter 
 
 • Bills V. Polk, 4 Lea (Tenn.) 494; «. Ruckman, 38 N, Y. 210; Hopping 
 
 Brackett v. Sears, 15 Mich. 244. Rush tJ. Quin, 13 Wend. (N. Y.) 517; 
 
 t). Cavenaugh, 2 Peun. St. 187. Brackett t. Norton, 4 Conn. 517. 
 
 » Chatfield «. Simonson, 93 N. Y. < See ante, § 647. 
 
 209; Caverly «. McOwen, 126 Mass. » Gray v. Conyers, 70 Ga. 349; 
 
 222; Pearson v. Darrington, 33 Ala. Large v. Coyle, Penn. 18 AtL Rep. 
 
 227; Maynard ©. Briggs, 2G Vt. 94; 343. 
 
 716
 
 Chap. I.] • ATTORNEYS AT LAW. § 855. 
 
 Bumed, in the absence of anything to indicate a contrary intent, 
 to enter into an entire contract to conduct the proceeding to its 
 termination ; and he cannot lawfully abandon the service, before 
 such termination, without justifiable cause and reasonable notice.* 
 
 If, therefore, an attorney, without just cause, abandons his 
 client before the proceedings for which he was retained have 
 been conducted to a termination, he will, in those jurisdictions 
 where the stricter requirement of an entire performance prevails, 
 forfeit all right of payment for any services which he has ren- 
 dered.' Where, however, the more liberal rule of Britton v. 
 Turner prevails, the attorney would undoubtedly be permitted 
 to recover the reasonable value of the service rendered, less any 
 damages wiiich the client might have sustained by reason of the 
 abandonment.* 
 
 But if the attorney has sufficient reason to justify his abandon- 
 ment, he may in all cases recover what the services already ren- 
 dered are reasonably worth,* and if the service had been under- 
 taken for a fixed sum, it has been held that he may treat the 
 cause for abandonment as a prevention of completion by the 
 client, and recover the stipulated price.* 
 
 § 855. What will justify Abandonment. No general rule can 
 be laid down by which it can, in all cases, be determined what 
 cause will be sufficient to justify an attorney in abandoning a 
 case in which he has been retained. But if the client refuses to 
 advance money to pay the expenses of the litigation, or if he 
 unreasonably refuses to advance money, during the progress of a 
 long litigation, to his attorney to apply upon his compensation, 
 sufficient cause may be furnished to justify the attorney in with- 
 drawing from the further service of the client." So any con- 
 
 1 Tenney v. Berger, 93 N. Y. 524, • See ante, % 636, ei seg. 
 
 45 Am. Rep. 263; Bathgate o.Haskia. * Tenney v. Berger, supra; Eliot t. 
 
 59 N. Y. 535; Davis v. Smith, 48 Vt. Lawton, supra. 
 
 54; Menzies v. Rodrigues, 1 Price s See Kersey r . Garton, 77 Mo. 645 . 
 
 Exch. 92; Stokes v. Trumper, 2 K. «& Baldwin v. Bennett, 4 Cal. 392; Hunt 
 
 J. 232; Cresswell v. Byron, 14 Vesey v. Test, 8 Ala, 713; Myers v. Crock- 
 
 Jr. 272; Nicholls v. Wilson, 11 M. ett, 14 Tex. 257; McElhinney v. 
 
 & W. 106; Eliot V. Lawton, 7 Allen Kline, 6 Mo. App. 94; Polsley «. 
 
 (Mass.) 274, 83 Am Dec. 683; Harris Anderson,, 7 W. Va. 202, 23 Am. 
 
 V. Osborn, 2 C. & M. 629. Rep. 613. 
 
 » Tenney v. Berger, 93 N. T. 524, « Tenney v. Berger, 93 N. Y. 524, 
 
 45 Am. Rep. 263. 45 Am. Rep. 263; Eliot t. Lawton, 
 
 717
 
 ft 856. THE LAW OF AGENCY. [Book V. 
 
 duct upon the part of the client during the progress of the litiga- 
 tion which would tend to degrade or humiliate the attorney, such 
 as attempting to sustain his case by the subornation of witnesses, or 
 any other unjustifiable means, would furnish sufficient cause.' So 
 if the client demanded of the attorney the performance of an illegal 
 or unprofessional act; or if the client were seeking to use the 
 attorney as a tool to carry out the malicious or unlawful designs 
 of the client, the attorney might lawfully abandon the service." 
 So if the client insists upon the employment of counsel with 
 whom the attorney cannot cordially co-operate, the attorney will 
 be justified in withdrawing from the case.* 
 
 § 856. When discharged by Client. The client has undoubted 
 power to discharge his attorney at any time and with or without 
 cause. The general retainer of the attorney, as has been seen, 
 implies an undertaking on his part to continue to act until the 
 termination of the proceeding and he cannot abandon the service 
 before that time without good cause and reasonable notice. But 
 while the attorney is thus bound to entire performance, and the 
 contract as to him is treated as entire, it is, as is said by Judge 
 Eakl, " a singular feature of the law that it should not be treated 
 
 7 Allen (Mass.) 274, 83 Am. Dec. duce as counsel in the case a person 
 ggg of bad character, or of much inferior 
 ' Tenney v. Berger, supra. standing and learning,— one not car- 
 " See Burnap «. Marsh, 13 111. 535; pable of giving discreet or able ad- 
 Peck V. Chouteau, 91 Mo. 140, 60 vice. It would humiliate an attorney 
 Am. Rep. 236. to sit down to the trial of a cause, 
 3 Tenney v. Berger, mpra. " The and to see his case ruined by the mis- 
 attorney" says Earl, J. , in this case, management of counsel. The rela- 
 " is always interested to know with tions between attorney and counsel, 
 whom he is to be associated in the trial too, are of a delicate and confldential 
 of a cause. The counsel is supposed nature. They should have faith in 
 to be his superior, and is usually each other, and their relations should 
 employed on account of his superior be such that ihey can cordially co- 
 ability, experience, reputation or operate. "While a client has the un- 
 professional standing, and after an doubted right to employ any counsel 
 attorney has engaged in a cause, it he chooses, yet it is fair and proper, 
 would seem to be quite proper that and professional etiquette requires, 
 he should be consulted as to the per- that he should consult the attorney 
 son who is to bear the important re- and other counsel in the case, so that 
 lation to him of counsel. The client they can withdraw, if for any reason 
 would certainly have no right, again St they do not desire to be associated 
 the protest of the attorney, to Intro- with them." 
 
 718
 
 Chap. I.] ATTORNEYS AT LAW. § 856. 
 
 as an entire contract upon the other side."* Such, however, 
 seems to be the law.* 
 
 The client, however, will not be permitted to discharge his 
 attorney without cause, unless he first pays or secures the attor- 
 ney's fees and charges, and the court will not enforce a substitu- 
 tion until this has been done.' The attorney's lien will also be 
 protected,* and where an attorney who took the case upon a con- 
 tingent fee, and has obtained judgment, is discharged without 
 cause, the client will be required to preserve the attorney's lien 
 upon the judgment.' 
 
 But although a general retainer does not, of itself, imply a 
 promise on the part of the client to continue to employ the attor- 
 ney until the termination of the proceedings, the client may, 
 nevertheless, bind himself by contract to so employ him. 
 
 Where, therefore, the attorney is not employed for a definite 
 period, he may be discharged by the client at any time, and if 
 the discharge be for no fault of the attorney, he may recover 
 from the client, the reasonable value of the service rendered.' 
 So if the attorney is employed for a definite time and is dis- 
 charged before that time without justifiable cause, he will be 
 entitled to recover from the client the damages he may have 
 sustained by reason of such discharge.' But if the attorney were 
 discharged for a cause which justified it, he would, under the 
 strict rules requiring a full performance as a condition precedent 
 to the recovery of compensation, forfeit all right to pay for the 
 services rendered ; ' but under the rule of Britton v. Turner, he 
 could recover the reasonable value of his services, less any dam- 
 ages which the client had sustained by his default.' 
 
 * InTenney B.Berger, 93N.Y.524, ' Kersey t>. Garton, 77 Mo. 645; 
 45 Am. Rep. 263. Baldwin «. Bennett, 4 Cal. 393; 
 
 » Tenney v. Berger, supra; Ogden Hunt v. Test, 8 Ala. 713; Myers v. 
 
 V. Devlin, 45 N. Y. Super, Ct., 631; Crockett, 14 Tex. 257; McElhinney 
 
 Trust V. Repoor, 15 How. Pr. 570; v. Kline, 6 Mo. App. 94; Polsley v. 
 
 GustinecStoddard, 23Hun(N.Y.)99. Anderson, 7 W. Va. 203, 23 Am. 
 
 * Ogden V. Devlin, supra; Super- Rep. 013. 
 
 visors B. Brodbead, 44 How. Pr. 411. « See a/<<e §635. See Walsh «. Shum- 
 
 «Haz!ett v. Gill, 5 Robt. (N. Y.) way, 65 111. 471 in following t^ection, 
 
 611. iiote 3. 
 
 6 Ronald ©.Mutual Reserve Fund L. • See ante % 636. Where the service 
 
 Ass'n, 30 Fed. Rep. 228. is substantially completed, attorney 
 
 6 Tenney v. Berger, supra; Ogden entitled to quantum meruit. Whitner 
 
 V. Devlin, supra. o.SuUivan, — S.C. — 3S. E. Rep 391. 
 
 719
 
 §857. 
 
 THE LAW OF AGENCY. 
 
 [Book Y. 
 
 § 85Y. What will justify Discharge. What conduct on the 
 part of an attorney emplo^'ed for a specific period will justify 
 his discharge before that period has expired, is not easy of exact 
 definition. The same general principles would govern here 
 which apply to similar employments of other agents.' But cer- 
 tainly if the attorney should be disbarred from practice, or should 
 prove treacherous to his client's interests, or should disregard the 
 instructions or litnitations which the latter had a right to make, 
 the client might dismiss him. The same result would undoubt- 
 edly follow if the attorney failed to possess and exercise that rea- 
 sonable degree of skill and knowledge which the nature of his 
 undertaking implies, and so it has been held that if the attorney 
 fails to use reasonable diligence in the performance of his duty, 
 he may be discharged.' 
 
 > See anU> §§ 615-619. 
 
 9 Walsh «. Shumway, 65 111. 471. 
 In this case Shumway had employed 
 one Sloan, an attorney, to prosecute 
 an action of ejectment, Sloan agree- 
 ing to take charge of the litigation, 
 and was to receive as a fee one-fourth 
 of the property recovered. After 
 Sloan had been employed for about 
 four years without accomplishing 
 anything, Shumway took the case out 
 of his hands and employed another 
 attorney, who soon effected a favora- 
 ble settlement. Lawrence, C. J., 
 said: " Sloan had had the business in 
 charge about four years, and had not 
 progressed beyond the filing of a de- 
 claration in ejectment. Under such 
 a contract as that existing between 
 Shumway and Sloan, it is the duty 
 of the attorney to exercise reasonable 
 diligence in the prosecution of the 
 suit, and if he fails to do so, the cli- 
 ent must be at liberty to seek other 
 aid. If compelled to do this, he can 
 not be required to execute the origin- 
 al agreement. 
 
 While he cannot rescind the con- 
 tract at discretion, it results, from its 
 very nature, that he may do so if the 
 attorney fails to use reasonable 
 
 diligence in the performance of his 
 part of the undertaking. Whether, 
 in such event, the attorney would be 
 entitled to any compensation for ser 
 vices rendered.has not been discussed 
 in the present case; but, upon tlie 
 well recognized principle governing 
 analogous cases, we do not perceive 
 how compensation can be given upon 
 the principle of a quantum meruit. 
 The contract is an entirety, and tlie 
 attorney having failed to perform, 
 there can be no apportionment of 
 compensation. Of course it differs 
 from a case where an attorney has 
 been retained without a specific con- 
 tract. 
 
 That there was a degree of neg- 
 ligence which justified Shumway in 
 virtually rescinding his contract with 
 Sloan, cannot be reasonably denied. 
 The ejectment was commenced in 
 December, 1866, and stood until the 
 compromise was made, in May, 187ii, 
 without having been brought to trial. 
 No satisfactory reason is shown. The 
 adverse title depended upon the val- 
 idity of a deed made under a power 
 of attorney executed by Mr. and Mrs. 
 Luff. When the deed was executed, 
 they were residents of this state, 
 
 20
 
 Chap. I.] ATTORNEYS AT LAW. § 859. 
 
 § 858. When Attorney's Claim barred by Limitation. The 
 statute of limitations begins to run against the attorney from the 
 time his right of action accrues, and his right of action accrues at 
 the time his undertaking is completed. Under a general 
 retainer, as has been seen, the contract of the attorney is 
 considered to be an entire one to conduct the cause to its termi- 
 nation, and the statute would operate from the time of the entry 
 of the judgment.' Where, however, the attorney was employed 
 specially to render a particular service, as to argue a cause or 
 prepare a brief, the right of action would accrue, and the statute 
 begin to run, from the time the particular service was completed. 
 . And so though the retainer be general, yet if the attorney be 
 discharged by the client before the termination of the suit, or if, 
 for sufficient reason, the attorney abandons the cause before its 
 termination, his right of action would accrue at once, and the 
 period of the statute begin to run.* 
 
 Upon contracts for payment at a particular time, as to pay 
 when the judgment should be collected, the statute would oper- 
 ate only from the time when by the terms of the contract the 
 attorney was entitled to demand his compensation.* 
 
 3. Attorney's Right to Lien. 
 
 § 859. Two Kinds of Lien. The lien to which an attorney 
 at law may be entitled is of two kinds : 1. The general or retain- 
 ing lien, and 2. The special, particular or charging lien. 
 
 and the only question was, whether • "Whitehead e. Lord, 7 Ex. 691 ; 
 
 as the law then stood, a married Harris «. Oshurn, 2 Cromp. &, M. 
 
 woman, resident in this state, could 629; Martindale ». Falkner, 2 Com. 
 
 convey her land by an attorney in B. 706; Phillips v. Broadley, 9 Q. B. 
 
 fact. This being the nature of the 744; Eliot v. Lawton, 7 Allen (Mass.) 
 
 case, we cannot accept any of the ex- 274, 83 Am. Dec. 683; Walker v. 
 
 cuses offered for the delay as a Goodrich, 16 111. 341 ; Fenns v. Eng- 
 
 reasoaable explanation. The question lish, 22 Ark. 170; Bathgate «. Has- 
 
 in issue was merely one of law. The kin, 59 N. Y. 533, Davis v. Smith, 48 
 
 proof to be made, in order to present Vt. 53. 
 
 the question, was of the simplest ^ Eliot ». Lawton, supra', Adama 
 
 character. The delay raises a pre- e. Fort Plain Bank, 36 N. Y. 255. 
 
 sumption of extreme negligence on ^ Foster v. Jack, 4 Watts (Penn.) 
 
 the part of Sloan, which has not been 334; Morgan e. Brown, 12 La. Ann. 
 
 explained, and which justified Shum- 159. 
 way in treating the contract as at an 
 end." 
 
 46 721
 
 §860. 
 
 THE LAW OF AGENCY. 
 
 [Book Y. 
 
 1. The Oeneral or Retaining Lien. 
 
 § 860. General Nature of this Lien. An attorney's general 
 or retaining lien is a common law lien, to which the attorney at 
 law is entitled to secure the payment of his costs and charges 
 against his client. This lien is based upon possession, and is a 
 mere right of retaining the property, money or papers, to which 
 it adheres, until the costs and charges are paid. Like other pos- 
 «essory liens, this lien is purely passive, and cannot, in the absence 
 of a statute permitting it, be enforced by a sale of the property 
 which it covers.' 
 
 § 861. Declared by Statute in some States. Not only has 
 this lien, as will be seen in the following sections, been recognized 
 and enforced by the courts, but in several of the States it has 
 been declared, enlarged and protected by statutory enactments. 
 The substance of these statutes will be found in the note.' 
 
 ^In re, WUson, 13 Fed. Rep. 235, 
 26 Alb. L. Jour. 271 ; Brown v. Big- 
 ley, 3 Tenn. Ch. 618; Bozon v. BoU- 
 and, 4 Myl. & Cr. 854. 
 
 • In Iowa by Rev, Code, §215. 
 " An attorney has a lien for a general 
 balance of compensation upon: 
 
 1. Any papers belonging to his 
 client, which have come into his 
 hands in the course of his profes- 
 sional employment. 
 
 2. Money in his hands belonging to 
 his client. 
 
 3. Money due his client in the hands 
 of the adverse party, or attorney of 
 such party, in an action or proceeding 
 in which the attorney claiming the 
 lien was employed, from the time of 
 giving notice in writing to such 
 adverse party, or attorney of such 
 party, if the money is in the posses- 
 sion or under the control of such 
 attorney, which notice shall state the 
 amount claimed, and, in general 
 terms, for what services. 
 
 4. After judgment in any court of 
 record, such notice may be given and 
 the lien made effective against the 
 judgment debtor by entering the same 
 
 in the judgment docket opposite the 
 entry of the judgment." 
 
 In Dakota, by Code, ed. 1885, p. 
 847, § 9, the same provision is made 
 as in Iowa. 
 
 In Minnesota, Stats. 1878, p. 866, 
 § 16, the provision is substantially as 
 in Iowa, except that the 4lh subdivis- 
 ion gives a lien "upon a judgment, 
 to the extent of the costs included 
 therein, or, if there is a special agree- 
 ment, to the extent of the compensa- 
 tion specially agreed on, from the 
 time of giving notice to the party 
 against whom the judgment is recov- 
 ered. This lien is, however, subor- 
 dinate to the rights existing between 
 the parties to the action or proceed- 
 ing-" By §284, p. 751, assignments 
 of the judgment do not defeat this 
 lien. 
 
 In Kentucky, Genl. Stats. 1873, p. 
 149, §15, "Attorneys at law shall 
 have alien upon any choses in action, 
 account, or other claim or demand 
 put into his or their hands for suit or 
 collection; and when he or they have 
 been employed, by either plaintiff or 
 defendant, in any action which is pro- 
 
 722
 
 Chap. I.] 
 
 ATTORNEYS AT LAW. 
 
 §862. 
 
 § 862. What this Lien adheres to. This lien of the attorney 
 may attach to, {a) papers, (b) property, or, (c) money, of the client 
 in the attorney's possession. 
 
 Becuted by him or them to recovery, 
 shall have a lien upon the judgment 
 for money or property, either personal 
 or real, which may be recovered in 
 said action — legal costs excepted — for 
 the amount of any fee which may 
 have been agreed upon by the parties, 
 or in the absence of such agreement, 
 for a fair and reasonable fee for the 
 services of such attorney." 
 
 In Colorado, Qenl. Stats. 1883, §85, 
 "All attorneys and counselors at law 
 shall have a lien upon any money or 
 property in their hands, or upon any 
 judgment they may have obtained, 
 belonging to any client, for any fee 
 or balance of fees due, or any pro- 
 fessional services rendered by them 
 in any court of this State, which said 
 lien may be enforced by the proper 
 civil action," 
 
 In Kansas, Comp. Laws, p. 114, 
 §§ 468, 469, a lien is provided sub- 
 stantially as in Iowa. 
 
 In Nebraska, Comp. Stats. 1885, p. 
 83, § 8, and Wyoming, Rev. Stats. 
 1887, I 138, an attorney has a lien for 
 a general balance of compensation 
 upon the papers of his client which 
 have come into his possession in the 
 course of his employment, and upon 
 money in his hands belonging to his 
 client and upon money in the hands 
 of the adverse party in an action or 
 proceeding in which the attorney was 
 employed from the time of giving 
 notice of the lien to that party. 
 
 In Georgia, Code 1882, §1989, 
 attorneys at law have a special lien 
 on all papers and money of their 
 clients in their possession, for ser- 
 vices rendered. Their liens upon 
 suits, judgments and decrees for 
 
 money are superior to all liens, 
 except for taxes, and no person may 
 satisfy the suit, judgment or decree, 
 until the lien or claim is fully paid. 
 They have a lien also upon all suits, 
 judgments or decrees for the recovery 
 of real or personal property, as well 
 as upon the property recovered, supe- 
 rior to all other liens except for taxes. 
 The same liens are allowed defend- 
 ant's attorneys where property is 
 sued for and the defense is success- 
 ful. 
 
 In Montana. R. S. 1879, p. 414, Ch. 
 3 § 54. All attorneys have a lien 
 upon moneys in their hands, and 
 upon judgments obtained for any 
 client for any fees or balance of fees 
 due or to become due, for any pro- 
 fessional services rendered by them 
 in any court or courts of the territory. 
 Such lien is deemed to attach from 
 the commencement of the action or 
 the performance of such services; and 
 extends to and includes reasonable 
 fees therefor. Notice of the lien 
 claimed upon any judgment must be 
 filed in the oflBce of the clerk of the 
 court in which the judgment is 
 obtained, or with the probate judge 
 or justice of the peace rendering 
 judgment, within three days after 
 final judgment shall have been 
 entered; and it is the duty of the 
 clerk of the court, probate judge, or 
 justice of the peace, with whom such 
 notice may be filed, to indorse on 
 such notice the date of filing, and to 
 file the same with the papers pertain- 
 ing to the cause. In case notice of 
 the lien be not filed as provided, the 
 lien does not attach to such judg- 
 ment. See post, § 869. 
 
 723
 
 §862. 
 
 THE LAW OF AGENCY. [Book V. 
 
 a. Upon Papers. 
 An attorney has a general lien upon all the papers, deeds, vouch- 
 ers and other documents of his client, which come into the pos- 
 session of the attorney while he is acting for his client in a pro- 
 fessional capacity. ' But in order to the creation of the lien, the 
 papers must not only have come into the actual possession of the 
 attorney, but they must have so come into his possession in his 
 character as an attorney at law. ' Thus he lias no lien on papers 
 which he receives as prochien ami of an infant, ' or as a mort- 
 gagee * or trustee. * So as a lien does not attach to papers which 
 he receives for a special purpose, this general lien will not attach,* 
 unless the papers are voluntarily left in his possession after the 
 special purpose has been accomplished. ^ So the lien does not 
 attach to public records as to papers which constitute part of the 
 files of a case. * So it has been held that it did not attach to his 
 client's will. • 
 
 Letters written to the attorney by his client, and copies of the 
 attorney's replies thereto, contained in his own letter-books, are 
 the attorney's own property, and the client cannot insist upon 
 their delivery to him on the termination of the relation. " 
 
 h. Upon Property. 
 The attorney's lien extends to articles of property belonging 
 to the client which come into the attorney's possession while act- 
 ing in a professional capacity, as upon articles which are deliv- 
 ered to him to be used as evidence in the cause." 
 
 1 Hooper v. Welch, 43 Vt. 171, 6 B. 535; St. John v. Diefendorf, 12 
 
 Am. Rep. 267; Bowling Green Sav- Wend. K Y. 261. 
 
 ings Bank t». Todd. 52 N. Y. 489; • Montague on Lien, 59. 
 
 Ward «. Craie;, 87 N. Y. 550; In re * Pelly v. Wathen, 7 Hare's Ch. 351. 
 
 Knapp, 85 N. Y 284; Hurlburt v. » ^^parie Newland, L. R. 4 Ch. D. 
 
 Brigham, 56 Vt. 368; Hutchinson t>. 615. 
 
 Howard, 15 Vt,544; Patrick TJ.Hsxzen, • Balch v. Symes, 1 Turn. & R. 93; 
 
 10 Vt. 183; Casey c. March, 30 Tex. Lawson v. Dickenson, 8 Mod. 306. 
 
 180; Wright v. Cobleigh, 21 N. H. T^xpaWePemberton,18Ves.Jr. 282. 
 
 ;;39'; McPherson v. Cox, 96 U. S. 404; • Wright v. Cobleigh, 21 N. H. 339; 
 
 In re Wilson, 12 Fed. Rep.235; Weed Clifford v. Turrill, 2 DeG. & Sm. 1. 
 
 V. Boutelle, 56 Vt. 570, 48 Am. Rep. 'Balch v. Symes, 1 Turn. & R. 92. 
 
 821; Stevenson c. Blakelock, 1 M. Georges e. Georges, 18 Ves. Jr. 294 
 
 & S. 685; Howell v. Harding, 8 East. " In re Wheatcrof t, 6 Ch. Div. 97, 
 
 S62; HoUis V. Claridge, 4 Taunt 807. 22 Eng. Rep. 671. 
 
 « Stevenson «. Blakelock, 1 M. & " Friswell v. King, 15 Sim. 191. 
 
 724
 
 Chap. I.] ATTORNEYS AT LAW. § 8G2. 
 
 0. Upon Money. 
 
 An attorney at law has a lien also upon moneys collected by 
 hira for the client, while acting in a professional capacity. ' The 
 lien attaches whether the money be voluntarily paid by the debtor, 
 as in payment or compromise of a demand entrusted to the attor- 
 ney for collection, or paid or collected upon a judgment,* or 
 award,' recovered by the attorney. This general or retaining 
 lien does not attach until the money is collected,* and is not to 
 be confounded with the attorney's special, particular or charging 
 lien to be hereafter noticed. 
 
 The result of this lien is that the attorney may retain, from the 
 fund in his possession, the amount for which his lien attaches, and 
 such amount may be set-off against the client in an action brought 
 by him against the attorney to recover the fund. "Whether the 
 attorney's claim upon the fund depends strictly upon the law of 
 lien or upon that of set-off, ' is a question upon which the courts 
 are not all agreed, although agreeing upon the result. In a Penn- 
 sylvania case the court say that it is a right to defalcate rather 
 than a right of lien.' This right of lien does not depend upon 
 the question whether there was an express agreement as to the fact 
 that compensation was to be paid, or as to its amount. It applies 
 to a claim upon a quantum meruit^ as well as where the com- 
 pensation was agreed upon.' In settling with his client, and 
 paying over the proceeds, the attorney has the right to ask for a 
 final settlement, and to insist upon a receipt for the amount 
 paid.' 
 
 And the attorney may not only retain his own fees and charges, 
 but he may also retain, for payment to them, the fees and charges 
 
 I Jnrtf Paschal, 10 Wall (TJ. S.)483; "Wells v. Hatch, 43 N. H. 246; 
 
 Casey «. March, 30 Tex. 180; Kinsey Bowling Green Sav. Bank v. Todd, 
 
 «. Stewart, 14 Tex. 457; Bowling v. 52 N. Y. 489. 
 Eggemann, 47 Mich. 171 ; Cooke v. ' Ormerod v. Tate, 1 East, 464. 
 
 Thresher, 51 Conn. 105; Diehl v. < Casey v. March, 30 Tex, 180; St. 
 
 Friester, 37 Ohio St. 473; Read v. John v. Diefendorf, 12 Wend. (N. 
 
 Bostick, 6 Humph. (Tenn.) 331; T.) 261. 
 
 Hurlbert «. Brigham, 56 Vt. 368; « See WeUa v. Hatch, 43 N. H. 
 
 Stewart «. Flowers, 44 Miss. 513; 246. 
 
 Lewis©. Kinealy, 2 Mo. App. 33; /» • Strong, J., in Dubois' Appeal, 
 
 re Knapp, 85 N.Y. 284, Dubois' Ap- 38 Penn. St. 231, 80 Am. Dec. 478. 
 peal, 38 Penn. St. 231, 80 Am. Dec. ^ In re Knapp, 85 N. Y. 284. 
 
 478; Weed v. Boutelle, 56 Vt. 570, « Dowling v. Eggemann, 47 Mich. 
 
 48 Am. Rep. 821. 171. 
 
 725
 
 § 863. THE LAW OF AGENCY. [Book V. 
 
 of associate attorneys and counsel employed in the same case by 
 the client, or by the attorney with the client's consent.' 
 
 § 863. What Charges the liien secures. No little conflict 
 exists in the decisions as to the charges which are protected by 
 the attorney's general lien. Many of the cases, particularly the 
 earlier ones, confine it to those fees and charges which the attor- 
 ney is authorized to tax as part of the costs in the cause, and deny 
 it as to the general balance due to the attorney by reason of the 
 express or implied agreements between himself and his client.* 
 The strong tendency of the modern cases, however, is to extend 
 this lien for the protection of the attorney's general balance of 
 account, whether the costs and charges be those incurred in the 
 particular cause in which the attorney acquired possession, or in 
 other professional business and employment in other causes. And 
 this may fairly be said to be the rule.' 
 
 § 864. Against what Parties Lien prevails. The general lien 
 of the attorney prevails not only against his client, but also against 
 all persons who claim under the client. It is, therefore, valid 
 against the client's assignment in bankruptcy or for the benefit 
 of creditors,* and against sales, transfers or assignments by the 
 client generally.* It prevails also against attachment or garnish- 
 ment by the client's creditors.' In all of these cases, the possess- 
 ion by the attorney of the thing to which the lien attaches is 
 notice of his rights,^ and parties claiming through or under the 
 client take only the client's claim subject to the attorney's lien. 
 Neither the client nor his assignees can recover the subject-mat- 
 ter of the lien without first paying to the attorney, or permitting 
 him to retain, the general balance due him from the client.' 
 
 » Jackson v. Clopton, 66 Ala. 29; * Ex parte Bush, 7 Vin. Abr. 74; 
 
 Balsbaugh v. Frazer, 19 Penn. St. Ex parte Sterling, 16 Ves. Jr. 258, 
 
 95; Christy B.Douglass, Wright (Ohio) Ward v. Craig, 87 N, Y. 550. 
 
 485. « Weed v. Boutelle, 5G Vt. 570, 48 
 
 2 See Waters v. Grace, 23 Ark. 118; Am. Rep. 821. 
 
 McDonald ». Napier, 14 Ga. 89. 'Weed v. Boutelle, supra; R&u- 
 
 » Hurlbert d. Brigham, 56 Vt. 368; dolph v. Randolph, 34 Tex. 181. 
 
 Cooke V. Thresher, 51 Conn. 105; 'Hutchinson v. Howard, 15 Yt. 
 
 Hooper v. Welch, 43 Vt. 171, 5 Am. 544; Weed v. Boutelle, supra. 
 
 Rep. 267; Bowling Green Savings » Weed v. Boutelle, supra. Ex parte 
 
 Bank v. Todd, 52 N. Y. 489 ; In re Sterling, supra. In re Wilson, 13 
 
 Paschal, 10 WaU, (U. S.) 483, Weed Fed Rep. 235. 
 V. Boutelle, 56 Vt.670, 48 Am.Rep.821. 
 
 726
 
 Chap. I.] ATTORNEYS AT LAW. § 867. 
 
 So, as against the client or his creditor, the attorney may retain 
 the entire stipulated price for services then in progress of per- 
 formance, although not fully performed, if he in good faith 
 intends to complete the performance.' 
 
 § 865. How Lien may be lost. As the general or retaining 
 lien of the attorney depends wholly upon possession, it necessar- 
 ily follows that the lien will be lost if the possession be voluntar- 
 ily surrendered.' It is not lost, however, if the possession be 
 wrongfully or fraudulently obtained from him, and he may 
 recover possession by a proper action.' 
 
 The lien is also incapable of being transferred to another, 
 and such a transfer destroys it.* But personal possession by the 
 attorney himself is not indispensable ; possession by his servant 
 or agent, which is in law his possession, is sufficient. 
 
 § 866. How Lien may be waived. The attorney may, of 
 course, voluntarily waive his lien if he sees fit, and such a waiver 
 may be presumed from conduct on his part which is inconsistent 
 with an intention to claim a lien. Thus if he takes security for 
 the demand,' or agrees to give credit for a particular time,* or 
 takes the note of the client or a third person in payment,^ the 
 lien would be waived, but the mere taking of the client's own 
 note for the amount would not be deemed a waiver, unless it was 
 taken as payment.' 
 
 § 867. Enforcement of Lien. The general or retaining lien of 
 the attorney upon his client's papers or property can not be 
 enforced in the absence of a statute by any proceedings, either at 
 law or in equity, to procure payment of the debt out of the arti- 
 cles so held.* The articles can not be sold nor applied to the 
 
 * Eandolph v. Randolph, 84 Tex. » Cowell v. Simpson, 16 Ves. Jr. 
 181. 275; Balch v. Symes, 1 T. «& R. 87; 
 
 2 Dubois' Appeal, 38 Penn. St. 231, Watson d. Lyon, 7 DeG. M. & G. 
 
 80 Am. Dec. 478; Nichols v. Pool, 89 288. 
 
 Ill, 491; In re Wilson, 12 Fed. Rep. « See Stoddard. &c, Mnfg Co. v. 
 
 235; See Tucker B.Taylor, 53 Ind. 93; Huntley, 8 N. H. 441, 81 Am. Dec. 
 
 Nevan «. Roup, 8 Iowa, 207; Oakes 198. 
 
 e. Moore, 24 Me. 214:41 Am. Dec. 379. t Cowell v. Simpson, 16 Ves. Jr. 
 
 « Dicas V. Stockley, 7 C. «& P. 587. 275. 
 
 * In re Wilson, 12 Fed. Rep. 235. » Dennett v. Cutts, 11 N. H. 163; 
 See Lovett «. Brown, 40 N. H. 511; Stevenson v. Blakelock, 1 M. & S 
 Meany «. Head, 1 Mason (U. S. C. C.) 535. 
 
 819. » In re Wilson, 12 Fed Rep. 235, 
 
 727
 
 P 5(53^ THE LAW OF AGENCY. [Book V. 
 
 attorney's own use, by virtue of the lien, but can only be held 
 until the debt be paid.' But the lien endures until the debt is 
 paid, and is not defeated by the fact that the statute of limitations 
 may have run against the debt.* 
 
 2. The Special or Charging Lien. 
 
 § 868. General Nature of this Lien. The second kind of lien 
 which an attorney has is that existing upon a judgment obtained 
 by him, or moneys payable thereon, or some fund in court pro- 
 duced therefrom. Unlike the general or retaining lien, this is 
 not a mere passive right of retaiuer of papers or moneys reduced 
 to possession, for the attorney can have no possession of the 
 judgment or of the moneys payable thereon, or of the fund in 
 court ; but it is rather an active right, enabling the attorney to 
 take active steps to charge the judgment or fund with his claim, 
 and to secure the aid of the court in his protection.* 
 
 This lien did did not exist at common law and is said not to 
 be of very ancient origin.* It had its source in the desire of the 
 court, based upon principles of equity and justice, to protect the 
 attorney, by whose efforts, and, in many instances, by whose 
 expense, the judgment or fund had been recovered.* 
 
 This lien will be seen to be radically different in its nature 
 from the general or retaining lien, from which it should be care- 
 fully distinguished. 
 
 § 869. In what States it exists. This charging lien of the 
 attorney has been adopted by statute, or enforced by the courts, 
 in some form, in a majority of the United States, although it 
 
 36 Alb. L. Jour. 271; Terrell v. The Turwin v. Gibson, 3 Atk. 720; Read 
 
 B F. Woolsey, 4 Fed. Rep. 552; v. Dupper, 6 T. R. 361. 
 
 Brown v. Bigley, 3 Tenn. Ch. 618; In re Wilson, 12 Fed Rep. 235; 
 
 Thames Iron Works, v. Patent Der- Weed v. Boutelle, 56 Vt. 570, 48 Am. 
 
 rick Co., 1 John. & H. 93; Bozon «. Rep. 821. 
 
 Bolland, 4 Myl. & C. 354; Heslop v. * In re Wilson, mpra. Wilkins v. 
 
 Metcalfe, 3 Id. 183. Carmichael, mpra. 
 
 I In re Wilson, and cases, supra. » " The party " said Lord Kenton, 
 
 « In re Murray, 3 W.N. (1867) 190; " should not run away with the fruits 
 
 Higgins «. Scott, 2 B. & Ad. 413. of the cause without satisfying the 
 
 8 Wilkins v. Carmichael, 1 Doug. legal demands of his attorney, by 
 
 104; Welsh t>. Hole, Id. 238; Schoole whose industry, and in many in- 
 
 V. Noble, 1 H. Bl. 23; Barker v. St. stances, at whose expense, those fruits 
 
 Quintin,'l2 Mees. & Wels. 441; Bo- are obtained. " In Read ». Dupper, 
 
 zon V. Bolland, 4 Myl. & C. 354; 6 T. R. 361. 
 
 728
 
 Chap. I.] 
 
 ATTORNEYS AT LAW. 
 
 § 8C9. 
 
 does not exist in all of them. These statutes are by do means 
 uniform, nor are the decisions harmonious. Much confusion has 
 arisen from a failure to discriminate between this lien and the 
 retaining lien, and the variety of statutes and rules of practice, 
 fixing the compensation of attorneys or leaving it to the parties 
 to fix it for themselves, has increased the confusion. 
 
 It is not possible, within the limits of this work, to give a full 
 or satisfactory exposition of the rules which prevail in each 
 State, but a reference will be found in the note to the cases op 
 statutes of the respective States which throw light upon it' 
 
 ) In Alabama attorney has a lien 
 on judgment for his reasonable fees. 
 Jackson v. Clopton, 66 Ala. 29 
 Moseley v. Norman. 74 Ala. 422 
 Warfield v. Campbell, 38 Ala. 527 
 Central R. R. Co. v. Pettus, 113 U. 
 8. 116. 
 
 In Arkansas attorney has lien by 
 statute upon judgment and property 
 recovered for his reasonable fees. 
 Gantt's Stats. §§ 3622, 3626. See 
 Lane v. Hallum, 38 Ark. 385 ; Gist v. 
 Hanly, 33 Ark. 233; McCain v. Por- 
 tis,42 Ark. 402; Porter v. Hanson, 36 
 Ark. 591. 
 
 In Connecticut attorney has a lien 
 upon judgment. Andrews v. Morse, 
 12 Conn. 444, 31 Am, Dec. 752; 
 Gagert). Watson, 11 Conn. 168; Ben- 
 jamin V. Benjamin, 17 Conn. 110. 
 
 In California there seems to be 
 none. Ex parte, Kyle, 1 Cal. 331; 
 Mansfield v. Borland, 2 Cal. 507; Rus- 
 sell V. Conway, 11 Cal. 93. 
 
 In Florida attorney has a lien upon 
 a judgment obtained by him for his 
 reasonable compensation. Carter v. 
 Bennett, 6 Fla. 214; Carter v. Davis, 
 8Fla. 183. 
 
 In Georgia attorneys have a lien on 
 judgment and property. See ante 
 % 861, note. See Jones v. Morgan, 39 
 Ga. 310, 99 Am. Dec. 458; Twiggs v. 
 Chambers, 56 Ga. 279. 
 
 In Illinois attorney has no lien on 
 judgment. Forsythe v. Beveridge, 52 
 
 111. 268; Nichols v. Pool, 89111. 491; 
 La Framboise v. Grow, 56 111, 197; 
 Smith B, Young, 62 111. 210. 
 
 In Indiana attorney may secure 
 lien by entering claim upon docket at 
 time of rendition of judgment. Rev. 
 Stats. 1881, § 5276. See Putnam «. 
 Tennyson, 50 Ind. 456. 
 
 In Iowa attorney has lien for which 
 see note to § 861, ante. See Smith v. 
 Railroad Co., 56 Iowa 720; Phillips «, 
 Germon, 43 Iowa 101; Myers v. Mc- 
 Hugh, 16 Iowa 335; Fisher e. Oska- 
 loosa, 28 Iowa 381; Brainard e. El- 
 wood, 53 Iowa 30. 
 
 In Kansas attorney has a lien sub- 
 stantially as in Iowa, supra. See 
 Kansas Pac. Ry Co. t». Thacher, 17 
 Kans. 92, 
 
 In Kentucky attorneys have a lien 
 by statute for which see note to §861, 
 supra. See Wood v. Anders, 5 Bush 
 601; Wilson v. House, 10 Bush 406; 
 Stephens v. Farrar, 4 Bush 13; Rob- 
 ertson V. Shutt, 9 Bush 659. 
 
 In Louisiana attorneys have a lien 
 by statute Rev. Laws, 1884, § 2897. 
 
 In Maine attorney has a lien upon 
 judgment by statute. See Hobson v. 
 Watson, 34 Me, 20, 56 Am, Dec. 632; 
 Potter V. Mayo, 3 Greenl. 34, 14 Am, 
 Dec, 211; Newbert v. Cunningham, 
 60 Me. 231, 79 Am. Dec, 612; Averill 
 V. Longfellow, 66 Me. 238; Stratton v. 
 Hussey, 62 Me. 286, 
 
 In Maryland there seems to be no 
 
 729
 
 §870. 
 
 THE LAW OF AGENOY. 
 
 [Book Y. 
 
 8 870. Wliat this Lien protects. This lien being conferred 
 in consideration of the services and expenses of the attorney in 
 producing or securing the judgment or fund to which it applies, 
 it protects only those costs and expenses which were incurred in 
 
 lien. See Marshall «. Cooper, 43 Md. 
 46. 
 
 In Massachusetts attorney has a 
 lien upon the judgment for the 
 amount of his taxable costs, fees and 
 disbursements, if notice is given of 
 his claim, P. S. 1882, p. 913; Baker 
 V. Cook, 11 Ma88. 236; Dunklee <>. 
 Locke. 13 Mass. 525; Ocean Ins. Co. 
 e. Rider, 22 Pick. 210; Thayer v. 
 Daniels, 113 Mass, 129; Simmons «. 
 Almy, 103 Mass. 33. 
 
 In Michigan an attorney has a lien 
 for his agreed compensation upon the 
 judgment. Wells e, Elsam, 40 Mich. 
 218; Taylor t). Young, 56 Mich. 285; 
 Kinney D. Robinson, — Mich.— 29 N. 
 W. Rep. 86. 
 
 In Minnesota attorney has a lien by 
 statute for which see note to § 861, 
 supra. See Dodd v. Brott, 1 Minn, 
 270, 66 Am. Dec. 541; Forbush 9. 
 Leonard, 8 Minn. 303; Crowley «. 
 LeDuc. 21 Minn. 412, 
 
 In Missouri attorneys seem to have 
 no lien on judgment. Frissell v. 
 H;iile. 18 Mo. 18; Lewis v. Kinealy, 3 
 Mo, App. 33, 
 
 la Mississippi an attorney has a 
 lien on the judgment. Stewart v. 
 Flowers, 44 Miss. 513; Pope v. Arm- 
 strong, 3 Sm. & Mar. 214, but not on 
 land recovered, Martin v. Harring- 
 ton, 57 Miss. 208. 
 
 In Montana attorneys have lien by 
 statute for which see note to § 861, 
 gupra. 
 
 In Nebraska attorneys have lien by 
 statute for which see note to § 861, 
 iupra. See Patrick v. Leach, 12 Fed. 
 Rep. 661. 
 
 In Nevada this lien does not seem 
 to have been passed upon. 
 
 In New Hampshire the attorney 
 has a lien for the amount of his tax- 
 able fees and disbursements. Wells 
 e. Hatch, 43 N. H. 246; Young e. 
 Dearborn, 27 N. H, 324. 
 
 In New Jersey an attorney has a 
 lien upon the judgment for his fees 
 and disbursements after notice, 
 Biaden v. Ward, 42 N. J. L. 518; 
 Heisterc. Mount, 17 N. J. L, 438; 
 Barnes v. Taylor, 30 N. J, Eq. 
 467. 
 
 In New York from the commence- 
 ment of an action or the service of 
 an answer of counter claim, the attor- 
 ney has a lien for his agreed or rea- 
 sonable compensation upon client's 
 cause of action or counter claim, 
 which attaches to the judgment and 
 its proceeds and cannot be affected by 
 a settlement between the parties. 
 Code Civ. Proc. 1879, § 66. See In 
 re Knapp, 85 N. Y. 284; Wright©. 
 Wright, 70 N. Y, 96; Zogbaum ». 
 Parker, 55 N, Y, 120; Marshall «. 
 Meech, 51 N, Y, 143; Coughlin e. 
 New York Cent. R. R, Co., 71 N, Y. 
 444; Rooney v. Second Ave. R. R. 
 Co., 18 N. Y. 368. 
 
 In Oregon the statute is the same as 
 in Minnesota, for which see note to 
 § 861, supra. 
 
 In North Carolina lien does not 
 appear to have been passed upon. 
 
 In Ohio Hen on judgment does not 
 exist, Diehl v. Friester, 37 Ohio St. 
 473. 
 
 In Pennsylvania the lien does not 
 appear to exist. 
 
 In Rhode Island attorney has a lien 
 for his costs. Horton v. Champlia, 
 12 R. I. 550, 34 Am. Rep. 722. 
 
 In South Carolina an attorney has a 
 
 730
 
 Chap. 1.] 
 
 ATTORNEYS AT LAW. 
 
 §870. 
 
 the particular suit in which the judgment or fund was recovered, 
 and does not secure the attorney's general balance of account, nor 
 fees earned or expenses incurred in other suits.* 
 
 Originally this lien applied only to such costs and charges of 
 the attorney as were legally taxable as part of the costs in the 
 cause, and did not operate to secure to the attorney the payment 
 of his reasonable or agreed charges and disbursements in the 
 suit, and this rule still applies in several States.* When this 
 rule had its origin, however, the costs and charges taxable, were 
 the costs and charges as between the attorney and his client, and 
 constituted the measure of his compensation and reimbursement, 
 while the costs taxable under modern statutes are, as a rule, costs 
 as between party and party, and belong to the prevailing party, 
 and do not determine or constitute the measure of the latter's 
 liability to his attorney.* 
 
 In view of this distinction, the tendency of modern cases has 
 been to extend the charging line so as to cover and protect the 
 
 lien for his taxable costs. Scharlock 
 V. Oland, 1 Rich. 207. 
 
 In Tennessee an attorney has alien 
 upon the judgment and the property 
 recovered. See Hunt t». McClanahan, 
 1 Heisk. 503; Brown v. Bigley, 3 
 Tenn. Ch. 618; Garner v. Garner, 1 
 Lea, 29; Winchester v. Heiskell, 16 
 Lea, 556; Pierce*. Lawrence, 16 Lea 
 573. 
 
 In Texas an attorney has no lien 
 upon the judgment. Casey b. March. 
 30 Tex. 180. 
 
 In Vermont an attorney has a lien 
 for his reasonable fees and disburse- 
 ments. Weed V. Boutelle, 56 Vt. 
 570, 48 Am. Rep. 831. 
 
 In Virginia attorneys have a lien by 
 statute for their agreed compensation. 
 Code 1873, Ch. 160, § 11. 
 
 In West Virginia attorney has the 
 same lien as in Virginia. Code 1868, 
 Ch. 119, § 11. See Renick v. Lud- 
 ington, 16 W. Va. 379. 
 
 In Wisconsin attorney has a lien 
 only on clear balance of judgment 
 after all equities between the parties 
 to the action have been settled. Bos- 
 
 worth V. Tallman, 66 Wis. 23; Torton 
 V. Milwaukee, &c. Ry Co., 63 Wis. 
 867. 
 
 In Wyoming an attorney has a lien 
 by statute, for which see note, § 861, 
 supra. 
 
 ' Stephens v. Weston. 3 B. & C. 
 588; Hodkinson «. Kelly, 1 Hogan, 
 888; Hall v. Laver, 1 Hare, 571; Lucas 
 «. Peacock, 9 Beav. 177. 
 
 In re Wilson, 13 Fed. Rep. 335; 
 Phillips V. Stagg, 3 Edw. (N. Y.) Ch. 
 108; St. John v. Diefendorf, 12 Wend. 
 261 ; Pope v. Armstrong, 3 Smed. & 
 M. (Miss.) 314; Weed v. Boutelle, 56 
 Vt. 570, 48 Am. Rep. 821; Williams?). 
 Ingersoll, 89 N. Y. 508; Wright v. 
 Cobleigh, 31K H. 341; Mc Williams 
 V. Jenkins. 78 Ala. 480; Forbush v. 
 Leonard, 8 Minn. 303; Mosely v. 
 Norman, 74 Ala. 422; Jackson v, 
 Clopton, 66 Ala. 29. Ex parte Leh- 
 man, 59 Ala. 631. 
 
 *Ex parte Kyle, 1 Cal. 331; Mans- 
 field V. Borland, 2 Cal. 507; Russell c 
 Conway, 11 Cal. 103. 
 
 • See Weed v. Boutelle, supra. 
 
 731
 
 ^871. 
 
 THE LAW OF AGENCY. 
 
 [Book y. 
 
 amount doe from the client to the attorney for his services and 
 disbursements in the suit, whether that amount be fixed by agree- 
 ment between the parties or be determined by the quantum 
 meruit^ and such is now the prevailing doctrine.' The modern 
 statutes, also, as a rule, give this protection. 
 
 § 871. When Lien attaches. In the absence of a statute creat- 
 ing it, the attorney has no charging lien upon his client's cause 
 of action. His right of lien arises from the fact, that his efforts 
 and disbursements have led to the recovery of a judgment, and 
 it is upon that judgment that his lien is to take effect. The rule 
 is, therefore, well settled that, in the absence of a statute giving 
 it earlier effect, the lien does not attach until the entry of the 
 judgment in favor of his client, and that the mere rendition of a 
 verdict is not enough.* 
 
 Prior to the entry of the judgment, therefore, the opposite 
 party may, except where some statute gives the attorney protec- 
 tion, settle the clause with the client without reference to the 
 attorney or liability for his fees,' and this is true although the 
 
 » Warfleld «. Campbell, 38 Ala. 
 637; McDonald v. Napier, 14 Ga. 89; 
 Carter v. Davis, 8 Fla. 183 ; Carter v. 
 Bennett, 6 Fla. 214; Pope v. Arm- 
 strong, 5 8. «& M. (Miss.) 214; 
 Henchey «. Chicago, 41 111. 136; 
 Humphrey «. Browning, 46 111. 476; 
 Hill B. Brinckley, 10 Ind. 102; An- 
 drews V. Morse, 12 Conn. 444; Jack- 
 son V. Clopton, 66 Ala. 29; Mosely 
 V. Norman, 74 Ala. 422; Lehman, Ex 
 parte, 59 Ala. 631 ; Kinney v. Robin- 
 eon, — Mich. — , 29 N. W. Rep. 86; 
 Wells f}. Elsam, 40 Mich. 218. 
 
 « Coughlin V. New York Central 
 R. R Co., 71 N. T. 443, 27 Am. Rep. 
 75; Kusterer v. City of Beaver Dam, 
 66 Wis. 471, 43 Am. Rep. 725; La- 
 ment V. Washington, &c. R. R. Co., 
 2 Mackey (D. C.) 502. 47 Am. Rep. 
 268; Courtney v. McGavock, 23 Wis. 
 622; Pulver «. Harris, 62 Barb. 500, 
 affirmed, 52 N. Y. 73; Getchell v. 
 Clark, 5 Mass. 309; Hobson t). Wat- 
 son, 34 Me. 20; Foot v. Tewksbury, 2 
 Vt. 97; Henchey v. City of Chicago, 
 
 41 111. 136; Mosely t>. Norman, 74 
 Ala. 422; Jackson «. Clopton, 66 Ala. 
 29; Ex parte, Lehman, 59 Ala. 631; 
 Warfield v. Campbell. 38 Ala. 527, 82 
 Am. Dec. 724; Rooney v. Second 
 Ave. R. R. Co., 13 N. Y. 368; Mar- 
 shall e. Meech, 51 N. Y. 140, 10 Am. 
 Rep. 572; Shank v. Shoemaker, 18 N. 
 Y. 489; Walker «. Sargeant, 14 Vt. 
 247; Hutchinson v. Howard, 15 Vt. 
 544; Hooper v. Welch, 43 Vt. 169, 5 
 Am. Rep. 267; Weed v. Boutelle, 56 
 N. H. 570, 48 Am. Rep.. 821; Wells v. 
 Hatch, 43 N. H 246; Young t). Dear- 
 born, 27 N. H. 324; Brown v. Bigley. 
 3Tenn. Cii. 618; Potter v. Mayo, 3 
 Me. 34; Gammon v. Chandler, 30 Me. 
 152; Hobson v. Watson, 34 Me. 20. 56 
 Am. Dec. 6.32; Averill v. Longfellow, 
 66 Me. 237; Newbert v. Cunningham, 
 50 Me. 231, 79 Am. Dec. 612. 
 
 9 See cases cited in the preceding 
 note. There are some English cases 
 in which it is held that a settlement 
 before judgment will not defeat the 
 attorney's lien for his costs and that 
 
 732
 
 Chap. L] 
 
 ATTORNEYS AT LAW. 
 
 §872. 
 
 opposite party knew that the attorney was employed for a com- 
 pensation contingent upon the result.* 
 
 § 872. To what Lien attaches. The lien of the attorney 
 attaches to the judgment or decree only, and does not, in the 
 absence of a statute to that effect, extend to the property of his 
 client which was the subject-matter of the controversy,' nor does 
 
 he may prosecute the action for the 
 recovery of his costs, notwithstand- 
 ing the settlement. See Swain ». 
 Senate, 5 Bos. & Pul. 99; Cole v. Ben- 
 nett, 6 Price, 15; Morse ». Cooke, 13 
 Price 473. The English cases, how- 
 ever, stand upon peculiar ground as 
 the attorney's costs and charges, as 
 against his client, are subject of taxa- 
 tion. Some cases in the United 
 States have followed these English 
 cases, as Talcott v. Bronson, 4 Paige 
 (N. T.) 501; Rasquin v. Knicker- 
 bocker Stage Co., 12 Abb. Pr. 324, 8. 
 c. 21 How. Pr. (N. Y.) 293; Dietz v. 
 McCallum, 44 How. Pr. (N. Y.) 493; 
 Howard v. Osceola, 22 Wis. 453. In 
 certain cases, this rule has been 
 adhered to where the opposite party 
 had been given notice of the attor- 
 ney's claim, as in Owen v. Mason, 18 
 How. Pr. (N. Y.) 156; Jones v. Mor- 
 gan, 39 Ga. 310, But in nearly, if not 
 quite, all of these cases, the costs 
 which were protected were those only 
 which were legally taxable. 
 
 This rule has not, however, been 
 generally followed, and it can not be 
 sustained upon principle. Earl, J., 
 of the New York Court of Appeals, 
 says of it: "It is impossible to 
 ascertain when this practice com- 
 menced, or how it originated or upon 
 what principle it was based. It was 
 not upon the principle of a lien, be- 
 cause an attorney has no lien upon 
 the cause of action, before judgment, 
 for his costs; nor was it upon the prin- 
 ciple that his services had produced 
 the money paid his client upon the 
 fcettlement, because that could not be 
 
 known, and, in fact, no money may 
 have been paid upon the settlement. 
 So far as I can perceive, it was based 
 upon no principle. It was a mere 
 arbitrary exercise of power by the 
 courts; not arbitrary in the sense that 
 it was unjust or improper, but in the 
 sense that it was not based upon any 
 right or principle recognized in other 
 cases. The parties being in court 
 and the suit commenced and pending, 
 for the purpose of protecting attor- 
 neys who were their officers and sub- 
 ject to their control, the courts in- 
 vented this practice and assumed this 
 extraordinary power to defeat 
 attempts to cheat the attorneys out 
 of their costs. The attorneys' fees 
 were fixed and definite sums, easily 
 determined by taxation, and this 
 power was exercised to secure them 
 their fees." In Coughlin v. New 
 York Central R. R. Co., 71 N. Y. 443, 
 27 Am. Rep. 75. See also Lamont v. 
 Washington, &c. R. R. Co., 2 Mackey 
 (D C.) 502, 47 Am. Rep. 268. where 
 the question is fully considered. See 
 also Parker v. Blighton, 33 Mich. 2G6; 
 Wright V. Hake, 38 Mich. 525. In 
 Wisconsin it is held that where the 
 action is upon a written instrument 
 in the attorney's possession, the lien 
 attaches before judgment. Courtney 
 V. McGavock, 23 Wis. 622. 
 
 » Coughlin V. New York Central 
 R. R. Co., supra; Kusterer v. City of 
 Beaver Dam, 56 Wis. 471, 43 Am. 
 Rep. 725. 
 
 » Mo Williams t>. Jenkins, 73 Ala. 
 480. 
 
 733
 
 §873. 
 
 THE LAW OF AGENCY, 
 
 [Book V. 
 
 it attach to land which was recovered, or the title to which was 
 established, by the judgment or decree.' 
 
 8 873. How Lien protected. The lien of the attorney will be 
 protected against all collusive dealings between the client and 
 the party against whom the judgment or degree is rendered, but 
 the lien, except where enlarged by statute, is generally held to 
 be coextensive with the rights of the client only, and is subject 
 to, and may be defeated by, the judgment debtor's right to set- 
 off, against the client, debts or demands which existed and were 
 matters of set-off when the judgment or decree was rendered.' 
 It is, however, superior to a set-off acquired afterwards.' Where 
 the judgment is for costs only, it has been said to be, of itself, 
 notice to all the world of the attorney's lien thereon, and the 
 opposite party pays the judgment to the client at his peril.* 
 Where, however, the judgment or decree is for damages and 
 costs, it is generally held that it is not such notice, but that the 
 attorney, who would preserve his lien as against a settlement by 
 the opposite party with the client, must give the opposite party 
 notice of his intention to insist upon the lien.' The statutes in 
 
 •McCullough V. Flournoy, 69 Ala. 
 189; Martin v. Hairington, 57 Miss. 
 208; Hinson p. Gamble, 65 Ala. 605; 
 Hanger v. Fowler, 20 Ark. 667 ; Coz- 
 zens v. Whitney, 3 R. I. 79; Smalley 
 V. Clark, 22 Vt. 598; Humphrey v. 
 Browning, 46 111. 476, 95 Am. Dec. 
 446. 
 
 Contra, in Tennessee, Hunt v. Mc- 
 Clanahan, 1 Heisk. 503; Brown v. 
 Bigley, 3 Tenn. Ch. 618; Pierce t). 
 Lawrence, 16 Lea 572 ; Winchester v. 
 Heiskell. Id. 556. 
 
 » Mosely ». Norman, 74 Ala. 422; 
 Jackson t». Clopton, 66 Ala. 29; Ex 
 parte Lehm&n, 59 Ala. 681; McDon- 
 alds. Smith, 57 Vt. 502; Winterset 
 Bank v. Eyre, 3 McCraryCU. S. C. C.) 
 175,8 Fed. Rep. 733 ; Keith s.Fitzhugh, 
 15 Lea. (Tenn.) 49; Mohawk Bank c. 
 Burrows, 6 Johns. (K Y.) Ch. 317; 
 Porter v. Lane, 8 Johns. (N. Y.) 357; 
 NicoU V. Nicoll, 16 Wend. (N. Y.) 
 446; Hurst v. Sheets, 21 Iowa, 501; 
 
 Wright V. Treadwell, 14 Tex. 255, 
 Gagertj. Watson, 11 Conn. 168; Bos- 
 worth V. Tallman, 66 Wis. 22, 29 N. 
 W. Rep. 542; Justice «, Justice, — 
 Ind. — , 14 West. Rep. 275. 
 
 Contra, Puett v. Beard, 86 Ind. 172, 
 44 Am. Rep. 280; Currier v. Railroad 
 Co., 37 N. H. 223. 
 
 8 Warfield©. Campbell, 38 Ala. 527, 
 82 Am. Dec. 724; Caudle v. Rice, — 
 Ga. — 8 S. E. Rep. 7: Boyle v. Boyle, 
 106 N. Y. 654, 12 North E. Rep. 709; 
 Pierce v. Lawrence, 16 Lea (Tenn.) 
 572. 
 
 « McGregor «. Comstock, 28 N. Y. 
 237; Marshall v. Meech, 51 N. Y. 
 140, 10 Am. Rep. 572; Haight v. Hol- 
 comb, 16 How. (N. Y.) Pr. 173. 
 
 s Marshall v. Meech, supra; Hurst 
 V. Sheets. 21 Iowa, 501; Dodd v. 
 Brott, 1 Minn. 270, 66 Am. Dec. 541 ; 
 Welsh V. Hole, 1 Doug. 238; Read v. 
 Dupper, 6 T. R. 361. 
 
 Notice no* required in Maine under 
 
 734
 
 Chap. I.] ATTORNEYS AT LAW. § 876. 
 
 some of the States expressly require notice to be given, while in 
 others it does not seem to be requisite to the protection of the 
 statutory lien.^ 
 
 § 874. How Lien enforced. To the extent of his lien the 
 attorney is regarded as an equitable assignee of the judgment,* 
 and) after notice of his claim, where the judgment is not 
 of itself notice, he may, where no other remedy is provided 
 by law, recover of the opposite party in the same manner 
 as any other assignee.' If the fund be in the hands of the sheriff 
 or other officer of the court, the attorney may, upon proper 
 motion, have an order from the court for payment to him out of 
 the fund.* And the same practice prevails where one of several 
 attorneys has obtained possession of the fund, — the others may 
 have an order requiring him to pay them.' The lien may be 
 enforced though the attorney's claim is barred by the statute of 
 limitations.* 
 
 § 875. How Lien lost or waived. The attorney's lien upon 
 the judgment may be lost or waived in the same manner as his 
 lien upon papers and money already considered.'' An attorney 
 who abandons the cause loses his lien, though he abandons it 
 because the client did not furnish funds to carry it on, or by 
 reason of any other difficulty.* 
 
 § 876. By what Law governed. The lien of an attorney 
 upon a judgment obtained by him is governed by the law of the 
 State where the judgment was obtained and the lien attached, 
 and not by the law of the State where the judgment is sought to 
 be collected ; and the courts of the latter State will protect and 
 enforce it according to the law of the former.* 
 
 the statute of that State. Gammon rier v. Boston, etc. R. R. Co. 37 N. H. 
 
 V. Chandler, 80 Me. 152; Hobson v. 223; Marshall v. Meech,51 N.Y. 140, 
 
 Watson, 34 Me. 20, 66 Am. Dec. 632; 10 Am. Rep. 672. But see contra, 
 
 Newbert «. Cunningham, 50 Me. 231, Horton v. Champlin, 12 R I. 650, 84 
 
 79 Am. Dec. 612. Am. Rep. 722, holding that attorney 
 
 In Michigan, see Weeks v. Wayne can not sue on the judgment without 
 
 Circuit Judges, — Mich. — , 41 N. W. his client's authority. 
 
 Rep. 269. * Walker v. Floyd, 30 Ga. 237. 
 
 » See ante. § 861, note. » Smith v. Goode, 29 Ga. 185. 
 
 « Mosely e. Norman, 74 Ala. 432; • Higgins ». Scott, 2 B. & Ad. 413. 
 
 Jackson v. Clopton, 66 Ala. 29; ^ t See ante, §§865, 866. 
 
 parte Lehman, 59 Ala. 631. » Matter of H. 93 N. Y. 381. 
 
 ' Wood«. Verry, 4 Gray (Mass.) 357; » Citizens' National Bank v. Culver, 
 
 Stratton •. Hussey, 62 Me. 283; Cur- 54 N. H. 327, 20 Am. Rep. 134. 
 
 735
 
 § 877. THE LAW OF AGENCY. [Book V. 
 
 VIII. 
 
 DEALINGS BETWEEN ATTORNEY AND CLIENTS 
 
 8 877. ^ general— Good Faith and perfect Fairness required. 
 The relation of attorney and client is one of special trust and 
 confidence. From the free and intimate disclosures required by 
 the relation, the attorney acquires, not only a full knowledge of 
 his client's business and affairs, but of his necessities and weak- 
 nesses as well. His position is that of a confidential adviser and 
 he naturally has great influence over his client. To an unscrupu- 
 lous man, the attorney's position, in many instances, offers great 
 temptations to take advantage of the knowledge acquired to make 
 gain for himself by preying upon his client's confidence or neces- 
 sities. The law, therefore, very properly requires that all of the 
 dealings between the attorney and his client shall be characterized 
 by the utmost fairness and good faith, and it scrutinizes with 
 great closeness all transactions had between them.* 
 
 § 878. Purchases from, and Sales to Client— Adverse Pur- 
 chases. It has been seen in an earlier portion of the work, that 
 an agent authorized to sell property for his principal will not, 
 without the latter's full and intelligent consent, be permitted to 
 sell to himself; that an agent authorized to buy may not without 
 like consent, buy of himself, and that an agent whose duty it is 
 to buy for his principal will not be permitted to buy for him- 
 self.' These rules apply with particular force to the case of the 
 attorney. Thus it is held that the attorney will not be permit- 
 ted, without full knowedge and consent on the part of the client, 
 to purchase property of his client sold for taxes or sold in the 
 course of litigation in which he was retained,' nor to buy, in his 
 own name or interest, property in which his client was seeking 
 to obtain an interest.* In such cases the sale may, at the o])tion 
 
 « Weeks on Attys, § 268; Gray v. See also Wright v. Walker, 30 Ark. 
 
 Emmons, 7 Mich. 533; Jennings v. 44. 
 
 McConnell, 17 111. 148; Baker v. Cannot purchase client's land at 
 
 Humphrey, 101 U. S. 494. tax sale. Cunningham v. .Tones, 37 
 
 « See ante, §§ 454-472. Kans. 477, 1 Am. St. Rep. 257. 
 
 » May not purchase at execution or * Harper v. Perry, 28 Iowa, 58. In 
 
 other like sale of client's property. Baker v. Humphrey, 101 U. S. 494, it 
 
 Pearce v. Gamble, 72 Ala. 341 ; Briggs appeared that an attorney employed by 
 
 V. Hodgdon, 78 Me. 514, 7 Atl. Rep. both parties to draw an agreement for 
 
 887. the purchase of land for the sum of 
 
 736
 
 Chap. I.] 
 
 ATT0KNET8 AT LAW. 
 
 §878. 
 
 of the client, be held void, or the attorney may be charged as a 
 trustee of his client and be required to account as such.* 
 
 $8,000, upon discovering a defect in 
 the title, concealed the fact from one 
 of the parties, and in accordance 
 with a secret agreement with the 
 other procured a conveyance by 
 quit claim for the sum of $25, to E, 
 his own brother. Held, that his con- 
 duct was a gross breach of profes- 
 sional duty and that E should be 
 decreed on receiving the purchase 
 money, $25, to convey to the injured 
 party the premises, with covenant 
 against the title of E, and all others 
 claiming under him. 
 
 Mr, Justice Swatne said: "The 
 employment to draw the contract 
 was sufficient alone to put the parties 
 in this relation to each other. Qal- 
 braith v. Elder, 8 Watts (Pa.) 81; 
 Smith V. Brotherline, 62 Pa. St. 461. 
 But whether the relation subsisted 
 previously or was created only for the 
 purpose of the particular transaction 
 in question, it carried with it the 
 same consequences. Williamson v. 
 Moriarity, 19 Weekly Reporter, 818. 
 
 It is the duty of the attorney to ad- 
 vise the client promptly whenever he 
 has any information to give which it 
 is important the client should receive. 
 Hoopes v. Burnett, 26 Miss. 428; Jett 
 V. Hempstead, 25 Ark. 463; Pox v. 
 Cooper, 2 Q. B. 827. 
 
 In Taylor v. Blacklow, 3 Bing. (N. 
 C.) 235; an attorney employed to 
 raise money on a mortgage, learned 
 the existence of certain defects in his 
 client's title and disclosed them to 
 another person. As a consequence 
 his client was subjected to litigation 
 and otherwise injured. It was held 
 that an action would lie against the 
 attorney, and that the client was 
 entitled to recover. 
 
 In Com. Dig. tit. 'Action upon the 
 case for a Deceit, A 5,' it is said that 
 
 such an action lies ' if a man, being 
 entrusted in his profession, deceive 
 him who entrusted him; as if a man 
 retained of counsel became afterwards 
 of counsel with the other party in the 
 same cause, or discover the evidence 
 or secrets of the cause. 
 
 So if an attorney act deceptive to 
 the prejudice of his client, as if by 
 collusion with the demandant he 
 make default in a real action, 
 whereby the land is lost.' It has been 
 held that if counsel be retained to 
 defend a particular title to real estate 
 he can never thereafter, unless his 
 client consent, buy the opposing title 
 without holding it in trust for those 
 then having the title he was employed 
 to sustain. Henry v. Raiman, 25 Pa. 
 St. 854. Without expressing any 
 opinion as to the soundness of this 
 case with respect to the extent to 
 which the principle of trusteeship is 
 asserted, it may be laid down as a 
 general rule that an attorney can in 
 no case, without the client's consent, 
 buy and hold, otherwise than in trust, 
 any adverse title or interest touching 
 the thing to which his employment 
 relates. He cannot in such a way 
 put himself in an adversary position 
 without this result. The cases to this 
 effect are very numerous and they 
 are all in harmony. We refer to a 
 few of them. Smith «. Brotherline, 
 62 Pa. St. 461; Davis «. Smith, 43 Vt. 
 269; Wheeler©. Willard, 44 Id. 641; 
 Giddings v. Eastman, 5 Paige (N. Y.) 
 561 Moore, et al. v. Bracken, 27 111. 23; 
 Harper «. Perry, 28 Iowa, 57; Hock- 
 enbury v. Carlisle, 5 Watts & S. (Pa.) 
 348; Habedyi). Peters, 6 Jurist, pt. 1, 
 1,794; Jett V. Humpstead, 25 Ark. 
 462; Case v. Carroll, 35 N. T, 385; 
 Lewis t). Hillman, 3 H. L. Cas 607." 
 • Henry v. Raiman, 25 Penn. St. 
 
 47 
 
 737
 
 § 879. THE LAW OF AGENOT. [Book Y. 
 
 Private purchases by the attorney of the client's property are 
 regarded with still greater strictness. In many cases it has been 
 held that all such transactions are voidable at the election of the 
 client,' but it is believed that the better rule does not go so far. 
 There is no necessary incapacity for dealing between the client 
 and attorney, and, though transactions between them will be very 
 closely scrutinized, yet those which are obviously fair and just 
 will be upheld. But the burden of proof is upon the attorney, 
 and if he cannot produce evidence which puts the transaction 
 beyond reasonable controversy, it will be set aside, or he will be 
 regarded as a trustee for his client.* 
 
 So to sustain a gift from a client to his attorney, the burden is 
 upon the latter to show not only that it was voluntary, but that 
 it was made with full knowledge of all material facts and with- 
 out undue influence.' 
 
 § 879. Relation of Attorney and Client must exist. But in. 
 order to give these rules effect, it is necessary that the relation of 
 attorney and client should exist between the parties. The mere 
 fact that the opposite party in a transaction was an attorney at 
 law, or that he offered to and did draw the necessary writings, 
 which passed between the parties, gratuitously, is not enough. 
 He must then have been the attorney of the complaining party. 
 If he was merely the adverse party, the fact that he was at 
 tiie same time an attorney at law will not invalidate the transac- 
 tion, nor does it raise the presumption of fraud or undue in- 
 fluence.* 
 
 354, 64 Am. Deo. 703; Zeigler «. Kaa. 195, KiaUng «. Shaw, 83 CaL 
 
 Hughes, 55 111. 288; Harper v. Perry, 425. 91 Am. Dec 644; Starr e. Vaa- 
 
 28 Iowa, 57; Wheeler «. Willard, 44 derheyden, 9 Johns. (N. T.) 253, 6 
 
 Vt. 040; Case v. Carroll, 35 N. Y. Am. Dec 275; Miles*. Ervin, 1 Mc- 
 
 885; Johnson v. Outlaw, 56 Miss. 541. Cord's (S. G.) Ch. 524, 16 Am. Dec 
 
 J See Lane v. Black, 21 W. Va. 617. 623; Lecatt «. Bailee, 8 Part. (Ala.) 
 
 « Taylor v. Young, 56 Mich. 285; 115, 29 Am. Dec. 249. 
 
 Gray v. Emmons, 7 Mich. 533; La- « Whipple e. Barton, 68 N. H. 613; 
 
 -clede Bank v. Keeler, 109 III. 385; Walmesley «. Booth, 2 Atk. 25, 27; 
 
 Wharton v. Hammond, 20 Fla. 934; Cray v. Mansfield, 1 Ves. Br. 879; 
 
 Merrymanc. Euler, 59 Ind. 588, 43 Harris e. Tremenheere, 16 Ves. Jr. 84. 
 
 Am. Rep. 564; Gruby «. Smith, 13 * Stout v. Smith, 98 N. Y. 25, 50 
 
 111. App. 43; Yeamana «. James, 27 Am. Rep. 632. 
 
 738
 
 Chap. I.] ATTORNEYS AT LAW. § 880. 
 
 IX. 
 
 ■ PKIVILEGED COMMUKIOATION8. 
 
 § 880. Confidential Communications privileged. The pur- 
 poses and necessities of the relation between a client and his 
 attorney require, in many cases, on the part of the client, the 
 fullest and freest disclosures to the attorney of the client's objects, 
 motives and acts. This disclosure is made in the strictest confi- 
 dence, relying upon the attorney's honor and fidelity. To permit 
 the attorney to reveal to others what is so disclosed, would be not 
 only a gross violation of a sacred trust upon his part, but it would 
 utterly destroy and prevent the usefulness and benefits to be 
 derived from professional assistance. Based upon considerations 
 of public policy, therefore, the law wisely declares that all confi- 
 dential communications and disclosures, made by a client to his 
 legal adviser for the purpose of obtaining his professional aid or 
 advice, shall be strictly privileged ; — that the attorney shall not 
 be permitted, without the consent of his client, — and much less 
 will he be compelled — to reveal or disclose communications made 
 to him, or papers delivered to him, or letters or entries made by 
 him, under such circumstances.* 
 
 The privilege extends to information derived from the client, 
 
 » Qreenleaf on Ev. §§ 237-246; Hat- citizens are governed, so important is 
 
 ton V. Robinson, 14 Pick. (Mass.)416, it that they should be permitted to 
 
 25 Am. Dec. 415; Beltzboover v. avail themselves of the superior skill 
 
 iJlackstock, 3 Watts. (Penn.) 20, 27 and learning of those who are sanc- 
 
 Ain. Dec. 330; Coveney v. Tannabill, tioned by the law as its ministers and 
 
 1 Hill (N. Y.) 38,37 Am. Dec. 287; expounders, both in ascertaining their 
 
 Crosby v. Berger, 11 Paige (N. Y.) rights in the country and maintain- 
 
 877, 42 Am. Dec. 117; Bank of Ulica ing them most safely in courts, with- 
 
 V. Mersereau, 3 Barb. Ch. (N. Y.) 528, out publishing those facta which they 
 
 iO Am. Dec. 189; Patten v. Moor, 29 have aright to keep secret, but which 
 
 N. H. 169; Williams v. Fitch, 18 N. must be disclosed to a legal adviser 
 
 Y. 551; Britton v. Lorcnz, 45 N. Y. and advocate to enable him succcss- 
 
 51, 57; Hunter v. Watson, 13 Cal. fully to perform the duties of his 
 
 f.G;3, 73 Am. Dec. 543; Thompson v. office, that the law has considered it 
 
 Kilborne, 28 Vt. 750, 67 Am. Dec. the wisest policy to encourage and 
 
 743. sanction this confidence by requiring 
 
 The principle upon which this that on such facts the mouth of the 
 
 rule is founded is said by Chief Jus- attorney shall be forever sealed." In 
 
 tice Shaw to be this: "That so Hatton ®. Robinson, 14 Pick. (Mass.) 
 
 numerous and complex are the laws 416, 25 Am. Dec. 415. 
 by which the rights and duties of 
 
 739
 
 § 881. THE LAW OF AGENCY. [Book V. 
 
 as such, either by oral communications, or from books or papers 
 shown to him by his client or placed in his hands in his character 
 of attorney or counsel.* 
 
 S 881. Under what Circumstances privileged. It is not nec- 
 essary that the communication should be made in reference to a suit 
 in court then pending or thereafter to be commenced,* or that it 
 should be made under any special injunction of secrecy,' or that 
 the client should understand the extent of the privilege,* or that 
 the disclosure should be one strictly necessary to be made.' If 
 it be made with a view to professional employment, and in ref- 
 erence to such employment in legal proceedings, pending or con- 
 templated, or in reference to any other legitimate professional 
 services, wherein professional advice or aid is sought respecting 
 the rights, duties or liabilities of the client, it will fall within the 
 privilege.* 
 
 But it is necessary that the communication should have been a 
 confidential one, and should be made in reference to, or in pur- 
 suance of, the matter in which the attorney is consulted or 
 engaged. For if it be made for the express purpose of being 
 communicated to the adverse party or others,^ or if it be made, 
 freely and openly, in the presence of third persons," or if it be 
 made in reference to some matter having no connection with the 
 attorney's employment, it will not be privileged." 
 
 So the interests or protection of the client will not be permit- 
 
 » Crosby B.Berger, 11 Paige (N.Y.) Am. Dec. 189; Moore «. Bray, 10 
 
 377, 42 Am. Dec. 117. Penn St. 524. 
 
 «"If the privilege were confined « McLellan v. Longfellow, supra, 
 
 to communications connected with Parker v. Carter, 4 Munf. (Va.) 273, 
 
 suits begun, or intended, or expected, 6 Am. Dec. 513. 
 
 or apprehended, no one could safely * McLellan v. Longfellow, supra. 
 
 adopt such precautions as might » Cleave v. Jones, 7 Exch. 421, 8 
 
 eventually render any proceedings Eng. L. & Eq. 554. 
 
 successful, or all proceedings super- • McLellan v. Longfellow, supra, 
 
 fluous." Lord Chancellor Brougham. Lengsfleld e. Richardson, 52 Miss, 
 
 in Qreenough v. Gaskell, 1 M. & K. 443. 
 
 98,103. Same point: Beltzhoover «. t Henderson e. Terry, 62 Tex. 281. 
 
 Blackstock, 3 Watts (Penn.) 20, 27 • Mobile, etc.. Ry Co. v. Yeates, 
 
 Am. Dec. 330; McLellan v. Longfel- 67 Ala. 164; House©. House, 61 Mich, 
 
 low, 32 Me. 494, 54 Am. Dec. 599; 69, 1 Am. St. Rep. 570; Hartford Fire 
 
 Bolton V. Corporation of Liverpool. 1 Ins. Co. t». Reynolds, 36 Mich. 503. 
 
 My. & K. 88; Bank of Utica v. Mer- » State «. Mewherter, 46 Iowa. 88. 
 eereau, 3 Barb. Ch. (N. Y.) 529, 49 
 
 740
 
 Chap. 1.] 
 
 ATTOBNET8 AT LAW. 
 
 §882. 
 
 ted to contravene the public necessities and good. Hence com- 
 munications, made in consultations, while seeking advice in 
 regard to a proposed violation of law will not be privileged.' 
 
 But communications respecting a past or completed offense 
 will be privileged.* So communications made in reference to 
 an act which, while it amounts to a fraud, is not a crime or 
 malum in se, are privileged, although the communications are 
 made before the commission of the act.» So communications to 
 an attorney, employed to draw an assignment for the benefit of 
 creditors which is afterwards assailed as fraudulent, are privi 
 leged.'' 
 
 § 882. Same Subject. The privilege does not apply to cases 
 where the attorney acquired the information, not as an attorney 
 but by observation, in the same manner that any other person 
 might have acquired it ;• nor where the information was obtained 
 from a person other than the client ; • nor to a fact within his 
 own knowledge.' So the privilege does not apply to statements 
 
 • "Professional communications are 
 not privileged wlien such communica- 
 tions are for an unlawful purpose, 
 having for their object the commis- 
 sion of a crime. They then partake 
 of the nature of a conspiracy, or at- 
 tempted conspiracy, and it is not 
 only lawful to divulge such commu- 
 nications, but under certain circum- 
 stances it might become the duty of 
 the attorney to do so. The interests 
 of public justice require that no such 
 shield from merited exposure shall be 
 interposed to protect a person who 
 takes counsel how he can safely 
 commit a crime. The relation of at- 
 torney and client cannot exist for the 
 purpose of counsel in concocting 
 crimes. The privilege does not exist 
 in such cases," Champlin, J., in 
 People •. Van Alstine, 57 Mich. 69. 
 To same effect: Greenough v. Gas- 
 kell, 1 M. «fe K. 98; State v. McChes- 
 ney, 16 Mo. App. 259; People v. 
 Mahon, 1 Utah, 205; State v. Mew- 
 herter, 46 Iowa, 88; Bank v. Merse- 
 reau, 3 Barb. Ch. (N. Y.) 528, 49 Am. 
 
 Dec. 189; Coveney «. Tannahill, 1 
 Hill (N. Y.) 33, 37 Am. Dec. 287; 
 People V. Blakely, 4 Park. Or. 176. 
 
 • 1 Greenleaf's Ev. § 240. 
 
 •Bank v. Mersereau, 3 Barb. Ch. 
 (N. Y.) 528, 49 Am. Dec. 189; Max- 
 ham V. Place, 46 Vt. 434. 
 
 • Hollenback c. Todd, 119 111. 548. 
 » Davies v. Waters, 9 M. «& W. 611; 
 
 Crosby t». Berger. 11 Paige (N. Y.) 
 877, 42 Am. Dec. 117; Brandt v. 
 Klein, 17 Johns, (N. Y.) 335; Chilli- 
 cothe Perry &c. Co v. Jameson, 48 
 111. 281; Stoney e. McNeil, Harper's 
 (S. C.) L. 557, 18 Am. Dec. 666. 
 
 • Crosby v. Berger, supra; Hunter 
 V. Watson, 12 Cal. 363, 78 Am. Dec. 
 543; Gallagher «. Williamson, 23 
 Cal. 331, 83 Am. Dec. 114. Com- 
 munications to an attorney, by one 
 not interested in the suit, though a 
 nominal party, are not privileged. 
 Allen V. Harrison, 30 Vt. 219, 78 Am. 
 Dec. 303. 
 
 ▼ Gallagher v. Williamson, tupra. 
 Coveney v. Tannahill, 1 Hill (N. Y.) 
 83, 87 Am. Dec. 287. 
 
 741
 
 §882. 
 
 THB LAW OF AGENCY. 
 
 [Book V. 
 
 made, in the presence of the attorney, by the client to other 
 persons, or by such other persons to the client, or by such other 
 persons to each other.' 
 
 The privilege does not apply to third persons who were pres- 
 ent at the time the communications were made,* nor to the 
 adverse party,' nor to communications made in the presence of 
 both parties.* 
 
 Neither does the privilege apply to collateral facts, involving 
 no matter of confidence. Thus the attorney may be required to 
 disclose the fact of his retainer,* the name • of his client, and in 
 what capacity,' and at what time,* he employed him ; to prove 
 the identity of his client,* and to testify to the execution of a 
 deed by the client," which the attorney attested as a witness ; to 
 disclose whether or not he has in his possession a paper of his 
 client's," in order to let in secondary evidence of its contents, 
 and to state the manner " and time " of his obtaining it, but he 
 cannot be compelled to produce it or to state its contents or pur- 
 port ; ** to state whether he has received money for his client 
 
 ' Gallagher v. Williams, iupra; 
 CoveneyB.Tannahill,8M;)ra;Rochester 
 City Bank v. Suydam, 5 How. Pr. 
 (N. Y.) 254; Hatton v. Robinson, 14 
 Pick, (Mass.) 416, 25 Am. Dec. 415; 
 House V. House, 61 Mich. 69, 1 Am. 
 St. Rep. 570; Hartford Fire Ins. Co. 
 V. Reynolds, 36 Mich. 502. 
 
 « Jackson «. French, 3 Wend. (N. 
 Y.)337, 20 Am. Dec. 699; Goddard 
 V. Gardner, 28 Conn. 172; Hoy v. 
 Morris, 13 Gray (Mass.) 519. 
 
 8 Goddard c. Gardner, 28 Conn. 172; 
 Hoy r. Morris, 13 Gray (Mass.) 519. 
 
 < Britton v. Lorenz, 45 N. Y. 51. 
 Whiting V. Barney, 30 N. Y. 330, 86 
 Am. Dec. 385. 
 
 Root V. Wright, 21 Hun 348, 8. o. 
 84 N. Y. 76; Sherman v. Scott, 27 
 Hun 334; Rosenburg e. Rosenburg, 
 40 Hun 100. 
 
 » Chirac v. Reinicker, 11 Wlieat, 
 (U. S.) 280; Forshaw v. Lewis, 1 Jur. 
 (N. 8.) 263. 
 
 » Levy V. Pope, 1 M. &. W. 410; 
 Browne. Payson, 6 N. H. 443; Ful- 
 
 ton V. Maccracken, 18 Md. 528, 81 
 Am. Dec. 620. 
 
 » Beckwith v. Benner, 6 0. & P. 
 681. 
 
 • Wheatley v. Williams, 1 M. & 
 W. 533; Brown e. Payson, 6 N. H. 
 443. 
 
 • Beckwith v. Benner, 6 C. & P. 
 681 ; Hurd v. Moring, 1 C. &. P. 372. 
 
 '•Doe V. Andrews, Cowp. 845; 
 Robson ». Kemp, 4 Esp. 235; Cove- 
 ney v. Tannahill, post. 
 
 " Coveney v. Tannahill, 1 Hill (N. 
 Y.) 33, 37 Am. Dec. 287; Jackson v. 
 McVey, 18 Johns. (N. Y.) 330; Brandt 
 v. Klein, 17 Johns. (N. Y.) 335; Be- 
 van V. Waters. 1 M. & M. 235. 
 
 But see in Georgia, Dover v. Har- 
 rell, 58 Ga. 572. 
 
 «« Allen V. Root, 39 Tex. 589. 
 
 «» Rundlee. Foster. 3 Tenn. Ch. 658. 
 
 '* Coveney v. Tannahill, supra; 
 Jackson v. McVey, supra; Brandt e. 
 Klein, supra; Wright r. Mayer, 6 
 Ves. 280; Rext). Dixon, 3 Burr.1687; 
 Dover v. Harrell, 58 Ga. 572. 
 
 742
 
 Chap. I.] ATT0BNET8 AT LAW. § 883, 
 
 and where he has deposited it ; • to prove the fact that he drew 
 a deed for his client,* and the time* when he did so ; to prove 
 his client's handwriting, from his general knowledge of it;* 
 and the fact that the client swore to a bill in chancery.* 
 
 § 883. Relation of Attorney and Client must exist. In order 
 that the communications be privileged, it is necessary that the 
 relation of attorney and client should exist at the time they were 
 made,* although it is not necessary that there should be a formal 
 retainer,' or the payment of a fee.' If they were made before 
 the relation began,' or after it had wholly ceased, although made 
 in reference to a subject which had formerly been protected by 
 the relation," they are not privileged. So if they were made 
 casually merely, or to the attorney as a friend and not as an attor- 
 ney, they would not be protected." 
 
 And the attorney must have been employed as an attorney. 
 If he is employed as a mere scrivener or conveyancer, to put in 
 writing a contract or other instrument already agreed upon, and 
 his advice or counsel as an attorney is not sought, he will be at 
 liberty to testify as to what came to his knowledge during the 
 transaction.'* But if he be employed to give advice or counsel, 
 as an attorney, as to the best form of instrument to accomplish 
 
 > Jeanes v. Fridenberg, 3 Pa. L. J. McNeil. Harper's (S. C.) L. 557. 18 
 
 R. 199; Williams v. Young, 46 Iowa, ^m^ j)ec_ 666. 
 
 ^^^- '• Yordan v. Hess, 13 Johns. (N.Y.) 
 
 » Bundle t>. Foster, 3 Tenn. Ch. 658. 493. Mandeville v. Guernsey, 38 Barb. 
 
 » Rundle v. Foster, supra. (N. Y.) 225. 
 
 < Johnson v. Daverne, 19 Johns. " 1 Greenleaf Ev. § 244. 
 
 (N. Y.) 184, 10 Am. Dec. 198; and " Hatton v. Robinson, 14 Pick, 
 
 see Hurd v. Moring, 1 C. «fe P. 373, (Mass.) 416, 25 Am.Dec. 415; DeWolf 
 
 where the attorney was required to e. Strader, 26 111. 225, 79 Am. Dec. 
 
 prove the handwriting though his 372; Smith v. Long, 106 111. 488; 
 
 knowledge was acquired solely from Todd «. Munson, 53 Conn. 579; Heb- 
 
 seeing his client sign the bail bond. bard v. Haugbian, 70 N. Y. 54; 
 
 sBuller's N. P. 284; Doe b. An- Machette «.Wanless,2 Colo. 169; Ran- 
 
 drews, Cowp. 846. del v. Yates, 48 Miss. 688; House v. 
 
 •Earl «. Grout, 46 Vt. 113; Ran- House, 61 Mich.G9,l Am. St. Rep.570. 
 
 dolph V. Quidnick Co. 23 Fed. Rep. Goodwin's Appeal, 117 Pa. St. 514, 2 
 
 278; Romberg v. Hughes, 18 Neb. Am. St. Rep. 696. 
 
 579; Rochester City Bank v. Suy- Contra: Parker v. Carter, 4 Munf. 
 
 dam, 5 How. Pr. (N. Y.) 254. (Va.) 273, 6 Am. Dec. 513; Bank of 
 
 ' Earl V. Grout, supra. Utica v. Mersereau, 3 Barb. (N. Y.) 
 
 » Crosse. Riggins, 50 Mo. 335. Ch. 528; 49 Am. Dec. 189; Getzlaff 
 
 • 1 Greenleaf Ev. § 244; Stoney v. v. Seliger, 43 Wis. 297. 
 
 743
 
 § 884. THE LAW OF AQENOT. [Book T. 
 
 the purpose or to protect the interests of his client, or to give 
 an opinion as to the force or effect of the instrument, communi- 
 cations made to him will be privileged although he also draws 
 the instrument.* 
 
 Communications made to an attorney by the party under the 
 impression that the attorney had consented to act, are privileged, 
 although the attorney himself may not have so understood the 
 arrangement." 
 
 § 884. Communications must have been made to an Attorney. 
 So the communications must have been made to an attorney at 
 law' or to his clerk, agent, interpreter, or other representative.* 
 If made to a mere student in his office,* or if made to a person 
 not an attorney, though the client supposed him to be one,* they 
 are not privileged. 
 
 So where a license is required, it protects communications 
 made to a licensed attorney only.' 
 
 § 885. Privilege is the Client's. The privilege is the privilege 
 of the client and not of the attorney. The seal placed by the 
 law upon the lips of the attorney can be removed only by the 
 client or those who represent him, and it is not within the power 
 of the attorney alone to waive or remove it.' 
 
 The client may, however, waive it if he sees fit during his life-time, • 
 
 * House V. House, supra; Bank of v. Harris, 7 Cush. (Mass.) 576, 54 
 
 Utica V. Mersereau, supra; Parker v. Am. Dec. 734. 
 
 Carter, supra. But communications made to one 
 
 » Alderman v. People, 4 Mich. 414, who, though not an attorney, was a 
 
 69 Am. Dec. 821. regular practitioner injustices' courts 
 
 » The rule applies only to attorneys were held privileged. Benedict v. 
 
 at law and not to attorneys in fact. State, 44 Ohio St, 679. 
 
 McLaughlin v. Gilmore, 1 111. App. » Barnes v. Harris, supra. 
 
 563; Holman v. Kimball. 22 Vt. 555. "" • Sample v. Frost, 10 Iowa, 266; 
 
 < " It is confined strictly" says Barnes v. Harris, supra. 
 
 Chief Justice Shaw, "to communi- i McLaughlin e. Gilmore, 1 111. App. 
 
 cations to members of the legal pro- 563. 
 
 fession, as barristers and counsellors, • Hatton e. Robinson, 14 Pick, 
 
 attorneys and solicitors, and those (Mass.) 416. 25 Am. Dec. 415. 
 
 whose intervention is necessary to • Tate ©. Tate, 75 Va. 522; Sleeper 
 
 secure and facilitate the communi- «. Abbott, 60 N. H. 162; Chase's 
 
 cation between attorney and client. Case, 1 Bland (Md.) Ch. 206, 17 Am. 
 
 as interpreters, agents and attorneys' Dec. 277; Parker v. Carter, 4 Munf. 
 
 clerks." Foster v. HaU, 12 Pick. (Va.) 273, 6 Am. Dec. 513; Foster c. 
 
 (Mass.) 89, 22 Am. Dec. 400; Barnes Hall,12Pick. (Mass.)82, 22 Am. Dec. 
 
 744
 
 Chap. I.] ATTORNEYS AT LAW. § 887. 
 
 or it may be waived by those who represent him after his 
 death.* 
 
 The client does not waive the privilege by making the attor- 
 ney a witness upon other matters than that privileged, but if he 
 examines him upon such subjects he waives the privilege, and 
 the other party may cross-examine him on the same subjects.' 
 Where there were several clients, the consent or waiver of all of 
 them is necessary to make the attorney a competent witness.* 
 
 § 886. How long it continues. The operation of the privi- 
 lege is perpetual and, unless duly waived, survives not only the 
 termination of the relation of attorney and client, but the lives 
 of the attorney and client as well.* The death of the client 
 does not remove it,' nor will the executor or administrator of the 
 attorney be permitted to reveal papers or information confided to 
 the attorney, and which he himself would not have been per- 
 mitted to reveal.* The fact that the information is asked for in 
 a suit to which the client is not a party makes no difference.' 
 
 § 887. Attorney may disclose for his own Protection. But 
 
 the attorney may disclose information received from the client 
 when it becomes necessary for his own protection, as if the client 
 should bring an action against the attorney for negligence or mis- 
 conduct, and it became necessary for the attorney to show what 
 his instructions were, or what was the nature of the duty which 
 the client expected him to perform.* So if it became necessary 
 for the attorney to bring an action against the client, the client's 
 
 400. Benjamin «. Coventry. 19 attorney by two defendants is not 
 
 Wend. (N. Y.) 353; Whiting v. Bar- privileged in a subsequent suit be- 
 
 ney, 30 N. Y. 330, 86 Am. Dec. 385; tween the two. Rico v. Rice, 14 B. 
 
 Riddles v. Aikin. 29 Mo. 453; Fossler Men. (Ky) 417. 
 
 V. Schriber, 38 111. 172; Stanton v. * Hatton v. Robinson, 14 Pick. 
 
 Hart, 27 Mich. 539; Passraore v. (Mass.) 416, 25 Am. Dec. 415; Wil- 
 
 Passmore, 50 Mich. 626, 45 Am. Rep. son v. Rastall, 4 T. R. 759; Parker v. 
 
 62. Yates, 12 Moore, 520. 
 
 Client waives it when he turns » 1 Greenleaf on Ev. § 243. 
 
 State's evidence and swears to an « 1 Greenleaf on Ev. § 239. 
 
 offense in which he was a party. ' Phillips' Ev. (6th Ed.) 131, Foster 
 
 Hamilton v. People, 29 Mich. 173. v. Hall, 12 Pick. (Mass.) 89, 22 Am. 
 
 « See Fraser v. Jennison, 42 Mich. Dec. 400. 
 
 206. * Rochester City Bank v. Suydam, 
 
 sVaillant e. Dodemead, 2 Atk. 5 How. Pr. (N. Y.) 254; Mitchell©. 
 
 524; Waldron v. Ward. Style 449. Bromberger, 2 Nev. 345, 90 Am. Dec. 
 
 * But a communication made to an 550. 
 
 745
 
 § 888. THE LAW OF AGENCY. [Book V. 
 
 privilege could not prevent the attorney from disclosing what 
 was essential as a means of obtaining or defending his own rights.* 
 
 TERMINATION OF THE RELATION. 
 
 §888. By Operation of Law. The relation of attorney and 
 client would, in general, be terminated by the same causes which, 
 by operation of law, serve to terminate the relation of any other 
 principal to his agent.* Thus the death of the client,* his insan- 
 ity,* or his bankruptcy • would undoubtedly dissolve the relation. 
 So the death of the attorney,' his insanity,' his disbarment,' or 
 his removal from the State • would effect the same result. War 
 between the country of the client and that of the attorney would 
 suspend the relation." 
 
 § 889. By Act of the Parties. The relation may also be di&- 
 solved by the act of the parties. Under what circumstances this 
 may be done and with what effect have already been considered." 
 
 « Mitchell V. Bromberger, tupra. * See ante, % 849. 
 
 » See that subject discussed, ante, » See ante, % 259. 
 § 239 et aeq. * This would seem to be a neces- 
 
 8 Adams e. Nellis, 59 How. Pr. sary consequence. 
 (N.T.) 385; Harness*. State,57 Ind. 1; • This would seem to follow from 
 
 Clegg V. Baumberger, 110 Ind, 536, 9 Matter of Mosness, 39 Wis. 609, 20 
 
 North E. Rep. 700; Lapaugh «. Wil- Am. Rep. 55. 
 son, 43 Hun (N. Y.) 619. •• See ante § 269. Blackwell v. Wil- 
 
 « See ante, § 254. lard, 65 N. C 555, 6 Am. Rep. 749. 
 
 » Bee ant^, % 263. " See ants, §§ 855-857. 
 
 746
 
 Chap. II.] 
 
 AUCTIONEERS. 
 
 §890. 
 
 OHAPTEE IL 
 
 OP AUCTIONEERS. 
 
 5 890. Purposes of this Chapter. 
 1. Of the Auctioneer. 
 
 891. Definition. 
 
 892. Who may be. 
 
 893. Whose Agent he is. 
 
 t. How Authorized. 
 
 894. Like other Agents. 
 
 S. Auctioneer's Implied Powers. 
 
 895. To fix Terms of Sale. 
 
 896. To accept the Bid. 
 
 897. To receive the Price. 
 
 898. To sue in his own Name for 
 
 the Price. 
 
 899. None— To delegate his Au- 
 
 thority. 
 
 900. None— To sell on Credit. 
 
 901. None— To rescind Sale. 
 
 902. None— To sell at private Sale. 
 
 903. None — To bid himself. : 
 
 904. None— To warrant Quality. 
 
 4. Auctioneer's Duties and Liabilities 
 to Principal. 
 
 905. Bound for reasonable Skill and 
 
 Diligence. 
 
 906. To obey Instructions. 
 
 907. To account for Proceeds. 
 
 908. To take Care of Goods. 
 
 909. To sell for Cash only. 
 
 910. To sell to third Parties only. 
 
 911. To sell in Person. 
 
 6. Auctioneer's Duties and LiaMlities 
 
 to Third Persons. 
 § 913. Liable when he conceals Prin- 
 cipal. 
 014. Liable when he exceeds his 
 Authority. 
 
 915. Liability for selling Property 
 
 of Stranger. 
 
 916. Not liable for not holding 
 
 Auction as advertised. 
 
 6. Auctioneer's Rights against his 
 
 Principal. 
 
 917. Compensation, Reimburse- 
 
 ment, Indemnity. 
 
 918. Recoupment of Damages. 
 
 919. Auctioneer's Lien. 
 
 920. Can not dispute Principal's 
 
 Title. 
 
 7. Auctioneer's Bights against Third 
 
 Persons. 
 
 921. Right to sue Bidder. 
 
 922. Right to sue Wrong doer. 
 
 8. Principal's Rights against Third 
 
 Persons. 
 
 923. To recover purchase Price. 
 
 924. Where Bidder refuses to com- 
 
 plete Purchase. 
 
 9. Rights of Third Persons against 
 
 Principal. 
 
 925. Principal's Liability for Auc- 
 
 tioneer's Acts. 
 
 926. Liable for Breach of Contract 
 
 8 890. Purpose of this Chapter. It is not the purpose of this 
 chapter to discuss the subject of auctions or auction sales. Only 
 that portion of those topics which bears upon the question 
 of the agency of the auctioneer, is within the scope of this 
 treatise. 
 
 747
 
 § 8i)l, THE LAW OF AGENCY. [Book V, 
 
 1. Of the Auctioneer. 
 
 § 891. Definition. An auctioneer has been defined in the 
 opening chapter of the work to be one whose business it is to sell 
 or dispose of property, rights or privileges at public competitive 
 eale, to the persons offering or accepting the terms most favor- 
 able to the owner. Other definitions and distinctions have there 
 been considered. 
 
 § 892. "Who may be. As a general rule any person who is 
 competent to act as agent, in other departments of business, may 
 act in this. On account of the nature of his functions, however, 
 there will be found, in many of the States, statutory enactments 
 prescribing who may act as auctioneer, and upon what terms 
 and conditions. These statutes usually require that the auctioneer 
 shall be licensed, and shall give a bond for the faithful perform- 
 ance of his duty, and prescribe what fees he may recover and 
 by what means.* Auctioneers are also not unfrequently the sub- 
 ject of municipal regulations. 
 
 § 893. Whose Agent he is. An auctioneer employed by the 
 owner of real or personal property or of rights of any kind, 
 to sell or dispose of the same at auction, is primarily the agent 
 of the owner, and of him alone; and he remains his agent exclu- 
 sively up to the moment when he accepts the bid of the pur- 
 chaser and knocks down the property to him. Upon the accep- 
 tance of the bid, however, the auctioneer becomes the agent of 
 the purchaser also, to the extent that it is necessary to enable the 
 auctioneer to complete the purchase and he may, therefore, bind 
 the purchaser by entering his name as such and by signing the 
 
 » See ante, § 13. State ». Rucker, 24 Mo. 557; Oska- 
 
 « These statutes are collected in the loosa e. TuUis, 25 Iowa, 440; Decorah 
 
 Appendix to Bateman on Auctions. t). Dunstan, 38 Id. 96; Waterhouse v. 
 
 It is not within the scope of this work Dorr, 4 Me. 333; State v. Conkling, 
 
 to give them, but the following cases 19 Cal. 501; State e. Poulterer, 16 Id. 
 
 maybe referred to as illustrating their 515; Wiggins t. Chicago, 68 111. 372; 
 
 interpretation and application: Car- Wright t. Atlanta, 54 Ga. 645; Sewall 
 
 pentert). Le Count, 93N.Y. 562; Rus- «. Jones, 9 Pick. (Mass.) 412; Jordan 
 
 sell c. Miner, 25 Hun (N. Y.) 114; e. Smith, 19 Id. 287; Clark n. Cush- 
 
 Deposit e. Pitts, 18 Id. 475; Fretwell man, 5 Mass. 505; Amite City o. Cle- 
 
 e. Troy, 18 Kans. 271; Crandall «. mentz, 24 La. Ann. 27; Florance •. 
 
 State, 28 Ohio St. 479; Daly v. Richardson, 2 Id. 663; Gunnaldson «. 
 
 Commonwealth, 75 Penn. St. 381; Nyhus, 27 Minn. 440; McMechen o. 
 
 Hunt «. Philadelphia, 35 Id. 277; Baltimore, 3 Har. «& J. (Md.) 534. 
 
 748
 
 Chap. II.] 
 
 AUCTIONEERS. 
 
 §893. 
 
 memorandum of the sale.* Such a signing is suflScient to satisfy 
 the statute of frauds.* But in order to so bind the purchaser, 
 the entry of the name of the purcliaser must be done by the 
 auctioneer or his clerk immediately upon the acceptance of his 
 bid and the striking down of the property ; it must be done at 
 the time and place of the sale, and can not be done after the sale 
 is over.* The principle upon which this rule is founded, as is 
 said by a learned judge, is " that the auctioneer at the sale is the 
 
 » Bent V. Cobb, 9 Gray (Mass.) 897, 
 69 Am. Dec. 295; Doty v. Wilder, 16 
 111. 407, 60 Am. Dec. 756; Thomas v. 
 Kerr, 3 Bush (Ky.) 619, 96 Am. Dec. 
 263; Walker v. Herring, 21 Gratt. 
 (Va.) 678, 8 Am. Rep. 616. 
 
 « Bent V. Cobb, supra; Sanborn t>. 
 Chamberlin, 101 Mass. 409; Craig v. 
 Godfroy, 1 Cal. 415, 54 Am. Dec. 
 299 ; Thomas v. Kerr, supra; Harvey 
 V. Stevens, 43 Vt. 655; Hart v. Woods, 
 7 Blackf. (Ind.) 568; Adams v. Mc- 
 Millan, 7 Port. (Ala.) 73; O'Donnell v. 
 Leeman, 43 Me. 158; Linn Boyd To- 
 bacco Co. V. Terrill, 13 Bush (Ky.) 
 463; Brent v. Green, 6 Leigh (Va) 16; 
 Pike V. Balch, 38 Me. 303; Pugh d. 
 Chesseldine, 11 Ohio, 109, 37 Am. 
 Dec. 414; Farebrother v. Simmons, 5 
 B. & Aid. 333; Simons e. Motivos, 8 
 Burr. 1921; Hinde v. Whitehouse, 7 
 East. 558; White v. Proctor, 4 Taunt. 
 209; Emmerson v. Heelis, 2 Taunt. 
 38. But where the auctioneer is a 
 party in interest, his memorandum is 
 not sufiScient. Bent v. Cobb, supra; 
 Tull v. David, 45 Mo. 446, 100 Am. 
 Dec. 385; Johnson «. Buck, 35 N. J. 
 L. 342. 
 
 3 " It appears novr to be settled, by 
 the English authorities, » « » * 
 that the auctioneer is a competent 
 agent to sign for the purchaser either 
 of lands or goods at auction; and the 
 insertion of his name as the highest 
 bidder in the memorandum of the sale 
 by the auctioneer, immediately on 
 receiving his bid, and striking down 
 the hammer, is a signing within the 
 
 statute, BO as to bind the purchaser." 
 Chancellor Kent, in McComb v. 
 Wright, 4 Johns. (N. Y.) 659, 663. 
 
 "It is now well settled, by authori- 
 ties, that a sale of real estate at auc- 
 tion, where the name of the bidder is 
 entered by the auctioneer, or by his 
 clerk, under his direction, on the 
 spot, and such entry if so connected 
 with the subject and terms of sale as 
 to make a part of the memorandum, 
 is a contract in writing, so as to take 
 the case out of the statute of frauds." 
 Story, J., in Smith v. Arnold, 5 
 Mason (U. S. C. C.) 414, 419. 
 
 "The name of the bidder must be 
 entered by the auctioneer, or by his 
 clerk under his direction, on the 
 spot." Shaw, J., in Gill v. Bicknell, 
 2 Cush. (Mass.) 355, 358. 
 
 " The law, therefore, when it al- 
 lows him (the auctioneer) to act in the 
 nearly unprecedented relation of 
 agent for both parties, imposes a 
 qualification not applied in the usual 
 cases of agency, and requires that the 
 single act for which almost from 
 necessity, he is authorized to perform 
 for the buyer, shall be done at the 
 time of sale, and before the termina- 
 tion of the proceedings." Kent, J., 
 in Horton v. McCarty, 53 Me., 394- 
 398. To the same effect, see: Craig 
 V. Godfroy, 1 Cal. 415, 64 Am. Dec. 
 299; where the entry was held too 
 late, though made in the afternoon of 
 the same day; Hicks v. Whitmore, 
 12 Wend. (N. Y.) 648, where one 
 hour's delay was held fatal. 
 
 749
 
 I 894. THE LAW OF AGENCY. [Book V. 
 
 agent ; that the purchaser, by the act of bidding, calls on him or 
 his clerk, to put down his name as the purchaser. The entry 
 being made in his presence, is presumed to be made with his 
 sanction, and to indicate his approral of the terms thus written 
 down. In such case there is but little danger of mistake or fraud. 
 But if a third person, not present, or even the auctioneers, may 
 afterward add the name of another purchaser, they may strike 
 out the name already inserted, and substitute that of a new and 
 different purchaser. They may defeat rights already vested. 
 They may impose liabilities never contracted. The party to be 
 charged may thus be held liable by a writing he never saw, signed 
 by an agent of whom he never heard." * 
 
 2. How Authorized. 
 
 % 894. Like other Agents. Authority may be conferred upon 
 an auctioneer in the same manner as upon any other agent ; that 
 is, it may be conferred by formal writing, or by parol, or its 
 existence may be implied from conduct. Ko formal authoriza- 
 tion is necessary. Even to sell real estate, parol authority in the 
 auctioneer is sufficient, in the absence of a statute to the 
 contrary." 
 
 Power to sell property does not imply authority to sell it at 
 auction, and the purchaser at such a sale, who has notice of the 
 agent's powers or of facts sufficient to put him upon an inquiry 
 which would have disclosed the extent of his power, gets no title 
 to the property.' 
 
 Sending goods to an auction room will, in the absence of any- 
 thing to indicate a contrary intent, be deemed evidence of 
 authority to sell them at auction, so as to protect a purchaser of 
 them who buys in good faith.* 
 
 * Staples, J., in "Walker e. Her- any price that may be offered. It 
 
 ring, 21 Gratt. (Va.) 678, 8 Am. Rep. is ordinarily the last resort to reduce 
 
 616. property into money, and we should 
 
 » Doty «. Wilder, 15 111. 407, 60 be slow to ratify the doings of an 
 
 Am. Dec. 756 ; Yourt «. Hopkins, 24 agent, clothed with the usual powers 
 
 111. 329; Cossitt «. Hobbs, 66 Dl. 233. to sell, who should pursue such a 
 
 3 Towle ». Leavitt, 23 N. H. 360, course." 
 
 55 Am. Dec. 195. < Pickering v. Busk, 15 East. 88; 
 
 " A sale at auction," Bays Eastman, Morgan v. Darragh, 39 Tex. 171. 
 J., in this case, "implies a sale at 
 
 750
 
 Chap. II.] 
 
 AUCTIONEEBB. 
 
 §895. 
 
 3. Auctioneer' 8 Implied Powers, 
 
 § 895. To fix Terms of Sale. The owner of property which 
 he proposes to sell at auction has the primary right to prescribe 
 the manner, conditions and terras of the sale, and where these 
 are reasonable and are made known to the buyer, or where, — the 
 auctioneer being ordinarily a special agent,' — the purchaser la 
 charged with notice of them, they are binding upon him, and he 
 cannot acquire a title in opposition to them against the consent 
 of the owner." 
 
 Where no such terms and conditions are prescribed by the 
 owner, the auctioneer has implied power to prescribe such as are 
 reasonable and usual in like cases ; * but he has no implied power 
 to waive or ignore the terms and conditions fixed by the owner 
 and publicly made known, or to adopt any rules of his own 
 inconsistent with them.* Persons purchasing, however, in good 
 faith relying upon reasonable and usual terms fixed by the auc- 
 tioneer, the owner having prescribed no others, would acquire a 
 good title.' 
 
 1 Bush V. Cole, 28 N. Y, 161, 84 Edmunds, 13 East. 7; Shelton t». 
 
 Am. Dec. 343; The Monte Allegre, 9 
 Wheat. (U. S.) 645. 
 
 2Farr «. John. 23 Iowa, 286, 92 
 Am. Dec. 426. In this case it was 
 held, inter alia, to be competent for 
 the owner to provide that no bid less 
 than a certain sum should be received, 
 aud hence that a purchaser who bid 
 less obtained no title. So it is com- 
 petent for the owner to reserve to 
 himself one bid or to employ another 
 to bid for him, but he must give fair 
 notice of the fact, so that no one may 
 be misled or deceived in the sale. 
 Miller t». Baynard. 2 Houst. (Del.) 
 559, 83 Am. Dec. 168. 
 
 8 Bateman on Auctions, 114. 
 
 * "The printed conditions under 
 which a sale by auction proceeds can- 
 not be varied or contradicted by 
 parol evidence of the verbal state- 
 ments of the auctioneer made at the 
 time of sale, without it be for the 
 purpose of proving fraud. Powell v. 
 
 751 
 
 Livius, 2 Cromp. & J. 411; Slark «. 
 Highgate Archway Co., 5 Taunt, 
 792. But parol evidence that is not 
 repugnant to the printed terms of 
 sale, but is consistent with, and ex- 
 planatory of them, is admissible; 
 Cannon v. Mitchell, 2 Desaus, Eq. 
 321; Wainwrightc. Read. 1 Id 573; 
 Lessee of Wright & Deklyne, 1 Pet. 
 C. C. 204." Wagner, J., in Chou- 
 teau V. Goddin, 39 Mo. 229, 90 Am. 
 Dec. 462. So as between seller and 
 purchaser, evidence is admissible that 
 certain of the conditions were waived. 
 Mitchell V. Zimmerman, 109 Ponn. 
 St. 183, 58 Am. Rep. 715. And see 
 Rankin v. Matthews, 7 Ired. (N. C.) 
 L. 286; Satterfield v. Smith, 11 Id. 
 60, where parol evidence of what the 
 auctioneer said was held to be admis- 
 sible to explain, add to or vary the 
 written terms of sale. 
 
 » Bush V. Cole. 28 N. Y. 261, 84 
 Am. Dec. 343, where it is held that
 
 R 896. THE LAW OF AGENCY. [Book Y. 
 
 § 896. To accept the Bid. The auctioneer has, of course, 
 implied authority to accept the bid most favorable to the seller, 
 where the sale is made without reserve, and to strike the prop- 
 erty down to the purchaser, for this is the very purpose for 
 which he was employed. The nature of an auction sale implies, 
 where no other terms are prescribed, that the property is to be 
 sold to the person making the most favorable offer, and the auc- 
 tioneer cannot therefore, in general, refuse bids.' But he is not 
 required to accept the bid of an irresponsible or insufficient bid- 
 der, or of a bidder who refuses or neglects to comply with the 
 terms of the sale.' So he should refuse bids from persons labor- 
 ing under a legal incapacity, as- infants, lunatics and drunken 
 persons, and persons standing in a fiduciary capacity to the 
 property. 
 
 § 897. To receive the Price. The auctioneer has implied 
 authority, in the absence of a known limitation to the contrary, 
 to receive so much of the purchase price of personal property 
 sold by him as, by the terms of the sale, is to be paid down, 
 although the name of the owner be disclosed.* But this power 
 to receive payment is limited to that which is to be made at the 
 time of the sale. So it is not exclusive, and a payment by the 
 purchaser to the owner would be good. In the case of real 
 estate, the auctioneer has no general authority to receive the 
 purchase price, which is not usually paid until the execution and 
 delivery of the deeds by the owner; but he may receive so much 
 of the purchase price and such deposits as are, by the terms of 
 the sale, to be paid down.* He has however no implied author- 
 ity to receive anything but cash in payment. He cannot barter, 
 trade or receive other property in payment ; nor can he accept 
 depreciated or worthless bills.* Neither may he, without express 
 
 auctioneers selling real estate for less * Thompson v. Kelly, 101 Mass. 
 
 than the price fixed by the principal, 291, 3 Am. Rep. 353; Williams v. 
 
 do not bind him. Millington, 1 H. Bl. 81; Coppin v. 
 
 I Bateman on Auctions, 123. Walker, 7 Taunt. 237. 
 
 » Hobbs V. Beavers, 2 Ired. 143, 53 » Sykes v. Giles, 5 M. &. W. 645 ; 
 
 Am. Dec. 500; Den v. Zellers, 7 N. Thompson v. Kelly, supra; Johnson 
 
 J. L. 153; Michel v. Kaiser, 25 La. v. Buck, 35 N. J. L.338, 10 Am. Rep. 
 
 Ann. 57; Murdock's Case, 3 Bland 243. 
 
 (Md.) Ch. 461, 20 Am. Dec. 381. • This rule stands upon the same 
 
 8 Bateman on Auctions, 123; Kin- footing as that which governs agents 
 
 ney v. Showdy, 1 Hill (N. Y.) 544. generally who are authorized to sell 
 
 752
 
 Chap. II.] AUOTIONEEES. § 899. 
 
 authority, receive checks, notes or bills of exchange in pay- 
 ment.' 
 
 § 898. To sue in his own Name for the Price. In the case of 
 personal property, an auctioneer employed to sell may ordinarily 
 maintain an action in his own name for the price, or for the 
 recovery of the goods if the conditions of the sale be not com- 
 plied with.' This doctrine, says Judge Wells, stands upon the 
 right of the auctioneer to receive, and his responsibility to the 
 principal for the price of the property sold, and his lien thereon 
 for his commissions, which give him a special property in the 
 goods intrusted to him for sale, and an interest in the proceeds. 
 
 In case of real estate he can have no such special property, and 
 would not ordinarily be entitled to receive the price. But when 
 the terms of his employment, and the authorized sale contem- 
 plate the payment of a deposit into his hands at the time of the 
 auction, and before the completion of the sale by the delivery of 
 the deed, he stands, in relation to such deposit, in the same posi- 
 tion as he does to the price of personal property sold and 
 delivered by him. He may receive and receipt for the deposit; 
 his lien for commissions will attach to it, and we see no reason 
 why he may not sue for it in his own name, whenever an action 
 for the deposit, separate from the other purchase-money, may 
 become necessary.* The auctioneer's right to sue is subject to 
 the same set-olf which could be made if the action were brought 
 by the owner.* 
 
 § 899. None— To delegate his Authority. Like other agents 
 in whom a personal trust and confidence are reposed, the auc- 
 tioneer has no authority to delegate to another the sale of the 
 property entrusted to him to sell.® But this rule does not require 
 
 or receive payment for their princi- Young, 16 Johns. (N. Y.) 1 ; Beller v. 
 
 pals_ Block. 19 Ark. 5G6; Minturn v. Main, 
 
 ' Broughton «. Silloway, 114 Masa. 7 N. Y. 220; Flanigan v. CruU, 53 
 
 71, 19 Am. Rep. 312; Williams v. Ev- 111. 352. 
 
 ans, L. R. 1 Q. B. 352; Sykesv. Giles, » Wells, J., in Thompson v. Kelly, 
 
 5 M. & W. 645; Taylor v. Wilson, 11 supra. See also Johnson v. Buck, 35 
 
 Mete. (Mass.) 44. May take check N. J. L. 338, 10 Am. Rep. 243. 
 
 for deposit where that is the custom. * Coppin v. Craig, 7 Taunt. 243; 
 
 Farrer v. Lacy, 25 Ch. Div. 036. Grice v. Kenrick, L. R. 5 Q. B. 340. 
 
 « Thompson v. Kelly, 101 Mass. « Stone v. State, 12 Mo. 400; Com- 
 
 291. 3 Am. Rep. 353 ; Tyler v. Free- mon wealth ©. Harnden, 19 Pick, 
 
 man, 3 Gush. (Mass.) 261; Hulse v. (Mass.) 482; Blore e. Sutton, 3 Mer 
 
 48 753
 
 § 900. THE LAW OF AGENCY. [Book Y. 
 
 him to perform, in person, all of the mechanical or ministerial 
 duties connected with the sale, and he may lawfully employ 
 another person to make the outcry or wield the hammer under 
 his immediate direction and supervision.' 
 
 § 900. Nono— To sell on Credit. Sales at auction are pre- 
 sumed to be for cash in hand at the completion of the sale, and 
 an auctioneer has, therefore, in the absence of a custom to the 
 contrary, no implied power to give to the purchaser a term of 
 credit upon the property purchased by him.' 
 
 § 901. None— To rescind Sale. The auctioneer's duty is to 
 sell only, and upon the completion of the sale his authority ceases. 
 A bidder who desires to withdraw his bid may do so by publicly 
 announcing that fact at any time before it is accepted ; but after 
 it is accepted, he has no right to withdraw it without the consent 
 of the owner, and the auctioneer has no implied authority to per- 
 mit him to do so.' 
 
 § 902. None— To sell atprivate Sale. An auctioneer employed 
 to sell at auction has no implied authority to sell at private sale,* 
 and it makes no difference that he acted in good faith and sold 
 the property for more than the minimum price fixed by the 
 owner.' 
 
 § 903. None— To bid himself. In accordance with the well 
 settled principle that an agent, authorized to sell for his princi- 
 pal, can not, without the principal's consent, sell to himself, it is 
 clear that an auctioneer has no implied authority to bid for and 
 purchase the property he is employed to sell, either for himself 
 or any other person, nor can he authorize any other person to bid 
 and purchase for him, either directly or indirectly. Such a pur- 
 chase is, therefore, not binding upon the seller.* As is well said 
 
 237; Coles®. Trecothick, 9 Ves. Jr. 'Nelson v. Aldridge, 2 Stark. 435; 
 
 234; Wolf r>. Van Metre, 27 Iowa, Boinest ». Leignez, 2 Rich. (S. C.) L. 
 
 848; Singer Mnfg Co. e. Chalmers, 2 464. 
 
 Utah, 542. * Wilkes v. Ellis, 2 H. Bl. 555; 
 
 » c'ommouwealth v. Harnden, Marsh c. Jelf, 3 Fost. & F. 234; Dan- 
 
 8«pra- Poree». Bonneval, 6La. Ann. iel v. Adams, Amb. 495; Beton «. 
 
 886. ' Slade, 7 Ves. Jr. 276. 
 
 2 Williams c.Millington, 1 H. Bl. 81 ; See e converso Towle v. Leavitt, 23 
 
 Williams v. Evans, L. R. 1 Q. B. N. H. 360, 55 Am. Dec. 195. 
 
 352; Sykes v. Giles, 5 M. &. W. 645; • Daniel v. Adams, supra. 
 
 Townes v. Birchett, 12 Leigh (Va.) • Brock v. Rice, 27 Gratt.(Va.)812; 
 
 jijg_ Randall v. Lautenberger, — R. I. — , 
 
 754
 
 Chap. II.] AUCTIONEERS. § 'J05. 
 
 by Staples, J. : " It is impossible with good faith to combine 
 the inconsistent capacities of seller and buyer, crier and bidder, 
 iu one and the same transaction. If the * * * auctioneer 
 faithfully discharges his duties, he will, of course, honestly 
 obtain the best price he can for the property. On the other hand, 
 if he undertakes to become the purchaser for himself, or for 
 another, his interest and his duty alike prompt him to obtain the 
 property upon the most advantageous terms. There is an irre- 
 concilable conflict between the two positions.'" 
 
 § 904. None— To warrant Quality. In the absence of a cus- 
 tom to give such a warranty, an auctioneer has no implied author- 
 ity to warrant the quality of the property sold by him.* Cus- 
 tom may, however, confer such a power, and, in general, the 
 game warranties will be implied as would be implied from a simi- 
 lar sale of the same property by the owner himself, as in the case 
 of a sale by sample. 
 
 4. Auctioneer' 8 Duties and Liabilities to Principal. 
 § 905. Bound for reasonable Skill and Diligence. Like the 
 attorney, an auctioneer holds himself out to the public as one 
 qualified to perform the duties of the calling which he professes ; 
 and the measure of the undertaking in the two cases is substan- 
 tially the same. The auctioneer, therefore, is bound to possess 
 and exercise a reasonable degree of skill and diligence not only 
 in obtaining advantageous bids, but in so conducting as to secure 
 the benefit of them to his employer, and if he fails of this, he is 
 liable to his employer for an injury occasioned thereby.* But, 
 like the attorney, he is not charged with infallibility, nor held lia- 
 ble for a mistake in a case where a reasonable doubt may be enter- 
 tained.* 
 
 13 Atl. Rep. 100, 5 New Eng. Rep. See Dodd v. Parlow, 11 Allen 
 
 779; Hood t». Adams, 128 Mass. 207. (Mass.) 426, 87 Am. Dec. 726. 
 
 One who acts simply as auctioneer • Denew v. Daverell, 3 Camp. 451. 
 
 or crier for an officer at an auction It is the duty of the auctioneer to call 
 
 sale under a writ, the officer being for the name of the bidder and enter 
 
 present, may bid upon the property. the necessary memorandum to com- 
 
 Swires «. Brotherline, 41 Penn. St. plete the sale, and if he fails to do 
 
 135, 80 Am. Dec. 601. this and his employerloses the benefit 
 
 * In Brock v. Rice, supra. of the bid, the auctioneer is liable for 
 
 s Blood V. French, 9 Gray (Mass.) the loss. Townsend v. Van Tassel, 8 
 
 197: The Monte Allegre, 9 Wheat. Daly (N. Y.) 261. 
 
 (U. S.) 647. * An auctioneer was held not liable 
 
 755
 
 § 906. THE LAW OF AGENCY. [Book V. 
 
 § 906. To obey Instructions. It is the duty of the auctioneer 
 to observe the reasonable instructions of the owner as to the time, 
 manner and terms of sale, and if he sells in violation of these 
 instructions, he is responsible to the owner for a loss resulting 
 therefrom.^ Thus it is entirely competent for the owner to fix 
 the price below which the goods shall not be sold, and it is the 
 duty of the auctioneer to observe this limit either by publicly 
 reserving to himself one bid for the owner, or by stating the 
 limitation and starting the bids at the price fixed. For a violation 
 of this duty, the auctioneer is liable to the owner for a loss sus- 
 tained.* 
 
 § 907. To account for Proceeds. It is the duty of the auc- 
 tioneer, like other agents, to account to his employer for the pro- 
 ceeds of the goods sold by him.« He has a lien upon, and may 
 deduct from, the proceeds his commissions for making the sales, 
 and his reasonable and proper costs and charges, as the expenses 
 of advertising, storing, insuring and caring for the goods, where 
 these expenses are not covered by his commission.* 
 
 § 908. To take Care of Goods. An auctioneer is not an insurer 
 of the safety of the goods entrusted to him for sale, but he 
 is under obligation to keep them with ordinary and reasonable 
 care.* In this respect he stands upon the same footing as any 
 other bailee for hire. 
 
 § 909. To sell for Cash only. As has been seen, an auction- 
 eer has no implied authority to give credit or to receive anything 
 but cash in payment for the property sold, and this limitation 
 upon his authority correlatively defines his duty to his employer.* 
 
 for a loss occasioned by his failure to » Tripp e. Barton, 13 R.I. 130, 
 
 comply with the requirements of the Harington v. Hoggart, 1 B. & Ad. 
 
 statute which had but recently beea 577. 
 
 passed and was of doubtful construe- * Harlow v. Sparr, 15 Mo. 184; Rus 
 
 tion and had not received judicial in- sell v. Miner, 35 Hun (N. Y.) 114; 
 
 terpretation. Hicks v. Iilinturn, 19 Carpenter v. Le Count, 23 Id. 106. 
 
 Wend. (N. Y.) 550. " Davis v. Garrett, 6 Bing. 716; 
 
 « Guerreiro v. Peile, 3 B. & Aid. Maltby v. Christie, 1 Esp. 340. If he 
 
 616; Bexwell v. Christie, Cowp. 395; agrees to insure he must do so. la 
 
 Rus'sel V. Palmer, 2 Wils. 325; Wil- good companies, or give his principal 
 
 kinson v. Campbell, 1 Bay. (8. C.) 169. reasonable notice of his failure, that 
 
 « Steele v. Ellmaker, 11 Serg. & R. he may insure it himself. Callander 
 
 (Penn.)86; Wolfe B. Luyster, 1 Hall t>. Oelrichs, 5 Bing. N. C. 58; 
 
 (N. Y.) 146; Williams v. Poor, 3 Shoenfeld v. Fleisher, 73 111. 404. 
 
 Cranch (U. S. C. C.) 251. • See a7ite, %% 892 and 895. 
 
 756
 
 Chap. II.] AuonoNKEBS. § 913. 
 
 If, notwithstanding this duty, the auctioneer gives credit, or 
 receives in payment that which is not cash in hand, and the em- 
 ployer thereby suffers loss, the auctioneer is responsible.* 
 
 § 910. To sell to third Parties only. It is likewise the duty 
 of the auctioneer to sell to third persons only, and not to buy for 
 himself directly or indirectly.* Such a purchase, as has been seen, 
 is not binding upon the owner, and he may recover from the 
 auctioneer the property so misappropriated, or may hold him lia- 
 ble in trover or other proper action.' 
 
 § 911. To sell in Person. As has been also seen, the auction- 
 eer has no implied authority to delegate his powers, but should 
 perform them in person, except so far as they involve purely 
 ministerial or mechanical duties.* For injuries resulting from 
 such an unlawful delegation, the auctioneer is legally responsible. 
 
 § 912. To disclose his Principal. An auctioneer, like other 
 agents, should disclose his principal and contract in his name.* 
 So if, while a sale is going on of property as the property of one 
 person, the property of another is also put up for sale, this fact 
 should be announced by the auctioneer, as without it a sale of the 
 property of the latter person would not be binding upon one who 
 bought it supposing it to be the property of the former.* 
 
 5. Auctioneer's Duties and Liabilities to Third Persons. 
 
 § 913. Liable where he conceals Principal. An auctioneer 
 who, at the time of the sale, discloses the name of his principal, 
 and sells as his agent, incurs, while keeping within the limits of 
 his authority, no personal liability to the purchaser upon the con- 
 tract of sale : ^ but, on the other hand, the rule is well settled that 
 an auctioneer who sells without disclosing his principal's name is 
 personally liable upon the contract, and the purchaser may hold 
 him personally responsible for its completion.* 
 
 > Williams e. Millington, 1 H. Bl. Stark, 434; Coppin v. Craig, 7 Taunt. 
 
 82. 243. 
 
 2 See ante, § 898. '' Hansou «. Roberdeau, Peake's, N. 
 
 » See ante, § 461. P. 120. 
 
 < See ante, § 899. * Hanson «. Roberdeau, supra; 
 
 « See following section. Jones v. Littledale, 6 Ad. «& El. 486; 
 
 • Thomas v. Kerr. 3 Bush (Ky.) Franklyn v. Lamond, 4 C. B. 637; 
 
 619, 96 Am. Dec. 262; Bexwell v. Mills «. Hunt, 20 Wend. (N. Y.) 431; 
 
 Christie, 1 Cowp. 395; Hill v. Gray, 1 Thomas v. Kerr, 3 Bush (Ky.) 619, 96 
 
 757
 
 § 914. THE LAW OF AGENCY. [Book V. 
 
 Thus where auctioneers struck off property of an undisclosed 
 principal for a less sum than they were authorized to sell it for, 
 thereby failing to bind the principal, it was held that the pur- 
 chaser could recover of the auctioneers the deposit he had made, 
 and the auctioneers' fees, with interest ; and that if they knew 
 they were not authorized so to sell, the purchaser could recover 
 also what the premises were worth over and above the price bid 
 therefor. ' So where an auctioneer acting for an undisclosed 
 principal, advertised a sale to be " without reserve," but on the 
 sale permitted the owner of the property to bid over the highest 
 bid offered by other bidders, and struck the property off to him, 
 it was held that the next highest bidder could maintain an action 
 against the auctioneer, for a breach of his contract to sell " without 
 reserve." * 
 
 So where an auctioneer sells property without disclosing the 
 principal's name and the purchaser is afterwards divested by a 
 superior title, he may recover the purchase money of the auc- 
 tioneer.' 
 
 § 914. liable where he exceeds his Authority. An auction- 
 eer, like any other agent, may make himself personally liable to 
 third persons for injuries which they sustain by reason of his fail- 
 ure to possess the authority which he assumed to exercise. The 
 general rules which govern this question have been previously 
 considered and it is unnecessary to repeat them here.* 
 
 In pursuance of those rules, an auctioneer would be held to an 
 implied warranty of his authority to sell as he does. If he sells 
 the goods as the goods of a named principal, a warranty would 
 be implied that the goods were tiiose of the principal named and 
 that the auctioneer was authorized by him to sell them. A fort- 
 iori is he liable where he makes an express warranty of his prin- 
 cipal's title.' 
 
 That he is charged with the liability of a principal where he 
 
 Am. Dec. 262; Schell v. Stephens, 50 • Seemuller «. Fuchs, mpra. 
 
 Mo. 375; Seemuller «. Fuchs. 64 Md. * See ante, 542, et seq. See also 
 
 217, 54 Am. Rep. 766; Bush v. Cole, Warlow c. Harrison, 1 El. «fe El. 309, 
 
 28 N. Y. 261, 84 Am. Dec. 343. cited in note 3 to § 917, fiost. 
 
 1 Bush V. Cole, mpra. « Dent e. McGrath. 3 Bush (Ky.) 
 
 » Warlow c. Harrison, 1 Ellis & 174. 
 Ellis, 295, on appeal, Id. 309. 
 
 758
 
 Chap. II.] AUCTIONEEKS. § 916. 
 
 sells without disclosing the real principal, has been seen in the 
 preceding section. 
 
 § 915. Liability for selling Property of Stranger. An auc- 
 tioneer who receives and sells stolen property is liable to the true 
 owner, as for a conversion, although he acted in good faith, and 
 received the property in the usual course of trade.' 
 
 So an auctioneer would undoubtedly be liable as for a conver- 
 sion who, having received property for sale from one not having 
 authority to cause it to be sold, proceeded to sell it or to pay over 
 tlie proceeds after notice of the rights of the true owner, and 
 without his authority ; * and it has been held that an auctioneer 
 who in good faith received and sold property for one whom he 
 supposed to have the right to direct the sale, but who in fact 
 had no such right, was guilty of a conversion.* But it has also been 
 held that an auctioneer who, in good faith, has advanced money 
 upon goods received from one who had fraudulently purchased 
 them, would be protected as against the owner,* and his cred- 
 itors.' 
 
 § 916, Not liable for not holding Auction as advertised. 
 An auctioneer who has advertised that he will sell property at 
 auction at a certain time and place, is not liable, in the absence of 
 fraud, to those who may incur expense or put themselves to 
 trouble to attend, for not offering to sell the property at auction 
 in accordance with the advertisement, altliough no notice had 
 been given that the property would be withdrawn." No such 
 notice is required. 
 
 ' Rogers v. Huie, 1 Cal. 429, 54 Am. 84; Montieth «. Printing Co., 16 Mo. 
 
 Dec. 300. (But see B. c. 2 Cal. 571) App. 460. 
 
 Hoffman v. Carow. 20 Wend. (N. Y.) • Harris v. Nickerson, L. R. 8 Q. B. 
 
 21, 8. c. 22 Id. 285. See also Koch v. 286, 5 Eng. Rep. (Moak) 238. " Tlie 
 
 Branch, 44 Mo. 542; Morris®. Hall, plaintiff says," remarked Blackbukn 
 
 41 Ala. 511. J. "inasmuch as I confided in the 
 
 •Milliken v. Hathaway (Mass.) 19 defendant's advertisement, and came 
 
 N. E. Rep. 16. down to the auction to buy the furni- 
 
 •Farehrother «. Ansley. 1 Camp. ture (which it is found as a fact he 
 
 343; Adamson v. Jarvls, 4 Bing. 66. was commissioned to buy) and bave 
 
 But see Roach e. Turk, 9 Heisk. had no opportunity of buying, I am 
 
 (Tenn.) 708, 24 Am. Rep. 360. entitled to recover damages of the 
 
 * Higgins V. Lodge, 68 Md. 229, 6 defendant on the ground that the 
 
 Am. St. Rep. 437. advertisement amounted to a con- 
 
 s Lewis V. Mason, 94 Mo. 551; tract by the defendant with anybody 
 Baugh V. Kirkpatrick, 54 Penn. St. 
 
 759
 
 §917. 
 
 THE LAW OF AGENCY. 
 
 [Book V.\ 
 
 6. Auctioneer' 8 Rights against his Principal. 
 
 § 917. Compensation— Reimbursement— Indemnity. An auc- 
 tioneer has an undoubted right to recover compensation for his 
 services, according to the rate fixed by statute, or the contract of 
 the parties, or by custom, and, where none of these modes apply, 
 by a quantum meruit.^ He is also entitled to be reimbursed for 
 his reasonable and proper costs and charges, incurred in the 
 execution of the agency.* He is also entitled to be indemnified 
 by the principal against losses sustained or liabilities incurred, in 
 the course of the performance of his undertaking, while he was 
 acting in good faith and without negligence.' These results 
 grow out of well settled principles applicable to other agents, 
 which have been previously considered. 
 
 who should act upon it, that all the 
 things advertised would be actually 
 put up for sale, and that he would 
 have an opportunity of bidding for 
 them and buying. This is certainly 
 a startling proposition, and would be 
 excessively inconvenient if carried 
 out. It amounts to saying that any 
 one who advertises a sale by publish- 
 ing an advertisement becomes respon- 
 sible to everybody who attends the 
 sale for his cab hire or travelling ex- 
 penses. As to the cases cited in the 
 case of Warlow v. Harrison, 1 El. & 
 El. 295, the opinion of the majority 
 of the judges in the Exchequer 
 Chamber appears to have been that 
 an action would lie for not knocking 
 down the lot to the highest bo7M fide 
 bidder when the sale was advertised 
 as without reserve; in such a case it 
 may be that there is a contract to sell 
 to the highest bidder, and that if the 
 owner bids, there is a breach of the 
 contract. * * * In the present 
 case, unless every declaration of in- 
 tention to do a thing creates a binding 
 contract with those who act upon it, 
 and in all cases after advertising a 
 sale, the auctioneer must give notice 
 of any articles that are withdrawn, 
 
 or be liable to an action, we cannot 
 hold the defendant liable." 
 
 ' Harlow v. Sparr, 15 Mo. 184. 
 
 « Russell t). Miner. 25 Hun (N. T.) 
 114; Carpenter v. Le Count, 22 Id. 
 106. 
 
 8 Warlow V. Harrison, 1 El. & El. 
 809. In this case an auctioneer had 
 advertised to sell "without reserve," 
 but before the property was struck 
 down, the owner interposed a bid and 
 it was struck oflE to him. The auc- 
 tioneer was held liable to the highest 
 bona fide bidder as for a breach of his 
 contract to sell " without reserve," 
 but it was also held that he was enti- 
 tled to indemnity from his principal. 
 Said Marten, B. at p. 317: "We 
 entertain no doubt that the owner 
 may at any time before the contract 
 is legally complete, interfere and 
 revoke the auctioneer's authority; but 
 he does so at his peril ; and, if the 
 auctioneer has contracted any liabil- 
 ity in consequence of his employ- 
 ment and the subsequent revocation 
 or conduct of the owner, he is enti 
 tied to be indemnified." 
 
 So if an auctioneer in good faith had 
 sold property of a third person, sup- 
 posing it to be his principal's who had 
 
 760
 
 Chap. II.] AU0TIONEEE8. § 922. 
 
 § 918. Becoupment of Damages. But the principal may, as 
 in other cases, recoup, against the auctioneer's claim for compen- 
 sation, such damages as he may have sustained by reason of the 
 auctioneer's failure in the performance of his duty.* 
 
 § 919. Auctioneer's Lien. An auctioneer has a special prop- 
 erty in, and a lien upon, the goods of his principal in his posses- 
 sion, and upon the proceeds thereof when sold, for his commis- 
 sions and charges.* He may retain his commissions and charges 
 from the proceeds of the sale,' or he may maintain an action for 
 them against the principal.* 
 
 § 920. Can not dispute Principal's Title. An auctioneer, when 
 sued for the price of goods entrusted to him to be sold, can not 
 set up a title to the goods in himself where he made no such 
 claim until called upon for the proceeds.' 
 
 7. Auctioneer's Rights against Third Persons. 
 
 § 921. Bight to sue Bidder. The auctioneer's right to sue 
 for the purchase price, and to recover the possession of the goods 
 when the conditions of sale have not been complied with, has 
 been already considered under the head of the implied authority 
 of the auctioneer.* 
 
 § 922. Bight to sue Wrong doer. The auctioneer has such a 
 special property in the goods in his possession, as will entitle him 
 to maintain an action for the recovery of the goods or their value 
 against a wrong doer, who injures or converts them.' As against 
 
 directed the sale, and was made to the benefit of creditors have entrusted 
 
 respond in damage, he would be en- property for sale, has no lien upon 
 
 titled to indemnity from the princi- the proceeds against the assignor's 
 
 pal. Farebrother v. Ansley, 1 Camp. general creditors, the assignment 
 
 343; Adamson ». Jarvis, 4 Bing. 66. being declared to be void. Hone v. 
 
 See also Allaire ?7. Ouland, 2 Johns.(N. Henriquez, 13 Wend. (N. Y.) 240, 27 
 
 T.) Cas. 52; Turner v. Jones, 1 Lans. Am. Dec. 204. 
 
 (N. Y.) 147; Howe v. Buffalo, &c. R. a Harlow v. Sparr, 15 Mo. 184; Suc- 
 
 R. Co., 38 Barb. (N. Y.) 124; Castle v. cession of Dowler, 29 La. Ann. 437. 
 
 Noyes, 14 N. Y. 333; Dugdale ©. < Robinson ®. Green, 3 Mete. (Mass.) 
 
 Lovering, L. R. 10 C. P. 196, 12 Eng. 159. 
 
 Rep. 816. 5 Osgood v. Nichols, 5 Gray (Mass.) 
 
 ' See ante, § 647. 420; Hutchinson v. Gordon, 2 Har. 
 
 s Robinson v. Rutter, 4 El. & B. (Del.) 179. 
 
 954; Webb v. Smith, 30 Ch. Div. 192. « See ante, § 898. 
 
 An auctioneer, to whom assignees for t Robinson v. Webb, 11 Bush (Ky.) 
 
 761
 
 § 923. THE LAW OF AGENOT. [Book V. 
 
 a mere stranger, he could recover the full value of the goods, Lut 
 as ao-ainst the owner or one claiming under him, he could recover 
 only to the extent of his special interest.* 
 
 8. Principal's Rights against Thi/rd Persons. 
 
 8 923. To recover purchase Price. The sale is made of the 
 principal's property and for his benefit, and he has therefore the 
 prior right to recover the price agreed upon.* Even though his 
 name was not disclosed, he has the right, like other undisclosed 
 principals, to interpose before payment to the auctioneer, and 
 appropriate the proceeds to himself, subject to any off-set which 
 the purchaser has in good faith acquired against the auctioneer, 
 before the disclosure of his principal.* 
 
 But if, where goods are being sold as the goods of A, the goods 
 of B are also put up for sale without notice of that fact to the 
 auctioneer or the bidders, a person who buys the goods of B, 
 supposing them to be goods of A, may on being apprised of 
 that fact repudiate the sale and B can not thereafter recover the 
 price bid.* 
 
 8 924. Where Bidder refuses to complete Purchase. When 
 the bidder to whom goods have been struck off, refuses to com- 
 plete his purchase, the remedy of the seller is, usually, by a resale 
 of the goods, and an action against the defaulting bidder for the 
 deficiency and the costs of the resale.' But in such a case the 
 resale must have been fairly conducted, upon proper notice, before 
 
 464 ; Pitzhugh t». Wiman, 9 N. T. » The fact that one sells at auction 
 
 559; Beyer v. Bush, 50 Ala. 19; Lewis is not notice that he is not selling his 
 
 t). Mason, — Mo. — , 14 West. Rep. own goods. Schell v. Stephens, 50 
 
 719, Mo. 379. See ante. § 773. 
 
 « See ante, § 765. Where a sheriff ♦ Thomas «. Kerr, 3 Bush (Ky.) 
 
 in an attachment against the consignor 619, 96 Am. Dec. 262. 
 
 bad taken goods from the possession » Boinest v. Leignez, 2 Rich. (S. C.) 
 
 of the auctioneer, who thereupon re. L. 464; Robinson v. Garth, 6 Ala. 
 
 plevied and sold them, it was held 204, 41 Am. Dec. 47; Lam kin v. 
 
 that the amount of the auctioneer's Crawford, 8 Ala. 158; Johns «. Trick, 
 
 recovery should be measured by the 22 Cal. 511; Humphrey v. McGill, 69 
 
 sum total of his advancements, com- Ga. 649; Cooper «. Borrall, 10 Penn. 
 
 missions and charges, and that the St. 491 ; Forster v. Hayman, 26 Penn. 
 
 surplus should be returned to the St. 266; Kelly v. Creen, 63 Penn. 
 
 sheriff. Lewis e. Mason, ««pra. St. 299; Wilson v. Loring, 7 Mass. 
 
 2 See anU, §§ 897-898. See also 392; PettiUo. Ex parte, 80 N. C. 50. 
 §772. 
 
 762
 
 Chap. II.] AU0TI0NEEE8. § 925. 
 
 the bidders have departed, and upon conditions and terms the 
 same as, or no more onerous than, those of the first sale.' 
 
 9. Rights of Third Persona against Principal. 
 
 § 925. Principal's Liability for Auctioneer's Acts. The lia- 
 bility of the seller for the acts and representations of the auc- 
 tioneer rests upon the ordinary principles of agency. The 
 auctioneer is usually a special agent, whose general powers are 
 clearly defined.* The seller may, if he sees fit, confer greater 
 powers upon him, but where he does not do so, the auctioneer's 
 authority is limited to the sale of the property for cash^ and, 
 where the sale is without reserve, to the highest hidder, and to 
 the consummation of the sale by the proper entries and the 
 receipt of the purchase price.' 
 
 Secret limitations upon these general powers can not aSect a 
 purchaser who acts in good faith and in ignorance of them, rely- 
 ing upon the appearance of the auctioneer's authority ; neither 
 can the unwarranted assumption by the auctioneer of greater 
 powers afiEect the principal who has given them no color of 
 authority. 
 
 § 926. liable for Breach of Contract. A purchaser who has 
 complied with the terms of sale on his part, may recover of the 
 seller who refuses to complete the contract, such damages as he 
 has sustained by the refusal, together with the deposits paid, and 
 interest thereon after a demand and refusal.* 
 
 > Riggs f>. Pursell, 74 N. Y. 870; • The auctioneer cannot bind his 
 
 Barnard v. Duncan, 38 Mo. 170, 90 principal by selling for less than the 
 
 Am. Dec. 416; Adams v. McMillan, price limited by the latter, but he will 
 
 7 Port. (Ala.) 73; Judge v. Booge, 47 be liable to the purchaser for breach 
 
 Mo. 544; Jones v. Null, 9 Neb. 254; of his implied warranty of authority. 
 
 Hill V. Hill, 58 111. 239. Bush v. Cole. mpra. 
 
 8 Bush V. Cole, 28 N. T. 261, 84 * Cockcroft «. Muller, 71 N. T. 
 
 Am. Dec. 343; The Monte AUegre, 9 867. 
 Wheat. (U. S.) 645. 
 
 763
 
 THE LAW OF AGENCY. 
 
 [liook V. 
 
 OHAPTEE III. 
 
 OF BROKERS. 
 
 L Definitions and Divisions. 
 
 § 927, Brokers. In general. 
 
 928. Different Kinds of Brokers. 
 
 929. Bill and Note Brokers. 
 
 930. Exchange Brokers. 
 
 931. Insurance Brokers, 
 
 932. Merchandise Brokers. 
 
 933. Pawnbrokers. 
 
 934. Real Estate Brokers. 
 
 935. Ship Brokers. 
 
 936. Stock Brokers. 
 
 II. Appointment AND Termination. 
 
 937. Appointed like other Agents. 
 
 938. How Authority terminated. 
 
 III. Implied Powers of Brokers. 
 
 939. In general. 
 
 940. How affected by Usage. 
 
 941. Usual and necessary Powers. 
 
 942. Effect of his Instructions. 
 
 943. Acting for both Parties. 
 
 944. Cannot delegate his Powers. 
 
 945. Usually must act in the Name 
 
 of his Principal. 
 
 946. Implied Power to fix Price. 
 
 947. May sell with Warranty — 
 
 When. 
 
 948. When may sell on Credit. 
 
 949. No Authority to receive Pay- 
 
 ment. 
 
 950. No Authority to rescind or 
 
 arbitrate. 
 
 IV. DuTiEB AND Liabilities to 
 
 Principal. 
 
 951. Reasonable Skill and Diligence 
 
 required. 
 
 952. Fidelity to his Principal. 
 
 953. Same Subject — Acting for 
 
 both Parties. 
 
 954. Duty to obey Instructions. 
 
 § 955. Duty to keep and render Ac 
 counts and pay Proceeds. 
 
 V. Duties and Liabilities to 
 
 Third Persons. 
 
 . 956. Not liable when Principal dis- 
 closed. 
 
 957. Liable when Principal con- 
 
 cealed. 
 
 958. Liable when he expressly 
 
 charges himself. 
 
 959. Liable when he acts without 
 
 Authority. 
 
 960. Liability for Money received. 
 
 961. When guilty of Conversion. 
 
 VI. Rights op Broker againsi 
 
 PRINCrPAL. 
 
 1. Right to Compensation. 
 
 962. Entitled to Compensation. 
 
 963. How amount determined. 
 
 964. Broker must show Employ- 
 
 ment. 
 
 965. Broker must have performed 
 
 Undertaking. 
 
 966. Same Subject — Real Estate 
 
 Brokers. 
 
 967. Same Subject — Not defeated 
 
 — how. 
 
 968. Same Subject — Revocation 
 
 of Authority. 
 
 969. Employment of two or more 
 
 Brokers. 
 
 970. Broker to effect Loan. 
 
 971. Broker to effect Exchange. 
 
 972. Cannot have Commissions 
 
 from both Parties. 
 
 973. How in case of mere Middle- 
 
 man. 
 
 974. No Compensation when Un- 
 
 dertaking illegal. 
 
 764
 
 Chap. III.] 
 
 BROKERS. 
 
 928. 
 
 975. How affected by Misconduct. 
 
 976. How when not licensed. 
 
 t. Right to Reimbursement. 
 
 977. Entitled to Reimbursement. 
 
 978. How, when Undertaking not 
 
 performed. 
 
 S. Right to a Lien. 
 
 979. No general Lien. 
 
 980. Liens in Special Cases — In- 
 
 surance Brokers. 
 
 981. No Lien except for Debt due 
 
 irom Principal. 
 
 VII. Rights op Broker against 
 
 Third Persons. 
 
 982. In general, no Right of Action 
 
 on Contracts. 
 
 983. When he may sue. 
 
 VIII. Rights op Principal against 
 
 Third Persons. 
 
 984. Same as in the other cases of 
 
 Agency. 
 
 IX. Rights op Third Person 
 
 AGAINST Principal. 
 
 985. Same as in other cases of 
 
 Agency. 
 
 986. No Set-off of Broker's Debts. 
 
 DEFINITIONS AND DIVISIONS. 
 
 § 927. Brokers— In general. A broker has been defined, in 
 the opening chapter of the work, to be one whose occupation it 
 is to bring parties together to bargain, or to bargain for them, in 
 matters of trade, commerce or navigation. As has been there 
 stated, he differs from an auctioneer in that he has no special propv- 
 erty in the goods which he may be authorized to sell ; that he 
 must sell them in the name of the principal, and that his sales 
 are private and not at auction. He ordinarily receives a com- 
 pensation or commission, usually called brokerage, but he may 
 also serve gratuitously. He differs from a factor, also, in that he 
 does not ordinarily have the possession of the property which he 
 may be employed to sell, and that his contracts are always made 
 in the name of his employer. As will be seen, he is primarily 
 the agent of the first person who employs him, and he can not 
 without the full and free consent of both, be, throughout the 
 transaction, the agent of both parties. Without such consent, he 
 can only act as the agent of the other party when the terms of 
 the contract are fully agreed upon between the principals, and he 
 is instructed to close it up.* 
 
 § 928. Different Kinds of Brokers. Brokers are of many 
 kinds, according to the particular class of transaction in which 
 they engage. Thus there are money-brokers, stock-brokers, ship- 
 
 * See ante § 18, where other definitions and distinctions are referred to. 
 
 766
 
 g 929^ THE LAW OF AGENCY. [Book Y. 
 
 brokers, bill-brokers, insurance-brokers, real estate-brokers, pawn- 
 brokers, and general merchandise brokers,* 
 
 S 929. Bill and Note-Brokers. " Bill and note brokers nego- 
 tiate the purchase and sale of bills of exchange and promissorj 
 notes." • 
 
 Such a broker, like others, who discloses his principal and con- 
 tracts in his name incurs no personal liability, while acting with- 
 in the limits of his authority.' Where such a broker, however, 
 does not disclose his principal, he is himself liable as principal to 
 those with whom he deals, and where, under such circumstances, he 
 sells negotiable paper, he will be held to an implied warranty not 
 only of his authority to sell it, but' also that the signatures of all 
 the prior parties to it are genuine,* although if he does not indorse 
 it or otherwise assume responsibility for its payment, he does not 
 warrant their solvency.* 
 
 § 930. Exchange-Brokers. " Exchange brokers negotiate bills 
 of exchange drawn on foreign countries, or on other places in 
 this country." • 
 
 8 931. Insurance-Brokers. " Insurance brokers procure insur- 
 ance and negotiate between insurers and insured." ^ The insur- 
 ance broker is ordinarily employed by the person seeking the 
 insurance, that is by the insured, and when so employed is to be 
 distinguished from the ordinary insurance agent, who is commis- 
 sioned and employed by the insurance company to solicit and 
 write insurance by and in the company. The former is the agent 
 of the insured ; the latter is the agent of the insurers. • 
 
 1 See ante, §13. St. 515; Bell «. Cafiferty, 21 Ind. 
 
 «Bouvier's Law Dictionary, Title 411. 
 
 « Brokers." Contra: Fisher v. Rieman, 12 Md. 
 
 8 Lyons «. Miller, 6 Gratt. (Va.)427; 497. Baxter v. Duren, 29 Me. 434, 50 
 
 62 Am. Dec. 129. Am. Dec. 602, contra is practically 
 
 < Thompson c. McCuUough, 31 Mo. overruled by Hussey v. Sibley, 66 
 
 224, 77 A-m. Dec. 644; Smith v. Mc- Me. 192, 22 Am. Rep. 557; Ellis v. 
 
 Nair, 19 Kans. 330, 27 Am. Rep. 117; Wild, 6 Mass. 321, contra is over- 
 
 Challiss t). McCrum, 23 Kans. 157; ruled by Merriam v. Wolcott, mpra. 
 
 Bankhead®. Owen, 60 Ala. 457; Sny- » Aldrich v. Jackson, 5 R. I. 218. 
 
 der V. Reno, 38 Iowa 329; Swanzey v. • Bouvier's Law Dictionary. Title 
 
 Parker, 50 Penn. St. 441; Merriam «. " Brokers." 
 
 Wolcott, 3 Allen (Mass.) 260, 80 Am. » Bouvier's Law Dictionary. Title 
 
 Dec. 69; Worthington o. Cowles, 112 "Brokers." 
 
 Mass. 30; Terry «. Bissell, 26 Conn. « Hartford Fire Ins. Co. •. Rey- 
 
 23; Dumontr. Williamson, 18 Ohio nolds, 36 Mich. 502. 
 
 766
 
 Chap. III.] 
 
 BBOKBBB. 
 
 §931. 
 
 1. The insurance agent, as thus distinguished from the bro- 
 ker, is ordinarily held to be a general agent of the company.' 
 As such a general agent, it is held that he may waive forfeitures 
 and conditions in the policy, notwithstanding a provision therein 
 that no agent has such power;* that he may waive prepayment 
 of the premium, although the policy provides that it shall not 
 take effect until the premium is paid ; ' that notice to him or 
 knowledge by him is notice to, and knowledge by the company, 
 so as to prevent the latter from insisting upon a forfeiture for a 
 breach of condition, of which breach the company thus had 
 knowledge ; * that if facts regarding the risk are correctly stated 
 to the agent, but erroneously inserted by him in the application, 
 the company, and not the insured, is chargeable with his mis- 
 take ; • that he may consent to prior or subsequent insurance on 
 
 ' Miller v. Phoenix Ins. Co. 27 Iowa 10 Am. Rep. 566 ; Joliffe v. Madison 
 
 203, 1 Am. Rep. 263. 
 
 * Carrugi v. Atlantic Fire Ins. Co., 
 40 Ga. 135, 2 Am. Rep. 567; Com- 
 mercial Ins. Co. V. Spankneble, 52 
 111. 53,4 Am. Rep. 582; May v. Buck- 
 eye Mut. Ins. Co., 25 Wis. 291, 3 
 Am. Rep. 76; Carson v. Jersey City 
 F. Ins. Co. 14 Vroom. (N. J.) 300, 39 
 Am. Rep. 584; Piedmont &c. L. 
 Ins. Co. V. Young, 58 Ala. 476, 29 
 Am. Rep. 770; Whited v. Qer mania 
 F. Ins. Co. 76 N. Y. 415, 32 Am. Rep. 
 830; Little v. Phoenix Ins. Co., 123 
 Mass. 380, 25 Am. Rep. 96; Cans v. 
 St. Paul F. & M. Ins. Co, 43 Wis. 
 108, 28 Am. Rep. 535; Kruger «. 
 Western F. & M. Ins. Co. 72 Cal. 91, 
 1 Am. St. Rep. 43; Combs v. Hanni- 
 bal Ins. Co. 43 Mo. 148, 97 Am. Dec. 
 383; Viele «. Germauia Ins. Co. 26 
 Iowa 9, 96 Am. Dec. 83. 
 
 The authorities upon this question 
 are very numerous and no attempt is 
 made to give them all. 
 
 3 Young V. Hartford F. Ins. Co. 45 
 Iowa 377, 24 Am. Rep. 784; Dayton 
 Ins. Co. V. Kelly, 24 Ohio St. 345, 15 
 Am. Rep. 613; Sims. v. State Ins. Co. 
 47 Mo. 54, 4 Am. Rep. 311; Bodine v. 
 Exchange F. Ins. Co. 51 N. Y. 117, 
 
 Mut. Ins. Co., 39 Wis. Ill, 20 Am. 
 Rep.35;Wooddy ©.Old Dominion Ins. 
 Co., 31 Gratt. (Va.) 362, 31 Am. Rep. 
 733; Lebanon Mut. Ins. Co. v. Hoo- 
 ver, 113 Penn. St. 591, 57 Am. Rep. 
 511; Sheldon v. Atlantic P. & M. 
 Ins. Co. , 26 N. Y. 460, 84 Am. Dec. 
 213. 
 
 But an insurance agent authorized 
 to receive applications and collect 
 and remit premiums but not to issue 
 policies, has no power to extend the 
 time of payment, Critchett v. Ameri- 
 can Ins. Co.. 53 Iowa 404, 36 Am. 
 Rep. 330. 
 
 * May V. Buckeye Mut. Ins. Co. , 25 
 Wis. 291, 3 Am. Rep. 76; ^tna &c. 
 Ins. Co. V. Olmstead, 21 Mich. 246, 4 
 Am. Rep. 483; Amazon Ins. Co. v. 
 Wall, 31 Ohio St. 638, 27 Am. Rep. 
 533; American Central Ins. Co. v. 
 McCrea, 8 Lea (Tenn.) 513, 41 Am. 
 Rep. 6i7; Carrigan v. Lycoming F. 
 Ins. Co. 53 Vt. 418, 38 Am. Rep. 687; 
 Gans «. St. Paul P. & M. Ins Co. 43 
 Wis. 108, 38 Am. Rep. 535; Manhat- 
 tan Fire Ins. Co. v. Weill, 28 Gratt. 
 (Va.) 389, 26 Am. Rep. 364. 
 
 » Insurance Co. v. Williams, 39 
 Ohio St. 584, 48 Am. Rep. 474: 
 
 707
 
 §931. 
 
 THE LAW OF AGENCY. 
 
 [Book V. 
 
 the property ; ' and that a provision in the application or policy 
 making him the agent of the insured, and not of the company, 
 can not change his legal status as agent of the latter.' 
 
 2. An insurance broker, however, employed by the insured to 
 obtain insurance for him, is the agent of the latter.* He is ordi- 
 narily a special agent. His acts, statements and representations 
 made or done within the scope of his authority are binding npon 
 his employer,* but when he has obtained the insurance as 
 directed, his authority ceases, and, except where he is generally 
 employed to attend to keeping up his principal's insurance,' he 
 has no implied authority to return a policy for cancellation or to 
 substitute another in its place,* and subsequent notice to him of 
 the termination of the insurance, is not notice to his principal.' 
 A provision in the policy that such notice may be given to the 
 broker does not change this rule, nor can it be altered by usage 
 among insurance men.* 
 
 Planters' Ins. Co. v. Sorrels, 1 Baxt. 
 (Tenn.)352, 25 Am. Rep. 780; Plant- 
 ers' Ins. Co. V. Myers, 55 Miss. 479, 
 30 A.m. Rep. 521; Lycoming Fire 
 Ins. Co. V. Jackson, 83 111. 303, 
 25 Am. Rep. 386; Commercial Ins. 
 Co. V. Spankneble, 52 111. 53, 4 Am. 
 Rep. 582; Insurance Co. v. Mahone, 
 21 Wall (U. S.) 153; Insurance Co. v. 
 Wilkinson, 13 Id. 322; Miner v. 
 Phoenix Ins. Co., 27 Wis. 693, 9 Am. 
 Rep. 479; Winans v. Allemania F. 
 Ins. Co., 38 Wis. 343; Kausal v. Min- 
 nesota Farmers' Ins. Ass'n, 31 Minn. 
 17, 47 Am. Rep. 776. 
 
 But see Blooming Grove &c. Ins. 
 Co. V. McAnerney, 102 Penn. St. 335, 
 48 Am. Rep. 209. 
 
 1 Carrugi v. Atlantic Fire Ins. Co., 
 40 Ga. 135, 2 Am. Rep. 567; Kitchen 
 i; Hartford F. Ins. Co., 57 Mich. 185, 
 .^)8 Am. Rep. 344. 
 
 * Planters' Ins. Co.c.Myers,55 Miss. 
 479, 30 Am. Rep. 521 ; Kausal v. Min- 
 nesota Farmers' Ins. Ass'n, 31 Minn. 
 17, 47 Am. Rep. 776; Grace v. Ameri- 
 can Cent. Ins. Co., 109 U. S. 278; 
 Commercial Ins. Co. e. Ives, 56 111. 
 
 402; Columbia Ins. Co. t>. Cooper, 50 
 Penn. St. 331. 
 
 But see Rohrbach e. Germania 
 Fire Ins. Co., 62 N. Y. 47. 20 Am. 
 Rep. 451. 
 
 ' Hartford F. Ins. Co. v. Reynolds, 
 36 Mich. 502. 
 
 * Standard Oil Co. v. Triumph Ins. 
 Co. 64 N. Y. 85. 
 
 5 Standard Oil Co. v. Triumph Ins. 
 Co. supra. 
 
 * Bennett v. City Ins. Co., 115 
 Mass. 241; Van Valkenburgh ». Len- 
 ox F. Ins. Co., 51 N. Y. 465. 
 
 T Grace v. American Central Ins. 
 Co. 109 U. S. 278; Hermann v. Niag- 
 ara F. Ins. Co. 100 N. Y. 411, 53 
 Am. Rep. 197. White v. Connecticut 
 F. Ins. Co., 120 Mass. 330. 
 
 * Grace «. American Central Ins. 
 Co. , supra; Hermann v. Niagara Fire 
 Ins. Co. supra; White v. Connecticut 
 F. Ins. Co., supra; Adams®. Manufac- 
 turers' & Builders' Ins. Co., 17 Fed. 
 Rep. 630; Sullivan v. Phoenix Ins. 
 Co., 34 Kans. 70; Planters' Ins. Co. v. 
 Myers, 55 Miss. 479, 30 Am. Rep. 
 521; Eilenberger v. Protective Mut. 
 
 (68
 
 Chap. III.] BROKERS. § 932. 
 
 3. His duties to his employer kyq similar to those of any other 
 broker. He is bound to exercise reasonable care and diligence in 
 selecting none but reliable companies, and in securing proper and 
 suflScient policies to cover the risks against which he was employed 
 to insure ; * but he will not be liable if, in the exercise of such 
 diligence, he selects a company then in good standing though it 
 subsequently becomes insolvent.* 
 
 4. His right to sue upon the policy has been already touched 
 upon in another place.' As there seen, where the policy is in 
 his name or the loss is made payable to him, he may maintain the 
 action in his own name.* His right in this case, however, as in 
 others, is subordinate to the principal's right to bring the action 
 himself ' subject to equities where he was not disclosed,' but 
 not where the principal's name is disclosed, as by being stated in 
 in the policy.'' 
 
 5. His right to a lien is considered hereafter.' 
 
 § 932. Merchandise Brokers. "Merchandise brokers negotiate 
 the sale of merchandise without having possession or control of 
 it, as factors have." * Merchandise brokers are a numerous class, 
 dealing with reference to all the varieties of commercial com- 
 modities. They are governed by the general rules of agency, as 
 will be seen in the following sections, but there has also grown 
 
 F. Ins, Co., 89 Penn. St. 464; Gans??. (Md.) 417, 16 Am. Dec. 317; Lazarua 
 
 St. Paul P. & M. Ins. Co., 43 Wis. v. Commonwealth Ins. Co., 5 Pick. 
 
 108, 28 Am. Rep. 535; Von Wien v. (Mass.) 76; Sargent v. Morris, 3 Barn. 
 
 Scottish Ins. Co. 53 N. Y. Super. & Aid. 281; Aldrich v. Equitable 
 
 Ct. 490, 33 Alb. L. Jour. 488. Safety Ins. Co., 1 Woodb. & M. 
 
 "Geltins «. Scudder, 71 111. 86; (U. S. C. C.) 276; Williams©. Ocean 
 
 Park V. Hammond, 6 Taunt. 495; Ins. Co., 3 Mete. (Mass.) 305; Somes 
 
 Mayhew v. Forrester, 5 Id. 615; See v. Equitable Safety Ins. Co., 12 Gray 
 
 ante, § 510. (Mass.) 532; Browning v. Provincial 
 
 s Gettins v. Scudder, t/apra. See Ins. Co. L. R. 5 P. C. 263, 8 Eng. 
 
 ante, § 510. Rep. 217. 
 
 3 See ante, § 756. • Browning e. Provincial Ins. Co., 
 
 * Jefferson Ins. Co. •. Cotheal, 7 L. R. 5 P. C. 263, 8 Eng. Rep. 217. 
 Wend. (N. Y.) 73; 23 Am. Dec. 567; 'Braden v. Louisiana State Ins. 
 
 Farrow v. Com nion wealth Ins. Co., Co., 1 La. 220, 20 Am. Dec. 277. See 
 
 18 Pick. (Mass.) 5;J. 29 Am. Dec. 564; also Sweeting v. Pearce, 7 C B. N. 
 
 Provincial Ins. Co. v. Leduc, L. R. S. 449; Scott v. Irving, 1 B. & Ad. 
 
 6 P. C. 224, 11 Eng. Rep. 84. 605. 
 
 » Farrow v. Commonwealth Ins. * See post, § 980. 
 
 Co. 18 Pick. (Mass.) 53, 29 Am. Dec. • Bouvier's Law Dictionary. Title 
 
 564; Newson ». Douglass, 7 H. & J. " Brokers." 
 
 49 769
 
 § 932. THE LAW OF AGENCY. [Book Y. 
 
 up aronnd their transactions a body of usages which enter into 
 their negotiations and which have been recognized and enforced 
 by the courts. 
 
 When such a broker has succeeded in making a contract, says 
 Mr. Benjamin in his work on Sales,' " he reduces it to writing, 
 and delivers to each party a copy of the terms as reduced to 
 writing by him. He also ought to enter them in his book, and 
 sign the entry. What he delivers to the seller is called the sold 
 note ; to the buyer, the bought note. No particular form is 
 required, and from the cases it seems that there are four varieties 
 used in practice. The^«^ is where on the face of the notes the 
 broker professes to act for both the parties whose names are dis- 
 closed in the note. The sold note, then, in substance, says, 
 ' Sold for A B to C D,' and sets out the terms of the bargain ; 
 the bought note begins, ' Bought for C D of A B ' or equivalent 
 language, and sets out the same terms as the sold note, and both 
 are signed by the broker. The second form is where the broker 
 does not disclose in the bought note the name of the vendor, nor 
 in the sold note the name of the purchaser, but still shows that 
 he is acting as broker, not principal. The form then is simply, 
 ' Bought for C D ' and ' Sold for A B.' The third form is where 
 the broker, on the face of the note, appears to be the principal, 
 though he is really only an agent. Instead of giving to the 
 buyer a note, ' Bought for you by me,' he gives it in this form : 
 ' Sold to you by me.' By so doing he assumes the obligation of 
 a principal, and cannot escape responsibility by parol proof that 
 he was only acting as broker for another, although the party to 
 whom he gives such a note is at liberty to show that there was 
 an unnamed principal, and to make this principal responsible. 
 The fourth form is where the broker professes to sign as a 
 broker but is really a principal, as in the cases of Sharman v. 
 Brandt' and MoUett v. Kobinson,' in which case his signature 
 does not bind the other party, and he cannot sue on the contract. 
 
 According to either of the first two forms, the party who 
 receives and keeps a note, in which the broker tells him in effect, 
 * I have bought for you, or I have sold for you,' plainly admits 
 that the broker acted by his authority, and as his agent, and the 
 signature of the broker is therefore the signature of the party 
 
 to 
 
 1 § 27(5. » L. R. 7 H. L. 803, 14 Eng. Rep. 
 
 « L. R. 6 Q. B. Taa 177- 
 
 770
 
 Chap. III.] BROKERS. ^ 932. 
 
 accepting and retaining such a note ; but according to the tliird 
 form, the broker says, in effect, ' I myself sell to you,' and the 
 acceptance of a paper describing the broker as the principal who 
 sells, plainly repels any inference that he is acting as agent for 
 the party who buys, and, in the absence of other evidence, the 
 broker's signature would not be that of an agent of the party 
 retaining the note; and by the fourth form, the language of the 
 written contract is at variance with the real truth of the matter." 
 
 As to the rules governing the bought and sold notes, Mr. 
 Benjamin gives the following summary:' 
 
 " First — The broker's signed entry in his book constitutes the 
 contract between the parties, and is binding on both.* 
 
 Secondly — The bought and sold notes do not constitute the 
 contract.' 
 
 Thirdly — But the bought and sold notes, when they corres- 
 pond and state all the terms of the bargain, are complete and 
 sufficient evidence to satisfy the statute ; even though there be 
 no entry in the broker's book, or, Mdiat is equivalent, only an 
 unsigned entry.* 
 
 Fourthly — Either the bought or sold note alone will satisfy 
 the statute, provided no variance be shown between it and the 
 other note, or between it and the signed entry in the book.' 
 
 » Benjamin on Sales, § 294. in Thornton v. Charles, 9 M. «fe W. 
 
 « " This proposition rests on the au- 802, of Lord Ellenborough inHey- 
 
 thority of Lord Ellenborough in man v. Neale, 3 Camp. 337, and was 
 
 Heyman «. Neale, 2 Camp. 337, of the unanimous opinion of the four 
 
 Parke B. in Thornton v. Charles, 9 judges in Sievewright ». Archibald, 
 
 M. «&W. 802. and of Lord Campbell, 17 Q. B. 115. The decision to the 
 
 C. J., andWiGHTMANandPATTESON, contrary, in the nisi prius case of 
 
 J, J., in Sievewright v. Archibald, 17 Thornton v. Meux, M. & M. 43 and 
 
 Q. B. 115, 20 L. J. Q. B. 529 (and of the dictam Goom v. Aflalo, 6 B. & C. 
 
 the court in Thompson v. Gardiner, 1 117. and Trueman v. Loder, 11 Ad. & 
 
 C. P. D. 777). GiBBS, C. J., in Cum- E. 589, are pointedly disapproved in 
 
 ming V. Roebuck; Holt, 172, Abbott, the case of Sievewright v. Archibald, 
 
 C. J., in Thornton v. Meux; M. & M. 17 Q. B. 115, 20 L. J. Q. B. 529." 
 43, Dekman, C. J., in Townsend c. *" This was first settled by Goom 
 
 Drakeford, 1 Car. & K. 20, and Lord «. Aflalo, 6 B. «fc C. 117, and reluct- 
 
 ABiNGERin Thornton v. Charles,9 M. antly admitted to be no longer ques- 
 
 & W. 802, are authorities to the con- tionable in Sievewright «. Archibald, 
 
 trary, but they seem to have been 17 Q. B. 115, 20 L. J. Q. B. 529." 
 overruled in Sievewright v. Archi- » " This was the decision in Hawes 
 
 bald, 17 Q. B. 115, 20 L. J. Q. B. 529." v. Forster, 1 Mood. & Rob. 868, of the 
 
 » •' This is the opinion of Parke B. common pleas in Parton v. Crofts, 16 
 
 771
 
 § 932. THE LAW OF AGENCY. [Book V. 
 
 Fifthly — Where one note only is offered in evidence, the 
 defendant has the riojht to offer the other note or the signed 
 entry in the book to prove a variance.* 
 
 Sixthly — As to variance. This may occur between the 
 bought and sold notes where there is a signed entry, or where 
 there is none. It may also occur when the bought and sold notes 
 correspond, but the signed entry differs from them. If there be 
 a signed entry, it follows from the authorities under the^n<?^ of 
 these propositions that this entry will in general control the 
 case, because it constitutes the contract of which the bought and 
 sold notes are merely secondary evidence, and any variance 
 between them could not affect the'validity of the original writ- 
 ten bargain. If, however, the bought and sold notes correspond, 
 but there be a variance between them taken collectively and the 
 entry in the book, it becomes a question of fact for the jury 
 whether the acceptance by the parties of the bought and sold 
 notes constitute evidence of a new contract modifying that which 
 was entered in the book.* 
 
 Seventhly — If the bargain is made by correspondence, and 
 there is a variance between the agreement thus concluded and 
 the bought and sold notes, the principles are the same as those 
 just stated which govern variance between a signed entry and 
 the bought and sold notes.^ 
 
 Eighthly — If the bought and sold notes vary, and there is no 
 signed entry in the broker's book, nor other writing showing the 
 terms of the bargain, there is no valid contract.* 
 
 C. B. N. 8. 11, 33 L. J. C. P. 189 ton «. Charles, 9 M. & W. 802, after- 
 (and of the common pleas division in wards by Patteson, J., in Sieve- 
 Thompson t>. Gardiner, 1 C. P. D. Wright t». Archibald, 17 Q B. 115, 20 
 777)." L. J. Q. B. 529, and adopted by the 
 
 >"Hawes e. Forster, 1 Mood. & other judges in this last named case." 
 
 Kob. 368, is direct authority in tela- 8"A8 decided in Heyworth b. 
 
 tion to the entry in the booli, and in Knight, 17 C. B. N. S. 298, 33 L. J. 
 
 all the cases on variance, particularly C. P. 298. 
 
 in Parton e. Crofts, «iipra, it is taken * [1 Chitty Conlr. (11th Am, ed.) 
 
 for granted that the defendant may 551; Suydam «. Clark, 5 Saudf. 138; 
 
 produce his own bought or sold note Butters v. Glass, 31 U. C. Q. B. 879.] 
 
 to show that it does not correspond " This is settled by Thornton c. 
 
 with the plaintiff's." Kempster, 5 Taunt, 786; Gumming f. 
 
 s "This is the point established by Roebuck, Holt, 172; Thornton v. 
 
 Ilawesc. Forster. 1 Mood & R. 368, Meux, 1 M. & M. 43; Grant v. 
 
 according to the explanation of that Fletcher, 5 B. & C. 436; Gregson v. 
 
 case first given by Pahkk B. in Thorn- Rucks, 4 Q. B. 747, and Sievewright v. 
 
 772
 
 Chap. III.]] BE0KEE8. § 935. 
 
 Lastly — If a sale be made by a broker on credit, and the name 
 of the purchaser has not been previously communicated to the 
 vendor, evidence of usage is admissible to show that the vendor 
 is not finally bound to the bargain until he has had a reasonable 
 time, after receiving the sold note, to inquire into the sufficiency 
 of the purchaser, and to withdraw if he disapproves." * 
 
 § 933. Pawnbrokers. " Pawnbrokers lend money in small 
 sums, on the security of personal property, at usurious rates of 
 interest. They are licensed by the authorities and excepted from 
 the operation of usury laws." ' In this view they are not prop- 
 erly to be regarded as brokers at all, as they are ordinarily the 
 principals in their part of the transaction rather than agents. 
 Their business is usually regulated by the State or lesser munic- 
 ipal authority. 
 
 § 934. Heal Estate Brokers. « Real estate brokers negotiate 
 the sale or purchase of real property. They are a numerous 
 class, and in addition to the above duty, sometimes procure loans 
 on mortgage security, collect rents, and attend to the letting and 
 leasing of houses and lands." • 
 
 The general nature of their rights and duties will be consid- 
 ered in a subsequent section, when dealing of the broker's right 
 to compensation.* 
 
 § 935. Ship Brokers. " Ship brokers negotiate the purchase 
 and sale of ships and the business of freighting vessels." • 
 
 Archibald, 17 Q. B. 115, 20 L. J. Q. be considered as judicially recog- 
 B. 529. The only opinion to the con- nized by that decision, and as requir- 
 trary is that of Erle, J. in the last ing no proof. See Brand ao v. Bar- 
 named case. In one case, however, nett, 3 C. B. 519, on appeal to H. of 
 at nisi priua; Rowe v. Osborne. 1 L., s. c. 12 CI. & Fin. 787, as to the 
 Stark, 140, Lord Ellenborodgh held necessity for proving mercantile 
 the defendant bound by his own mg- usages. Also. 1 Smith's L. C. 603, 
 nature Xo & houghi note delivered to ed. 1879; but it would certainly be 
 the vendor, which did not correspond more prudent to offer evidence of the 
 with the note signed by the broker usage." 
 and sent to the defendant." a Bouvier's Law Dictionary. Title 
 
 ' "This was decided in Hodgson "Brokers." 
 
 t>. Davies, 2 Camp. 531, and as the » Bouvier's Law Dictionary. Title 
 
 special jury spontaneously intervened " Brokers." 
 
 in that case, and the usage was held < See post, § 966. 
 
 good without proof of it, it is not im- s Bouvier's Law Dictionary. Title 
 
 probable that the custom might now "Brokers." 
 
 773
 
 § 936. THE LAW OF AGENCY. [Book Vi 
 
 § 936. Stock Brokers. " Stock brokers ariB employed to buy 
 and sell shares of stock in incorporated companies and the indebt- 
 edness of governments." * The stock broker regularly is en> 
 ployed as a broker merely, buying or selling in the name of his 
 principal to whom he stands purely in the relation of an agent. 
 But in modern times he is frequently employed in transactions 
 in which he assumes a different character. These transactions are 
 those in which the broker acting upon the order of his principal, 
 but with his own money, purchases or sells stocks or securities for 
 the principal for purposes of speculation. The stock-broker in 
 these, as in other cases, usually acts for a commission agreed upon 
 or regulated by usage, and the business is ordinarily confined to 
 those brokers who are members of the stock-exchange. 
 
 The law governing the transactions of stock brokers is too ex- 
 tensive to be given fully here, but the ordinary course of a trans- 
 action between such a broker and his client has been described in 
 a leading case in New York * as follows : — 
 
 " The customer employs the broker, to buy certain stocks for 
 his account, and to pay for them, and to hold them subject to his 
 order as to the time of sale. The customer advances ten per 
 cent, of their market value, and agrees to keep good such pro- 
 portionate advance according to the fluctuations of the market. 
 
 The broker undertakes and agrees : — 
 
 1. At once to buy for the customer the stocks indicated.* 
 
 2. To advance all the money required for the purchase, beyond 
 the ten per cent, furnished by the customer. 
 
 3. To carry or hold such stocks for the benefit of the customer 
 60 long as the margin of ten per cent, is kept good, or until notice 
 is given by either party that the transaction must be closed. * An 
 
 ' Bouvier's Law Dictionary. Title or sell to himself. Taussig v. Hart, 
 
 "Brokers." «w;?ro; Levy v. Loeb, 85 N. Y. 8G5; 
 
 ' Markbam v. Jaudon, 41 N. Y. Day v. Holmes, supi-a; Stokes v. Fia- 
 
 256. zier, 72 111. 428; Ricliardson v. Mann. 
 
 •It is the broker's duty where the 30 La. Ann. 1060; Maryland Fire Ins. 
 
 quantity or price is fixed by the prin- Co. v. Dalrymple, 25 Md. 242; Baltr- 
 
 cipal to observe the directions. more Marine Ins. Co. v. Dalrymple, 
 
 Taussig V. Hart, 58 N. Y. 428; Day v. Id. 269; Bryson v. Rayner, Id. 424; 
 
 Holmes, 103 Mass. 308. Martin v. Moulton, 8 N. H. 504; 
 
 Like other brokers, the stock Marye v. Strouse, 5 Fed. R. p. 483; 
 
 broker can not, without his princi- Bischoffsheim v. Baltzer, 20 Id. 890. 
 
 pal's knowledge and consent, buy of * The broker must not close out 
 
 774
 
 Chap. III.] BROKERS. § 936. 
 
 appreciation in the value of the stocks is the gain of the customer, 
 and not of the broker. ' 
 
 4. At all times to have in his name, or under his control, ready 
 for delivery, the shares purchased, or an equal amount of other 
 shares of the same stock. • 
 
 5. To deliver such shares to the customer when required by 
 him, upon the receipt of the advances and commissions accruing 
 to the broker ; or 
 
 6. To sell such shares upon the order of the customer, upon 
 payment of the like sums to him, and account to the customer for 
 the proceeds of such sale. • 
 
 Under this contract, the customer undertakes, — 
 
 1. To pay a margin of ten per cent, on the current market 
 value of the shares. 
 
 2. To keep good such margin according to the fluctuations of 
 the market. 
 
 3. To take the shares so purchased on his order, whenever 
 required by the broker, and to pay the difference between the 
 percentage advanced by him and the amount paid therefor by the 
 broker. 
 
 The position of the broker is twofold. Upon the order of 
 the customer, he purchases the shares of stock desired by him. 
 
 the transaction without the princi- Markham v. Jaudon, 41 N. Y. 256; 
 
 pal's authority unless, after reason- Gruman v. Smith, 81 N. Y. 25; 
 
 able notice, the latter has failed to Knowlton v. Fitch, 52 N. Y. 288; 
 
 keep good the margin. If he does, Stenton v. Jerome, 54 N. Y. 480. 
 
 the broker will forfeit his commis- ' Profits belong to the principal ; 
 
 sion; Ball v. Clark, 28 Fed. Rep. Gruman «. Smith, 81 N. Y. 25. 
 
 179; Larminiet). Carley, 114 111. 196; ' It is not necessary that the broker 
 
 Perin v. Parker, 17 111. App. 169; should keep the identical stock pur- 
 
 Blakemore v. Heyman, 23 Fed. Rep. chased. An equal amount of other 
 
 648, and be liable for the damages; shares of the same kind is sufficient. 
 
 Denton v. Jackson, 106 111. 433; Baker Stewart c.^Drake, 46 N. Y. 453; Price 
 
 V. Drake, 66 N. Y. 518, 23 Am. Rep. v. Gover, 40 Md. 112; Marston v. 
 
 80. Gould, 69 N. Y. 226; Levy d. Loeb, 
 
 But if the principal fail after notice 85 N. Y. 365. See also, Gregory 9, 
 
 to put up the necessary margin, the Wendell, 40 Mich. 432. 
 
 broker may sell after the customary * It is the broker's duty to follow 
 
 and usual notice of the time and the principal's instructions as to the 
 
 place, unless such notice has been price or time at which he shall sell 
 
 waived. Corbett v. Underwood, 83 See nature and effect of "stop-order "' 
 
 111. 324, 25 Am. Rep. 393; Baker c. explained in Porter c. Wormser, 94 
 
 Drake, 66 N. Y. 518, 23 Am. Rep. 80; N. Y. 431. 
 
 775
 
 § 937. THE LAW OF AGENCY. [Book V. 
 
 This a clear act of agency. To complete the purchase, he advances 
 from his own funds, for the benefit of the customer, ninety per 
 cent, of the purchase money. Quite as clearly, he does not in this 
 act as an agent, but assumes a new position. He also holds or 
 carries the stock for the benefit of the purchaser, until a sale is 
 made by the order of the purchaser, or upon his own action. In 
 thus holding or carrying, he stands also upon a different ground 
 from that of a broker or agent, whose office is simply to buy and 
 sell. To advance money for the purchase, and to hold and carry 
 stocks, is not the act of a broker as such. In so doing, he enters 
 upon a new duty, obtains other rights, and is subject to additional 
 responsibilities." 
 
 " In my judgment " proceeds the same judge, " the contract 
 between the parties to this action, was in spirit and in effect, if not 
 technically and in form, a contract of pledge. To authorize the 
 defendants to sell the stock purchased they were bound first to 
 call upon the plaintiff to make good his margin ; and failing in 
 that, he was entitled secondly to notice of the time and place 
 where the stock would be sold : which time and place, thirdly, 
 must be reasonable." ' 
 
 IL 
 
 APPOINTMENT AND TERMINATION. 
 
 § 937. Appointed like other Agents. The broker, like other 
 agents, derives his authority from the appointment of his prin- 
 cipal, and in order to obtain rights himself, or establish liabili- 
 ties to others, against his principal, the fact of his appointment 
 must be made to appear. l!^o special method is requisite, how- 
 ever, except where a statute prescribes it, but, as in the case of 
 other agents, the appointment may be made by an instrument in 
 writing, or by mere spoken words, or it may be presumed from 
 the conduct of the parties.' The principal cannot be bound by, 
 or be made liable for, services rendered by a broker which are 
 
 • See also Baker c. Drake, 53 N. Y. Hugg, 41 Cal. 519; Thompson*. 
 
 211, 13 Am. Rep. 507, b. c. 66 N. Y. Toland, 48 Cal. 99. 
 
 518, 23 Am. Rep. 80; Stenton v. « See Howe Machine Co. v. Clark, 
 
 Jerome, 54 N. Y. 480; Taussig v. 15 Kan. 492; Fischer c.Bell,91 Ind.243; 
 
 Hart, 58 N. Y. 425; Gruman v. Smith, Brown v. Eaton, 21 Minn. 409; Dick- 
 
 81 N. Y. 25; Maryland Fire Ins. Co. erman v. Ash ton, Id. 538 ; Thompson 
 
 V. Dalrymple, 25 Md. 242; Child «. v. Gardiner, L. R. 1 C. P. Div. 777. 
 
 776
 
 Chap. III.] BROKERS. § 940. 
 
 purely voluntary on the part of the latter and performed with- 
 out the express or implied consent of the principal ; * but even in 
 such cases the principal may, by availing himself of the benefits 
 of the services, not only ratify and confirm the acts done, but 
 render himself liable to the broker for their value.* 
 
 § 938. How Authority terminated. The authority of the 
 broker may be terminated by operation of law, or by the act of 
 his principal. What will operate, as matter of law, to dissolve 
 the relation of principal and agent, and under what circumstances 
 it may be terminated by the act of parties, are matters which 
 have been already considered,' and the rules there laid down are 
 applicable to this relation. 
 
 III. 
 
 IMPLIED POWERS OF BROKERS. 
 
 § 939. In general. The field of the broker's operations lies 
 within comparatively narrow limits. He is essentially a middle- 
 man, making contracts for the parties in many cases, but, not 
 infrequently, simply introducing or bringing them together, and 
 then leaving them to make the contract for themselves. He has, 
 ordinarily, no possession of the goods he sells, and, hence, no 
 special property in them. His powers are limited by the duty he 
 undertakes, by the instructions he receives, and by the general 
 scope of that branch of the business which he pursues ; and he 
 certainly has no general capacity to make contracts for his prin- 
 cipal, outside of those limits. 
 
 § 940. How affected by Usage. The law governing the trans- 
 actions of brokers is the outgrowth of commercial usage, and, in 
 almost no other branch of business, are the powers and duties of 
 those who engage in it, so largely determined by reference to such 
 usage as in the case of brokers. Particularly is this true of stock 
 brokers, concerning whose operations, as conducted in this country, 
 there has been developed a code of rules, which is not only ob- 
 served by the brokers themselves, but which has, in many cases, 
 been engrafted upon the law by judicial recognition and adoption. 
 
 » Hinds V. Henry, 36 N. J. L, 328; « Sibbald v. Bethlehem Iron Co., 83 
 Market Co. v. Jackson, 102 Penn. St. N. Y. 378, 38 Am. Rep. 441. 
 269; Keys v. Johnson, 68 Penn. St. See Chapter on Ratification, 
 
 42; Holiey v. Townsend, 16 How. (N. » See ante, %% 198-270. 
 
 Y.) Pr. 125. 
 
 777
 
 §94:0. 
 
 THE LAW OF AGENCY. 
 
 [Book V. 
 
 Usages will not be enforced which the law deems to be unrea- 
 sonable,* nor can an usage be permitted to contravene express 
 instructions to the contrary ; * but where a principal employs a 
 broker to act for him in a particular market, it will, in the 
 absence of express instructions to the contrary, be presumed not 
 only that he authorized him to deal according to the general cus- 
 tom of brokers, but also to follow and observe the usage which 
 govern the transactions of such business in the market in ques- 
 tion.' That the principal was not informed of the usages will 
 ordinarily make no difference if the usage be a general and 
 reasonable one and be one which regulates the mode of perform- 
 ance of the contract merely and does not change its intrinsic 
 character. It is his duty, before dealing or employing others to 
 deal in such a market, to inquire as to such usages if he wished to 
 provide against them.* But unless it be shown that he had such 
 knowledge of it that he must be presumed to have contracted in 
 reference to it, the principal cannot be bound by an usage which 
 changes the character of the broker or the nature of the dealing.' 
 So an usage not known to the principal cannot operate to author- 
 
 » See anU, § 485. 
 
 » See anU, §§ 281, 485. 
 
 3 See anU, §§ 281, 485. 
 
 « See ante, §§ 281, 486. 
 
 » In Irwin v. Williar, 110 U. 8. at 
 p. 513, Mr. Justice Matthews says: 
 *' The relation between the parties to 
 this litigation was that of principal 
 and agent; and the defendants in 
 error, acting as brokers, in executing 
 the orders to sell, undertook to ob- 
 tain, and, as they allege in their dec- 
 laration, did obtain a responsible 
 purchaser; so that the plaintiff in 
 error would, upon the contract of 
 sale against such purchaser when dis- 
 closed, have been entitled to main- 
 tain an action in case of default in 
 his own name. Although the broker 
 guaranteed the sale, it was not a sale 
 to himself; for, being agent to sell, 
 he could not make himself the pur- 
 chaser. The precise effect, therefore, 
 of the custom proved was, that at the 
 time of settlement, in anticipation of 
 
 the maturity of the contracts, the 
 brokers, by an arrangement among 
 themselves, by a process of mutual 
 cancellation, reduced the settlement 
 to a payment of differences, exchang- 
 ing contracts, so as to substitute new 
 purchasers and new sellers respect- 
 ively for the balances. The question 
 is not whether in a given case, with- 
 out the assent, express or implied, of 
 the principal, this change of his rights 
 and obligations can be effected (for 
 that proposition is not doubtful), but 
 whether the fact of his transacting 
 business through a member of the 
 Exchange, without other knowledge 
 of the custom, makes it part of his 
 contract with the broker. 
 
 In Nickalls v. Merry, L. R. 7 H. L. 
 530, 13 Eng. Rep. 55, it was said by 
 Lord Chelmsford, p. 543, that 
 the contract ' having been made be- 
 tween a broker and a jobber, mem- 
 bers of the Stock Exchange, the 
 usage of that body enters into, and to 
 
 78
 
 Chap. III.] 
 
 BKOKERS. 
 
 §940. 
 
 ize the making of an invalid instead of a valid contract, or to 
 bind him to take one thing when he has ordered another.' 
 
 a certain extent determines and gov- 
 erns, the nature and effect of the 
 contract.' To what extent such 
 a custom shall be allowed to operate, 
 as between the broker and his prin- 
 cipal, was very thoroughly considered 
 and finally decided by the House of 
 Lords in the case of Robinson v. Mol- 
 let. L. R. 7 H. L. 802, 14 Eng. Rep. 
 177, after much division of opinion 
 among the judges. The custom 
 questioned in that case was one estab- 
 lished in the London tallow trade, 
 according to which, brokers, when 
 they received an order from a princi- 
 pal for the purchase of tallow, made 
 a contract or contracts in their own 
 names, without disclosing their prin- 
 cipals, either for the specific quantity 
 of tallow so ordered, or to include 
 such order with others in a contract 
 for the entire quantity, or in any 
 quantities at their convenience, at 
 the same time exchanging bought 
 and sold notes with the selling bro- 
 kers, and passing to their principals a 
 bought note for the specific quantity 
 ordered by them. When a broker so 
 purchased in his own name, he was 
 personally bound by the contract. 
 On the usual settling days, the bro- 
 kers balanced between themselves the 
 purchases and sales made, and made 
 or received deliveries to or from their 
 principals, as the case might be, or if 
 their principals refused to accept or 
 deliver, then they sold or bought 
 against them, and charged them with 
 the loss, if any; or if delivery was 
 not required on either side, then anj-^ 
 difference arising from a rise or fall 
 in the market was paid by one to the 
 other. It was held that this custom 
 did not bind a principal giving an 
 order to a broker to purchase for him, 
 being ignorant of its existence. It 
 
 was admitted by Lord Chelmsfobd, 
 p. 836, 'that if a person employs a 
 broker to transact for him upon a 
 market, with the usages of which the 
 principal is unacquainted, he gives 
 authority to the broker to make con- 
 tracts upon the footing of such usages, 
 provided they are such as regulate 
 the mode of performing the contracts 
 and do not change their intrinsic 
 character;' and he added, 'of cour,-e, 
 if the appellant knew of the existence 
 of the usage, and chose to employ the 
 respondents without any restriction 
 upon them, he might be taken to, 
 have authorized them to act for him 
 in conformity to such usage.' 
 
 Mr. Justice Brett, in his opinion, 
 p. 816, points out very clearly that 
 the custom, if allowed to prevail, 
 would work a change in the relation 
 between the broker and his principal, 
 by permitting the agent to buy, to 
 convert himself into a principal to sell. 
 
 Mr. Baron Cleasbt, p. 828, said: 
 'The vice of the usage set up in the 
 present case cannot be appreciated 
 by examining its parts separately. It 
 must be looked at as a whole, and its 
 vice consists, I apprehend, in this, 
 that the broker is to make the con- 
 tract of purchase for another whose 
 interest as buyer is to have the advan- 
 tage of every turn of the market; but 
 if the broker may eventually have to 
 provide the goods as principal, then 
 it becomes his interest, as seller, that 
 the price which he is to receive should 
 have been as much in favor of the 
 seller as the state of the market would 
 admit. Thus the two positions are 
 opposed.' 
 
 The principle of this decision seems 
 to us to be incontrovertible, and ap- 
 plies in the present case." 
 
 > Perry ». Barnett. 15 Q. B. Div. 388. 
 
 779
 
 § 941. THE LAW OF AGENCY. [Book Y. 
 
 § 941. TJsixal and necessary Powers. A broker, like any 
 otlier agent, is presumed in the absence of anything to indicate a 
 contrary intent, to be invested also with those incidental powers 
 which are reasonable and necessary for the accomplishment of the 
 object of his agency, and which are usually and ordinarily exer^ 
 cised under like circumstances. Thus if he be directed to make 
 a contract for his principal, he has undoubted authority to bind 
 his principal by the usual and ordinary terms and agreements, 
 and to sign the necessary evidence thereof.* 
 
 § 942. Effect of his Instructions. Like other agents, he is 
 also bound to obey the instructions of his principal, but he will 
 be justified in departing from those instructions if an unforeseen 
 emergency arises not occasioned by his fault or neglect, and he 
 acts in good faith and for the obvious and certain advantage of 
 his principal.' 
 
 § 943. Acting for both Parties. A broker is, ordinarily, an 
 agent in whom a special trust and confidence are reposed. His 
 principal, unless he agrees to less, is entitled to the undivided 
 benefit of the broker's skill, knowledge and experience. If his 
 principal, with full knowledge of the facts, consents to the broker's 
 also acting for the other party in the same transaction, there is 
 no legal objection to such a course ; ' but, except with such 
 consent, the broker will not be permitted to assume a double 
 agency.* 
 
 > See anU, % 311. University, 57 Ind. 466, and cases in 
 
 « Judson V. Sturges, 5 Day (Conn.) following note. 
 
 556; Drummond ». Wood, 2 Caines * Hinckley v. Arey, 27 Me. 362; 
 
 (N. Y.)310; Liotard v. Graves, 3 Id. Copeland v. Mercantile Ins. Co. 6 
 
 226; Forrestier®. Bordman, 1 Story Pick. (Mass.) 197; New York Ins. Co. 
 
 (U. S. C. C.) 43. And see Foster v. «, National Ins. Co., 14 N. Y. 85; 
 
 Smith, 2 Cold. (Tenn.) 474, 88 Am. Meyer v. Hanchett, 39 Wis. 419, 8. c. 
 
 Dec. 604; Stollenwerck «. Thacher, 48 Wis. 246; Greenwood ». Spring, 54 
 
 115 Mass. 224. Barb. (N. Y.) 375; Sumner t. Char- 
 
 « Adams Mining Co. v. Senter, 26 lotte, &c. R. R. Co., 78 N. C. 289; 
 
 Micli. 73; Colwell v. Keystone Iron Shirland v. Monitor Iron Works, 41 
 
 Co., 36 Mich. 53; Fitzsimmons v. Wis. 162; Bray c. Morse, 41 Wis. 343; 
 
 Southern Express Co., 40 Ga. 330, 2 Rice v. Wood, 113 Mass. 133, 18 Am. 
 
 Am. Rep. 577; Rowe v. Stevens, 53 Rep. 459; Bell v. McConnell, 37 Ohio 
 
 N. Y. 621; Joslin v. Cowee, 56 N. Y. St. 396, 41 Am. Rep. 528; Stewart v. 
 
 626; Rolling Stock Co. v. Railroad, 34 Mather, 32 Wis. 344; Farns worth v. 
 
 Ohio St. 450; Leekins v. Nordyke. 68 Brunquest, 36 Wis. 202; Farns worth 
 
 Iowa 471 ; Alexander B. Northwestern t. Hemmer, 1 Allen (Mass.) 494, 79 
 
 780
 
 Chap. III.] BROKERS. § 946. 
 
 § 944. Can not delegate his Powers, For similar reasons the 
 broker has no implied power to delegate to another the powers 
 and duties confided to him.' This rule is, however, subject to 
 the same exceptions which apply to the delegation by other 
 agents, and in actual practice, particularly upon the stock 
 exchange, it is a recognized usage for many of the transactions 
 of the broker to be carried on through a substitute.' 
 
 § 945. Usually must act in the Name of his Principal. The 
 business of the broker being primarily to make contracts between 
 others, he usually contracts only in the name of his principal, and 
 it is a general rule that he has no implied power to act in his own 
 name.® But this rule also is subject to be controlled by usage, 
 and it has been held that a stock broker violates no duty to his 
 principal, where he takes, in his own name, the title of stocks 
 which he was directed to purchase for his principal, it being 
 shown that such was the custom of brokers at that time and 
 place.* 
 
 § 946. Implied Power to fix the Price. A broker, who is 
 instructed to buy or sell property, with no limitations as to the 
 price, would have implied authority to agree upon the price and 
 to bind his principal by such agreement, where the broker acts 
 honestly and in good faith, and the price fixed is the usual one, 
 or, where there is no usual price, then a fair and reasonable and 
 not an extraordinary one.* If there is a market price, that price 
 should govern in the absence of anything indicating a contrary 
 intent on the part of the principal.* 
 
 Am. Dec. 756; Walker v. Osgood, 98 Breesb, " and never acts in his own 
 
 Mass. 348, 93 Am Dec. 168; Raisin v. name, but in the name of those who 
 
 Clark. 41 Md. 158, 20 Am. Rep. 66; employ him." In Saladin v. Mitchell, 
 
 Lynch v. Fallon, 11 R. I. 311, 23 Am. 45 III. 79, 83; same point Baring v. 
 
 Rep. 458;Pugsley v. Murray, 4 E. D. Corrie, 2 B. & Aid. 143. 
 
 Smith (N. Y.)245; Everhart v. Searle, * Horton v. Morgan, 19 N. Y. 170, 
 
 71 Penn. St. 256; Scribner v. Collar, 75 Am. Dec. 311; Maikham v. Jau- 
 
 40 Mich. 375, 29 Am. Rep. 241. don, 41 N. Y. 239. 
 
 1 See ante, %% 184-197. " See ante, § 362. Daylight Burner 
 
 «Gheen«. Johnson, 90 Penn. St. 38; Co. v. Odlin, 51 N. H. 56, 12 Am. 
 
 Gregory v. Wendell, 40 Mich. 432; Rep. 45; Putnam v. French, 53 Vt. 
 
 Rosenstock v. Tormey, 32 Md. 169, 3 402, 38 Am. Rep. 682. 
 
 Am. Rep. 125. « Bigelow v. Walker, 24 Yt. 149, 58 
 
 * "He is a mere negotiator between Am, Dec. 156. 
 other parties," says Chief Justice 
 
 781
 
 §947. 
 
 THE LAW OF AGENCY. 
 
 [Book V. 
 
 § 947. May sell with Waxranty— when. A broker, employed 
 to sell property, has no implied general authority to warrant the 
 quality of the property sold ; but if it be such as, at the time 
 and place at which he is authorized to sell, is usually sold under 
 like circumstances with a warranty of quality, a broker employed 
 to sell such property, without restrictions as to warranty, may 
 give such a warranty upon the sale as is usually given in such 
 cases.* So where a broker is given general authority to sell 
 goods of a kind usually sold by sample, he may bind his princi- 
 pal by a sale by sample with its consequent warranty.' 
 
 In Massachusetts, however, it is held that usage will not jus- 
 tify the assumption of a power to warrant the merchantable 
 quality of goods by the broker.' 
 
 § 948. When may sell on Credit. A broker who is employed 
 to sell goods, without restrictions as to the terms, has implied 
 
 » Pickert •, Marston, 68 Wis. 465, offered from which, under instruc- 
 tions from the court, the jury have 
 found that an authority was implied 
 in case of a sale by a broker of the 
 kind of merchandise described in the 
 memorandum to insert a warranty of 
 their quality which would be binding 
 on the vendor. But notwithstanding 
 this finding, we are clearly of opinion 
 that the plaintiffs are not entitled to 
 recover, because the alleged usage, on 
 which the jury have based their ver- 
 dict, is unauthorized by law, and can- 
 not be regarded as valid. It contra- 
 venes the principle, which has been 
 sanctioned and adopted by this court 
 upon full and deliberate considera- 
 tion, that no usage will be held legal 
 or binding on parties which not only 
 relates to and regulates a particular 
 course or mode of dealing, but which 
 also ingrafts on a contract of sale a 
 stipulation or obligation which is dif- 
 ferent from or inconsistent with the 
 rule of the common law on the same 
 subject. Dickinson v. Gay, 7 Allen 
 34, 37, 83 Am. Dec. 656." See also 
 to same effect Boardman v. Spooner, 
 13 Allen (Mass.) 353, 90 Am. Dec 190. 
 
 60 Am. Rep. 876; Smith v. Tracy, 36 
 N. Y. 82; Herring v. Skaggs, 62 Ala. 
 180, 34 Am. Rep. 4; Upton v. Suffolk 
 County Mills, 11 Cush. (Mass.) 586, 
 59 Am. Dec. 163; Ahem v. Good- 
 speed, 72 N. Y. 108; Dingle v. Hare, 
 7 0. B. (N. S.) 145, 97 Eng. Com. L. 
 145; Graves v. Legg, 3 Hurl, and N. 
 210; Baylifle v. Butterworth, 1 Exch. 
 435. See also § 349 and notes. 
 
 2 Andrews v. Kneeland, 6 Cow. (N. 
 Y.) 354. 
 
 'In Dodd V. Farlow, 11 Allen 
 (Mass.) 426, 87 Am. Dec. 726, it is 
 held that a merchandise broker has 
 no implied authority to warrant 
 goods sold by him to be of a mer- 
 chantable quality; and that such a 
 power can not be conferred by a 
 usage of trade. This case is clearly 
 opposed to the doctrine of the text, 
 but it seems to be contrary to the 
 principle of the cases cited in sup- 
 port of the text. 
 
 In this case Bigelow, C. J., said: 
 "It was contended on the part of the 
 plaintiffs that an authority to make 
 such warranty is derived from the 
 usage of trade; and evidence was 
 
 782
 
 Chap. III.] BROKERS. § 951. 
 
 power to fix the terms of sale, including the time, place and 
 mode of delivery and the price of the goods, and the time and 
 mode of payment, and may, therefore, sell upon a reasonable 
 credit in the absence of an usage to the contrary.* 
 
 § 949. No Authority to reoeive Payment. The broker being 
 employed to make contracts between others only, and not being 
 entrusted with the possession of the goods he sells, or authorized 
 to deliver them, has no implied authority to collect or receive 
 payment for goods sold by him ;* nor, it is held, can such author- 
 ity be conferred by a mere local usage.' A payment made to 
 the broker is, therefore, at the payer's own risk, unless from 
 other circumstances, authority to receive it can be inferred.* 
 
 § 950. No Authority to rescind or arbitrate. A broker's au- 
 thority to make contracts carries with it no implied power to 
 rescind that contract when made, without his principal's con- 
 sent,' or to bind his principal by an agreement to submit to arbi- 
 tration, disputes arising from it.' 
 
 lY. 
 
 DUTIES AND LIABILITIES TO PRINCIPAL. 
 
 § 951. Reasonable Skill and Diligence required. The broker 
 carries on an independent calling, requiring not only a knowl- 
 edge of the rules of law and usage which govern his transactions, 
 but also the exercise of judgment, discretion and diligence. 
 Important interests are entrusted to his care and constant 
 demands are made upon him for prudence, watchfulness and 
 
 1 Boorman v. Brown, 3 Q B. Y.) 710, 8. c. 1 Hun, 282; Bassett «. 
 
 511; Wiltshire v. Sims, 1 Camp. 258; Lederer, 1 Hun, 274. 
 
 Daylight Burner Co. v. Odlin, 51 N. 'Higginsp. Moore, 34 N. T. 417. 
 
 H. 56, 13 Am. Rep. 45; Riley ». * See cases cited under first note to 
 
 "Wheeler, 44 Vt. 189 ; Dresden School this section. 
 
 District «. iEtna Ins. Co., 62 Me. 330. s Saladin v. Mitchell, 45 111. 79; see 
 
 « Campbell v. Hassel, 1 Stark, 233; also Stilwell v. Mutual Life Ins. Co., 
 
 Graham r, Duckwall, 8 Bush (Ky.) 72 N. Y. 385; Stoddart v. Warren, 7 
 
 12; Saladin v. Mitchell, 45 111. 79; Rep. 517. 
 
 Baring e. Corrie, 2 B. and Aid. 137; • Ingraham v. Whitmore, 75 111. 
 
 Seipel V. Irwin, 30 Penu. St. 513; 24; see also Michigan Central R. R. 
 
 Iliggina v. Moore, 34 N. Y. 417; Co. «. Gougar 55 111. 603; Huber v. 
 
 Gallup ». Lederer, 3 Thorn, and C. (N. Zimmerman, 21 Ala. 488; Scarbor- 
 ough V. Reynolds, 12 Ala. 253. 
 
 783
 
 § 952. THE LAW OF AGENCY. [Book V. 
 
 sao-acity. He holds himself out to the public as qualified to per- 
 form the duties of his office, and, while he does not warrant the 
 success of his undertakings, the law requires of him, as of other 
 persons pursuing similar vocations, that he shall possess and 
 exercise a reasonable degree of skill and knowledge, and that he 
 will perform his undertakings with reasonable diligence and 
 care. If he fails to satisfy this requirement and his principal 
 suffers loss thereby, he will be held responsible for it.' In this 
 respect his liability is similar to that of the attorney. 
 
 § 952. Fidelity to his Principal. Like other agents in whom 
 trust and confidence are reposed, the broker owes to his princi- 
 pal the utmost good faith and loyalty to his interests. He must 
 not assume or continue the relation, if his duty to his principal 
 and his own interests will come in conflict." It is his duty, 
 therefore, to freely and fully disclose to his principal at all times, 
 the fact of any interest of his own, or of another client, which 
 may be antagonistic to the interests of his principal,' and he will 
 not be permitted to take advantage of his situation to make gain 
 for himself by forestalling or undermining his principal.* 
 
 If he be employed to buy or sell property for his principal, he 
 will not, without the principal's full knowledge and consent, be 
 permitted directly or indirectly to buy of, or sell to, himself ; » 
 and it will make no difference that his motive was honest, and 
 that he did better for his principal than if he had bought or sold 
 in the open market.* In any such case, the principal may repu- 
 diate the transaction and regain his money or recover his prop- 
 erty.' And no usage of trade, unless it be shown that the prin- 
 cipal had such knowledge of it that he must be presumed to have 
 
 iMylese. Myles, 6 Bush (Ky.)237; Atlee v. Fink, 75 Mo. 100, 42 Am. 
 
 Kempker v. Roblyer, 29 Iowa, 274; Rep. 385. 
 
 Stevens o. Walker, 55 111. 151; Chan- « See ante, §§ 457-466. See al.so 
 
 dler t>. Hogle, 58 111. 4G; Todd t>. Taussig «. Hart, 58 N. Y. 425. Can- 
 
 Bourke, 27 La. Ann. 385. not sell to or buy from a firm or cor- 
 
 * See ante, § 455. poration of which he is a member. 
 
 8 See ante, % 455; Farnsworth v. Francis «. Kerker, 85 111. 190; Solo- 
 
 Hemmer, 1 Alien (Mass.) 494, 79 Am. mons v. Pender, 3 H. & C. 639. 
 
 j)ec 756. » Taussig v. Hart, 58 N. Y. 425. 
 
 « See Davis v. Hamlin, 108 111. 39, ' See ante, §§ 454-466; Taussig «. 
 
 48 Am. Rep. 541; Pegramu. Railroad Hart, mpra. 
 Co., 84 N. C. 696, 37 Am. Rep, 689; 
 
 784
 
 Chap. III.] 
 
 BROKERS. 
 
 § 953. 
 
 employed the broker with reference to it, will justify the broker 
 in dealing with himself.* 
 
 § 953. Same Subject— Acting for both Parties. For similar 
 reasons, as has been seen, the broker will not be permitted, with- 
 out the full knowledge and consent of his principal, to represent 
 the other party also in the same transaction.* If he were com- 
 missioned to sell, his duty to the seller requires that he shall 
 obtain as large a price as possible, while if he were commissioned 
 to bny, his duty to the buyer would be to buy at as low a price as 
 possible. To undertake to perform both duties at the same time, 
 involves a manifest incongruity, and one or both of his principals 
 must suffer from the attempt. If, however, each having full 
 knowledge of his relations to the other, sees fit to trust him to 
 bargain for him, there is no legal objection to such a course, and 
 neither principal could complain,' But if neither has such 
 knowledge, and each relies upon the broker's undivided alle2;> 
 
 » Robinson t. Mollett, L. R. 7 H. of 
 L. 803, 14 Eng. Rep. (Moak) 177, re- 
 versing L. R. 5 C. P. 646, L. R. 7 C. 
 P. 84, 1 Eng. Rep. (Moak) 335; 
 Famsworth v. Hammer, 1 Allen 
 (Mass.) 494, 79 Am. Dec. 753; Walker 
 V. Osgood, 98 Mass. 348, 93 Am. Dec. 
 168; Commonwealth v. Cooper, 130 
 Mass. 288; Raisin v. Clark, 41 Md. 
 158. 20 Am. Rep. 66. 
 
 » Raisin v. Clark, 41 Md. 158, 20 
 Am. Rep. 66; Scribner v. Collar, 40 
 Mich. 375, 29 Am. Rep. 541 ; Rice v. 
 Wood, 113 Mass. 133, 18 Am. Rep. 
 459; Lynch v. Fallon, 11 R. I. 311, 23 
 Am. Rep. 458; Bell v. McConnell, 37 
 Ohio St. 396, 41 Am, Rep. 528; Wal- 
 ker V. Osgood, 98 Mass. 348, 93 Am. 
 Dec. 168; Lyon v. Mitchell, 36 N. Y. 
 235, 93 Am. Dec. 502; Farnsworth v. 
 Hemmer, 1 Allen (Mass.) 494, 79 Am. 
 Dec. 756; Rupp v. Sampson, 16 Gray 
 (Mass.) 398, 77 Am. Dec. 416; Mary- 
 land Fire Ins, Co. v. Dalrymple. 26 
 Md. 242, 89 Am. Dec. 779; Barry r. 
 Schmidt, 57 Wis. 172; Everhart v. 
 Searle, 71 Penn, St, 256; Murray®, 
 Beard, 103 N. Y. 505; Meyer v. Han- 
 
 50 
 
 chett, 43 Wis, 246; Robbins t>. Sears, 
 23 Fed, Rep. 874; Bates v. Copeland, 
 4 Mc Arthur (D, C.) 50; CoUins v. 
 Fowler, 8 Mo. App. 588. 
 
 8 Alexander «. Northwestern Uni- 
 versity, 57 Ind. 466; Rice «. Wood, 
 supra; Scribner v. Collar, supra; Bell 
 v. McConnell, supra; Rowe v. Ste- 
 vens, 53 N. Y. 621 ; Joslin v. Cowee, 
 56 N, Y. 626; Rolling Stock Co. v. 
 Railroad Co., 34 Ohio St. 450; Leek- 
 ins V. Nordyke, 66 Iowa, 471. 
 
 It is held in some cases that al- 
 though the party who last employed 
 the broker knew of his previous em- 
 ployment by the other party, yet the 
 contract between the broker and his 
 second employer is void as against 
 public policy. See Lynch v. Fallon, 
 11 R. I. 311, 23 Am. Rep. 458; Raisin 
 V. Clark, 41 Md. 158, 20 Am. Rep, 66; 
 Everhart v. Searle, 71 Penn, St, 256; 
 Meyer v. Hanchett, 43 Wis. 246. 
 
 Such an engagement would of 
 course be a fraud upon the broker's 
 first employer who had no knowledge 
 that his agent was entering into the 
 service of the opposite party. 
 
 785
 
 § 953. THE LAW OF AGENCY. [Book Y. 
 
 iance, it is an obvious fraud upon both, which the law will not 
 tolerate, for him to undertake to represent both parties. A con- 
 tract made under such circumstances would be voidable at the 
 option of either party,' and each would have a cause of action 
 against the broker for the commission paid to him, and for such 
 other damages as had been sustained, or might defend upon that 
 ground an action brought by the broker.' Where, however, the 
 broker acts as a middleman merely, bringing together parties 
 who then deal with themselves and make their own bargains, 
 relying upon their own judgment and skill, it has been held in 
 some cases that there is no inconsistency in the broker's attitude 
 to either, and that no reason for- complaint arises although he 
 was employed by each without the knowledge of the other.' It 
 is believed, however, that, — unless in exceptional cases where the 
 broker is employed to bring two specified persons together, and 
 has no duty in negotiation and has not engaged his skill, knowl- 
 edge or influence, — this distinction is not sound in principle and 
 that the same temptation, which the law seeks to avoid, exists in 
 this case, to lead the broker to bring together those only who 
 employ him, to the exclusion of others who might make better 
 terms.* 
 
 1 Herman v. Martineau, 1 Wis. 151, the interest of the party who em- 
 
 GO Am. Dec. 368; Wassell ®. Reardon, ployed him. Such employment is 
 
 11 Ajk. 705, 54 Am. Dec. 245; Hinck- not like the offer of a reward for the 
 
 ley V. Arey, 27 Me. 362; Greenwood performance of some act which an- 
 
 •B. Spring, 54 Barb. (N. T.) 375; Har- other may undertake or forego as he 
 
 rison v. McHenry, 9 Ga. 164, 53 Am. shall please. Employment implies 
 
 Dec. 435; Switzer «. Skiles, 3 Gilm. acceptance of the service. A broker 
 
 (111.) 529, 44 Am. Dec. 723. thus employed does not act in good 
 
 8 See cases cited under note 2 p. 785. faith if he turn aside all proposals 
 
 » Herman v. Martineau, 1 Wis. 151, that are not accompanied with an ad- 
 
 60 Am. Dec. 368; Stewart v. Mather, ditional retainer or commission. Tet 
 
 82 Wis. 344; Orton v. Scofield, 61 such is the temptation upon him, if 
 
 Wis. 382; Mullen v. Keetzleb, 7 he may levy a fee from both parties. 
 
 Bush (Ky.) 253; Rupp v. Sampson, When he has secured the retainer of 
 
 16 Gray (Mass.) 398, 77 Am. Dec. 416; the other party he is interested, in 
 
 Siegel r. Gould, 7 Lans. (N. Y.) 177. order to win his double commission, 
 
 « ' ' Even if he had no authority to to bring together these two to the 
 
 bind his principal, and was intrusted exclusion of all others. The interests 
 
 with no discretion in fixing the terms of his principal are in danger of prej- 
 
 of the exchange, and his only seroice udice from this counter-interest in 
 
 was to bring the pa/rties together, he the agent. And besides, the broker 
 
 was bound to perform that service in is ordinarily and almost inevitably 
 
 786
 
 Chap. III.] 
 
 BROKERS. 
 
 §954. 
 
 § 954. Duty to obey Instructions. It is the duty of the 
 broker to obey the instructions of his principal in all matters 
 which the principal has the right to control. If instructed to 
 buy or sell, he should carefully observe the limits fixed by the 
 principal as to the amount, time, place, price and other terms 
 and conditions of the transaction, and if he fails to do so, with- 
 out reasonable excuse, he will be liable to the principal for the 
 loss that may occur.' If the principal's instructions be ambig- 
 uous and capable of two constructions, and the broker, acting with 
 good faith and reasonable prudence, pursues one of them, he can 
 not be held liable because the principal may have intended the 
 other." So if an unexpected emergency arises, without the bro- 
 
 intrusted, to a greater or less extent, him, as to render his contract with 
 
 with the confidence of bis principal, 
 and a knowledge of his views and 
 purposes. This is incompatible with 
 like relations to the other party. From 
 the very nature and necessities of the 
 case, such two-fold interests and rela- 
 tions of the broker are inconsistent 
 with the interests of the principal and 
 should not be maintained without 
 his knowledge and consent." Wells, 
 J., in Walker v. Osgood, 98 Mass. 
 348, 93 A.m. Dec. 168. And, speak- 
 ing of Rupp V. Sampson, supra, the 
 eame judge continues: "The verdict 
 for the plaintiff was sustained in that 
 case; but it was upon the distinct 
 ground that under the instructions 
 given to the jury, they must be held 
 to have found that the defendant's 
 promise to pay was given, not for 
 gervices in their employ as a broker, but 
 for the performance of a certain specific 
 act, namely, the introduction of 
 Clew (the other party) to them. The 
 court considered that, so far as the 
 mere performance of such an act 
 was concerned, it could make 
 no difference to the defendants, 
 whether the plaintiff was in the em- 
 ploy and pay of the other party or not; 
 and it was not such a fraud upon the 
 other party, though concealed from 
 
 the defendants void for illegality. 
 How far the plaintiffs dealings with 
 the defendants were inconsistent 
 (short of such illegality) with his obli- 
 gations to Clew, was not for deter- 
 mination in that suit." 
 
 " The opinion has been expressed," 
 says Mr. Justice Graves, in Scribner 
 v. Collar, 40 Mich. 375, 29 Am. Rep. 
 541, "that where the person is em- 
 ployed merely as a middleman to 
 bring persons together, and has no 
 duty in negotiation, and has not en- 
 gaged his skill, his knowledge, or his 
 influence, he may lawfully claim pay 
 from both parties, liupp®. Sampson, 
 16 Gray, 898; Siegel e. Gould, 7 Lans. 
 177. No doubt such cases may occur, 
 but their exceptional character should 
 appear clearly, before they should be 
 exempted from the general princi- 
 ple." 
 
 ' Taussig V. Hart, 58 N. Y, 425; 
 Pulsifer c. Shepard, 36 111. 513; 
 Jones t). Marks, 40 111. 313; Kuowl- 
 ton T, Fitch, 52 N. Y. 288; White c. 
 Smith, 54 N. Y. 522; Scott v. Rogers, 
 81 N. Y. 676; Baker v. Drake, 53 N. 
 Y. 211, 13 Am. Rep. 507; 8. c. 66 N. 
 Y. 518, 23 Am. Rep. 80. 
 
 « See ante, § 484. 
 
 787
 
 § 955. THE LAW OF AGENCY. [Book Y. 
 
 kcr's fault, rendering a strict compliance with his instructions 
 impossible, and he adopts the course dictated by reasonable pru- 
 dence and foresight, he will not be liable.' But in other cases, 
 the broker disregards his principal's instructions at the risk of 
 being compelled to make good a loss which may ensue there- 
 from. 
 
 Thus if he is instructed to effect insurance, and he wholly 
 omits to do so, or so negligently performs that the insurance is 
 valueless, or, in case of inability to effect the insurance, fails to 
 give his principal timely notice of that fact, the risk is his own ;' 
 if he is directed to sell property at a certain time, or when it 
 reaches a certain price, and fails to do so, he must make good a 
 deficiency occasioned by a depreciation in the value within a 
 reasonable time after the time fixed ; ' if he is instructed to buy 
 upon a given day, or when the property reaches a certain price, 
 and omits to do so, he will be liable for profits lost if, within a 
 reasonable time, the property increases in value ; * if he is directed 
 to make a certain disposition of stocks, or other property in his 
 possession, and makes a different disposition, he may be held 
 liable, as for a conversion ; • or if he is instructed to buy at a 
 given price and buys at a greater, or to sell at a given price, 
 and sells at a less price, he will be liable for the resulting 
 loss.* 
 
 § 955. Duty to keep and render Accounts and pay Proceeds. 
 It is the duty of the broker to keep and preserve true and accu- 
 rate accounts and records of all of his proceedings and transac- 
 tions on account of his principal ; and to render such accounts to 
 
 » See ante, § 481. Garrett, 6Bing. 716; Farwell v. Price, 
 
 •Park©. Hammond, 4 Camp, 344; 30 Mo. 587; Schmertz v. Dwyer, 53 
 
 Perkins v. Washington Ins. Co., 4 Penn. St. 335; Eby v. Schumacher, 
 
 Cow. (N. Y.) 645; Thorne v. Deas, 4 29 Penn. St. 40. 
 
 Johns. (N, Y.) 84; Gray v. Murray, 3 ♦ Baker v. Drake, 53 K Y. 211, 13 
 
 Johns. (N. Y.) Ch. 167; DeTastett v. Am. Rep. 507, and cases cited in pre- 
 
 Crnusillat, 2 Wash. (U, S. D. C.)lo2; ceding note. 
 
 Callander v. Oelrichs, 5 Bing. N. C. » Baker v. Drake, 53 N. Y. 211, 13 
 
 58; Shoenfeld v. Fleisher, 73 111. 404. Am. Rep. 507; s. c. 66 N. Y. 518, 23 
 
 •Taussig V. Hart, 58 N. Y. 425; Am. Rep, 80; Scott v. Rogers, 31 
 
 Pulsifer v. Shepard, 36 111. 513; Jones N. Y. 676. 
 
 V. Marks, 40 111. 313; Baker t>. Drake, • Laverty v. Snethen, 53 How. Pr. 
 
 53 N. Y. 211, 13 Am. Rep. 507, s. c. 152, 68 N. Y. 522, 23 Am. Rep. 184; 
 
 66 N. Y, 518, 23 Am. Rep. 80; Scott DufresnetJ. Hutchinson, 3 Taunt. 117; 
 
 «. Rogers, 31 N. Y. 676; Davis v. Sarjeantz). Blunt, 16 Johns. (N.Y.) 74. 
 
 788
 
 Chap. III.] BE0KER8. § 957. 
 
 the principal within a reasonable time.' It is also his duty to 
 pay to his principal, after deducting his own charges and com- 
 missions, where such may lawfully' be charged, all moneys which 
 may come into his hands for his principal's account* As in other 
 cases, all profits and advantage made by the broker, while engaged 
 in the performance of his undertaking whether they are the fruit 
 of the performance or violation of his duty to his principal, 
 belong to the principal, and the broker must account to the latter 
 for them.* 
 
 V. 
 
 DUTIES AND LIABILITIES TO THIBD PERSONS. 
 
 § 956. Not liable when Principal disclosed. A broker, like 
 other agents,* who contracts for and in the name of a disclosed 
 principal, cannot be held personally liable upon such contract, if 
 it be one which he was authorized to make.* 
 
 § 957. Liable when Principal concealed. But where the 
 broker conceals either the fact of his agency, or the name of his 
 principal, and contracts in his own name, he will be held person- 
 ally liable, although the principal may be liable also when dis- 
 covered.* It is not enough to relieve the broker that the other 
 party knew that he acted as an agent if he did not know who 
 the principal was. 
 
 And he must have actual knowledge. Information sufficient 
 to create an inference, or to put him upon inquiry has been held 
 to be not enough.' 
 
 » Payne ». Waterston, 16 La. Ann. Baltzen v. Nicolay, 68 N. Y. 470; 
 
 239; Haas v. Damon, 9 Iowa, 589; York Co. Bank «. Stein, 24 Md. 447; 
 
 Williams v. White, 70 Me. 138. Jones v. iEtna Ins. Co 14 Conn. 501; 
 
 a See ante, % 523, et seq. Wheeler v. Reed, 36 111. 83; Poole v. 
 
 » See ante, § 469. Rice, 9 W. Va. 73. 
 
 * See ante, % 555. Where a broker sold "for and on 
 
 » Ferris «. Kilmer, 48 N. Y. 300; account of owner" who was not 
 
 Tiller v. Spradley, 39 Ga. 35. named, it was held that a custom to 
 
 « Cobb V. Knapp, 71 N. Y. 348, 27 charge the broker as well as the prin- 
 
 Am. Rep.51 ; Youghiogheny Iron Co. cipal, was not inconsistent with the 
 
 V. Smith, 66 Penn. St. 340; Jessup v. contract, and was admissible. Pike 
 
 Steurer, 75 K Y. 613; Button v. v. Ongley, 18 Q. B. Div, 708. See 
 
 Winslow, 53 Vt 430; Baldwin v. also Barrow v. Dyster, 13 Id. 635; 
 
 Leonard, 39 Vt. 366; 94 Am. Dec. Hutcheson v. Eaton, Id. 861. 
 
 334; Gerrard v. Moody, 48 Ga. 96; 'Cobb®. Knapp, 71 N. Y. 348, 37 
 
 Beymer v. Bonsall, 79 Penn. St. 398; Am. Rep. 51 ; Raymond v. Crown & 
 
 789
 
 § 958. THE LAW OF AGENCY. [Book V» 
 
 § 968. Liable when he expressly charges himself. And so, 
 though the principal be known, it is competent for the broker, if 
 he so elect, to charge his own individual credit, and where he has 
 done 80, he is, of course, personally responsible.^ Whether he 
 has done so or not, is a question of fact to be determined from 
 all the circumstances of the case, unless the contract be in writ- 
 ing, couched in unmistakable terms." Where the principal is 
 known, the presumption is that the broker intended to charge hira 
 rather than himself, and, therefore, the burden of proving a per- 
 sonal undertaking upon the part of the broker, rests upon the party 
 who alleges it.» If knowing both the principal and the broker, 
 and having the opportunity to choose between them, the other 
 party sees lit to give exclusive credit to the broker, he can not 
 hold the principal also.^ 
 
 § 959. Liable when he acts without Authority. A broker, 
 like any other agent, may also render himself liable to third par- 
 ties with whom he deals, for injuries which they may sustain by 
 reason of his assuming to have and exercise an authority which 
 he did not in fact possess, whether the defect was owing to a total 
 absence of any authority, or to the fact that the authority he really 
 possessed was insufficient for the purpose.* 
 
 § 960. Liability for Money received. The liability of the 
 broker to third persons for money received, either from them, 
 but unlawfully, on the principal's account, or from the principal 
 for them, depends upon the same considerations which determine 
 the liability of other agents under like circumstances ; — a subject 
 which has already been discussed.* 
 
 § 961. "When guilty of a Conversion. A broker acting merely 
 as such and contracting only for and in behalf of his princi- 
 pal, is not liable to the true owner as for a conversion where it 
 appears that in the regular course of trade he has been employed 
 
 Eagle Mills, 2 Mete. (Mass.) 319; Williams. 5 Gray (Mass.) 557; Baxter 
 
 Faikenburg v. Clark. 11 R. I. 278; v. Duren, 21 Me. 434. 
 
 Royce v. Allen, 28 Vt. 234; Baldwin « See ante, %% 551, 252, 558. 
 
 V. Leonard, 39 Vt. 260, 94 Am. Dec. « See ante, % 558. 
 
 324; Wilder z). Cowlea, 100 Mass. 487; • See an(e, % 558. 
 
 Nixon V. Downey, 49 Iowa, 166. * See ante, % 558. 
 
 But see, contra; Wright v. Cabot, » See an<e, g 541-550. See also Fir- 
 
 89 N. Y. 570; and see also Bliss v. bank v. Humphreys, 18 Q. B. Div. 54 
 
 Bliss, 7 Bosw. (N. Y.) 345; Lyon v. • See ante, % 566, et seq. 
 
 790
 
 Chap. III.] BKOKEES. § 9C3. 
 
 by, and has sold goods for, one who, in good faith and in the 
 exercise of reasonable prudence, he believed to be the owner.' 
 But a broker who, however innocently, obtains possession o*^ the 
 goods of a person who has been fraudulently deprived of them, 
 and disposes of them as being himself the principal or owner of 
 them, is liable to the owner as for a conversion.* 
 
 Thus where B had fraudulently obtained cotton from F, and 
 H, whose ordinary business was that of a cotton broker, and who 
 was utterly ignorant of the fraud of B, purchased the cotton from 
 B, in the belief and expectation that M, one of his ordinary 
 clients, would accept it, and M did afterwards accept it, though 
 H received from M a broker's commission only and not a trade 
 profit on the sale, it was held tliat in this instance H had made 
 himself a principal, and by transferring the cotton to M had com- 
 mitted an act of conversion, which made him liable in trover to 
 F, the true owner of the cotton.* 
 
 VI. 
 
 BIGHTS OF BKOKER AGAINST PEINOIPAL. 
 
 1. Right to Compensation, 
 
 § 962. Entitled to Compensation. A broker, like any other 
 agent, who performs his undertaking is entitled to compensation 
 for his services. This compensation is usually a commission 
 upon the price or value of the thing bought, sold or exchanged 
 by means of his endeavors. 
 
 § 963. How Amount determined. It is entirely competent 
 for the parties to agree upon the amount of compensation to be 
 paid, and the terms and conditions of its payment, and such 
 agreements when fairly made will be enforced. Where no rate 
 of compensation is agreed upon, it may be determined by refer- 
 ence to the usage, if any, prevailing at the same time and place 
 in like cases ; * but usage will not be permitted to contravene 
 
 * See Roach e. Turk, 9 Heisk, sion of opinion among the judges of 
 
 (Tenn.) 708, 24 Am, Rep. 360. the various courts, contains interest- 
 
 2 Hollins V. Fowler, L. R. 7 H. L. ing discussions of the broker's duties 
 
 727, 14 Eng. Rep. 138. and liabilities. 
 
 » Hollins «. Fowler, mpra. This < Morgan v. Mason, 4 E. D, Smith 
 
 case which occasioned much divi- (N. T.) 636 
 
 791
 
 §96i. 
 
 THE LAW OF AGENCY. 
 
 [Book Y. 
 
 the express agreement of the parties. * Where no agreement 
 was made and no usage prevails, the broker will be entitled to a 
 reasonable compensation.* 
 
 § 964. Broker must show Employment, To entitle the bro- 
 ker to commissions for his services, he must make it appear that 
 the services were rendered under an employment and retainer by 
 the principal,' or that the latter accepted his agency and adopted 
 his acts. * If he rendered the services as a mere volunteer, with- 
 out any employment, express or implied, he cannot recover com- 
 missions,* 
 
 § 965. Broker must have performed Undertaking. The bro- 
 ker must also show that he has completed his undertaking accord- 
 ing to its terms, or that its completion was prevented without his 
 fault, by his principal. What constitutes completion is, however, 
 a question of no little difficulty in many cases, depending, as it 
 
 » Ware v. Hayward Rubber Co. , 3 
 Allen (Mass.) 84; Illiugsworth v. 
 Slosson, 19 111. App. 613; Bower v. 
 Jones, 8 Bing. 65; Collender v. Dins- 
 more, 55 N. Y. 200; Sanford v. 
 Rawlings, 43 111. 92. 
 
 "It is almost needless to say " 
 remarks Mr. Justice Paxson, "that 
 to establish such a custom, it must be 
 reasonable, certain, uniform, contin- 
 ued, and moreover generally under- 
 stood and acquiesced in by persons 
 engaged in buying and selling. * * 
 Where a custom exists, parties 
 are presumed to deal in view of it, 
 and where no agreement is made as 
 to commissions, that they agree to 
 pay the customary rate. In the ab- 
 sence of such custom, and of any 
 agreement as to rate, the measure of 
 compensation would be the value of 
 the service rendered. This is always 
 a safe standard and should never be 
 set aside for a custom unless the latter 
 is proved to be so well known and 
 80 long persisted in that the parties 
 must be presumed to have known of 
 it. A usage which is to govern a 
 question of right, should be so cer- 
 tain, uniform and notorious as prob- 
 
 ably to be known to and understood 
 by the parties as entering into their 
 contract. United States v. Duval, 
 Gilp. 356. And it cannot be proved 
 by isolated instances. Dean v Swoop, 
 2Binn. 72; Cope v. Dodd, 1 Harris 
 83," in Potts t>.Aechternacht,93 Penn. 
 St. 138, 141. 
 
 s Potts «. Aechternacht, 93 Penn. 
 St. 138. 
 
 » Hinds V. Henry, 36 N. J. L. 328; 
 Keys V. Johnson, 68 Penn. St. 42; 
 Twelfth Street Market Co. v. Jack- 
 son, 102 Penn. St. 269; Coffin v. 
 Linxweiler, 34 Minn. 820. 
 
 * Keys V. Johnson, supra; Twelfth 
 Street Market Co. v. Jackson, supra; 
 Atwater v. Lockwood, 39 Conn. 45; 
 Hinds t). Henry, supra: Sibbald v. 
 Bethlehem Iron Works, 83 N. Y. 378, 
 38 Am. Rep. 441. 
 
 « Hinds V. Henry, supra; Cook v. 
 Welch. 9 Allen (Mass.) 350. 
 
 Thus where a broker whom the 
 principal had refused to employ, hav- 
 ing learned the price sent a person to 
 him who bought the property, it was 
 held that he was not entitled to a 
 commission. Pierce v. Thomas, 4 K 
 D. Smith, (N. Y.) 354. 
 
 792
 
 Chap. III.] BROKERS. § 9G6. 
 
 does, upon vague and indefinite agreements between the parties. 
 The parties are at liberty to make the payment of commissions 
 dependent upon such lawful conditions and contingencies as please 
 them, and, where no improper advantage is taken, their express 
 stipulations must prevail, although the result be that the broker 
 finds that he has risked his labor and expenses upon the mere 
 caprice of his employer, as when he undertakes to find a purchaser 
 of property upon terms satisfactory to the seller. For many 
 cases no more satisfactory general rule can be laid down than to 
 ascertain, 1. What did the broker undertake to do ? 2. Has he 
 completed that undertaking within the time and upon the terms 
 stipulated ? and 3, If not, is the default attributable to his own 
 act or to the interference of the principal ? If upon such an 
 inquiry it be determined that the broker has performed within 
 the time, and upon the terms, agreed upon, he is entitled to his 
 commissions ; if he has not, he is not so entitled, unless the per- 
 formance was prevented by the principal under circumstances 
 which gave him no right then and so to prevent it. It will be 
 seen from this rule that where the time is limited, the perform- 
 ance must be within that time ; and the broker will not be enti- 
 tled to commissions because efforts begun within that time bear 
 fruit after its expiration. So, if particular terms or conditions 
 are stipulated for, the performance must be in accordance with 
 tliose terms ; and no performance upon other terms will suffice 
 unless accepted by the principal, although the other terms may 
 be considered more favorable than those specified. 
 
 § 966. Same Subject— Real Estate Broker. These principles 
 have been most frequently applied in the case of brokers em- 
 ployed to sell real estate, and a consideration of their application 
 here will throw light upon the whole subject. A broker 
 employed to sell real estate may be authorized and required by 
 the terms of his undertaking, not only to find the purchaser, but 
 to procure from him a valid written agreement binding him to 
 purchase upon the terms specified, and where this is his under- 
 taking, unless the principal waives this condition by accepting 
 the purchaser and selling to him, or otherwise, the broker has 
 not earned his commissions until it is performed;* but the 
 
 •Hyamst). Miller, 71 Ga. 608; Gil- Mass. 255, 3 Am. Rep. 349; Cook d. 
 Christ ©. Clarke, — Tenn. — 8 S. W. Fiske, 12 Gray (Mass.) 491; Kerfoot 
 Rep. 572; Tombs «. Alexander, 101 «. Steele, 113 111. 610; Love c. Miller, 
 
 793
 
 §966. 
 
 THE LAW OF AGENCY. 
 
 [Book V. 
 
 authority and duty of the real estate broker, as ordinarily em- 
 ployed, do not go so far. As so employed, he has no implied 
 authority to bind his principal by a written contract to sell the 
 real estate,* and, unless he contracts for more, it is no part of his 
 implied duty to complete a binding contract with the purchaser.' 
 His duty is performed when he has found a purchaser who is 
 ready, willing and able to purchase upon the terms specified,' or, 
 if no particular terms were agreed upon, when he has produced 
 a purchaser to whom the principal sells.* 
 
 It is not necessary that the broker should personally have con- 
 ducted the negotiation between his principal and the purchaser,* 
 or that he should have been present when the bargain was com- 
 pleted,' or even that the principal should, at the time, have known 
 that the purchaser was one found by the broker.' It is indispen- 
 
 53 Ind. 294; Pearson v. Mason, 120 
 Mass. 53; Leete D. Norton, 43 Conn. 
 219. 
 
 * Ryon V. McQee, 2 Mackey (D. C.) 
 17; Duffy v. Hobson, 40 Cal. 240; 
 Rutenberg «. Main, 47 Cal. 213. 
 
 2 Desmond v. Stebbins, 140 Mass. 
 889; McCreery v. Green, 38 Mich 
 185. 
 
 » McGavock v. Woodlief, 20 How. 
 (U. S.) 221; Hinds v. Henry, 36 N. 
 J. L. 828; Frazer «. Wyckofl, 63 N. 
 Y. 445; Livezy «. Miller, 61 Md. 336: 
 Coleman v. Meade, 13 Bush (Ky.) 
 858; Burling ». Gunther, 12 Daly, 
 (N. Y. ) 6; Gaty v. Foster, 18 Mo. 
 App. 639; Pratt o. Hotchkiss, 10 111. 
 App. 603; Goss «. Stevens, 32 Minn. 
 472; Fischer v. Bell, 91 Ind. 243; 
 VeazieiJ. Parker, 72 Me. 443; Wat- 
 gon V. Brooks, 8 Sawy. (U. S. C. C.) 
 316; Neilson v. Lee, 60 Cal. 555; 
 Phelan v. Gardner, 43 Cal. 806; Bell 
 v. Kaiser, 50 Mo. 150; Tyler v. Parr, 
 6'3 Mo. 249; Kock v. Emmerling, 22 
 How. (U. 8.) 69: McCreery v. Green, 
 88 Mich. 172; Fox ". Rouse, 47 Mich. 
 658; Higgins v. Moore, 84 N. Y. 417; 
 Barnard v. Monnot, 34 Barb. (N. Y.) 
 90; Duclos v. Cunningham, 103 N. 
 Y. 678: McClane v. Paine, 49 N. Y. 
 
 561; Jones t. Alder, 34 Md. 440; Do- 
 lan 77. -Scanlan, 57 Cal. 201; Timber- 
 man V. Craddock, 70 Mo. 688. 
 
 * Cassady v. Seeley, 69 Iowa, 509 ; 
 Iselin V. Griffith, 62 Iowa 668; Hanna 
 V. Collins, 69 Iowa 51; Fisk ?>. Hena- 
 rie,13 Oregon, 156; Stewart®. Mather, 
 32 Wis. 344; Glenthworth v. Luther, 
 21 Barb. (N.Y.) 147; Sibbald v. Beth- 
 lehem Iron Works, 83 N. Y.878, 38 
 Am. Rep. 441; Desmond t. Stebbins. 
 140 Mass. 339;Veazie v. Parker, 72 
 Me. 443; Sussdorff v. Schmidt, 55 N. 
 Y. 319; Attrill v. Patterson, 58 Md. 
 226; Coleman v. Meade, 13 Bush 
 (Ky.) 358; Rice «. Mayo, 107 Mass. 
 550. 
 
 5 Royster v. Mageveney, 9 Lea 
 (Tenn.) 148; Timberman v Craddock, 
 70 Mo. 638. 
 
 • Royster v. Magevenej', supra; 
 Timberman v. Craddock, svpra; 
 Sibbald v. Bethlehem Iron Works, 83 
 N. Y. 378, 38 Am. Rep. 441 ; Dreis- 
 back V. Rollins, — Kans, — 18 Pac. 
 Rep. 187. 
 
 T Goffe V. Gibson, 18 Mo. App. 1; 
 Sussdorflf V. Schmidt, 55 N. Y, 320: 
 Wylie V. Marine Nat. Bank, 61 N.Y. 
 415. 
 
 794
 
 Chap. III.] 
 
 BROKERS. 
 
 § U6G. 
 
 sable, but it is also suflBcient, that his efforts were the procuring 
 cause of the sale; that through his agency the purchaser was 
 brought into communication with the seller, although the parties 
 then negotiated in person." His efforts may have been slight, 
 but if they brought about the desired result, no more could be 
 asked ; and their operations may have been circuitous, but if the 
 purchases was the natural and proximate result of his endeavors, 
 it is suflScient." The law prescribes no particular method of 
 
 1 Timberman v. Craddock, 70 Mo. 
 638; Bell v. Kaiser, 50 Mo. 150; Tyler 
 V. Parr, 53 Mo. 249; Royster v. Ma- 
 geveney, 9 Lea (Tenn.) 148; Sussdorflf 
 V. Schmidt, supra; Veazie v. Parker, 
 72 Me. 443; Wyckofif v. Bliss, 12 
 Daly (N.Y.) 324; Attrill®. Patterson, 
 58 Md. 226. 
 
 2 Lincoln v. McClatchie, 36 Conn. 
 136; Green c, Bartlett, 14 C. B. (N. 
 S.)681; Shepherd v. Hedden, 29 N. 
 J. L. 834; Pope v. Beals, 108 Mass. 
 561. 
 
 Some illustrations of what has been 
 deemed sufficient in such cases may be 
 of use: Thus in Lincoln «?. McClatchie, 
 36 Conn. 136, the defendant had put 
 into the hands of the plaintiff, a real 
 estate broker, a house on a certain 
 street to sell for $6,500, instructing 
 him not to advertise it, but to sell by 
 private sale. Afterwards the plain- 
 tiff advertised in general terms that 
 he had houses on that street to sell. 
 One G, who lived on the street, who 
 had been looking for a house on the 
 same street for his friend B, saw the 
 advertisement and went to plaintiff's 
 office where he learned that defend- 
 ant's house was for sale. Plaintiff, 
 by mistake, had entered the price on 
 his books at $6,000 and so informed 
 G. G informed B that the house was 
 for sale at $6,000 and advised him to 
 buy it. B then examined the house 
 and entered into negotiations with de- 
 fendant, which resulted in B's pur- 
 chase of the house with less than a 
 hundred doUars' worth of personal 
 
 79 
 
 property included, at $6,500. B 
 never saw plaintiff in the transaction 
 and was never in his office, and G's 
 action was purely voluntary. It was 
 held, however, that the plaintiff's 
 efforts were the procuring cause, and 
 that he was entitled to his commis- 
 sion. 
 
 The same result was reached in a 
 very similar case in Nebraska. A 
 employed broker B to sell his farm. 
 B advertised the property in a news- 
 paper. Farmer C saw the advertise- 
 ment and told his neighbor D that 
 A's farm was for sale. D went to A 
 and bought the farm. Held that B 
 was entitled to his commissions. An- 
 derson 7}. Cox, 16 Neb. 10. 
 
 So in Green v. Bartlett, 14 C. B. 
 (N. S.) 681. an auctioneer and broker 
 had been employed to sell an estate. 
 Having advertised it and made an 
 unsuccessful effort to sell it by auc- 
 tion, he was asked by a person who 
 had attended the sale, who the owner 
 was, and he directed him to the prin- 
 cipal. Ultimately this person pur- 
 chased the estate of the principal, 
 without any further intervention of 
 the broker, but the court held that he 
 was the procuring cause of the sale 
 and entitled to his commission. 
 
 But the law regards only proxi- 
 mate, and not remote, causes; hence 
 if after the broker's services have 
 failed to accomplish a sale, and afte? 
 the proposed purchaser has decided 
 not to buy, other persons iiJ uce him 
 to do so, the broker is not entitled to
 
 g 9G0. 
 
 THE LAW OF AGENCY. 
 
 [Book V. 
 
 procedure, nor has it any other standard by which to measure 
 exertion, in such a case, than the result attained. 
 
 It is also indispensable that the purchaser produced should be 
 one ready, willing and able to purchase upon the terms specified, 
 if any were fixed, for if he be willing to buy only on different 
 terras or at a different price or upon other conditions, the broker 
 will not be entitled to his commission,^ unless the variance be 
 waived by the principal.' So, it is indispensable that the pur- 
 chaser should be found within the time limited, for if the brok- 
 er's exertions do not produce the buyer until after that time has 
 expired, it is not enough,' unless the principal has caused the 
 
 commissions, Earp v. Cummins, 54 
 Penn. St. 394, 93 Am. Dec. 718. So 
 in Mansell v. Clements, L. R. 9 C. P. 
 139, 8 Eng. Rep. 449, defendant had 
 placed a house in plaintiffs' hands to 
 sell. A was looking for a house in 
 that neighborhood and seeing a notice 
 (not posted by nor referring to the 
 plaintiffs) that this house was for sale, 
 made some inquiries about it, hut 
 concluded that the house was too 
 large. He afterwards called upon 
 plaintiffs to see what houses they 
 had, and received from them cards of 
 admission and terms for several 
 houses, among which was the one in 
 question. He examined the house 
 and finally purchased it through an 
 other agent of defendant for a less 
 sum than that named, the plaintiff 
 having nothing to do with the whole 
 transaction other than giving A the 
 card and terms. A stated upon the 
 trial that he thought he should not 
 have purchased the house if he had 
 not received from plaintiffs the card 
 and terms. Held that they were en- 
 titled to their commissions. 
 
 ' Hoyt V. Shipherd, 70 111. 309; 
 Ward V. Lawrence, 79 111. 295; Rees 
 V. Spruance, 45 111. 308; Hamlin©. 
 Schulte, 31 Minn. 486, 17 Reporter 
 562; Clendenon v. Pancoast, 75 Penn. 
 St. 213; Schwartze v. Yearly, 31 
 Md. 270;McQavocke. Woodlief, 20 
 
 How. (U. S.) 221; Wylie *. Marine 
 Nat. Bank, 61 N. Y. 415; Williams 
 V. McGraw, 53 Mich, 480; Hayden v. 
 Grillo, 26 Mo. App. 289; Bradford*. 
 Menard, 35 Minn. 197. 
 
 s Where the price was fixed a pur- 
 chaser must be produced ready, will- 
 ing and able to buy at that price, and 
 if the purchaser offered will not buy 
 at that price but only at a lower, the 
 broker will not be entitled to com- 
 missions, unless there was collusion 
 between the principal and purchaser. 
 A sale to such a person is not a 
 waiver of the terms fixed. The bro- 
 ker would be entitled to commissions, 
 however, if the principal knowing 
 that that the purchaser produced was 
 ready, willing and able to buy at the 
 price fixed, voluntarily sells to him at 
 a less price. McArthur v. Slauson, 
 53 Wis. 41. Compare with Stewart 
 V. Mather, 32 Wis. 344. 
 
 8 Beauchamp v. Higgins, 20 Mo. 
 App. 514; Fultz 0. Wimer, 34 Kan. 
 576; Watson v. Brooks, 11 Ore. 271; 
 McCarthy v. Cavers, 66 Iowa 342. 
 
 Where a broker was to have a com- 
 mission, if he found a purchaser 
 within a "short time," it was held 
 that a performance within two weeks 
 was sufficient. Smith v. Fairchild, 
 7 Col, 510. Broker has not performed 
 who on last day produces a purchaser 
 who will buy if he has time to inves- 
 
 796
 
 Chap. III.] 
 
 BROKEKS. 
 
 §906. 
 
 delay,' or unless he waives it.' But if the purchaser is found 
 and negotiations are begun, within the time limited, it is imma- 
 terial that they were not fully consummated until afterwards." 
 
 It is also incumbent upon the broker to show that the purchaser 
 produced was ready or able pecuniarily to complete the pur- 
 chase. Pecuniary responsibility may be implied in many cases, 
 but in cases of this nature the broker must be prepared to prove, 
 if necessary, that the purchaser found by him was pecuniarily 
 able to pay the purchase price agreed upon, and he cannot satisfy 
 his undertaking by the production of a mere " man of straw." * 
 
 If the broker abandons the undertaking before he has found 
 the purchaser, he can claim no commissions for a subsequent sale, 
 tliough made to a purchaser whom he had previously tried to 
 reach.' 
 
 tigate title. Watson v. Brooks, «*- (Ky.) 358; Pratt v. Hotchkiss, 10 111. 
 pra. 
 
 * Beauchamp v. Higgins, supra; 
 Fultz V. Wimer, supra; Watson v. 
 Brooks, iupra. 
 
 > If the principal without objection 
 then deals with the purchaser so 
 found he waives the delay. See 
 cases cited in note 4, p. 794. 
 
 » Goffe V. Gibson, 18 Mo App. 1. 
 
 < " We think " said Beck, J., " that 
 in order to entitle plaintiffs to re- 
 cover, something more than a mere 
 offer to purchase should be shown by 
 them. Such an offer could be made 
 by one without means, and who is 
 in no condition to comply with the 
 terms of the sale, and against whom a 
 claim for damages resulting from a 
 failure to perform the contract of 
 purchase could not be enforced. An 
 offer from such an one ought not to 
 be considered as constituting the per- 
 formance of plaintiff's undertakiog 
 >.j negotiate the sale of the land. As 
 the pecuniary responsibility of the 
 purchaser was, or ought to have been, 
 known to the plaintiffs, the burden 
 rested upon them to show it." In 
 Iselin ». Gritfith, 62 Iowa 668, 17 
 Keporter 431 ; and to the same effect 
 are: Coleman «. Meade, 13 Bush 
 
 App. 603; McGavock v. Woodlief, 29 
 How. (U. S.) 231. 
 
 But on the other hand in Hart v. 
 Hoffman, 44 How. Pr. 168, the Court 
 of Appeals of New York held thai 
 no such proof is required, saying that 
 solvency is presumed; and the same 
 ruling was followed in Cook v. 
 Kroemeke, 4 Daly, (N. T.) 268; and 
 Goss V. Broom, 31 Minn. 484. 
 
 See Duclos v. Cunningham, 102 N. 
 Y. 678, 6 N. East. Rep. 790. 
 
 6 Earp V. Cummins, 54 Penn. St. 
 394, 93 Am. Dec. 718; Wylie v. 
 Marine Nat. Bank, 61 N. Y. 415; 
 Holley V. Townsend, 2 Hilton (N. Y.) 
 34; Sibbald c. Bethlehem Iron Works, 
 83 N. Y. 378, 38 Am. Kep. 441. 
 
 So where a broker's efforts to sell the 
 property had failed, and the principal 
 had revoked his authority, it was held 
 that the principal was not liable for 
 commissions though he afterwards 
 sold, through other brokers, to a per- 
 son to whom the first broker had en- 
 deavored to sell, it appearing that 
 the revocation was in good faith with 
 no intention then of renewing the 
 negotiations. Uphoff v. Ulrich, 2 111. 
 App. p. 399. 
 
 So where all attempts by the bro- 
 
 797
 
 §967. 
 
 THE LAW OF AGENCY. 
 
 [Book Y. 
 
 These agreements to pay a commission for finding a purchaser 
 for real estate are not within the Statute of Frauds, and hence 
 are valid though not in writing.* 
 
 § 967. Same Subject— Not defeated, how. Unless the princi- 
 pal has expressly waived that right, he is at perfect liberty to sell 
 the property by his own efforts, notwithstanding the employment 
 of the broker, and, in case of such a sale, he will not be liable to 
 the broker for commissions, if the broker's efforts were not, in 
 fact, the procuring cause of the sale.' 
 
 ker to sell the property had ceased 
 for more than six months, and the 
 broker had moved away, it was held 
 that the principal was not liable to 
 him for commissions, although the 
 principal finally sold to a person with 
 whom the broker had previously ne- 
 gotiated but without success, Lipe 
 V. Ludewick. 14 111. App. 372, 
 
 In Sibbald v. Bethlehem Iron 
 works, 83 N.Y. 378. 38 Am. Rep. 441, 
 Finch, J., says: "It follows, as a 
 necessary deduction from the estab- 
 lished rule, that a broker is never en- 
 titled to commissions for unsuccessful 
 efforts. The risk of a failure is 
 wholly his. The reward comes only 
 with his success. That is the plain 
 contract and contemplation of the 
 parties. The broker may devote his 
 time and labor, and expend his money 
 with ever so much of devotion to the 
 interest of his employer, and yet if he 
 fails, if without effecting an agree- 
 ment or accomplishing a bargain, he 
 abandons the effort, or his authority 
 is fairly and in good faith terminated, 
 he gains no right to commissions. 
 He loses the labor and effort which 
 was staked upon success. And in 
 such event it matters not that after 
 his failure, and the termination of his 
 agency, what he has done proves of 
 use and benefit to the principal. In 
 a multitude of cases that must neces- 
 sarily result. He may have intro- 
 duced to each other, parties who 
 
 otherwise would have never met; he 
 may have created impressions, which 
 under later and more favorable cir- 
 cumstances naturally lead to and ma- 
 terially assist in the consummation 
 of a sale; he may have planted the 
 very seed from which others reap 
 the harvest; but all that gives him no 
 claim. It was part of his risk that 
 failing himself, not successful in 
 fulfilling his obligation, others might 
 be left to some extent to avail them- 
 selves of the fruit of his labors. As 
 was said in Wylie v. Marine National 
 Bank, 61 N. Y. 416, in such a case 
 the principal violates no right of the 
 broker by selling to the first party 
 who offers the price asked, and it 
 matters not that sale is to the very 
 party with whom the broker had 
 been negotiating. He failed to find 
 or produce a purchaser upon the 
 terms prescribed in his employment, 
 and the principal was under no obli- 
 gation to wait longer that he might 
 make further efforts. The failure 
 therefore, and its consequences, were 
 the risk of the broker only." 
 
 ' Waterman Real Estate Exchange 
 V. Stephens, — Mich. — , 15 West. Rep. 
 193, 38 N. W. Rep. 685. 
 
 s Hungerford v. Hicks, 39 Conn. 
 259; Darrow v. Harlow, 21 Wis. 302, 
 94 Am. Dec. 541; Wylie v. Marine 
 Nat. Bank, 61 N. Y. 415; McClave v. 
 Paine, 49 N. Y. 561; Lloj'd v. Matt- 
 hews, 51 N. Y, 125; Keys v. Johnson, 
 
 798
 
 Chap. III.] 
 
 BK0KER8. 
 
 968. 
 
 But the principal can not, when the broker's efforts have 
 resulted in negotiations for a sale, step in and by taking the mat- 
 ter into his own hands and completing the sale, escape liability to 
 the broker." Nor if, within the time limited, the broker has 
 produced a purchaser who is ready, willing and able to purchase 
 upon the terms prescribed, can the principal evade the payment 
 of the broker's commission by then refusing or neglecting to 
 consummate the sale,' or by changing his terms," or by selling the 
 property to another,^ or by so negligently dealing with the pro 
 posed purchaser as to lose the benefit of the sale.* So if the 
 broker has fulfilled upon his part, he will be entitled to his com- 
 missions although the sale is not consummated because the prin- 
 cipal's title proves to be defective ; • or because the principal's 
 wife refuses to join in the conveyance ; ^ or because the purchaser 
 refuses to complete the sale on account of false representations 
 made by the principal.' 
 
 § 968. Same Subject— Revocation of Authority. It is entirely 
 competent for the principal to agree that the broker shall have a 
 
 68 Penn. St. 42; Doonan v. Ives, 73 
 Ga. 295; Dolaa v. Scanlan, 57 Cal, 
 261. 
 
 ' Keys V. Johnson, supra; Sibbald v. 
 Bethlehem Iron Works, 83 N. Y. 878, 
 88 Am. Rep. 441 ; Butler v. Kennard, 
 — Neb. — , 36 N. W. Rep. 579; 
 Nicholas V. Jones, — Neb. — , 37 N. 
 W. Rep. 679. 
 
 8Gaty». Foster, 18 Mo. App. 639; 
 Burling v. Gunther, 12 Daly (N. Y.) 
 6; Goss V. Stevens, 32 Minn. 472; 
 Fischer v. Bell, 91 Ind. 243; Veazie v. 
 Parker, 73 Me. 443; Watson «. 
 Brooks, 8 Sawy. (U. S. C. C.) 316; 
 Neilson v. Lee, 60 Cal. 555; Phelan v. 
 Gardner, 43 Cal. 306; Bell v. Kaiser, 
 50 Mo. 150; Tyler v. Parr, 52 Mo. 249; 
 Kock V. Emmerling, 22 How. (U. S.) 
 69; Moses®. Bier ling, 31 N. Y. 462; 
 Kelly V. Phelps, 57 Wis. 425; Love v. 
 Miller, 53 Ind. 294; Bailey v. Chap- 
 man, 41 Mo. 538; Cook v. Fiske, 12 
 Gray (Mass.) 491; Gillett v. Corum, 7 
 Kans. 156; Sibbald v. Bethlehem Iron 
 Works, 83 N. Y. 378, 38 Am. Rep. 
 
 441 ; Gorman v. Scholia, 13 Daly (N. 
 Y.)516. 
 
 3 Bash V. Hill, 62 111. 216; Stewart «. 
 Mather, 32 Wis. 844; Nesbitt v. Hel- 
 ser, 49 Mo. 383. 
 
 < Lane v. Albright, 49 Ind. 275; 
 Reed's Ex'rs v. Reed, 82 Penn. St. 
 420; Fox v. Byrnes, 62 N. Y. Super. 
 Ct. 150. 
 
 5 Potvin V. Curran, 13 Neb. 302; 
 Parker v. Walker, — Tenn. — , 8 S. 
 W. Rep. 391. 
 
 « Hamlin®. Schulte, 34 Minn. 534; 
 Roberts v. Kimmons, — Miss. — , 3 
 South Rep. 736; Hannan v. Moran, 
 — Mich. — , 15 West. Rep. 211; 
 Goodridge v. Holladay, 18 111. App. 
 368; Gonzales®. Broad, 57 Cal. 224; 
 Knapp®. Wallace, 41 N. Y. 477; Doty 
 ®. Miller, 43 Barb. (N. Y.) 529; Sib- 
 bald ®. Bethlehem Iron Works, 88 N. 
 Y. 378, 38 Am. Rep. 441. But see 
 Rockwell V. Newton, 44 Conn. 883. 
 
 T Clapp V. Hughes, 1 Phila. 382. 
 
 * Glentworlh v. Luther, 21 Barb, 
 (N. Y.) 145. 
 
 799
 
 ft 968. THE LAW OF AQENOT. [Book Y. 
 
 certain time within which to find a purchaser, and, where he 
 does so, he will be liable to the broker for damages if, without 
 the latter's fault or consent, he terminates his authority before 
 the expiration of that period.' Such an agreement, however, is 
 not to be implied from the mere fact that the time within which 
 the broker is to perform is limited. Thus an agreement to pay 
 a broker commissions if "within a month" he succeeds in 
 finding a purchaser, does not amount to an agreement on the 
 part of the principal that the broker will be allowed a month for 
 the purpose, and the principal may, without liability for commis- 
 sions, revoke the broker's authority before the purchaser is 
 found, although the month has not expired.' Where no time is 
 80 agreed upon, the broker is entitled to a reasonable time in 
 which to find a purchaser, after which, if he be unsuccessful, the 
 principal may revoke the broker's authority, without liability, at 
 any time, subject only to this exception, that it be not done for 
 the purpose of avoiding the payment of commissions wliile 
 availing himself of the benefits of the broker's efforts, by taking 
 into his own hands the completion of negotiations then pend- 
 ing. Upon this subject, the language of Judge Finch, of the 
 New York Court of Appeals, is worthy of reproduction: — 
 " Where no time for the continuance of the contract is 
 fixed by its terras, either party is at liberty to terminate it at 
 will, subject only to the ordinary requirements of good faith. 
 Usually the broker is entitled to a fair and reasonable opportu- 
 nity to perform his obligation, subject, of course, to the right of 
 the seller to sell independently. But that having been granted 
 him, the right of the principal to terminate his authority, is abso- 
 lute and unrestricted, except only that he may not do it in bad 
 faith, and as a mere device to escape the payment of the broker's 
 commissions. Thus, if in the midst of negotiations instituted by 
 the broker, and which were plainly and evidently approaching 
 success, the seller should revoke the authority of the broker, with 
 the view of concluding the bargain without his aid, and avoiding 
 the payment of commissions about to be earned, it might well be 
 said that the due performance of his obligation by the broker was 
 purposely prevented by the principal. But if the latter acts in 
 good faith, not seeking to escape the payment of commissions, 
 but moved fairly by a view of his own interest, he has the absolute 
 » See ante, § 630 et seq. * Brown v. Pforr, 38 Cal. 550. 
 
 800
 
 Chap. III.] 
 
 BBOKESS. 
 
 §909. 
 
 right, before a bargain is made, while negotiations remain unsuc- 
 cessful, before commissions are earned, to revoke the broker's 
 authority, and the latter cannot thereafter claim compensation for 
 a sale made by the principal, even though it be to a customer 
 with whom the broker unsuccessfully negotiated, and even 
 though, to some extent, the seller might justly be said to have 
 availed himself of the fruits of the broker's labor."* 
 
 § 969. Employment of two or more Brokers. Unless he has 
 expressly agreed to give one broker the exclusive authority to 
 sell, the principal may employ several brokers to sell the same 
 property.* Where several are so employed, the authority of each 
 being limited to the particular transaction, the sale of the prop- 
 erty, either by the principal in person or by any one of the bro- 
 kers, operates at once to terminate the authority of all of the 
 brokers, although they had no actual notice of the sale.' The 
 principal may also revoke the authority of one or all of them, as 
 in other cases,* but a notice to one broker that the principal had 
 
 » In Sibbald v. Bethlehem Iron Co. 
 83 N. Y. 378, 38 Am. Rep. 441. 
 
 « Tinpea v. Moale, 25 Md. 480, 90 
 Am. Dec. 73; McClave v. Paine, 49 
 N. Y. 561, 10 Am. Rep. 431. 
 
 » Ahem «. Baker, 34 Minn. 98. 24 
 N. W. Rep. 341, 20 Reporter, 435. 
 In this case Vanderbergh, J. said: 
 "The defendant, on the ninth day of 
 September, specially authorized one 
 Wheeler, as his agent, to Bell the real 
 property in controversy, and to exe- 
 cute a contract for the sale of the 
 same. He in like manner on the 
 same day empowered one Fairchild 
 to sell the same land, the authority of 
 the agent in each instance being lim- 
 ited to the particular transaction 
 named. On the same day, Wheeler 
 effected a sale of the land, which was 
 consummated by a conveyance. Sub- 
 sequently, on the tenth day of Sep- 
 tember, Fairchild, as agent for 
 defendant, and having no notice of 
 the previous sale made by Wheeler, 
 
 also contracted to sell the same land 
 to this plaintiff, who, upon defend- 
 ant's refusal to perform on his part, 
 brings this action for damages for 
 breach of the contract. 
 
 This is a case of special agency, 
 and there is nothing in the case going 
 to show that the plaintiff (defendant?) 
 would be estopped from setting up a 
 revocation of the agency prior to the 
 sale by Fairchild. A revocation may 
 be shown by the death of the princi- 
 pal, the destruction of the subject- 
 matter, or the determination of his 
 estate by a sale, as well as by express 
 notice. The plaintiff (defendant?) 
 had a right to employ several agents, 
 and the act of one in making a sale 
 would preclude the others without 
 any notice, unless the nature of his 
 contract with them required it. In 
 dealing with the agent the plaintiff 
 took the risk of the revocation of his 
 agency, 1 Pars. Cont 71." 
 
 * See preceding section. 
 
 51 
 
 801
 
 §909. 
 
 THE LAW OF AGENCY. 
 
 [Book Y, 
 
 decided not to sell would not affect others with whom the one 
 notified had no connection.' 
 
 To determine which of the several brokers is entitled to the 
 commissions, is a question, in many cases, of no little diflBculty. 
 Where neither broker had knowledge of the employment of the 
 others, it would seem that the ordinary rule applicable to the case 
 of the employment of a single broker, would apply, i. e., that 
 the broker who was the efficient cause of the sale is entitled to 
 the commissions, and that this right can not be affected because 
 the principal in person, or by another agent, takes into his own 
 hands and completes the transaction which the broker has 
 inaugurated.' 
 
 But where several brokers are openly employed, it is said that 
 the entire duty of the principal is performed by remaining neutral 
 between them, and that he has a right to sell to the buyer who is 
 first produced by any of them, without being called upon to decide 
 which of the several brokers was the primary cause of the sale.' 
 
 » Lloyd V. Matthews, 51 N. Y. 124. 
 
 • See Eggle3ton v. Austin. 27 Kan. 
 245; see also Vreeland v. Vetterlein, 
 (33 N. J. L. 247) in following note. 
 
 " If he has several agents employed 
 to sell the same land, and one has 
 found a purchaser and has negotiated 
 with him to sell the land at a certain 
 stipulated price and on certain terms, 
 different from those specified in the 
 authority to sell, and when the sale 
 was about to be consummated, 
 another agent of the owner meets the 
 same person, who talks to him about 
 the offer of the first agent, and, with 
 full knowledge of the negotiations 
 of the first agent, the second agent 
 sells to such person the same prop- 
 erty for a less price, but on the same 
 terms as to cash down and time in 
 which to pay the deferred payments, 
 and the owner is ignorant of the 
 negotiations of the first agent with 
 the purchaser, but ratifies the sale by 
 the second agent, made on the terms 
 proposed by the first, he is not liable 
 to the second but to the first agent, 
 
 and should pay him a reasonable com- 
 pensation for procuring said sale." 
 Johnson, J., in Reynolds «. Tomp- 
 kins, 23 W. Va. 229, 235. 
 
 •"But it appears to be equally 
 obvious," says Chief Justice Beas- 
 LEY, "that another principle must be 
 applied to cases in which several 
 agents are avowedly employed by the 
 owner. Under such circumstances, 
 it would be impracticable to resort to 
 the same rule as when a monopoly to 
 sell is given to one. In the latter case, 
 the implied understanding is, that 
 the seller will not take advantage of 
 the endeavors of the agent, and that 
 no other person is authorized to do 
 so. But in the instance of a number 
 of agents, the agreement of non- 
 interference is not so wide, for it 
 extends to the act of the seller only. 
 Where the property is openly put in 
 the hands of more than one broker, 
 each of such agents is aware that he 
 is subject to the arts and chances of 
 competition. If he finds a person 
 who is likely to buy, and quits him 
 
 802
 
 Oliap. III.] 
 
 BR0KEK8. 
 
 § DG9. 
 
 The same rule in regard to the abandonment of the effort, 
 which has been already noticed, applies here also. Thus if ona 
 of several brokers gives notice to his principal that he can not 
 effect a sale, he will not be entitled to commissions because 
 another broker, who is informed by the first that the property is 
 for sale, succeeds in finding a purchaser/ So, if two brokers are 
 employed, and one of them enters into negotiations with a pur- 
 chaser which fail and are abandoned, he will not be entitled to 
 commissions because another broker subsequently succeeds, 
 wholly through his own efforts, in making a sale to the same per- 
 son, and upon substantially the same terms as those proposed by 
 the first broker.* 
 
 without having effected a sale, he is 
 aware that he runs the risk of such 
 person falling under the influence of 
 his competitor — and in such case, he 
 may lose his labor. This is a part of 
 the inevitable risk of the business ha 
 has undertaken. On the other hand, 
 if fortune should be propitious, a 
 bidder for the property on sale, who 
 has been solicited by his rival, may 
 come to him, and by his means effect 
 the bargain. Now, in this competi- 
 tion, the vendor of the property is to 
 remain neutral; he is interested only 
 in the result. But when either of the 
 agents thus employed, brings a pur- 
 chaser to him, and a bargain is struck 
 at the required price, on what ground 
 can he refuse to complete the bar- 
 gain? Can he say to the successful 
 competitor, this purchaser was first 
 approached by your rival, and you 
 sbould have refused to treat with 
 him on the subject? There is no 
 legal principal upon which such a 
 position could rest. It is contrary to 
 the usages of every day commerce. 
 Every advertisement of a slock of 
 goods for sale, has a tendency to 
 carry off the customers of rival deal- 
 ers. And if, therefore, it should be 
 known to the vendor of the property 
 that the agent, who introduces a pur- 
 chaser to him has, by the usual arts 
 
 of competition, taken such purchaser 
 out of the hands of his rival, I am not 
 aware of anything in the law which 
 would justify such vendor in a refusal 
 to complete the contract. The task 
 would be difficult and the risk great, 
 if vendors were called upon to decide 
 between the claims of contestants. 
 How would it be possible for such 
 vendor to say whose influence it was 
 that produced the sale, where the 
 purchaser has been solicited by both 
 agents? It would be at variance 
 with all practical rules, to require the 
 party selling to pronounce, under the 
 penalty of paying double commis- 
 sions, upon the metaphysical ques- 
 tion, which agent, under such cir- 
 cumstances, was the efficient cause of 
 the sale. In the absence of all collu- 
 sion on the part of the vendor, the 
 agent, through whose instrumentality 
 the sale is carried to completion, is 
 entitled to the commissions. Tliis 
 rule, I think, will be found to be in 
 accord with the cases heretofore 
 decided." In Vreeland v. Vetterlein, 
 33 N. J. L. 247. To same effect, see 
 Glenn v. Davidson, 87 Md. 365. 
 
 » Holley V. Townsend, 2 Hilton (N. 
 Y.) 34. 
 
 « Livezy v. Miller, 61 Md. 843^ 17 
 Reporter, 623. 
 
 803
 
 § 970. THE LAW OF AGENCY. [Book V. 
 
 When one of several brokers has produced a purchaser it is his 
 duty, if he intends to claim commissions, to report his name and 
 offer to his principal, and if he fails to do so, he can not complain 
 if the principal in good faith and without notice, pays the com- 
 missions to another broker who subsequently sells to the same 
 purchaser at the same price.* 
 
 § 970. Broker to effect Loan. The rights and duties of a 
 broker employed to secure a loan depend upon the same princi- 
 ples which govern the broker who undertakes to find a purchaser 
 of property. The loan broker is entitled to his commissions 
 where he has procured a lender who is ready, willing and able 
 to lend the money upon the terms proposed." If he does less 
 than that, he has not earned his commissions unless his employer 
 waives the deficiencies ; but if he has done that, he can not be 
 deprived of his commissions because his employer neglects or 
 refuses to obtain the loan, or changes his terms, or because the 
 security offered proves, upon investigation, to be defective.* 
 
 § 971. Broker to effect Exchange. And the same principles 
 apply to the case of a broker employed to effect an exchange of 
 property. He is entitled to his commissions when, and only 
 when, he has within the time limited, if any, produced a party 
 ready and able to exchange on the terms designated, or with 
 whom the principal deals.* Neither can his right to compen- 
 sation be defeated because the principal then refuses to exchange 
 or is not able to make a good title, or takes the matter into his 
 own hands.* 
 
 § 972. Cannot have Commissions from both Parties. As has 
 been seen, the broker will not ordinarily be permitted to under. 
 take to represent both parties in the same transaction.' His duty 
 to his principal and the policy of the law demand that, unless his 
 principal has expressly stipulated for less, the broker shall give 
 
 » Tinges v. Moale, 25 Md. 480, 90 Lucas, supra; Corning v. Calvert 3 
 
 Am. Dec. 73. Hilt. (N. Y.) 56. 
 
 s Vinton v. Baldwin, 88 Ind. 104, * Hewitt v. Brown, 21 Minn. 163; 
 
 45 Am. Rep. 447; Budd «. ZoUer, 53 Redfield «. Tegg. 38 K Y. 212; Lit 
 
 Mo. 288; Green v. Reed, 3 F. «& F. tie v. Rees, 34 Minn. 277, 26 N. W 
 
 226; Green v. Lucas, 81 L. T. (N. S.) Rep. 7. 
 
 731, » Little V. Rees, supra; Rockwell v 
 
 • VintOQt. Baldwin, aupra; Green e. Newton, 44 Conn. 333. 
 
 • See ante, § 903. 
 
 80i
 
 Chap. III.] 
 
 BROKERS. 
 
 §972. 
 
 to his principal his undivided efforts and allegiance. To be secretly 
 in the service of the opposing party, while ostensibly acting for 
 his principal only, is a fraud upon the latter and a breach of pub- 
 lic morals which the law will not tolerate. If, therefore, each of 
 the parties to the transaction was entirely ignorant of the broker's 
 relations to the other, such double service on the part of the bro 
 ker will defeat his right to recover commissions from either of 
 them.' If one of the parties only was ignorant, he will certainly 
 be absolved from the duty to pay commissions ; and while the 
 authorities are not all agreed as to the liability of the other party 
 who has employed the broker, knowing of his relations to the 
 first, it is held in many cases, and there are strong reasons of pub- 
 lic policy which support the rule, that the broker should not be 
 permitted to recover of him either.* A custom to charge com- 
 missions to both parties will not be enforced.* 
 
 If, however, both parties, having full knowledge of his rela- 
 tions to each of them, voluntarily see fit to entrust him with 
 their business, there is no legal objection, and in such a case the 
 broker may recover from each his stipulated compensation.* 
 
 « Bell v. McConnell, 87 Ohio St. 
 896, 41 Am. Rep. 528: Rice v. Wood, 
 113 Mass. 133, 18 Am. Rep. 459; 
 ScribneriJ. Collar, 40 Mich. 375, 29 
 Am, Rep. 541; Lynch v. Fallon, 11 
 R. I. 311, 3a Am. Rep. 458; Meyer v. 
 Hanchett, 39 Wis. 419, s. c. 43 Wis. 
 246; Raisin v. Clark, 41 Md. 158, 20 
 Am. Rep. 66; Walker v. Osgood, 98 
 Mass. 348, 93 Am. Dec. 168; DeStei- 
 ger, V. Hollington, 17 Mo. App. 382; 
 Webb v. Paxton, 36 Minn. 532, 32 N. 
 W. Rep. 749; Morison v. Thompson, 
 L. R. 9 Q. B. 480, 10 Eng. Rep. 129; 
 Robbins v. Sears, 23 Fed. Rep. 874; 
 Bates V. Copeland, 4 McArth. (D. C.) 
 50; Collins v. Fowler, 8 Mo. App. 
 588. 
 
 »Bell V. McConnell, 87 Ohio St. 
 896, 41. Am. Rep. 528; Farnsworth 
 V. Hemmer, 1 Allen (Mass.) 494, 79 
 Am. Dec. 756; Walker c. Osgood, 98 
 Mass. 348, 93 Am. Dec. 168; Smith 
 «. Townsead, 109 Mass. 500; Rice v. 
 
 Wood, 113 Mass. 133, 18 Am. Rep. 
 459; Bollman v. Loomis, 41 Conn, 
 581 ; Everhart v. Searle, 71 Penn. St. 
 256; Morison v. Thompson. L. R. 9 
 Q. B. 480, 10 Eng. Rep. 129; Lynch 
 V. Fallon, 11 R. I. 811, 23 Am. Rep. 
 458; Raisins, Clark, 41 Md, 158, 20 
 Am. Rep. 66. 
 
 8 Walker «, Osgood, 98 Mass. 348, 
 93 Am. Dec. 168; Farnsworth v. 
 Hemmer, 1 Allen (Mass.) 494, 79 Am. 
 Dec. 756. 
 
 * Alexander v. Northwestern Uni- 
 versity, 57 Ind. 466; DeSteiger v. 
 Hollington, 17 Mo. App. 382; Rowe 
 V. Stevens, 53 N. Y. 621; Joslin v. 
 Cowte, 56 N. Y. 626; Rolling Stock 
 Co. v. Railroad, 34 Ohio St. 450; 
 Leekins v. Nordyke, 66 Iowa, 471; 
 Bell V. McConnell, 37 Ohio St. 396, 
 41 Am, Rep. 528; Rice v. Wood, 113 
 Mass. 133, 18 Am. Rep. 459; Scrib- 
 ner v. Collar, 40 Mich. 375, 29 Am. 
 Rep. 541. 
 
 805
 
 § 973. THE LAW OF AGENCY. [Book Y. 
 
 § 973. How in Case of mere Middle-man. Where, however, 
 the agent stands in the situation of a mere middle-man, not hav- 
 ing undertaken to act as agent for either party or to exercise for 
 either his skill, knowledge or influence, but merely to bring the 
 parties together to deal for themselves, and he himself stands 
 entirely indifferent between them, it is held that he may recover 
 from each although each was ignorant of his relations to the 
 other.' Such cases may undoubtedly occur, but, as has been 
 well said, "their exceptional character should appear clearly, 
 before they should be exempted from the general principle." * 
 
 § 974. No Compensation when Undertaking illegal. If the 
 undertaking of the broker was to do something which was illegal, 
 immoral, or opposed to public policy,* he can recover no commis- 
 sions, although his undertaking be fully performed.* But he is 
 not necessarily affected by the unlawful intentions of the parties 
 whom he brings together, although the contract which they make 
 would be void because of such intentions. Whether he is or not, 
 depends upon the question whether he was privy to the unlawful 
 intention. As is said by Mr. Justice Matthews, in a leading case 
 before the Supreme Court of the United States : " It is certainly 
 true that a broker might negotiate such a contract without being 
 privy to the illegal intent of the principal parties to it which ren- 
 ders it void, and in such a case, being innocent of any violation 
 
 ' Rupp V. Sampson, 16 Gray (Mass.) such capacity. He was not an agent 
 
 898, 77 Am. Dec. 416; Siegel e. to buy or sell, but only acted as a 
 
 Gould, 7 Lans. (N. Y.) 177. In Rupp middleman to bring the parties to- 
 
 V. Sampson, Bigelow, C. J. said: gether, in order to enable them to 
 
 "The claim of the plaintiff would make their own contracts. He stood 
 
 have stood on a very different ground entirely indifferent between them, 
 
 if he had been employed as a broker and held no such relation in conse- 
 
 to buy or sell goods. It would in quence of his agency as to render his 
 
 such case have been a fraud for him action adverse to the interests of 
 
 to conceal his agency for one from either party." 
 
 the other. The interests of buyer and « See per Graves, J., in Scribner 
 
 seller are necessarily adverse, and it v. Collar, 40 Mich. 375, 29 Am. Rep. 
 
 would operate as a surprise on the 641. 
 
 confidence of both parties, and essen- * See subject discussed, ante, § 20, 
 
 tially affect their respective interests, et seq. 
 
 if one person should, without their < Fareira «. Gabell, 89 Penn. St. 89; 
 
 knowledge, act as the agent of both. Irwin v. Williar, 110 U. S. 499; Lyon 
 
 Farebrother v. Simmons, 5 Burn. & v. Mitchell. 36 N. Y. 235, 93 Am. 
 
 Aid, 883; Story on Agency, sec. 31. Dec. 502. 
 But the plaintiff did not act in any 
 
 806
 
 Chap. III.] BROKERS. § 977. 
 
 of law, and not suing to enforce an unlawful contract, has a meri- 
 torious ground for the recovery of compensation and advances. 
 But we are also of the opinion that when the broker is privy 
 to the unlawful designs of the parties, and brings them 
 together for the very purpose of entering into an illegal agree- 
 ment, he is jparticejps criminis^ and cannot recover for services 
 rendered or losses incurred by himself on behalf of either in for- 
 warding the transaction." ' 
 
 § 975. How affected by Misconduct. The broker's duty to 
 his principal to have and exercise reasonable skill, care and pru- 
 dence has already been noticed, as has also his duty to obey the 
 lawful instructions of his principal. For a breach of these, as 
 has been seen, the principal may maintain an action against the 
 broker, or, if he prefer, he may show the misconduct in bar or by 
 way of recoupment, in an action brought by the broker for his 
 compensation." 
 
 I 976. How when not licensed. Where a statute requires 
 brokers to be licensed and imposes a penalty for exercising the 
 vocation without a license, an unlicensed broker cannot recover, 
 either upon the contract or upon a quantum meruit, for services 
 rendered by him in that capacity.' The presumption is that the 
 broker has complied with the law and is duly licensed, and the 
 burden of proof is upon him who alleges the contrary.* 
 
 Such statutes, however, do not ordinarily apply to the case of 
 a private individual not carrying on the business of a broker, 
 and such an one may recover an agreed commission for a single 
 sale though he had no license.' 
 
 2. Might to Reimbursement. 
 
 § 977. Entitled to Reimbursement. The broker is entitled 
 to be reimbursed for all costs and expenses, and to be indemni- 
 fied against all losses and liabilities, which he has fairly and in 
 
 > In Irwin v. Williar, 110 U. S. 499, White v. Chapman, 1 Stark. 113; 
 
 510, cited with approval in Crawford Hurst v. Holding, 3 Taunt. 32. 
 e. Spencer, 92 Mo. 498, 1 Am. St. ' Johnson v. Hulings, 108 Penn. St. 
 
 Rep. 745. 498, 49 Am. Rep. 131; Holt v. Green, 
 
 s Fisher v. Dynes, 63 Ind. 848; 73 Penn. St. 198, 13 Am. Rep. 737. 
 Dodge V. Tileston, 12 Pick. (Mass.) * Shipler v. Scott, 85 Penn. St. 329. 
 
 328; Denew v. Daverell, 3 Camp. 451; » Chadwick v. Collins, 26 Penn. St. 
 
 Hamond v. Holiday, 1 C. & P. 384; 138. 
 
 807
 
 § 978. THB LAW OF AGENCY. [Book V. 
 
 good faith incurred, by the authority and for the benefit of his 
 principal, and which were not rendered necessary by his own 
 misconduct or neglect. ' Thus when a broker purchases or sells 
 property without disclosing to the respective principals in the 
 transaction the name of the party for whom he acts, he 
 becomes, on the one side, liable personally for the purchase 
 price of the property bought, and, on the other, is entitled to col- 
 lect such price from the principal at whose instance the purchase 
 was made. The vendee in such a case can relieve himself from 
 liability to the broker only by showing payment of the contract 
 price by him to the original vendor, or a release for a good and 
 valuable consideration from the broker.' 
 
 So where a broker acting in good faith, but without disclosing 
 his principal, sold repudiated bonds by the direction of his prin- 
 cipal, it was held that he was entitled to recover from the latter 
 the damages he had suffered by reason of making the sale.' 
 
 So a broker who at the direction of his principal, buys prop- 
 erty for the principal to be held as an investment, is entitled to 
 be reimbursed for the cost thereof,* or in case he is compelled 
 to resell it at a depreciation in price, to recover the loss there- 
 by occasioned.* 
 
 But if the expense or liability for which the broker seeks 
 reimbursement or indemnity was unnecessarily incurred,' or was 
 the result of the broker's own misconduct or neglect,'' or of a 
 violation of his principal's instructions,' or was incurred while the 
 broker was acting in excess of his authority,* he cannot recover. 
 
 § 978. How when IJEdertaking not performed. The right of 
 the broker to reimbursement and indemnity when he fails to 
 fully complete his undertaking, depends upon the nature of the 
 undertaking and the reason of his failure. In this respect the 
 question is analogous to that of his right to compensation. A 
 
 ' Duncan v. Hill, L. R. 8 Exch. 243, » Bennett v. Covington, supra. 
 
 6 Eng. Rep. 303 ; Ruffner v. Hewitt. « Clegg v. Townshend, 16 L. T. R. 
 
 7 W. Va. 585; Beach v. Branch, 57 N. S. 180. 
 
 Ga. 363; Searing e. Butler, 69 111. 575; » Duncan ». Hill, L. R. 8 Exch. 
 
 Maitland v. Martin, 86 Penn. St. 120. 242, 6 Eng. Rep. 308. 
 
 s Knapp V. Simon, 96 N. Y. 284. » Story on Agency, § 341. 
 
 s Maitland t>. Martin, 86 Penn. St. » Bowlby v. Bell, 3 C. B. 384; 
 
 120. Fletcher v. Marshall, 15 M. & W. 
 
 * Bennett v. Covington, 22 Fed. 755. 
 Rep. 816. 
 
 808
 
 Chap. III.] BROKERS. § 979. 
 
 broker who undertakes to sell property, for example, is ordinarily, 
 as has been seen, entitled to no compensation unless he finds a 
 purchaser who is ready, willing and able to buy upon the terms 
 stipulated.' Unless there is an express contract to the contrary, 
 he is understood as risking the chance of losing his labor if his 
 efforts do not prove successful, and the same considerations apply 
 to his right to recover for his expenses incurred. If being left 
 at liberty to choose his own means and methods as to the accom- 
 plishment of the result, he incurs expenses in travelling, adver- 
 tising and similar endeavors, he will not be entitled to reimburse- 
 ment for these if, without the principal's fault, his efforts fail of 
 success.' And even if successful, he would not, in the absence 
 of a contract or custom to the contrary, be entitled to recover, 
 as his commission is, in ordinary cases, supposed to cover these 
 expenses.' 
 
 Where, however, the principal expressly directs that certain 
 means or methods be adopted, the broker would be entitled to 
 reimbursement for the expense thereby incurred.* 
 
 So where the broker is employed to perform a service which 
 necessarily requires that he should incur certain expenses as indu- 
 cive to the accomplishment of the object, and before a reasonable 
 time has been allowed him in which to bring the undertaking to 
 a termination, his authority is, without his fault, revoked by his 
 principal, he would undoubtedly be entitled to be reimbursed for 
 this outlay. • 
 
 3. Right to a Lien. 
 
 § 979. No general Lien. Brokers do not usually possess the 
 right of a general lien, though like other agents they may be in 
 a situation to exercise the right of a particular lien. The reason 
 of this is found in the distinguishing character of the broker, 
 that, in general, he is not entrusted with the possession of tlie 
 property respecting which he is employed to act. The right of 
 lien, as has been seen, is a right in one person to retain that which is 
 
 » See ante, §§ 965, 966. taken a certain duty is left at liberty 
 
 * Sibbald v. Bethlehem Iron Co., 83 to choose his own means and meth- 
 N. Y. 378, 38 Am. Rep. 441. ods. 
 
 * In this respect the broker stands * See ante, § 653. 
 
 in the attitude of one pursuing an in- ' Sibbald v. Bethlehem Iron Co., 
 
 dependent calling, who having under- supra. 
 
 809
 
 § 980. THE LAW OF AQKNOT. [Book Y. 
 
 in his possession belonging to another, until certain demands of the 
 party in possession are satisfied, and it presupposes that the per- 
 son claiming the lien has possession of the property. It is evi- 
 dent, however, from the nature of the broker's employment that 
 he has not, under ordinary circumstances, any property of 
 his principal in his possession upon which the lien could 
 attach.' 
 
 § 980. Lions in special Caaea— Insurance Brokers. But a 
 broker may be, and often is, intrusted with the possession of the 
 property in respect to which he negotiates, thus combining, with 
 his character as broker, certain also of the characteristics of the 
 factor. Where such is the case, he may have a lien upon such 
 property for his costs and charges in respect thereto.* 
 
 And from the general custom to intrust to them the possession 
 of the policies of insurance effected by them, insurance brokers 
 have a lien upon such policies and the proceeds of them, not 
 only for their commissions and premiums paid by them upon 
 those particular policies, but also for their general insurance 
 balance against their principal.* 
 
 8 981. No Lien except for Debt due from Principal. But 
 even if the broker possessed a lien in any case, the debt in respect 
 to which it is claimed must in general be due from the person 
 whose property he seeks to retain, and therefore if he knows or 
 has reason to believe that the person by whom he is employed is 
 himself but the agent of another to whom the property belongs, 
 he will not be allowed to retain it for a debt due from the agent 
 only.* 
 
 But this rule does not conflict with that which permits a sub- 
 ao-ent to claim a lien against the real principal in the transaction, 
 in accordance with rules heretofore considered,' because in these 
 cases the debt is, in reality, the debt of the principal, either from 
 the fact that he expressly or impliedly authorized it or that he 
 has subsequently ratified and confirmed it. 
 
 ' Barry v. Boninger, 46 Md. 59. McKenzie e. Nevius, 23 Me. 138, 38 
 
 8 Barry v. Boninger, 46 Md. 59. Am. Dec, 291; Spring v. Ins. Co., 8 
 
 » 2 Phillips on Ins., § 1909; Snook Wheat. (U. 8.) 268. 
 
 e. Davison, 2 Camp. 218; Fisher v. < Barry «. Boninger, 46 Md. 59. 
 
 Smith, 4 App. Cas. 1, 33 Eng. Rep. 1; » See ante, § 693. 
 
 810
 
 Chap. III.J BfiOKEKS. § 983. 
 
 VIL 
 
 ■ BIGHTS OF BROKER AGAINST THIRD PERSONS. 
 
 § 982. In general, no Right of Action on Contracts. The 
 broker, as has been seen, ordinarily contracts as such for a prin- 
 cipal named, or acts merely as a middle-man to bring the parties 
 together to contract for themselves. Where such is the mode of 
 dealing the broker assumes no personal obligations and acquires 
 no rights of action, the benefits and obligations attaching only to 
 his principals.* 
 
 § 983. When he may sue. It has been seen in an earlier 
 portion of this work that an agent may maintain an action in 
 his own name against third persons upon contracts made with 
 them in the following cases : a. Where the agent has contracted 
 personally; h. Where the agent was the real principal under 
 certain circumstances ; and, c. Where the agent has a special 
 interest in the subject-matter of the contract.* 
 
 These rules apply in general to the case of brokers. The very 
 fact that one deals as broker implies the existence of a principal 
 for whom he acts;* but, notwithstanding this, he may so act as 
 to make himself the party to the contract instead of his princi- 
 pal. Where this is the case, he may maintain an action upon the 
 contract in his own name.* This right, however, is ordinarily 
 subject to the prior right of the principal to intervene and claim 
 performance to himself, the defendant being then entitled to be 
 put in the same situation, at the time of the intervention of the 
 principal, as if the agent had been the real contracting party.' 
 
 Where, however, the broker has contracted as such, the name 
 of the principal on whose account he deals being disclosed, the 
 right of action is in the principal only and the broker cannot 
 
 sue.* 
 
 An exception to this rule exists in the case of the insurance 
 broker. Policies not under seal are frequently issued payable to 
 the broker for the benefit of a named principal, or "for the 
 owners " or " for whom it may concern," ' and actions upon such 
 
 « Fairlie v. Fenton, L. R. 6 Ex. 169. • See ante, § 773. 
 
 » See ante, §§ 754-756. • Fairlie v. Fenton, L. R. 5 Ex. 169; 
 
 » Baxter v. Duren, 29 Me. 434, 50 Sharman v. Brandt, L. R. 6 Q. B. 
 
 Am. Dec. 603. 720. 
 
 « See ante, § 755. ' "There are obvious reasons," says 
 
 811
 
 § 984. THE LAW OF AGENCY. [Book V. 
 
 a policy may be brought either in the name of the broker to 
 whom it was made payable,' or of the principal for whose benefit 
 it was effected.* 
 
 VIII. 
 
 KiaHTS OP PRINCIPAL AGAINST THIRD PERSONS. 
 
 § 984. Same as in other Cases of Agency. The question of 
 the rights of the principal against third persons on contracts 
 made by, or through the intervention of a broker, depends upon 
 the same considerations which control in the case of similar con- 
 tracts made by any other agent and which have already been 
 discussed. In general terms, however, the principal is entitled 
 to demand, receive and enforce the performance by the third 
 persons, with whom the broker deals, of all contracts and obliga- 
 tions made in his name or in his behalf ; and to have the same 
 remedies for the protection of his interests and the recovery and 
 preservation of his property which he would have if acting in his 
 own proper person.' And, as will be seen in a following section, 
 inasmuch as the broker deals ordinarily as agent only, and not as 
 the ostensible principal, the principal's rights are not subject to 
 any set-offs or equities existing against the broker.* 
 
 IX. 
 
 RIGHTS OP THIRD PERSONS AGAINST PRINCIPAL. 
 
 § 985. Same as in other Cases of Agency. The rights of 
 
 Putnam, J., "for the introduction State Ins. Co., 1 La. 220, 20 Am 
 
 of the clause in question. The in- Dec. 277. 
 
 surance brokers might desire to have ' Farrow v. Commonwealth, supra; 
 
 the loss paid to them to indemnify Jefferson Ins. Co. v. Cotheal, 7 Wend 
 
 them for any advances for premium (N. Y.) 82, 22 Am. Dec. 567; Provin 
 
 or otherwise, which they might have cial Ins. Co. v. Leduc, L. R. 6 P. C 
 
 against the owners; and the insurance C. 233, 11 Eng. Rep. 84. 
 company might desire to have that » Farrow v. Commonwealth Ins 
 
 clause, to enable them to set off any Co., supra; Lazarus v. Common 
 
 legal claim which they might have wealth Ins. Co., 5 Pick. (Mass.) 76 
 
 against the insurance brokers." Far- Browning*. Provincial Ins. Co., L 
 
 row «. Commonwealth Ins. Co., 18 R. 5 P. C. C. 263, 8 Eng. Rep. 217 
 
 Pick. (Mass.) 53, 29 Am, Dec. 564. Sargent v. Morris, 3 B. & Aid. 281. 
 But insurance company cannot set ^ gee ante, §§ 766-799. 
 
 off individual debt of agent against * See post, § 986. 
 the principal. Braden v. Louisiana 
 
 812
 
 Chap. III.] BROKERS. § 986. 
 
 third persons against the principal for the acts and contracts of 
 the broker rest upon the same principles as in other cases of 
 agency. "Where the broker acting within the limits of his 
 authority has bound his principal to third persons, they are 
 entitled to the same rights and remedies against him as though 
 the same act had been done by him in person.' 
 
 Where, on the other hand, the broker has exceeded his authori- 
 ty, his principal is not bound, nor can the broker bind him, in 
 opposition to express instructions, by pursuing his usual course 
 of dealing.* 
 
 § 986. No Set-off of Broker's Debts. As has been seen, the 
 broker has usually no possession of the property which he is 
 employed to sell, and acts ordinarily only in the name of the 
 principal. His character implies that he is acting for another, 
 and whether the name of that other is disclosed or not, it is well 
 settled that where the broker has not been permitted to appear 
 as the principal, by being entrusted with the possession of the 
 property or the usual indicia of ownership, the third persons 
 with whom he deals cannot, when called upon for performance 
 by the principal, set-off against the latter debts or obligations 
 due to them from the broker.' 
 
 ' See ante, §§ 694-753. quent time for the same price; his 
 « " A broker is a special agent, and power is limited by and ceases with 
 derives his power and authority to his instructions; and this is so, even 
 bind his principal from the instruc- though it had been usual in the course 
 tions given to him by his principal: of dealings between the broker and 
 Code, sees. 2194, 2196, 2184; Story his principal for the broker to con- 
 on Agency, 32; 1 Esp. Ill, 113; 82 tinue to sell at the prices quoted last 
 Md, 169; 60 111. 237. When definite by the principal: 32 Md. 179, 180." 
 instructions are given by the princi- Clark v. Cumming, 77 6a. 64, 4 Am. 
 pal to the broker to sell goods for St. Rep. 72, 
 
 him at a certain specified price for a 'Baring v. Corrie, 2 B. «& Aid. 137; 
 
 certain time and day only, this will Graham v. Duckwall, 8 Bush (Ky.) 
 
 not authorize the broker to contract 12; Crosby t>. Hill, 89 Ohio St. 100; 
 
 and sell the same kind of goods for Cooke v. Eshelby, 12 App. Cas. 271, 
 
 his principal at a diflerent and subse- 88 Eng. Rep. 872. 
 
 813
 
 THE LAW OF AGENCY. 
 
 [Book V. 
 
 CHAPTER IV. 
 
 OF FACTORS. 
 
 I. Definitions and Distinctions. 
 § 986a. Factors or Commission Mer- 
 chants defined. 
 
 II. How Appointed. 
 
 987. Same as other Agents. 
 
 III. Implied Powers of Factors 
 
 988. In general. 
 
 989. How affected by Usage. 
 
 990. To sell on Credit. 
 
 991. To sell in his own Name. 
 
 992. To warrant Quality. 
 
 993. To receive Payment. 
 
 994. To pledge. 
 
 995. To pledge — Under Factor's 
 Acts. 
 
 996. To pay his own Debts. 
 
 997. To barter or exchange. 
 
 998. To delegate his Authority. 
 
 999. To compromise the Debt. 
 
 1000. To submit to Arbitration. 
 
 1001. To rescind Sale. 
 
 1002. To extend Time of Payment. 
 
 1003. To receive anything but 
 Money in Payment. 
 
 1004. To make negotiable Paper. 
 
 1005. To insure Property. 
 
 IV. Duties and Liabilities to 
 
 Principal. 
 
 1006. To use reasonable Care and 
 Prudence. 
 
 1007. To act in good Faith. 
 
 1008. To obey Instructions. 
 
 1009. Same Subject — Instructions 
 to Sell. 
 
 1010. Same Subject — Instructions 
 to sell for Cash. 
 
 1011. Same Subject — Instructions 
 to insure. 
 
 1012. Duty to inform Principal. 
 
 § 1013. Duty to sell only to responsi- 
 ble Purchaser. 
 
 1014. Same Subject — Del Credere 
 Commission. 
 
 1015. Factor's Duty to care for 
 Property. 
 
 1016. General Duty as to Sales. 
 
 1017. Duty as to Place of Sale. 
 
 1018. Duty as to Time of Sale. 
 
 1019. Duty as to Price. 
 
 1020. Duty in collecting Price. 
 1031. Factor's Duty in keeping 
 
 Accounts. 
 1023. Not obliged to keep Funds 
 
 separate. 
 1023. Factor's Duty to account for 
 
 Money and Property. 
 1034. Duty in remitting Money. 
 
 1025. When Principal may sue 
 Factor. 
 
 1026. Liability for Acts of Sub- 
 agent. 
 
 V. Rights of Factor Against 
 
 Principal. 
 
 a. Crmmissions. 
 
 1027. Factor entitled to Compensa- 
 tion. 
 
 1038. When Factor may have Com- 
 missions from both Parties. 
 
 b. Reimbursement. 
 
 1029. Factor entitled to Reimburse- 
 ment. 
 
 1030. Same Subject — Conclusive- 
 ness of Accounts, 
 
 c. Indemnity. 
 
 1031. Factor entitled to Indemnity 
 
 against Losses. 
 
 d. Lien. 
 1032 Factor entitled to Lien. 
 
 814
 
 Chap. lY.] 
 
 FACTORS. 
 
 § 9SGa. 
 
 § 1033. When Lien does not exist, 
 
 1034. Nature of the Lien. 
 
 1035. When Lien attaches. 
 
 1036. Who may confer Lien. 
 
 1037. How Lieu may be lost. 
 
 1038. How Lien enforced. 
 
 VL Rights of Factor against 
 
 Third Peusons. 
 
 a. In Contract. 
 
 1039. May sue for Price of Goods 
 
 sold. 
 
 1040. May sue on Contracts made 
 in his Name. 
 
 b. In Tort. 
 
 1041. May maintain Trespass, Re- 
 plevin or Trover. 
 
 VIL Rights of Principal agaenst 
 third Person. 
 a. In Contract. 
 1043. May sue for Price of Goods 
 sold. 
 
 § 1043. Same Subject — What De- 
 fences Principal subject to. 
 
 1044. Right to follow Property. 
 
 b. In Tort. 
 
 1045. For Injuries to or Conver- 
 sions of the Goods. 
 
 VIIL Rights op third Person 
 against Principal. 
 
 1046. Same as in other Cases. 
 
 1047. How when Principal undis- 
 closed. 
 
 1048. How when exclusive Credit 
 given to the Factor. 
 
 IX. Rights of third Person 
 against Factor. 
 
 1049. Same as in other Cases. 
 
 1050. When liai)le for Conversion. 
 
 1051. How in case of foreign Fac- 
 tor. 
 
 X. How Relation Terminated. 
 
 1052. As in other Cases of Agency- 
 
 DEFINITIONS AND DISTINOIIONS. 
 
 § 986a. Factors or Commission Merchants defined. As has 
 been stated in the opening chapter of the work, these terms are 
 nearly or quite synonymous. The former is the more common 
 in the language of the law, the latter in the language of com- 
 merce. A factor is one whose business it is to receive and sell 
 goods for a commission. He differs from a broker in that he is 
 entrusted with the possession of the goods to be sold and usually 
 Bells in his own name. He is invested by law with a special 
 property in the goods to be sold and a general lien upon them, 
 for his advances ; and unless there be an agreement or usage to 
 the contrary, he may sell upon a reasonable credit.* 
 
 Del Credere Commission. Where, in consideration of an 
 increased commission, the factor guarantees the payment of debts 
 arising through his agency, he is said to sell upon a del credere 
 commission.' 
 
 > See ante, § 14, 
 
 *Ante, § 14. 
 
 815
 
 § 987. THE LAW OF AGENCY. [Book V. 
 
 Supercargo. A factor is called a supercargo when authorized 
 to sell a cargo which he accompanies on the voyage.* 
 
 Consignee. The principal in these transactions is also often 
 called the consignor, and the factor the consignee. 
 
 Ko separate consideration of the rights, duties and liabilities 
 of commission merchants or consignees is here intended, but the 
 whole topic will be treated under the general title of factor. 
 
 11. 
 
 HOW APPOINTED. 
 
 § 987. Same as other Agents. ' No formal mode of authori- 
 zation is requisite in the employment of a factor. Like other 
 agents, he may be. and usually is, authorized by parol ; his 
 appointment may be inferred from conduct ; and his unauthor- 
 ized acts may be ratified by the principal's subsequent acquics- 
 cence or adoption.* 
 
 III. 
 
 IMPLIED P0WEK8 OF FACTOES. 
 
 § 988. In general. A factor, like other agents, possesses those 
 implied and incidental powers which are reasonably necessary 
 and proper for the execution of his undertaking, and which are 
 usually exercised by factors under like circumstances and which 
 are not forbidden.' 
 
 § 989. How affected by Usage. As in the case of brokers, 
 the law regulating the transactions of factors is largely the out- 
 oTOWth of commercial usage, and such usage is constantly appealed 
 to in interpreting or defining their powers.* "A person who deals 
 in a particular market," says Sheldon, J., "must be taken to deal 
 according to the known, general and uniform custom of that n)ar- 
 ket ; and he who employs another to act for him at a particular 
 place or market must be taken as intending that the business will 
 
 I AnU, § 14. him show that he received and sold 
 
 » See ante, §§ 79-108. the property. Deshler e. Beers, 32 
 
 Factor's retainer may be proved by 111. 368, 83 Am. Dec. 274. 
 
 lira! testimony in a suit against him * See ante, § 311. 
 
 to recover the proceeds of a sale, and * Phillips v. Moir, 69 111. 155; Ow- 
 
 it is immaterial whether a retainer is ings c. Hull, 9 Peters (U. S.) 607. 
 
 proved at all, when letters written by 
 
 816
 
 Chap. lY.] FA0T0K8. § 990. 
 
 be done according to the usage or custom of that place or market, 
 whether the principal in fact knew of the usage or custom or 
 not." ' How far this presumption of knowledge is conclusive, 
 however, has been considered in an earlier section.' 
 
 Subject to certain limitations there referred to, it is clear that 
 where there are no instructions to the contrary, not onlv does the 
 principal intend, but it is the factor's duty to the latter, that the 
 factor shall conform to the regular and established customs pre- 
 vailing in reference to his undertaking at that time and place.* 
 So, on the other hand, where no instructions to the contrary are 
 given, and in tlie absence of unusual exigencies or contingencies, 
 the factor has performed his duty to his principal when he has 
 performed his undertaking in the usual and ordinary manner.* 
 
 § 990. To sell on Credit. It was formerly considered that a 
 factor had no implied power to sell upon credit," but the rule is 
 now well settled that, in the absence of instructions or an usage 
 to the contrary, the factor, exercising reasonable care and pru- 
 dence in the selection of a responsible purchaser, may sell the 
 goods upon a reasonable term of credit." Where, however, he 
 is instructed to sell for cash only,' or where the custom is not 
 to grant credit,' a factor has no implied power to sell upon credit. 
 Upon a sale on credit, the factor may take negotiable paper 
 in his own name in payment and may discount the same for his 
 principal or surrender it up when paid.* But if he discounts it 
 
 1 In Bailey v. Bensley, 87 111. 556, pool, 6 Johns. (N. T.)69, 5 Am. Dec. 
 
 citing ytory on Agency, §§ GO, 96, 192; Greely o. Bartlett, 1 Greenl. 
 
 199; 1 Chitty Cent. 11th Am. ed. 83; (Me.) 172, 10 Am. Dec. 54; Hapgood 
 
 Sutton V. Tatham, 10 A. & E. 27; v. Batcheller, 4 Mete. (Mass.) 576; 
 
 Bayliffe «. Butterwortb, 1 W. H. & Robertson v. Livingston, 5 Cow. (N. 
 
 G. (Exch.) 428; Lyon «. Culbertson, Y.) 473; Leland v. Douglass, 1 Wend. 
 
 88 111. 33; United States L. Ins. Co. (N. Y.) 490; Burton v. Goodspeed, 
 
 e. Advance Co., 80 111. 549. 69 111. 238; Byrne v. Schwing. 6 B. 
 
 s See anfe, § 486. Mon. (Ky.) 201; Given v. Lemoine, 
 
 3 Phillips©. Moir, 69 111. 155. 85 Mo. 110; Daylight Burner Co. v. 
 
 « Phillips V. Moir, supra; Davis », Odlin, 51 N. H. 56, 12 Am. Rep, 45; 
 
 Kobe, 86 Minn. 214, 1 Am. St. Rep. 663. Houghton v. Matthews, 8 B. «& P. 
 
 » Bee Paley on Agency, 26; 2 Kent's 489; Pinkham v. Crocker, 77 Me. 563. 
 
 Com. 622. 7 Bliss ». Arnold, 8 Vt. 252, 30 Am. 
 
 • McConnico v. Curzen, 2 Call (Va.) Dec. 467; Hall v. Storrs, 7 "Wis. 2o;j. 
 
 858, 1 Am. Dec. 540; James v. Mc- « Harbert v. Neill, 49 Tex. 143; 
 
 Credie, 1 Bay (S. C.) 294, 1 Am. Dec. Neill v. Billingsley, Id. 161; Kauff- 
 
 617; Goodenow v. Tyler, 7 Mass. 36, man v. Beasley, 54 Tex. 563. 
 
 5 Am. Dec. 22; VanAlen v. Vander- » Goodenow v. Tyler, 7 Mass. 36, 5 
 
 52 817
 
 § 1>91. 
 
 THE LAW OF AGENCY. 
 
 [Book Y. 
 
 for his own accommodation, he makes the note his own, and will 
 be liable though the maker fails.* 
 
 § 991. To sell in his own Name. In the absence of instruc- 
 tions to the contrary, the factor has implied authority to sell 
 the goods in his own name without disclosing that of his princi- 
 pal.' 
 
 § 992. To warrant Quality. A factor, like other agents 
 authorized to sell goods, has, unless otherwise limited, implied 
 power to warrant the quality of the goods sold where such a war- 
 ranty is usually given on similar sales at that time and place.' 
 
 § 993. To receive Payment. Being intrusted with the pos- 
 session of the goods which he is ' authorized to sell, and having 
 implied power to sell in his own name, the factor may undoubt- 
 edly receive payment for the goods sold,* and give the necessary 
 and proper receipts therefor.' 
 
 § 994. To pledge. In the absence of a statute granting that 
 authority, the rule is well established that a factor has no implied 
 power to pledge the principal's goods for the factor's own debt.' 
 
 Am. Dec. 22; West Boylston Mnfg 
 Co. V. Bearle, 15 Pick. (Mass.) 225; 
 Greely v. Bartlett, 1 Greenl. (Me.) 
 172, 10 Am. Dec. 54. 
 
 ' Myers v. Entriken, 6 Watts & 
 Serg. (Penn.) 44, 40 Am. Dec. 538. 
 
 * Baring v. Corrie, 2 B. & Aid. 
 137; Graham v. Duckwall, 8 Bush 
 (Ky.) 12. 
 
 3 Pickering v. Busk, 15 East. 38; 
 Kandall v. Kehlor, 60 Me. 37; Schuch- 
 ardt V. Aliens, 1 Wall. (U. S.) 359; 
 Andrews v. Kneeland, 6 Cow. (N. Y.) 
 854. See also Pickert v. Marston, 68 
 Wis. 465, 00 Am. Rep. 876; Herring 
 t. Skaggs, 68 Ala. 180, 84 Am. Rep. 
 4; Upton e. Suffolk Mills, 11 Cush. 
 (Mass.) 586, 69 Am. Dec. 163; Smitli 
 «. Tracy, 36 N. Y. 82; Ahern v. Good- 
 speed, 72 N. Y. 108. But see Argcr- 
 singer v. Macnaughton, 114 N. Y. 5o5. 
 
 * Drinkwater v. Goodwin, Cowp, 
 256; Rice v. GrofEmann, 56 Mo. 434. 
 
 » Corlies v. Gumming, 6 Cow. (N. 
 Y.) 181; VanStapliorst «. Pearce, 4 
 Mass. 258. 
 
 • McCombie v. Davies, 6 East. 538; 
 Pickerings. Busk, 15 East 38; Phil- 
 lips V. Huth. 6 M. & W. 572; Cole v. 
 Northwestern Bank, L. R. 10 C. P. 
 354, 12 Eng. Rep. 418; Wright v. Sol- 
 omon, 19 Cal. 64, 79 Am. Dec. 190; 
 Kinder v. Shaw, 2 Mass. 397; Warner 
 V. ]\Lirtin, 11 How. (U. S.) 204; Hoff- 
 man V. Noble, 6 Mete, (Mass.) 68, 39 
 Am. Dec. 711; Thurston «. Blanchard, 
 22 Pick. (]\Iass.) 20, 33 Am. Dec. 700; 
 Bott V. McCoy, 20 Ala. 578, 56 Am. 
 Dec. 223; Kennedy v. Strong, 14 
 Johns. (N. Y.) 128; Rodriguez v. 
 Heflerman, 5 Johns. Ch. (N. Y.) 417; 
 First National Bank v. Nelson, 38 
 Qa. 891, 95 Am. Dec. 400; Newbold 
 V. Wright, 4 Rawle (Penn.) 195; 
 Merchants' National Bank v. Tren- 
 holm, 12 Heisk. (Tenn.) 520; Gray c. 
 Agnew, 95 111. 315; First National 
 Bank «. Boyce, 85 Ky. 42, £9 Am. 
 Rep. 198; McCreary «. Gaines, 55 
 Tex. 485, 40 Am. Rep. 818; Stetson 
 V. Gurncy, 17 La. 166; Hadwin v. 
 Fisk, 1 La. Ann. 43; Miller o. 
 
 818
 
 Chap, I v.] FACTOK8. § 994. 
 
 This doctrine results from the fact that the factor is but an agent, 
 and as such can bind his principal only when his acts are within 
 the scope of his authority. A power to sell for the benefit of his 
 principal can in no way be stretched into a power to pledge for 
 his own benefit. Nor does it make any difference that the pledgee 
 was ignorant of the extent of the factor's authority, or supposed 
 him to be the real owner of the goods.' As in the case of other 
 agents, the person dealing with the factor must ascertain the 
 extent of his authority, and omits to do so at his peril. 
 
 This rule operates to prevent a transfer or indorsement of the 
 bill of lading by way of security for the factor's debt, as well as 
 the actual delivery of the goods themselves in pledge.* Nor can 
 tlie power arise from usage.' 
 
 But it has been held that a factor may pledge the goods for the 
 payment of charges against the goods themselves, as for duties 
 levied upon them,* or to meet a draft drawn by the principal 
 against the proceeds before the goods were sold,* So it has been 
 held that, though a pledge by the factor was unauthorized, a JcTia 
 fide pledgee will be protected to the extent of the factor's charge 
 against the principal.' 
 
 Like other unauthorized acts of an agent, however, a pledo-e 
 by the factor may be ratified by the principal, and if he is con- 
 tent with it, no one else has a right to complain.^ The factor 
 
 Schneider, 19 La. Ann. 300, 92 Am. » Newbold ». Wright, 4 Rawle 
 
 Dec. 535; Young©. Scott, 25 La. Ann. (Penn.) 195. 
 
 318; Insurance Co. ■». Kiger, 103 U. * Evans v. Potter, 3 Gall. (U. S. C. 
 
 S. 352; Horr v. Barker. 11 Cal. 393, C.) 12. 
 
 70 Am. Dec. 791; Benny n. Rhodes, ' Boyceu. Commerce Bank, 22 Fed. 
 
 18 Mo. 147, 59 Am. Dec. 293; Benny Rep. 53. But see Graham v. Dyster, 
 
 e. Pegram, 18 Mo. 191, 59 Am. Dec. 2 Stark. N. P. 23. 
 
 298; Bowie t. Napier. 1 McCord. (S. • First National Bank v. Boyce, 85 
 
 Car.. 1, 10 Am. Dec. 641; Allen ». Ky. 42. 39 Am. Rep. 198; Warner p. 
 
 St. Louis Bank, 120 U. S. 20. Martin, 11 How. (U. S.) 209, contra, 
 
 ' Wright v. Solomon, 19 Cal. 64, 79 Merchants' Bank v. Trenholm, 12 
 
 Am. Dec. 196. Heisk. (Tenn.)520. See also Wiillher 
 
 «Newsomr. Thornton, 6 East. 17; e. Wetraore, 1 E. D. Smith (N. Y.) 
 
 Phillips V. Huth, 6 M. «& W. 572; 7; Bonito e. Mosquera, 2 Bosw, (N 
 
 Rice c. Cutler, 17 Wis. 351; Hirschorn Y.) 401. 
 
 e. Canney, 98 Mass. 149; Erie, &c. » Bott v. McCoy, 20 Ala. 578, 50 
 
 Co. v. St. Louis Co., 6 Mo. App. 172; Am. Dec. 223; Meyer v. Morgan, 51 
 
 Fourth Nat. Bank v. St. Louis Co., Miss. 21, 24 Am. Rep. 617. 
 
 11 Mo. App. 333; Allen «. St. Louis As in other cases, however, the 
 
 Bank, 120 U. S. 20. principal will not be deemed to have 
 
 819
 
 §995. 
 
 THE LAW OF AGENOT. 
 
 [Book V. 
 
 himself, therefore, can not allege his own tortious act to sustain 
 an action in his own name against the pledgee for the recovery of 
 the goods or their value.' 
 
 § 995. To pledge— Under Factor's Acts. This rule which 
 declares invalid the unauthorized pledge by the factor, confessedly 
 works great hardships to innocent parties who have, in good faith, 
 relied upon the possession and apparent ownership of the factor, 
 and courts have frequently, while declaring that the rule was too 
 well settled to be sliaken, expressed the opinion that it might 
 better originally have been settled the other way. 
 
 To remedy this hardship, the legislatures of several of the 
 States have passed what are ordinarily known as Factors' Acts, 
 for the protection of those who in good faith have dealt with the 
 factor in the belief that he was the true owner of the goods.* 
 
 ratified unless he had knowledge that "§4. Every person who shall here- 
 
 after accept or take any such mer- 
 chandise in deposit from any such 
 agent, as a security for any anteced- 
 ent debt or demand, shall not acquire 
 thereby, or enforce any right or Inter- 
 est in or to such merchandise or doc- 
 ument, other than possessed or might 
 have been enforced by such agent at 
 the time of such deposit. 
 
 "§5. Nothing contained in the two 
 last preceding sections of this act. 
 shall be construed to prevent the true 
 owner of any merchandise so deposit- 
 ed, from demanding or receiving the 
 same, upon repayment of the money 
 advanced, or on restoration of the 
 security given, on the deposit of such 
 merchandise, and upon satisfying 
 such lien as may exist thereon in favor 
 of the agent who may have deposit- 
 ed the same; nor from recovering any 
 balance which maj'^ remain in the 
 hands of the person with whom such 
 merchandise shall have been deposited 
 as the produce of the sale thereof, 
 after satisfying the amount justly 
 due to such person by reason of such 
 deposit." 
 
 Statutes of this nature are found in 
 ]\Iaine, Rev. Stats. 1883, Chap. 31, 
 
 the agent had exceeded his authority. 
 Bryant v. Moore, 26 Me. 84, 45 Am. 
 Dec. 96. 
 
 > Bott V. McCoy, 20 Ala. 578, 56 
 Am. Dec. 223. 
 
 » The Factors' Act of New York 
 after which many of those of the 
 other states have been modeled, pro- 
 vides: 
 
 " § 3. Every factor or other agent, 
 entrusted with the possession of any 
 bill of lading, custom-house permit, 
 or warehouse-keeper's receipt for the 
 delivery of any such merchandise, 
 and every such factor or agent not 
 having the documentary evidence of 
 title, who shall be entrusted with the 
 possession of any merchandise for 
 the purpose of sale, or as a security 
 for any advances to be made or ob- 
 tained thereon, shall be deemed to be 
 the true owner thereof, so far as to 
 give validity to any contract made by 
 such agent with any other person, "for 
 the sale or disposition of the whole 
 or any part of such merchandise, for 
 any money advanced, or negotiable 
 instrument or other obligation in 
 writing, given by such other person 
 upon the faith thereof. 
 
 820
 
 Chap. lY.] 
 
 FAOTOBS. 
 
 §995. 
 
 While these Acts vary in their provisions, they are in general 
 designed for the protection of those who in good faith, and in 
 ignorance of any defect of title in the pledgor, or of the claims 
 of others to it, advance money or incur liability upon the faith 
 of the merchandise and ownership thereof by the pledgor, as evi- 
 denced by the possession of the property, or the documentary 
 evidence of title with which he has been intrusted by the owner. 
 It is the act of the owner in intrusting the factor with the pos- 
 session of the goods, or the documentary evidence of ownership, 
 — the apparent ownership and right of disposal, — in connection 
 with the fact that innocent third persons deal with him upon the 
 faith of such apparent ownership, that estops the owner from fol- 
 lowing his property into the hands of hona fide vendees or 
 
 § 1; Massachusetts, Pub. Stats. 1882, advanced or negotiable instrument, 
 
 Chap. 71; Rhode Island, Pub. Stats, 
 1882, p. 332; Pennsylvania, Bright- 
 ley's Purdon's Digest, p. 773; Ohio, 
 Rev. Stats. 1886, §3216; Maryland, 
 Rev. Code, 1878, p. 292; Kentucky, 
 Laws of 1880, May 5, §§ 1 &6; Mis- 
 souri, Laws of 1869, p. 91. 
 
 Mr. Stimson in his excellent com- 
 pilation of American Statute Law 
 gives the following summrry ef these 
 acts, §4381: " In many stutes every 
 factor, agent (or other person in 
 Maryland), intrusted with the bill of 
 lading, custom-house permit, or 
 warehouseman's receipt, or (in 
 Massachusetts, Maine, Rhode Island, 
 New York, Pennsylvania, Ohio, Wis- 
 consin, and Kentucky) who has pos- 
 session of any merchandise for the 
 purpose of sale, or (in New York. 
 Ohio or Wisconsin) as a security for 
 advances to be made or obtained 
 thereon, without documentary evi- 
 dence of title, is deemed the true 
 owner thereof so far as to give valid- 
 ity to any contract made by him with 
 any third person for the sale, pledge 
 (except in Massachusetts, Maine and 
 Kentucky), or disposition of such 
 merchandise, or for any money 
 
 or other written obligation, given by 
 such person upon the faith thereof, 
 and notwithstanding (except in 
 Maine, Rhode Island, New York, 
 Pennsylvania, Ohio, Maryland, and 
 Kentucky) that such person has 
 notice that the consignee is an agent 
 or factor. » « * • 
 
 But such loan or advance must be 
 made in good faith, and (1) with 
 probable cause to believe that the 
 agent had authority to make such 
 loan or pledge, and was not acting 
 fraudulently against the owner: 
 Mass. ; (2) with no notice that such 
 agent &c. was not the owner: R I. 
 
 * • * And in two states, any 
 person may contract with any agent 
 or factor intrusted with the goods, 
 or the consignee, for the purchase 
 thereof, and may receive the same, 
 and pay for them; and such contract 
 or payment shall be good against the 
 owner, if made in the usual course of 
 business,and the person had no notice 
 that the agent was not authorized to 
 sell the goods and receive the pur- 
 chase money, notwithstanding he 
 had notice that the other was an 
 agent or factor. R. I., Md. " 
 
 821
 
 996. 
 
 THE LAW OF AGENCY. 
 
 [Book V. 
 
 pledgees, and gives the latter a better title than their vendor or 
 pledgor had.^ 
 
 § 996. To pay his own Debts- For reasons similar to those 
 which deny his power to pledge, the factor, except where the 
 statute is broad enough to authorize it," cannot confer title, 
 even upon a bona fide holder, by turning out the principal's 
 goods in payment of his own debts, ^ even though the accounts 
 
 « Howland «. Woodruff, 60 N. Y. 
 73; Stevens «. Wilson, 6 Hill (N. Y.) 
 612, B.C. in error, 3 Denio(N. Y.)472. 
 
 In New York, in order to estop 
 the owner where the factor has not 
 the documentary evidence of title, 
 actual possession of the goods is re- 
 quiied, and constructive possession 
 will not suffice. Howland v. Wood- 
 ruff, supra; Bonita «. Mosquera, 2 
 Bosw. (N. Y.) 401; Stevens c. Wilson, 
 twpra. See also Brooks e. Hanover 
 Bank, 26 Fed. Rep. 801; Covell e. 
 Hill, 6 N. Y, 374; Dows v. Greene, 
 24 N. Y. 638; Cartwright v. Wil- 
 merding, 24 N. Y. 521; First Na- 
 tional Bank v. Shaw, 61 N. Y. 283. 
 
 In Missouri, see Erie &c. Co. t. St. 
 Louis Co., 6 Mo. App. 172; Fourth 
 Nat. Bank «. St. Louis Co. 11 Mo. 
 App. 338; Allen v. 8L Louis Bank, 
 120 U. S. 20. 
 
 In California see Wisp n. Hazzard, 
 66 Cal. 459. 
 
 In Pennsylvania see Mackey «. 
 Dillenger, 73 Penn. St. 85. 
 
 In Georgia, see National Exchange 
 Bank u.Graniteville Mnfg Co. — Ga. — 
 8 South E. Rep. 411. 
 
 In Wisconsin, see Price t. Wiscon- 
 sin Ins. Co., 48 Wis. 267; Victor 
 Sewing Machine Co. v. Heller, 44 
 Wis. 265. 
 
 * That the ordinary Factor's Acta 
 are not broad enough to justify this, 
 see Warner %>. Martin, 11 How. (U. 
 S.J 209; Victor Sewing Machine Co. 
 t). Heller, 44 Wis. 265. 
 
 But in California see Davis «. Rus- 
 sell, 52 Cal 611. 
 
 » Benny e. Rodes, 18 Mo. 147, 59 
 Am. Dec. 293; Benny ». Pegram, 18 
 Mo. 191; 59 Am. Dec. 298; Holton «. 
 Smith, 7 N. H. 446; Warner e. Mar- 
 tin, 11 How. (U. S.) 209. 
 
 It is no answer to this rule to say 
 that the factor might have sold the 
 goods, and received and squandered 
 the money, thus passing the title and 
 leaving the principal with no remedy, 
 except against the factor. " It has 
 been supposed," says Mr. Justice 
 Watke of the Supreme Court of the 
 United States, " that the right of a 
 factor to sell the merchandise of his 
 principal to his own creditor, in pay- 
 ment of an antecedent debt, finds its 
 sanction in the fact of the creditor's be- 
 lief that his debtor is the owner of the 
 merchandise, and his ignorance that 
 it belongs to another, and if in the 
 last, he has been deceived, that the 
 person by whom the delinquent fac- 
 tor has been trusted shall be the loser. 
 The principle does not cover the case. 
 When a contract is proposed between 
 factors, or between a factor and any 
 other creditor, to pass properly for 
 an antecedent debt, it is not a sale in 
 the legal sense of that word or in any 
 sense in which it is used in reference 
 to the commission which a factor has 
 to sell. Williamson t. Berry.S How. 
 495. It is not according to the usage 
 of trade. It is a naked transfer of 
 property in payment of a debt. 
 Money, it is true, is the consideration 
 of such a transfer, but no money 
 passes between the contracting parties. 
 The creditor pays none, and when the 
 
 822
 
 Chap. lY.] 
 
 FA0TOB8. 
 
 §998. 
 
 between the principal and the factor may be in the factor's 
 favor.* 
 
 § 997. To barter or exchange. A factor is, ordinarily, era- 
 ployed to sell goods, and like other agents similarly empowered, 
 he has no implied authority to barter or exchange them, and such 
 a transaction does not divest the principal of his title.* 
 
 § 998, To delegate his Authority. A factor is employed 
 because trust and confidence are reposed in his ability and integ- 
 rity, and the execution of this trust and confidence can not, in 
 general, be delegated to another.' Exceptions to this rule exist, 
 as in other cases of agency, where the employment of a sub- 
 agent is justified by a usage of trade,* or an established course of 
 
 debtor has given to him the property 
 of another in release of his obligation, 
 their relation has only been changed 
 by his violation of an agency which 
 society, in its business relations, can- 
 not do without, which every man 
 has a right to use, and which every 
 porson undertaking it promises to 
 discharge with unbroken fidelity. 
 When such a transfer of property is 
 made by a factor for his debt, it is a 
 departure from the usage of trade, 
 known as well by the creditor as 
 it is by the factor. It is more; 
 it is the violation of all that a 
 factor contracts to do with the prop- 
 erty of his principal. It has been 
 given to him to sell. He may sell for 
 cash , or he may do so upon credit, 
 as may be the usage of trade. A 
 transfer for an antecedent debt is not 
 doing one thing or the other. Both 
 creditor and debtor know it to 
 be neither. That their dealing 
 for such a purpose will be a trans- 
 action out of the usage of the business 
 of a factor. It does not matter that 
 the creditor may not know, when he 
 takes the property, that the factor's 
 principal owns it; that he believed it 
 to be the factor's in good faith." In 
 Warner ». Martin, 11 How. (U. S.) 
 209. 
 
 ' Benny v. Pegram, 18 Mo, 191. 59 
 Am. Dec. 298. 
 
 s Gurreiro v. Peile, 3 B. & Aid. 61G. 
 See also Trudo t). Anderson, 10 Mich. 
 357, 81 Am. Dec. 795; Kent v. Born- 
 stein, 12 Allen (Mass.) 342; Lumpkin 
 V. Wilson, 5 Heisk. (Tenn.) 555; 
 Wheeler & Wilson Mnfg Co. v. 
 Givan, 65 Mo. 89; Wing t). Neal, — 
 Me. — , 2 Atl. Rep. 881. 
 
 As to power of factor to barter 
 under Factor's Acts, see Victor Sew- 
 ing Machine Co. v. Heller, 44 Wis. 
 265. 
 
 3 Warner v. Martin, 11 How. (U. S.) 
 209; Catlin v. Bell, 4 Camp. 183; 
 Cockran v. Irlam, 2 M. & S 301; 
 Solly V. Rathboue, Id. 298; Schmal- 
 ing V. Thomlinson, 6 Taunt. 147; 
 Loomis V. Simpson, 13 Iowa, 5:32; 
 Campbell v. Reeves, 3 Head. (Tenn.) 
 226; Merchants' Nat. Bank «. Tren- 
 holm, 12 Heisk. (Tenn.) 520; Smith v. 
 Sublett, 28 Tex. 163; Connor v. Par- 
 ker, 114 Mass. y31; Furnas v. Frank 
 man, 6 Neb. 429; Gillis v. Bailey, 21 
 N. H. 149; Locke's Appeal, 72 Penn. 
 St. 491; Harralson v. Stein, 50 Ala. 
 347. 
 
 * Trueman v. Loder, 11 Ad. & El. 
 589; Warner v. Martin, 11 How. 
 (U. S.) 209. 
 
 823
 
 § 999. THE LAW OF AGBNOT. [Book V. 
 
 dealing, ' or where it is required by the necessities of the trans- 
 action.* 
 
 § 999. To compromise the Debt. So a factor who has sold 
 goods for his principal has no implied authority to compromise 
 or compound the claim for the purchase price, or to discharge 
 the debt upon the receipt of a part only.' 
 
 § 1000. To submit to Arbitration. So a factor has no im- 
 plied authority to submit to arbitration a dispute arising out 
 of the transaction, as a claim for damages on account of an 
 alleged breach of an implied warranty of the quality of the 
 goods sold.* 
 
 § 1001. To rescind Sale. A factor who has completed a sale 
 for his principal has, thereafter, no implied power to rescind the 
 sale, or discharge the purchaser from its obligations." 
 
 §1002. To extend Time of Payment. So having sold the 
 goods upon a credit, his undertaking is executed, and he has ordi- 
 narily no implied authority to extend the time of payment.' 
 
 § 1003. To receive anything but Money in Payment; Nor 
 has the factor implied authority to receive in payment anything 
 but money, and the money must be that which is then circulating 
 at par.^ He cannot receive payment in goods or depreciated 
 bills or in any other unusual or irregular manner.' 
 
 § 1004. To make negotiable Paper. Nor has the factor im- 
 plied authority to bind his principal by making, accepting or 
 indorsing negotiable paper.* 
 
 § 1005. To insure Property. A factor having goods of his 
 principal in his possession may insure them, but he is not bound 
 to do so in the absence of instructions to insure, or of an usage 
 
 ' Blore V. Sutton, 8 Meriv. 237; » Smith v. Rice, 1 Bailey (8. C.)648. 
 
 Combes' Case, 9 Coke, 75; Warner*. 'Douglass ». Bernard, Anthon's 
 
 Martin, supra. N. P. 278. 
 
 ' See McMorris v. Simpson, 21 Wend. "> See ante, % 375. 
 
 (N.Y.)610. See also Johnson u Cun- 'Underwood v. Nicholls, 17 C. B. 
 
 ningham, 1 Ala. 249; Dorchester, &c. 239; Sangston v. Maitland, 11 Gill & 
 
 I'vink v". New Englauu Bank, 1 Cush. J. (Md.) 286. 
 
 (Mass.) 177; Planters', &c. Bank t». » Hogg v. Snaith, 1 Taunt. 347; 
 
 First Nat. Bank, 75 K C. 534, Murray v. East India Co., 5 B. & 
 
 3 Russell, Merc. Ag. 48. See ante, Aid. 204; Emerson v. Providence 
 
 §376. Mnfg. Co., 12 Mass. 237, 7 Am. Dec. 
 
 * Camochan v. Gould, 1 Bailey (8. 66. 
 Car.) L. 179, 19 Am. Dec. 668. 
 
 824
 
 Chap. rV.] FACTOES. § 10(i7. 
 
 to that ejffect, or unless the habit and course of dealing between 
 himself and his principal imposes the dutj'upon him.' He may 
 effect the insurance in his own name,' and to the full value of 
 the goods.* 
 
 IV. 
 
 DUTIES AND LIABILITIES TO PKINOIPAL. 
 
 § 1006. To use reasonable Care and Prudence. Like other 
 persons who hold themselves out to the public as specialists in 
 any department of business, the factor is bound to possess a rea- 
 sonable degree of skill and knowledge, and to exercise that skill 
 and knowledge with reasonable care and prudence. In this 
 respect his undertaking is similar to that of the attorney. The 
 factor does not undertake for infallibility, or the highest degree 
 of judgment, discretion, skill or diligence, but he does undertake 
 for that degree which an ordinarily discreet, prudent and dili- 
 gent man would exercise in his own business under like circum- 
 stances. Exercising that, he is not liable, unless he has expressly 
 contracted for more ; but if he exercises less than that, and loss 
 ensues therefrom, he will be liable for it.* 
 
 § 1007. To act in good Faith. Like other agents in whom 
 trust and confidence are reposed, the factor owes to his principal 
 a high degree of fidelity and good faith. Unless the principal 
 expressly consents to receive less, he has a right to demand from 
 the factor an undivided allegiance to his interests, and the factor 
 will not be permitted to put himself in such a position that his 
 
 » Lucena«. Craufurd, 2 B. »fe P. N. Greenl. (Me.) 400, 23 Am. Dec. 522; 
 
 R. 269; De Forest v. Fulton Fire Ins. Phillips v. Moir, 69 III. 155; Chandler 
 
 Co., 1 Hall (N. Y.) 84: Waters v. v. Hogle, 58111.46; Deshler «. Beers, 
 
 Monarch, &c. Ins. Co., 5 El. & Bl. 33 111. 363, 83 Am. Dec. 274; Ernest v. 
 
 870; Brisban v. Boyd, 4 Paige (N. Y.) Stoller, 5 Dill. (U. S. C. C.) 438; At- 
 
 17; Schaeffer v. Kirk, 49 111. 251; kinson v. Burton, 4 Bush (Ky ) 299; 
 
 Shocnfeld v. Fleisher, 78 111. 404; McCants v. Wells, 3 S. C. 569. 
 
 Area B. Milliken, 35 La. Ann. 1150. In Foster v. Waller, 75 III. 464, it 
 
 * Brisban v. Boyd, supra. is said that a factor is bound to exer- 
 ' Brisban v. Boyd, sxipra, cise a "high degree of diligence" in 
 
 * Van Alen c. Vanderpool, 6 Johns. ascertaining the pecuniary responsi- 
 (N. Y.)69, 5 Am. Dec. 192; Greely bility of a customer to whom he 
 V. Bartlett, 1 Greenl. (Me.) 172, 10 makes a sale on change. 
 
 Am. Dec. 54; Folsom v. Mussey, 8 
 
 825
 
 § 1008. THE LAW OF AGENCY. [Book Y, 
 
 own interests, or tbose of another client, will come in conflict 
 with those of his principal.' 
 
 Without the principal's full knowledge and consent, therefore, 
 the factor can not represent both parties in the same transaction,* 
 nor can he be himself the other party as by buying of, or selling 
 to, himself.' If, however, the principal consents, no other person 
 has occasion to complain, and such consent may be evidenced as 
 well by a subsequent ratification as by a prior authorization.* 
 
 § 1008. To obey Instructions. It is, in general, the duty of 
 the factor to obey the instructions of his principal. To the lat- 
 ter belong the goods, and the profits and advantages to bo 
 derived from their sale, and in him, therefore, is vested the power 
 to direct and control the time, manner and terms of their sale. 
 Exceptions to this general rule exist where the factor, by making 
 advances on them, has acquired a special property in the goods,* 
 and also, as in other cases, where a sudden emergency requires a 
 deviation from the course prescribed.' But where no one of 
 these exceptions exists, the factor disregards his instructions at his 
 peril, and if a loss ensues, he is liable for it' That he acted in 
 good faith and with an intention to benefit his principal, or that 
 he pursued the customary course in such cases, will not excuse a 
 violation of express instructions.* 
 
 But here, too, as in other cases, the principal who wishes his 
 instructions obeyed must couch them in unambiguous terms, for 
 if they are capable of two constructions and the factor in good 
 
 ' Clarke v. Tipping, 9 Beav. 284; Johns. (N. Y.) Ch. 394; Courcier v, 
 
 Evans v. Potter, 2 Gall. (U. S. C. C.) Ritter, 4 Wash. (U. S. C. C.) 549' 
 
 12; Babcock v. Orbison, 25 Ind. 75; Bell v. Palmer, 6 Cow. (N. Y.) 128; 
 
 Keighler v. Savage Mufg Co., 12 Md. Evaus v. Root, 7 N. Y. 186, 57 Am. 
 
 ;583, 71 Am. Dec. 600. Dec. 512; Williams v. Littlefield, 13 
 
 sBensleyB. Moon, 7 111. App. 415. Wend. (N. Y.) 363; Scott v. Rogers, 
 
 'Keighler v. Savage Mnfg Co., 12 31 N. Y. 676; Weed v. Adams, 37 
 
 Md. 383. 71 Am. Dec. 600. Conn. 378; Johnson©. Wade, 2 Baxt. 
 
 < Thus the principal may elect to (Tenn.) 480; Strong «. Stewart, 9 
 
 treat the sale to the factor as valid Heisk. (Tenn.) 137; Day v. Crawford, 
 
 and maintain an action against him 13 Ga. 508; De Tastett v. Crousillai, 2 
 
 for the purchase price. Wadsworth Wash. (U. S. C. C.) 132; Shoenfeid v. 
 
 V. Gay, 118 Mass. 44. Fleisher, 73 111. 404; Blot v. Boiceau, 
 
 « See following section. 8 N. Y. 78, 51 Am. Dec. 345; Housel 
 
 • See ante, % 481. «. Thrall, 18 Neb. 484. 
 
 T Rundle v. Moore, 3 Johns. (N. T.) • Hatcher v. Comer, 73 Ga. 418. 
 (!as. 36; Parkist v. Alexander, 1 
 
 826
 
 Chap. IV.] FA0TOE8. § 1<»<'9. 
 
 faith and in the exercise of reasonable care and prudence selects 
 and follows one, he can not be held liable because the principal, 
 in fact, intended that the other should be pursued.' 
 
 Where goods are consigned to a factor to be sold upon certain 
 terras, his acceptance of the consignment without dissent is suf- 
 ficient evidence of his consent to be bound by the instructions 
 given 
 
 A violation of instructions, however, may in this as in other 
 cases be ratified bj the principal, and the factor be thus relieved 
 from liability.' 
 
 The damages for which the factor, who has disobeyed instruc- 
 tions, would be responsible, must be such as are the natural and 
 proximate result of his disobedience. Thus where cotton, which 
 had been consigned to factors with general instructions to sell, 
 was destroyed by an accidental fire within a reasonable time after 
 the receipt of the instructions, the factors' delay was held not to 
 be the proximate cause of the loss.' 
 
 § 1009. Same Subject— Instructions to sell. These principles 
 are of frequent application to questions arising from a violation 
 of instructions as to the time or price at which the goods shall 
 be sold, Tliese instructions it is the factor's general duty to obey, 
 and if a loss occurs because of his unjustifiable violation of them, 
 he will be liable for it. Thus if the factor be instructed to sell the 
 goods at a certain time, as upon arrival,* or immediately,* or wlien 
 they reach a certain price, he violates the instructions at hij, 
 peril,* and neither usage, nor a honajide intention to benefit his 
 
 • See ante, § 484. to sell and who has not sold within a 
 s Rice 1). Brook, 20 Fed. Rep. 611; reasonable lime, is not liable for the 
 
 Faries v. Ranger, 35 La. Ann. 102. value of the goods which are de- 
 
 s Lehman v. Pritchett, — Ala. — , stroyed by an accidental fire. His 
 
 27 Cent. L. Jour. 380. 4 South. Rep. default is not the natural and proxi- 
 
 601 _ male cause of the loss. Lehman v. 
 
 * An instruction accompanying the Pritchett, — Ala. — , 4 Soulh. Rep. 
 bill of lading to "please sell on ar- 601, 27 Cent. L. J. 380. 
 
 rival " is an explicit instruction, and • Casson v. Field, 62 N. Y. Super, 
 
 if the factor disregards it he is liable Ct. 196. 
 
 for a loss sustained through a fall in A factor who is instructed to sell 
 
 prices. Evans v. Root, 7 N. Y. 186, the whole shipment at a certain rate 
 
 57 Am. Dec. 512. is not authorized to sell parts only, 
 
 s Weed v. Adams, 37 Conn. 878; either at or above that rate. His 
 
 Howland v. Davis, 40 Mich. 515. duly is to sell in one lot, or at least 
 
 A factor who has been instructed so as to realize the price fixed, for the 
 
 82'
 
 § 1009. 
 
 THE LAW OF AGENCY. 
 
 [Book Y. 
 
 principal, will excuse him.' So if he is directed not to sell below 
 a given price, and, without sufficient reason, sells for less than 
 the price limited, he will be liable for the loss incurred.* 
 
 Factor's right to sell to reimburse himself. The fact that 
 the factor has made advances upon the goods will not alone 
 warrant him in selling below the stipulated price,* but where 
 such advances have been made, the principal cannot, by impos- 
 ing an arbitrary price, deprive the factor of his protection, and 
 if the principal neglect or refuse to repay the factor within 
 a reasonable time after a demand upon him for repayment, 
 the factor may sell sufficient of the goods to reimburse himself, 
 even though it be for less than the price fixed,* or before the time 
 limited.* But having sold enough to protect himself, he is bound, 
 as to the residue, to observe the instructions of his principal. • 
 
 So if, after the factor has made advances upon the goods, he is 
 directed to sell at a price or at a time which will manifestly, or 
 in reasonable probability, operate to deprive him of his security, 
 as if a sale at the price or time fixed will yield less than the 
 amount of his advances, the factor, acting in good faith and with 
 reasonable prudence, may refuse to obey the instructions to sell, 
 without liability.' 
 
 whole lot. Levison «. Balfour, 34 
 Fed. Rep. 882. 
 
 " Halcher v. Comer, 73 Ga. 418. 
 
 s Blot V. Boiceau, 3 N. Y. 78, 51 
 Am. Dec. 345; Dalby v. Stearns, 132 
 Mass. 230; Weed ■c. Adams, 37 Conn. 
 878; Casson v. Field, 52 N. Y. Super. 
 Ct. 196; Frothingham v. Everton, 12 
 N. H. 239; George ■». McNeill, 7 La. 
 124, 26 Am. Dec. 498. 
 
 3 Blot v. Boiceau, 3 N. Y. 78, 51 
 Am. Dec. 345; George v. McNeill, 7 
 La. 124, 26 Am. Dec. 498. 
 
 * Marfleld V. Goodhue, 3 N. Y. 62; 
 Hilton v. Vanderbilt, 82 N. Y. 591; 
 Frothingham v. Everton, 12 N. H. 
 239; Brown v. McGran, 14 Pet. (U. 
 S.) 479; Parker v. Brancker, 22 Pick. 
 (Mass.) 40; Dalby v. Stearns, 132 
 Mass. 230; Butterfield v. Stephens, 59 
 Iowa, 696; Mooney v. Musser, 45 
 Ind. 115. 
 
 • Davis e. Kobe, 36 Minn. 214, 1 
 Am. St. Rep. 663, 30 N. W. Rep. 662. 
 
 • Weed V. Adams, 37 Conn. 378. 
 
 " There can be no doubt of the 
 proposition that in a case where the 
 protection of the factor himself 
 against loss becomes necessary, his 
 discretion as to the time, price and 
 place of sale would be complete and 
 unlimited even by positive instruc- 
 tions." Phillips V. Scott, 43 Mo. 86, 
 97 Am. Dec. 369. See also Beadles 
 «. Harlmus, 7 Buxt. (Tenn.) 476; Nel- 
 son V. Chicago, &c. R. R. Co. , 2 111. 
 App. 180. 
 
 T Weed V. Adams, ««pra ; Butterfield 
 «. Stephens, 59 Iowa, 506; Howland 
 V. Davis, 40 Mich. 545; Blair v. 
 Childs, 10 Heisk. (Tenn.) 199; Brown 
 V. McGran, 14 Pet. (U. S.) 479; Feild 
 e. Farrington. 10 Wall. (U. S.) 141; 
 Lockett V. Baxter, — Wash. Ter. — , 
 19 Pac. Rep. 23. 
 
 828
 
 Chap. IV.] 
 
 FACTORS. 
 
 § 1009. 
 
 But this right of the factor to sell for his own reimbursement 
 may be waived, and it will not exist in contravention of an 
 express agreement to the contrary ; as where, at the time the 
 advances are made, the factor agrees, or receives the goods sub- 
 ject to express instructions, to sell only at a certain time, or at a 
 fixed price.' 
 
 The measure of damages to be recovered of, or recouped 
 
 » In Brown v. McGran, 14 Pet. (U. 
 
 S.) 479, Judge Story says: "We 
 understand the true doctrine on this 
 subject to be this: Wherever a con- 
 signment 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 liabilities on ac- 
 count of the consignment, by which 
 he acquires a special property there- 
 in, then the factor has a right to sell 
 80 much of the consignment as may 
 be necessary to reimburse such ad- 
 vances 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, contempora- 
 neous with the consignment and ad- 
 vances 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 
 factor subject to such orders; and he 
 is not at liberty to sell the goods to 
 reimburse 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 consignors shall, after 
 due notice and request, refuse to 
 
 829 
 
 provide any other means to reimburse 
 the factors. And in no case will the 
 factor be at liberty to sell the con- 
 signment contrary to the orders of 
 the consignors, although he has made 
 advances or incurred liabilities there- 
 on, if the consignor stands ready and 
 offers to reimburse and discharge 
 such advances and liabilities. 
 
 On the other hand, where the con- 
 signment 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 
 factor 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 dutj' 
 requite; and to reimburse himself for 
 his advances and liabilities out of the 
 proceeds of the sale; and the con- 
 signor 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."
 
 § 1009. 
 
 THE LAW OF AGENCY. 
 
 [Book Y. 
 
 against, the factor, for an unlawful violation of his instructions 
 as to sale, is the amount of the injury actually sustained by the 
 principal, if any ; otherwise nominal damages only are recover- 
 able.' Thus if, notwithstanding the factor sold for less than the 
 
 » Dal by v. Stearns, 132 Mass. 230; 
 Froi hingham «. Everton, 12 N. H. 
 230; BlotB, Boiceau, 3 N. Y. 78, 51 
 Am. Dec. 345; Johnson v. Wade, 2 
 Baxt. (Tenn.)480; Hornsby i>. Field- 
 ing, 10 Heisk. (Tenn.) 367; Courcier 
 t). Ritter. 4 Wash. (U. S. C. C.) 649. 
 
 In Dalby v. Stearns, supra, Endi- 
 COTT, J., says: "In the case at bar 
 the plaintifE consigned goods to the 
 defendants for sale at a limited price. 
 The defendants made advances, and 
 afterwards Bold the goods, without 
 sufficient notice to the plaintiff that 
 they intended to sell them, to pay 
 the advances. It is expressly found, 
 however, that the goods were sold in 
 good faith, for the best price that 
 could be obtained for them at the 
 time of the sale, and that from that 
 time to the date of the writ, their 
 market value was not greater than 
 the price for which they sold. 
 
 The only question before us is as 
 to the rule of damages. The plain- 
 tiff contended that he was entitled 
 to recover the invoice price of the 
 goods, less the amount of advances, 
 returns, discounts and commissions 
 due the defendants under the consign- 
 ment. But the presiding judge ruled 
 that the plaintiff was entitled to 
 recover the difference between the 
 market value of the goods when sold 
 and the prices for which they were 
 sold by the defendants, less the 
 amount of advances, returns, dis- 
 counts and commissions to which the 
 defendants were entitled. We are 
 of opinion that this ruling was right. 
 The plaintiff is entitled only to in- 
 demnity, and the fact that he limited 
 the price cannot in itself increase his 
 damages. 
 
 In Frothingham v. Everton, 12 N. 
 H. 239, it was held that, if a factor 
 sells at a price below the limit with- 
 out notice, the consignor may have 
 an action on the case to recover dam- 
 ages, or may have the amount of 
 damages allowed in a suit by the fac- 
 tor to recover his advances; and the 
 rheasure of damages in such case is the 
 amount of the injury sustained by 
 the sale, contrary to the orders of 
 the principal. That case closely re- 
 sembles the case at bar, and is 
 directly in point. It was said by 
 Chief Justice Parker in delivering 
 the opinion : ' Had these goods been 
 destroyed by the negligence of the 
 plaintiffs, they would have been 
 answerable for the value, and the 
 damages could not have been ex- 
 tended beyond that, merely because 
 the defendant had ordered them to 
 sell at a certain price, and not for 
 less. If, instead of a loss by negli- 
 gence, the loss be by a disobedience 
 of orders, without fraud, the result 
 must be the same.' 13 N. H. 243. 
 In either case the damages cannot 
 exceed the amount of injury sustained 
 by the consignor. The case of 
 Frothingham v. Everton is cited in 
 Blot V. Boiceau, 3 Comst. 78, with 
 approval, as laying down the sound 
 and proper rule upon this subject. It 
 was there held that where a factor 
 sells below the price named in his 
 instructions, the measure of damages 
 is only the amount of injury actually 
 sustained by the consignor; and that it 
 was competent to show, in reduction 
 of damages, that the goods were sold 
 at their full market value. 'If the 
 market price of such goods had risen 
 after the sale made by the defendants. 
 
 830
 
 Chap. lY.] FACTORS. § 1009. 
 
 price fixed, he jet received all that the goods were worth, the 
 principal would, ordinarily, be limited to nominal damages 
 onl}'.' If, however, within a reasonable time after the unauthor- 
 ized sale, the value of the property increased, the difference 
 between the price received and that which might have been 
 realized would furnish the measure of damages. 
 
 The period during which the principal may thus have the 
 benefit of fluctuations in the market, has been the subject of 
 much controvers}'. In some cases it has been held that the high- 
 est market price, which was reached at any time after the sale 
 down to the day of trial, was the proper standard.' But this 
 rule is so obviously unjust, giving to the principal not only the 
 whole period allowed by statutes of limitation for the commence- 
 ment of the suit, but as much more time afterward as the trial 
 could be delayed, — a period far beyond any originally contem- 
 plated by the parties, — that it has been quite generally disap- 
 proved and overruled, and the true rule declared to be that the 
 principal is entitled to the highest market price reached between 
 the time of the unauthorized sale and a reasonable time there- 
 after in which to begin the action.' This rule necessarily limits 
 the range of prices to a period prior to the commencement of 
 the action, if brought within a reasonable time ; and, if unreason- 
 ably delayed, then to the period within which it should have 
 been brought, and, in either case, it excludes prices prevailing 
 
 they would have been liable to pay of the suit. George v. McNeill, 7 
 
 according to such increased value. La. 124, 26 Am. Dec. 498. Where 
 
 A factor thus selling goods in viola- there is evidence of the value of the 
 
 tion of his instructions takes upon goods at the date of shipment and of 
 
 himself the hazard of loss from the a subsequent sale at that rate, it will 
 
 fluctuations in the market without be presumed, in the absence of evi- 
 
 ihe possibility of gain; and this is dence to the contrary, that the same 
 
 practically a suflScient security against price could have been obtained in the 
 
 the disobedience of his principal's interval. Howland v. Davis, 40 Mich, 
 
 order. There is no need of subjecting 545. 
 
 him to a higher penalty.' 3 Comst. « Markham v. Jaudon, 41 N. Y. 
 
 85." 235; Romaine v. VanAUen, 26 N. Y. 
 
 ' A factor with orders not to sell 309; Burt v. Dutcher, 34 N. Y. 493. 
 below a certain price is not liable for * Baker r. Drake, 53 N. Y. 211, 13 
 a sale at a lower price, where a Am. Rep. 507; Maynard v. Pease, 99 
 higher price than that at which the Mass. 555; Sturges v. Keith, 57 DL 
 sale was made could not have been 451, 11 Am. Rep. 28; Whelan v. Lynch, 
 obtained at any time between the 60 N. Y. 469, 19 Am. Rep. 202; Gal- 
 lime of sale and the commencement igher v. Jones, 129 D. S. 192. 
 
 831
 
 § 1010. 
 
 THE LAW OF AGENCY. 
 
 [Book V. 
 
 after the commencement of the action.* If he is directed to 
 sell upon a certain day, he will be liable, in case of a neglect to 
 sell, for the difference between the price on that day and the 
 price realized." 
 
 S 1010. Same Subject— Instructions to sell for Cash. So if 
 the factor is instructed to sell for cash only, he sells upon credit 
 at the peril of paying for the goods himself.' A sale for cash 
 means cash upon the delivery of the goods and a sale upon a 
 short credit cannot be justified by usage.* 
 
 8 1011. Same Subject— Instructions to insure. As has been 
 seen, a factor, in the absence of a .custom, promise or instruction 
 to insure, is not bound to insure the goods of his principal in the 
 factor's possession.® 
 
 But where the factor is instructed or has agreed, to insure, and 
 neglects to do so, or does so so defectively that the insurance 
 is of no avail, he is liable as an insurer. By neglecting to place 
 the risk elsewhere or to promptly notify the principal of his 
 inability to insure, so as to give him an opportunity to do so, the 
 factor assumes the risk himself .• And so where it is the custom 
 to insure under like circumstances, the factor must pursue the 
 custom or bear the loss.' 
 
 1 Baker v. Drake, supra. 
 
 a Fordyce v. Peper, 16 Fed. Rep, 
 516. 
 
 8 Bliss V. Arnold, 8 Vt. 252, 30 Am, 
 Dec. 467; Hall v. Storrs, 7 Wis. 253. 
 
 « Bliss V. Arnold, supra; Hall v. 
 Storrs, supra; Barksdale v. Brown, 1 
 Nott. & McC. (S. C.) 517, 9 Am. Dec. 
 720; Contra, Clark ». Van Northwick, 
 1 Pick. (Mass.) 343. 
 
 6 See ante, § 1005. 
 
 • Gordon v. Wright, 29 La. Ann, 
 812; Shoenfeld o. Fleislier, 73 111 
 404; De Tastett v. Crousillat, 2 Wash 
 (U. S. C. C.) 132; Parkins v. Washing- 
 ton Ins. Co., 4 Cow. (N. Y.) 645 
 Thorne v. Deas, 4 Johns. (N. Y.) 84 
 Gray v. Murray, 3 Johns. (N. Y.) Ch 
 167; Park v. Hamond. 4 Camp. 344 
 Callander c. Oelrichs, 5 Bing. N. C. 58 
 
 A letter issued by factors inviting 
 consignments and stating that goods 
 
 "will be covered by insurance as 
 soon as received in store," does 
 not import that they are to be person- 
 ally liable as insurers, and their duty 
 is performed if they obtain reason- 
 able and proper insurance. Johnson 
 V. Campbell, 120 Mass. 449. 
 
 t A factor who has been in the 
 habit of insuring his principal's 
 goods, will be liable for omitting to 
 do so, without giving the principal 
 notice of the omission. Area v. Milli- 
 ken, 35 La. Ann. 1150. 
 
 Where consignees had been accus- 
 tomed to insure the property of the 
 consignor only when ordered to do so 
 by letter, a promise by an agent of 
 the consignees to write to them to 
 obtain insurance, which he failed to 
 do, does not render the consignees 
 liable for not insuring. Randolph v. 
 Ware, 3 Cranch, (U. S.) 503. 
 
 832
 
 Chap. lY.] FACTORS. § 1013. 
 
 § 1012. Duty to inform Principal. It is tlie duty of the fac- 
 tor to inform his principal of every fact in relation to his agency 
 which comes to his knowledge, and which it may be important 
 for the principal to know in order to the protection or promotion 
 of his interests, and a factor who negligently omits to give such 
 information will be liable for a resulting: loss.' 
 
 Thus if he has been instructed to insure his principal's goods 
 and is unable to do so, he should at once give his principal notice 
 of this fact that the latter may effect the insurance ; * if he has 
 been in the habit of insuring and determines no longer to do so, 
 he should advise his principal of his determination ;« if the goods 
 of his principal in his possession are seized by attachment or 
 otherwise, he should give his principal notice of this fact;* if 
 having sold goods upon credit, the purchaser does not pay when 
 due, the factor must inform his principal within a reasonable 
 time or he will be held to have assumed the debt* These and 
 many other cases afford illustrations of the scope of this duty. 
 
 § 1013. Duty to sell only to responsible Purchaser. It is the 
 duty of the factor, even in the absence of any instructions, to 
 exercise reasonable care and prudence in selling only to respon- 
 sible parties, and, if he neglects to do so, he will be liable for a 
 loss that may ensue ; but he is not ordinarily a guarantor of pay- 
 ments, and if, having exercised due diligence, a loss occurs, the 
 principal must bear it, and not the factor.* He may, however, 
 
 » Harvey v. Turner, 4 Rawle * Callander v. Oelrichs, 5 Bing, N. 
 
 (Penn.) 223; Arrott v. Brown, 6 C. 58; Smith c. Lascelles, 2 T. H. 187. 
 
 Whart. (Penn.) 9; Devall v. Bur- » Area v. Milliken, 35 La. Ann. 
 
 bridge, 4 Watts & Berg. (Penn.) 305; 1150. 
 
 Moore v. Thompson, 9 Phila. 164; * Moored. Thompson, «i;;)ra; Devall 
 
 Howe v. Sutherland. 39 Iowa 484; v. Burbridge, supra. 
 
 Greely v. Bartlett. 1 Greenl. (Me.) 172. « Harvey v. Turner, supra; Arrott «. 
 
 10 Am. Dec. 54; Railey v. Porter, 32 Brown, supra. 
 
 ]Mo. 471, 82 Am. Dec. 141. A factor • The rule upon this subject is well 
 who sells goods to parties who were stated by Mellen, C. J., as follows: 
 creating and running a " corner" in "By the law merchant, a factor may 
 such goods, which to be successful sell the goods of his principal on a 
 must be maintained for at least reasonable credit, unless he is res- 
 thirty-two days, without requiring a trained from so doing, either by his 
 margin, and without informing his instructions or by the iisage of the 
 principal of the parties to whom he trade to which the transaction relates. 
 Bold, or of what they were doing, or A sale made under such circum- 
 of his righl to demand a margin, is stances is at the risk of the principal, 
 negligent. Howe a. Sutherland, supra. and if a loss happens, he must bear it. 
 
 53 833
 
 §1014. 
 
 THE LAW OF AGENCY. 
 
 [Book Y. 
 
 make himself a guarantor by an express agreement. One form 
 of such an undertaking is that of the factor who sells upon a 
 del credere commission.* Another is that, now common, of a 
 factor who is authorized to sell on credit, but who agrees, or is 
 instructed, that he will sell only to persons of known responsibil- 
 ity, or only upon securities of undoubted collectibility. The 
 extent of the undertaking in these cases depends, of course, upon 
 the language used in each particular case, but under such instruc- 
 tions or agreements as those named, the factor stands ordinarily 
 in the position of a guarantor.' 
 
 § 1014. Same Subject— Del Credere Commission. A factor is 
 said to act under a del credere commission when, in considera- 
 tion of an additional commission, he guarantees the payment to 
 the principal of debts that become due through his agency. The 
 nature and extent of his obligation have been much disputed, the 
 later English' and some American* cases holding that he is liable 
 
 But he is not authorized to give 
 credit, except to such persons as pru- 
 dent people would trust with their 
 own property. He may receive 
 securities in his own name for goods 
 sold, without subjecting himself to 
 liability merely by so doing. But he 
 must deliver such securities to his 
 principal, if he demand them, or, in 
 case of loss, he will be answerable as 
 for a breach of trust, though in such 
 case the principal should pay him his 
 usual commissions. 
 
 If through carelessness or want of 
 proper examination and inquiry, he 
 give credit to a man who is insolvent, 
 should a loss happen, he must indem- 
 nify the principal. And if a debt be 
 lost by the inattention of the factor 
 la omitting to collect it when in his 
 power to do so, he will be liable for 
 it. He must be honest and faithful, 
 and must give his principal all neces- 
 sary or useful information respecting 
 the concerns of his agency." In 
 Greely c. Bartlett, 1 Greenl. (Me.) 
 173, 10 Am. Dec. 54. 
 
 In Housel v. Thrall, 18 Neb. 484, 
 
 an instruction to a jury " that a 
 factor or commission man, while he 
 cannot be held as a guarantor of the 
 responsibility of the persons to whom 
 he sells in the ordinary course of 
 business, and in accordance with the 
 usages of the market where the sale 
 takes place, must, nevertheless, use 
 all reasonable effort and resort to all 
 reasonably available sources of infor- 
 mation, to learn the pecuniary liabil- 
 ity of the purchaser, and if he does 
 not do so, and any loss occurs by 
 reason thereof, he will be liable for 
 such loss," was held to be a correct 
 statement of the rule. See also Fos- 
 ter V. Waller, 75 111. 464; Pinkham v. 
 Crocker, 77 Me. 563. 
 
 « See following section. 
 
 « Clark ®. Roberts, 26 Mich. 506. 
 
 » Morris v. Cleasby, 4 M. & S. 566; 
 Hornby v. Lacy, 6M. «fc S. 166; Cou- 
 turier ®. Haslie, 8 Bxch. 40. 
 
 The earlier cases were contra; 
 Grove v. Dubois, IT. R 112; Bize v. 
 Dickason, Id, 285. 
 
 < Thompson v. Perkins, 3 Mason 
 (U. S. C. C.) 232. 
 
 834
 
 Chap. IV.] 
 
 FACT(JRS. 
 
 1014. 
 
 as a surety merely; but the weight of authority in the United 
 States is undoubtedly in support of the rule that a factor who 
 sells under a del credere commission is liable absolutely as a prin- 
 cipal, and that if the debt be not paid when due, indebitatus 
 ■assumpsit will lie against him at once for the amount.' As such 
 principal debtor, his contract is not within the statute of fraud.s 
 as a promise to answer for the debt, default or miscarriage of 
 another.' But where the goods are sold upon an authorized 
 credit, the factor cannot be required, because of a del credere 
 commission, to account to the principal before the expiration of 
 the credit given to the buyer." 
 
 A factor, acting del credere, is not on that account relieved 
 from any of the duties which attach to other factors, nor is he 
 ^slothed with any greater powers.* 
 
 » Wolff V. Koppel, 2 Denio (N. Y.) 
 368, 43 Am. Dec. 751 ; Swaa v. Nea- 
 mith, 7 Pick. (Mass.) 220, 19 Am. 
 Dec. 282; Lewis v. Brehme, 33 Md, 
 412, 3 Am. Rep. 190; Sherwood v. 
 Stone, 14 N. Y., 267; Blakely v. 
 Jacobson, 9 Bosw. (N. Y.) 140; Cart- 
 wright V. Greene, 47 Barb. (N. Y.) 9; 
 Leverick v. Meigs, 1 Cow. (N.Y.)645. 
 
 2 Wolff V. Koppel, supra ; Swan v. 
 Nesmith, iupra; Sherwood v. Stone, 
 «upra. 
 
 * Lewis v. Brehme, supra. In this 
 it appeared that a del credere agent 
 collected a bill of goods due his prin- 
 cipal from a customer, and placed 
 the amount to his own account with 
 his bankers, and purchased of them 
 a gold draft, which he caused to be 
 made payable to his own order with- 
 out reference to his character as 
 agent, and, after indorsing it to his 
 principals or their order, transmitted 
 it to them in payment not only 
 for the price of the goods sold to 
 the customer, but also of a balance 
 due from himself. The draft was 
 dishonored and returned to the agent, 
 who treated the loss as his own, 
 and promised to send another draft, 
 and in the meantime unsuccessfully 
 
 solicited payment of the draft from 
 the drawers to himself and then 
 caused himself to be made a pre- 
 ferred creditor of the drawers, who 
 had failed. In an action by the 
 principals against the agent, to 
 recover the amount of the draft, held, 
 
 1. That the contract resulting from 
 the del credere character of the agent 
 was not entirely discharged in the 
 payment of the money by the cus- 
 tomer to the a<,^ent. 
 
 2. That the agent was further 
 liable, after the receipt of the money, 
 either by virture of the del credere 
 commission, or by his indorsement of 
 the draft, although he had used ordi- 
 nary diligence in transmitting the 
 money. 
 
 3. That the promise of the agent to 
 assume the debt, after the dishonor of 
 the draft was not valid unless he had 
 full knowledge of the neglect of his 
 principals in making demand, and in 
 giving notice of the dishonor of the 
 draft. 
 
 4. That the relation of a del credere 
 agent to his principal, is that of debtor 
 and creditor, and he is bound abso- 
 lutely to see that his principal is paid. 
 
 ♦ Morris v. Cleasby, 4 M. & S. 5G6; 
 
 835
 
 § 1015. 
 
 THE LAW OF AGENCY. [Book Y. 
 
 8 1015. Factor's Duty to care for Property. It is the priv- 
 ilege of the principal or consignor, to give such reasonable direc- 
 tions in regard to the manner and place in which his property 
 shall be stored and cared for, as he deems desirable, and it is the 
 dnty of the factor, consignee or commission merchant if he 
 accepts the consignment, to follow these directions, unless pre- 
 vented by sufficient excuse.' If he fails to do this, and the prop- 
 erty is lost or destroyed, the factor will be responsible, and he 
 cannot exempt himself by showing a local custom among factors 
 to store or care for property differently.' 
 
 Where no instructions or directions are so given, it is still the 
 factor's duty to exercise reasonable care, prudence and diligence 
 in storing and caring for the property consigned to him ; and for 
 a breach of this duty, he will be liable for the resulting loss.' In 
 such cases, if he pursues the usual and regular course which 
 custom and experience have adopted as proper and prudent under 
 like circumstances, he could not, in the absence of some excep- 
 tional circumstance reasonably exempting that case from the 
 general rule, be deemed negligent.* 
 
 So though the factor may properly be held responsible for a 
 neglect to provide against the risks or perils to which the property 
 
 Thompson v. Perkins, 3 Mason, 232; may, in the absence of instructions to 
 
 Graham v. Ackroyd, 10 Hare 192. the contrary, store it in mass with 
 
 » Vincent v. Rather, 31 Tex. 77, 98 other of the same kind and grade, 
 
 Am. Dec. 516. t^^t being the customary course. 
 
 « Vincent v. Rather, supra. Davis v. Kobe, supra. 
 
 8 Vincent v. Rather, supra. Com- Sewing machines, shipped under a 
 mission merchants who advertise that contract to be sold on commission, 
 goods consigned to them will be were destroyed by fire without the 
 stored in a fire-proof house are liable consignee's fault, and after he had 
 if they store them in a wooden house given reasonable notice to the ship- 
 which is less safe, and afterwards pers to take them back. The con- 
 burned, even though the goods were tract did not make him the agent of 
 first shipped to and stored in the the shippers for any definite time, 
 warehouse of the wrong consignee, and did not transfer to him ibe title 
 if after the discovery of the mistake to the machines. Held that after he 
 by the real consignees, they allow the had given reasonable notice to remove 
 goods to remain in such warehouse. them he would be liable only for 
 J. gross negligence, and that hence the 
 ♦ Davis V. Kobe, 36 Minn. 214, 1 shippers could not recover for the 
 Am. St. Rep. 663, 30 N. W. Rep. loss. Barrows t>. Cushway, 37 Mich. 
 6(32; Phillips v. Moir, 69 111. 155. 481. 
 Factor to whom wheat is consigned 
 
 836
 
 Chap. lY.] FACTOES. § 1017. 
 
 entrusted to his care may, in the ordinary course of business, be 
 exposed, he cannot be held liable for not anticipating a danger 
 altogetlier out of the ordinary course of business or of natural 
 events.' And even though his authority be otherwise limited, 
 the factor may, in the event of some unforeseen contingency or 
 some extraordinary peril, be justified in assuming extraordinary 
 powers, if he acts with the view of benefiting the principal and 
 of protecting his property from ruin, and goes no further than 
 reasonable prudence and good judgment would sanction as neces- 
 sary and proper under the circumstances.* 
 
 § 1016. General Duty as to Sales. Where goods are con- 
 signed to a factor for sale, but with no instructions as to the 
 time, price or manner of sale, he is bound, and bound only, to 
 the exercise of a fair and reasonable discretion under the circum- 
 stances. By consigning them without instructions, the principal 
 is presumed to be willing to rely upon the sound discretion of 
 the factor, and if this is exercised, fairly and in good faith, the 
 factor discharges his duty.' A fortiori is this so where the 
 factor is instructed to deal with the goods as with his own.* 
 
 Following this general duty into details as to time, place and 
 price, we have : — 
 
 § 1017. Duty as to Place of Sale. Where no instructions are 
 given to the contrary, it is presumed that a principal, who con- 
 signs goods for sale, to a factor residing at a certain place, 
 intends that the goods shall be sold at that place, and the factor 
 has no implied authority to ship them elsewhere to be sold.* 
 Any usage to the contrary should be so general and well estal>- 
 lished as to warrant the presumption that the consignment was 
 
 » Johnson «. Martin, 11 La. Ann. Penn. St. 215, 6 Am. St. Rep. 700. 
 
 27, 66 Am. Dec. 193. Fact that he had written for instruc- 
 
 » Foster c. Smith, 2 Cold. (Tenn.) tions but sold before they were re- 
 
 474, 88 Am. Dec. 604; Durant «. ceived does not deprive him of his 
 
 Fish, 40 Iowa 559; Joslin v. Cowee, right to sell according to sound dis- 
 
 52 N. Y. 90; Drummond o. Wood, 2 cretion. Idem. 
 
 Caines (N. T.) 310; Judson ©. Stur- * Adams fl. Capron, 21 Md. 186, 83 
 
 ges, 5 Day (Conn.) 556; Jervis v. Am. Dec. 566. 
 
 Hoyt, 5 Thom. &. C. (N. Y.) 199. » Phillips «. Scott, 43 Mo. 86, 97 
 
 > Liotard «. Graves, 3 Caines (N.Y.) Am. Dec. 369; Kaulfman v. Beasley, 
 
 226; Maxfleld tj. Goodhue, 3 N. Y. 72; 54 Tex. 563; Wallace v. Bradshaw, 6 
 
 Milbank e. Dennistoun, 1 Bosw. Dana (Ky.) 382; Phy ». Clark, 35 111. 
 
 (N. Y.) 246; Conway e. Lewis, 120 377. 
 
 837
 
 § 1018. THE LAW OF AGENCY. [Book Y. 
 
 made in reference to it, or the principal must be shown to have 
 had knowledge of it.' 
 
 § 1018. Duty as to Time of Sale. A factor to whom goods 
 are consigned for sale, with no instructions as to the time at which 
 they shall be sold, is bound to exercise reasonable discretion and 
 judgment in reference to their sale. If, for example, he delays 
 the sale for an unreasonable titne and the goods depreciate in 
 value, he is liable for the loss;* but on the other hand, if he sells 
 within a reasonable time and in the exercise of a sound discretion 
 he could not be held liable because, if he had held the goodtj 
 longer, he might have realized more ; ' nor is he liable because 
 the goods are lost by an accidental fire, where he has not delayed 
 the sale fo:* an unreasonable time.* 
 
 § 1019. Duty as to Price. In the absence of special instruc- 
 tions as to the price, it is the duty of the factor to sell for the 
 fair value or market price,* and if, in disregard of this duty and 
 without sufficient excuse, he sells at an nnderprice, or if he falsely 
 accounts for them at an underprice, he is liable for the differ- 
 ence.* 
 
 § 1020. Duty in collecting Price. A factor who has made an 
 authorized sale upon credit, and has expressly or impliedly under- 
 taken the collection of the price, is bound to the exercise of 
 reasonable care and diligence in such undertaking. If he has 
 done so, and the debt remains uncollected, he is not, except where 
 be sells del credere, liable for debt, but if, by the exercise of such 
 care and diligence, the debt might have been collected and is not, 
 the factor must respond.^ He should not, under ordinary circum- 
 stances, sue for the debt upon his principal's account without the 
 latter's instructions, where there is no reasonable probability of 
 benefiting the principal.* 
 
 § 1021 Factor's Duty in keeping Accounts. It is the duty 
 
 ' Phillips «. Scott, supra. * Bigelow e. Walker, supra. 
 
 « Atkinson e. Burton, 4 Bush (Ky.) ' Folsom t. Mussey, 8 Greenl. (]\Ie.) 
 
 299. 400, 23 Am. Dec. 522; Greely v. 
 
 » See Given v. Lemoine, 35 Mo. 110. Barllett, 1 Greenl. (Me.) 172, 10 Am. 
 
 < Lehman v. Pritchett, — Ala. — , 27 Dec. 54. McConnico c.Curzen, 2 Call. 
 
 Cent. L. Jour. 880. (Va.) 358, 1 Am. Dec. 540. 
 
 'Bigelow V. Walker, 24 Vt. 149, « Forrestier «. Bordman, 1 Story 
 
 58 Am. Dec. 156; Smith's Com. Law, (U. 8. C. C.) 43. 
 105; Paley on Agency, 26. 
 
 838
 
 Chap. IV.] FACTORS. § 1023. 
 
 of the factor to keep and preserve true and regular accounts and 
 records of all of his receipts, disbursements and other transactions 
 for and on account of his principal, and to render the same to 
 him within a reasonable time.* Where the factor represents 
 several principals, the accounts of each should in general be kept 
 separate.* 
 
 Though the factor may, as has been seen, take from a pur- 
 chaser to whom he sells upon credit the latter's note paj'able to 
 the factor,* he should not take one note for the goods sold for 
 different principals.* And where a factor procured a note so 
 taken to be discounted, it was held that he had made it his own, 
 and was liable to the principal, although the maker had failed.* 
 
 § 1022. Not obliged to keep Funds separate. It has been seen 
 to be the general duty of an agent to keep his principal's funds 
 separate from his own. In the case of the factor, however, cus- 
 tom seems to have established a different rule. Thus in a lead- 
 ing case upon this subject, it is said: "In the usual and ordi- 
 nary course of business, a factor does not and is not required to 
 keep the money received upon the sale of goods of different con- 
 signors in separate and distinct parcels, but mingles all in a com- 
 mon mass, and with the like funds of his own, from whatever 
 source derived. In such cases, he becomes at once a debtor to 
 his principal and is liable to an action for the balance shown to be 
 due by his account of sales, immediately after its rendition and 
 without any previous demand." • 
 
 § 1023. Factor's Duty to account for Money and Property. 
 It is also the duty of the factor to account to his principal for all 
 goods, property and money of the principal, which come into his 
 hands as factor, after deducting his own proper advances and 
 commissions.^ If, by the terms of his employment, any time lias 
 been fixed for this accounting, the factor should account at that 
 
 ' Story on Agency, § 203; Haas c. § 179. note. See also Jackson v. 
 
 Damon, 9 Iowa 589; Keighler v. Sav- Baker, 1 Wash. (U. S. C. C.) 395. 
 
 age Mnfg Co., 12 Md. 383, 71 Am. « Johnson v. O'Hara, 5 Leigh (Va.) 
 
 Dec. 600. 456; Myers e. Entriken, 6 W. & S. 
 
 s Story on Agency, § 204 a. (Penn.) 44, 40 Am. Dec. 538. 
 
 » See ante, % 993. • Vail v. Diirant, 7 Allen (Mass.) 
 
 < Bee Story on Agency, § 204a. 408, 83 Am. Dec. 695; citing Clarke. 
 
 Corlies v. Widdifleld, 6 Cow. (N. Y.) Moody, 17 Mass. 145. 
 
 181, to the contrary has not been gene- ^ Terwilliger c.Beals,6 Lans. (N. Y.^ 
 
 rally approved. See Story on Agency, 403; Keighler©. Savage Mnfg Co. 12 
 
 839
 
 § 1024. THE LAW OF AGENCY. [Book T. 
 
 time ; * where no such period has been fixed, it is the duty of 
 the factor to account within a reasonable time, and in all events 
 upon a reasonable demand.* Where from the circumstances of 
 the case, a demand is impracticable or highly inconvenient, it is 
 the duty of the factor to account within a reasonable time with- 
 out a demand.' The fact that the transaction was illegal, fur- 
 nishes no excuse to the factor for not accounting.* 
 
 The duty of the factor to account covers not only the profits 
 made by the factor in the pursuit of his duty, but those made by 
 him while exceeding or violating his authority.* He cannot, 
 without his principal's consent, purchase any of the goods which 
 he is employed to sell, and if he does, the principal may, at his 
 election, disaflSrm the sale and recover the goods,* or he may 
 affirm the sale and recover the price from the factor.^ He will 
 not be permitted to make any secret or hidden profit for himself 
 out of the transaction, but will be compelled to account for all 
 such to his principal.' Neither will he be permitted, when called 
 upon by his principal for an accounting, to dispute his principal's 
 title to the goods.' The factor may, however, show that he has 
 been divested of the goods by a superior title." 
 
 Acceptance of the factor's final account by the principal with- 
 out objection will, in general, relieve the factor from further 
 liability for the proceeds of goods sold by him on credit, but not 
 yet paid for." 
 
 § 102i. Duty in remitting Money. A factor who has received 
 the proceeds of goods sold by him and has notified the principal 
 of that fact, may, unless a different course has been established 
 
 Md. 383, 71 Am. Dec. 600; Curtis t>. Md. 883, 71 Am. Dec. 600; Wads- 
 
 Gibney, 59 Md. 181; Warriner •. worth ». Gay, 118 Mass. 44, 
 
 People, 74 111. 346. ' Wadsworth v. Gay, supra. 
 
 • Leake v. Sutherland, 25 Ark. 219. » Hidden v. Waldo, 55 N. Y. 294; 
 «See Cooley v. Betts, 24 "Wend. Payne c.Waterston. 16 La. Ann. 239. 
 
 (N. Y.) 203; Topham «. Braddick, 1 'Marvin v. Ellwood, 11 Paige, 
 
 Taunt. 572; Burns v. Pillsbury, 17 (N. Y.) 365; Barnard v. Kobbe, 54 
 
 N. H. 66; "Wright v. People, 61 111. N. Y. 516; Bain c. Clarke. 39 Mo. 
 
 882. 252. 
 
 » Eaton V. "Welton, 32 N. H. 852; " Bain v. Clark, supra. 
 
 Lyle V. Murray, 4 Sandf. (N. Y.) 590. " Rion v. Gilly, 6 Mart. (La.) 417, 
 
 • Baldwin v. Potter, 46 Vt. 403. 12 Am. Dec. 483; Keighler v. Savage 
 » See ante, § 469, et seq. Mnfg Co., supra. 
 
 • Keighler v. Savage Mnfg Co., 12 
 
 840
 
 Chap. IV.] FAOT0E8. § 1026. 
 
 by instructions or usage, await the principalis instructions as to 
 the mode of remitting the money.' If he remits without 
 instructions, it is ordinarily at his own risk.* Having received 
 instructions, the factor should pursue them, for if he remits in a 
 different manner and the money is lost, the loss will fall upon the 
 factor.' If, however, the principal's instructions are so uncertain 
 and ambiguous as to be fairly open to two constructions, and the 
 factor, in good faith and with reasonable care adopts one, he can 
 not be held liable because the principal intended that the other 
 should be pursued.* 
 
 § 1025. When Principal may sue Factor. No action can be 
 maintained by the principal against the factor, to recover the 
 proceeds of goods sold by the latter, until after a demand has 
 been made upon the factor for payment, or until he has been 
 instructed to remit, and has failed or refuse to comply.* 
 
 So a factor is not, in general, liable for interest upon the pro- 
 ceeds in his hands, until after a demand made upon him for pay- 
 ment or he has been instructed to remit, unless he has unreasonably 
 failed to render his account of it, or unless, after an account stated 
 and settled, he retains the money in his own hands, or unless the 
 payment of interest is required by usage.' 
 
 § 1026. Liability for Acts of Subagent. It has been seen to 
 be the general rule that the factor has no implied power to dele- 
 gate his authority to another,'' Where such is the case, if the 
 factor employs a subagent to assist him, he is liable to the prin- 
 
 ' Ferris v. Paris, 10 Johns. (N. T.) cipal could recover of the factor. 
 
 285; Halden v. Crafts, 4 E. D. Smith Yon v. Blanchard, 75 Ga. 519. 
 
 (N. Y.) 490; Cooley v. Belts. 24 » Cooley «. Belts, 24 Wend. (N. Y.) 
 
 Wend. N. Y. 203; Brink v. Dolsen, 203; Topham v. Braddick. 1 Taunt. 
 
 8 Barb. (N. Y.) 837; Greentree v. 572; Burns*. Pillsbury. 17 N. H 66; 
 
 Rosenstock, 61 N. Y. 583. Ferris v. Paris, 10 Johns. (N. Y.) 285; 
 
 8 Clark V. Moody. 17 Mass. 145. Halden v. Crafts. 4 E. D. Smith, (N. 
 
 3 Foster©. Preston, 8 Cow. (N. Y.) Y.) 490; Brink v. Dolsen, 8 Barb. 
 
 198; Kerr B. Cotton. 23 Tex. 411. See (N. Y.) 337. Contra see Clark v. 
 
 ante, % 512. Moody, 17 Mass, 145; Dodge v. 
 
 « See ante, § 485. Hays e. Warren, Perkins, 9 Pick. (Mass.) 368. See 
 
 46 Mo. 189. these cases criticised in Cooley v. 
 
 A factor had two principals of the Bells, supra. 
 
 same name. He supposed both to be « Tyree v. Parham, 66 Ala. 424; 
 
 one. He sent money due one to Sentell d. Kennedy, 29 La. Ann. 679. 
 
 the other which was lost on the » See ante § 998. 
 way. Held that the latter prin- 
 
 841
 
 § 1027. THE LAW OF AGENCY. [Book V. 
 
 cipal for the subagent's acts.' Where however the factor is 
 expressly or impliedly authorized to appoint a subagent, and uses 
 due care in his selection he is not so liable." 
 
 V. 
 
 EIGHTS OF FACTOR AGAINST PRINCIPAL. 
 
 a. Commissions. 
 
 § 1027. Factor entitled to Compensation. Like the broker, 
 the factor, who has performed his undertaking, is entitled to 
 compensation for his services. This compensation is usually a 
 commission upon the price of the goods sold, which commis- 
 sion is either fixed by the agreement between the parties or by 
 the usages of trade, or upon a quantum, m^eruit.' 
 
 The general rules governing the right of the broker to com- 
 pensation where the undertaking is only partly completed, 
 whether by the act of the principal or the broker, apply to the 
 case of the factor under like circumstances. 
 
 But a factor who is guilty of fraud or gross negligence in his 
 dealings with his principal;* or who knowingly renders false 
 and fraudulent accounts ; • or who neglects to keep true and cor- 
 rect books and accounts of his transactions ; • or who, having sold 
 the goods, converts the money to his own use ; ' or who violates 
 his instructions in regard to the sale,' may forfeit his commis- 
 sions and be held liable to compensate his principal for the loss 
 and injury sustained,* 
 
 So if the principal, in order to secure his claims against the 
 factor is compelled to resort to litigation, the factor will not be 
 allowed commissions." 
 
 ' See ante % 197. * Zurn «. Noedel, 113 Penn. St. 
 
 « McCantsV Wells, 3 S. C. 569. 336; Larminie v. Carley, 114 111. 196. 
 
 » Story on Agency, § 326. * The neglect of the factor may be 
 
 * Norman «. Peper, 24 Fed. Rep. shown in mitigation or bar of his 
 403; Fordyce ». Peper, 16Fed. Rep. claim to commissions. Dodge v. 
 5jg Tileston, 12 Pick. (Mass ) 338. Long 
 
 » Smith V. Crews. 2 Mo. App. ^^^ unexcused delay in informing 
 
 269 ; Talcott v. Chew, 27 Fed. Rep. principal of sale or in paying him the 
 
 070 proceeds will forfeit commissions. 
 
 • Smith V. Crews, supra. Segar v. Parrish. 20 Gratt. (Va.) 672. 
 T Brannan v. Strauss, 75 111. 234. '" Vennum v. Gregory, 21 Iowa 326. 
 
 842
 
 Chap. IV.] FAcrroES. § 1029. 
 
 So a factor is not entitled to compensation where its payment 
 would reduce the amount of the proceeds below the sum guaran- 
 teed by the factor to the principal.' 
 
 § 1028. Wlien Factor may have Comraissions firom both Par- 
 ties. Like the broker,' the factor can recover comraissions from 
 both parties to the transaction only when his double agency was 
 fully understood and assented to by each.* 
 
 h. Reimbursement. 
 
 § 1029. Factor entitled to Beimbursement. The factor is 
 also entitled to be reimbursed by his principal for all advances 
 and disbursements made to the principal, or on his account, in 
 the due and proper performance of the agency.* As will be seen, 
 the factor has a lien upon the goods for these advances,' but 
 unless he has agreed to look to the goods alone, such lien does 
 not deprive the factor of his personal claim against the princi- 
 pal.' Nor, unless he has agreed to do so, is he obliged to wait 
 until the goods are sold, but if they are not sold within a reason- 
 able time, he may demand and recover reimbursement for his 
 advances.'' 
 
 So if, after the sale of the goods, a deficit remains without the 
 fault or neglect of the factor, he may recover it of the principal.* 
 
 That the factor acts under a del credere commission does not 
 affect his right to reimbursement or defeat his personal claim 
 against the principal, except that, where such a factor has sold 
 the goods, he cannot sue the principal for advances which are 
 covered by the price of the goods, that price being warranted 
 
 > Dalton V. Goddard, 104 Mass, » See second section following. 
 
 497. where the factor guaranteed the • Martin v. Pope, 6 Ala. 582, 41 
 
 principal eighty per cent, of the in- Am. Dec. 66; Burrill v. Phillips, 1 
 
 voice and sold the goods for a sum Gall. (U. S. C. C.) 360; Peisch v. 
 
 which would not pay the eighty per Diclison, 1 Mason (U. S. C. C.) 9. 
 
 cent, and the factor's commissions. ' Beck with v. Sibley, 11 Pick. 
 
 i See ante, % 972. 483; Upham v. Lafavour, 11 Mete. 
 
 « Talcott V. Chew, 27 Fed. Rep. (Mass.) 174; Dolan v. Thompson, 126 
 
 270. Mass. 183. There is a statement to 
 
 ♦ Corliesc, Gumming, 6 Cow. (N.Y.) the contrary in Corlies ®. Gumming, 
 
 181; Beckwith v. Sibley, 11 Pick. 6 Cow. (N. Y.) 181. See also Gihon c. 
 
 (Mass.) 482; Upham v. Lafavour, 11 Stanton, 9 N. Y. 476. 
 
 Mete. (Mass.) 174; Dolan v. Thomp- ' Strong ». Stewart,9 Heisk. (Tenn.) 
 
 eon, 126 Mass. 183. 137. 
 
 843
 
 § 1030. THK LAW OF AGENCY. [Book Y. 
 
 to the principal by the guarantee arising from the del credere 
 commission.' 
 
 § 1030. Same Subject— Conclusiveness of Accoimta. Whether 
 the account as rendered by the factor is conclusive, depends upon 
 the intention of the parties. Where such an account was 
 expressly made final, and the factor had charged himself with 
 the price, not yet paid, of goods sold, it was held that he was 
 bound, though the purchaser failed to pay.' But the mere giv- 
 ing credit to the principal for debts not yet due, or giving notes 
 payable out of the proceeds of the goods, is not a conclusive 
 assumption of the debts by the factor, and he may charge back 
 against the principal the debts that are not paid, or defeat a 
 recovery by the principal upon notes so given.* 
 
 c. Indemnity. 
 
 § 1 031. Factor entitled to Indemnity against Losses. So if 
 the factor in the due and proper discharge of his duty and with- 
 out fault of his own, sustains loss or incurs liabilities to third per- 
 sons,* on his principal's account, he is entitled to be indemnified 
 by his principal. Thus if the factor, by direction of his princi- 
 pal, incurs obligations to a third person on the principal's account, 
 which the latter neglects or refuses to meet, and the factor is 
 compelled to do so, he may recover of the principal ; ® if, by the 
 principal's instructions, he sells goods with a warranty which 
 fails, he may claim indemnity from the principal ; • if, at the 
 principal's request, he sells goods as the property of the princi- 
 pal, and is obliged to respond to the purchaser who is divested 
 by a title superior to that of the principal, or if he sells as sound 
 
 ' Graham v. Ackroyd,10 Hare 193, ^ As where the factor by the prin- 
 
 19 Eng. L. & Eq. 659. cipal's directions, sold -wheat for 
 
 2 Oakley «. Crenshaw, 4 Cow, future delivery and, the wheat hav- 
 (N. Y.) 250. ing advanced, the principal refused 
 
 3 Robertson «. Livingston, 5 Cow. to stand by the contract, leaving the 
 (N. Y.) 473; Hapgood v. Batcheller, factor to settle with the purchaser. 
 4 Mete. (Mass.) 578. Searing n. Butler, 69 111. 575. 
 
 < Ramsay «. Gardner, 11 Johns, « As where the factor was obliged 
 
 (N. Y.) 439; Powell v. Trustees of to make good, losses occasioned by 
 
 Newburgh, 19 Id. 284; Stocking t. defective packing. Beach e. Branch, 
 
 Sage, 1 Conn. 522, Hill «. Packard, 5 57 Ga. 362. 
 Wend. (N. Y.) 375; Rogers t. Knee- 
 land, 10 Id. 219. 
 
 844
 
 Chap. lY.J 
 
 FAOTOKS. 
 
 § 1032. 
 
 or valid, goods or securities which prove to be otherwise, and is 
 compelled to make good the loss, the principal must indemnify 
 him.* 
 
 d. Lien. 
 
 % 1032. Factor entitled to lien. By the common law, a 
 factor has a general lien upon all of the goods of his principal 
 in his possession, and upon the price of such as are lawfully sold 
 by hira and upon the securities taken therefor, to secure the 
 payment of the general balance of the accounts between himself 
 and his principal, as well as for the advances, charges and dis- 
 bursements made upon or in reference to those particular goods." 
 This lien secures not only payments, advances and disbursements 
 actually made, but those also which have been lawfully incurred, 
 as where the factor has accepted drafts drawn in anticipation of the 
 proceeds of the goods.' It also secures the factor for obligations 
 which he has incurred either upon the strength of the consignment 
 or as the result of the agency, as surety for his principal.* But it 
 does not protect independent debts contracted before and without 
 reference to the agency.* 
 
 ' As where a factor innocently sold C.) 360; Winne v. Hammond, 37 111. 
 
 repudiated securities. Maitland v. 
 Martin, 86 Penn. St. 120. 
 
 « Story on Agency, § 376; McGraft 
 V. Rugee, 60 Wis. 406, 50 Ara. Rep. 
 378; Gaget). Allison, 1 Brev. (S. C.) 
 495. 2 Am. Dec. 683; Hodgson v. 
 Payson, 3 H. «& J. (Md.) 339, 5 Am. 
 Dec. 439; Patterson v. McGahey, 8 
 Mart. (La.) 486, 13 Am. Dec. 298; 
 McKenzie v. Nevius, 22 Me. 138, 38 
 Am. Dec. 291 ; Lambeth v. Turnbull, 
 5 Rob. (La.) 264, 39 Am. Dec. 536; 
 Winter v. Coit, 7 N. Y. 288, 57 Am. 
 Dec. 522; Knapp t>. Alvord, 10 Paige 
 (N. T.) 205, 40 Am. Dec. 241; Martin 
 V. Pope, 6 Ala. 532, 41 Am. Dec. 66; 
 Vail V. Durant, 7 Allen (Mass.) 408, 
 83 Am. Dec. 695; Weed v. Adams, 
 37 Conn. 378; Matthews*. Menedger, 
 2 McLean (U. S. C. C.) 145; Gibson 
 e. Stevens, 8 How.(U. S.) 384; Peisch 
 V. Dickson, 1 Mason (U. S. C. C.) 9; 
 Burrill v. Phillips, 1 Gall. (U. S. C. 
 
 99; Eaton v. Truesdail, 52 111. 307 
 Brown v. Combs, 63 N. Y. 598 
 Quitman t;. Packard, 22 La. Ann. 70 
 Schiffer??. Feagin, 51 Ala. 335; Saw- 
 yer «. Lorillard, 48 Ala. 332; Jordan 
 V. James, 5 Ohio, 88. 
 
 This lien attaches to insurance pay- 
 able upon goods lost. Johnson c. 
 Campbell, 120 Mass. 449. 
 
 » Lambeth v. Turnbull, 5 Rob. 
 (La.) 264, 39 Am. Dec. 536; Eaton v. 
 Truesdail, 52 111. 307; Vailu. Durant, 
 7 Allen (Mass.) 408, 83 Am. Dec. 695. 
 
 * Story on Agency, § 376; Drink- 
 water d. Goodwin, Cowp. 251; Hid- 
 den V. Waldo, 55 N. Y. 294; Stevens 
 «. Robins, 12 Mass. 182. 
 
 The fact that the factor was paid a 
 commission for his indorsement does 
 not deprive him of his lien. Hodg- 
 son «. Payson, 3 H. & J. (Md.) 339, 5 
 Am. Dec. 439. 
 
 • Story on Agency, § 376; Driuk- 
 
 845
 
 § 1033. THB LAW OF AGBNOT. [Book Y. 
 
 Statutes have been enacted in several of the States declaring 
 or extending this lien, and providing means for its enforcement. 
 
 § 1033. When Lien does not exist. This lien being given to 
 secure the factor for the balance due him, the factor can have 
 no lien when the balance of account is against him and in the 
 principal's favor. In such a case the factor's advances will be 
 presumed to have been made in liquidation of such balance.' 
 Neither can a factor, who is indebted to his principal on account 
 of previous sales, acquire a particular lien upon goods subse- 
 quently sent to him for sale, for expenses incurred on account of 
 them, unless such expenses exceed the amount of his indebted- 
 ness, and then only for the balance.' The lien of the factor for 
 specific expenses, does not exist where the general balance of 
 account is against him.' 
 
 So the lien will not attach if it would be in violation of the 
 agreement of the parties, as where it is expressly stipulated that 
 it shall not exist, or where the factor agrees, or accepts the goods 
 subject to an instruction, to make an application of the proceeds 
 inconsistent with the existence of a lien.< 
 
 § 1034. Nature of the Lien. The lien of the factor is but a 
 special interest, and does not amount to a general ownership of 
 the goods, even though he has made advances equal to or exceed- 
 ing their value. The principal does not lose his ownership by 
 committing the custody of the goods to the factor and receiving 
 advances upon them. He may at any time, before the factor has 
 sold the goods, reclaim them upon paying the advances made, 
 with interest and expenses ; and he is still entitled to the pro- 
 ceeds of any sale made by the factor, subject only to the latter's 
 charge upon them.* 
 
 water TJ. Goodwin, supra; Houghton Enoch r. Wehrkamp, SBosw. (N.Y.) 
 V. Matthews, 3 Bos. & Pul. 485; 898; Beebe «. Mead, 33 N. T. 587. 
 Stevens «. Robins, 12 Mass. 182; « McGraft v. Rugee, supra; Ed- 
 Olive V. Smith, 5 Taunt. 56. wards, Factors, § 72; Enoch «. 
 
 ' McGraft v. Rugee, 60 Wis. 406, Wehrkamp, supra. 
 
 50 Am. Rep. 878; Godfrey v. Furzo, » Idem. 
 
 8 P. Wms. 185; Zinck v. Walker, 2 * Schiffer «. Feagin, 51 Ala. 835. 
 
 W. Bl. 1154; HoUingworth v. Tooke, « United States v. Villalonga, 23 
 
 2 H. Bl. 501; Walker v. Birch, 6 T. Wall. (U. S.)35; Heard*. Brewer, 4 
 
 R. 258; Weed v. Adams. 37 Conn. Daly (K Y.) 136; Williams ®. Tilt, 
 
 878; Jordan «. James, 5 Ohio, 99; 36 N. Y. 319; Jordan ®. James, 5 
 
 Ohio, 88; Hall v. Hinks, 21 Md. 4C6. 
 
 846
 
 Chap. lY.] FACTORS. § 1035. 
 
 The lien of the factor is a privilege personal to himself, and 
 can not be set up by a third person as a defense to an action by 
 the principal.* So it can not be transferred, and no question 
 can arise in reference to it except between the factor and his 
 principal.* 
 
 § 1035. When Lien attaches. The lien of the factor will not 
 attach until the goods are in his possession * and lawfully. He 
 lias no lien on goods the possession of which he acquired by an 
 illegal act or in bad faith.* Actual possession is of course suffi- 
 cient,* and delivery to the factor's own servant or agent will 
 suffice.* So putting the goods upon the factor's dray to be 
 drawn to his warehouse, is a sufficient delivery.'' 
 
 Where, however, before the goods have come actually into his 
 possession, the factor has made advances upon them, or incurred 
 liabilities in respect to them, it becomes an important question 
 to determine what constructive possession is sufficient to sustain 
 his lien against purchasers from, or creditors of, the principal. 
 Upon this question the authorities are not in harmony, certain 
 cases holding that his lien will not attach until the goods are 
 actually in his possession,* while others maintain the doctrine 
 that where advances have been previously made in reliance upon 
 
 » Holly V. Huggeford, 8 Pick. Woodruff v. Nashville, &c. R. R. 
 
 (Ma=8.) 73, 19 Am. Dec. 303; Jones Co., 2 Head. (Tenn.) 87. 
 
 V. Sinclair, 2 N. H. 331, 9 Am. Dec. * Bank of Rochester ». Jones, 4 N. 
 
 75; Daubigny v. Duval, 5 T. R. 606. Y. 497, 55 Am. Dec. 290; Taylor v. 
 
 s Ames v. Palmer, 42 Me. 197, 68 Robinson, 8 Taunt. 648; Kinloch v. 
 
 Am. Dec. 271. Craia-, 3 T. R. 119. 
 
 » Winter ». Coit, 7 N. Y. 288, 57 » A factor who has accepted a draft 
 
 Am. Dec. 522; Strahorn «, Union drawn upon goods in his possession 
 
 Stock Yards Co., 43 111. 424, 92 Am. has a lien superior to the claims of 
 
 Dec. 142; Valle v. Cerre, 36 Mo. 575, subsequent purchasers or creditors. 
 
 88 Am. Dec. 161; Bank of Rochester Eaton v. Truesdail, 53 111. 307. 
 
 V. Jones, 4 N. Y. 497, 55 Am. Dec. • Bonner v. Marsh, 10 S. & M. 
 
 290; Marine Bank v. Wright, 48 N. (Miss.) 376, 48 Am. Dec. 754. 
 
 Y. 1; Ryberg v. Snell, 2 Wash. (U. S. t Burrus v. Kyle, 56 Ga. 24, citing 
 
 0. C.) 403; Hamilton v. Campbell, 9 Elliott v. Cox, 48 Ga. 39; Hardeman 
 
 La. Ann. 531; Brown v. Wiggin, 16 v. DeVaughn, 49 Ga. 596; Clark v. 
 
 N. H. 312; Elliot v. Bradley, 23 Vt. Dobbins, 52 Ga. 656. 
 
 •217; Byers v. Danley, 27 Ark. 77; » Saunders v. Bartlett, 12 Hei-k. 
 
 Rice V. Austin, 17 Mass. 197; Allen v. (Tenn.) 316; Oliver v. Moore, Id. 483; 
 
 Williams, 12 Pick. (Mass.) 297; Baker Woodruff v. Nashville, &c. R. RCo., 
 
 r. Fuller, 21 Pick. (Mass.) 318; Oliver 2 Head. (Tenn.) 87. 
 V. Moore, 12 Ileisk. (Tenn.) 483; 
 
 847
 
 § 1035. THE LAW OF AGENCY. [Book Y. 
 
 a promise to subsequently consign goods, a delivery to a common 
 carrier consigned to the factor is sufficient. ' In reference to this 
 latter doctrine, it is said by a learned judge," that " The mere 
 ao-reement to ship goods in satisfaction of antecedent advances, 
 will not, in general, give the factor or consignee a lien upon 
 them for his general balance, until they come to his actual pos- 
 session ; but if there is a specific pledge or appropriation of cer- 
 tain ascertained goods, accompanied with the intention that they 
 shall be a security, or the proceeds as a payment, and they are 
 deposited with a bailee, then the property is changed, and vests 
 in the individual to whom they are to be delivered by the 
 depositary." 
 
 In still other cases it is held that, in order to the attaching of 
 the lien, it is necessary that the advances should be made in 
 reliance upon this particular consignment. In a Vermont case 
 often cited upon this subject, Judge Eedfield lays down the rule 
 " that to give a factor a lien upon goods consigned but not actually 
 received, these incidents must concur: 1. The consignment 
 must be in terms to the factor. * * * 2. To the conclusive- 
 ness of such a contract against creditors and subsequent purchas- 
 ers it is requisite that the consignee should have made advances 
 or acceptances upon the faith of these particular consignments." • 
 In this case there was, in addition to the incidents mentioned, the 
 further fact that the consignors had delivered to the factor the 
 carrier's receipt or bill of lading, but the court did not consider 
 this essential and approved of Holbrook v. Wight,* where this 
 fact did not exist. 
 
 In a leading case in Missouri,' it is said "Where acceptances 
 have actually been given upon the faith of a consignment by bill 
 of ladino-, there can be no doubt that the consignee acquires such 
 a lien or property in the goods as no subsequent act of convey- 
 ance can divest ; such an acceptance is held to be an advance 
 upon the particular shipment. 
 
 » Elliott V. Cox, 48 Ga. 39; Harde- 'Davis v. Bradley, 28 Vt. 118, 65 
 
 man v. DeVaughn, 49 Ga. 596; Wade Am. Dec. 226. 
 
 V. Hamilton, 30 Ga. 450; Nelson v. * Holbrook v. Wight, 24 Wend. 
 
 Chicago, &c. R. R. Co., 2 111. App. (N. Y.) 169, 35 Am. Dec. 607. 
 
 180. »Valle v. Carre, 36 Mo. 575, 8S 
 
 2 GoLDTHWAiTE, J., in Desha «. Am. Dec. 161. 
 Pope, 6 Ala. 690, 41 Am. Dec. 76. 
 
 848
 
 Chap. lY.] FACTOKS. § 1036. 
 
 "Where there has been no advance or acceptance expressly made 
 -upon the particular consignment, and the question is only of a 
 general balance of account for previous advances, the case differs 
 not so much in principle as in the evidence required to establish 
 the lien. It matters not whether the lien for a balance of account 
 arises by operation of law from the usage of trade, or from the 
 positive and special agreement and understanding of the par- 
 ties;^ and it may extend to all sums for which a factor has 
 become liable as surety or otherwise for his principal, whenever 
 the suretyship has resulted from the nature of the agency, or the 
 express arrangement of the parties, or it has been undertaken 
 upon the footing of such a lien.' Whether or not the given con- 
 signment is to be considered as made to cover a general balance 
 of account, will depend upon the special arrangements, agree- 
 ment, and understanding of the parties ; but where such an 
 arrangement exists, and the consignment is made in pursuance of 
 it, and there is nothing else in the case which is inconsistent with 
 the hypothesis, the case would be governed by the same principle, 
 and a delivery to the carrier will be considered as a constructive 
 delivery to the consignee.^ In such case the shipment and deliv- 
 ery of the goods to the carrier, under the bill of lading, amounts 
 to a specific appropriation of the property with an intention that 
 it shall be a security or a payment to the consignee for the advances 
 he has made." 
 
 In an Illinois case it was held that a consignor who had put 
 goods into the possession of a common carrier to be carried and 
 delivered to a factor in pursuance of a preceding arrangement 
 and to apply on prior advances, and had taken a bill of lading in 
 the factor's name, had, before the shipment of the goods and 
 before the delivery of the bill of lading to the factor, the right 
 to change the destination of the goods and that the carrier was 
 bound to obey such directions.* 
 
 § 1036. Who may confer Lien. As has been seen in an 
 earlier portion of the work, the possession upon which a lien is 
 
 ' Citing Story on Agency, § 375. Dec. 76; 3 Parsons on Contracts, 261, 
 
 * Idem. note w. 
 
 •Citing Russell on Factors, 203; « Lewis v. Galena, &c. R. R., 40 
 
 Clark u Mauran, 3 Paige (N. Y.) C73; 111. 281; same point: Strahorn v. 
 
 Bryans v. Nix, 4 Mees. & W. 791; Union Stock Yard Co., 43 111. 424, 93 
 
 Desha v. Pope, 6 Ala. 690, 41 Am. Am. Dec. 142. 
 
 54 849
 
 g 1037. THE LAW OF AGENCY. [Book Y. 
 
 based must have been acquired from one having a lawful right 
 to confer it. Hence if the factor acquired possession from one 
 who had no power to create a lien, or who was a mere wrong- 
 doer, or who exceeded his authority, or whose possession was 
 tortious, he can in general acquire no right of lien.' 
 
 But to prevent hardship in the case of factors who have 
 received goods, in good faith and in the usual course of business, 
 from one, who the factor had no notice was not the true owner 
 thereof, and in whose name the goods were shipped, it is pro- 
 vided, in several of the States, that the person in whose name 
 the goods are consigned shall be deemed to be the owner eo as to 
 entitle the consignee thereof to a Hen.* 
 
 These acts, however, apply only where a shipment of property 
 has been made with the consent of the real owner in the name 
 of another, thus conferring upon the latter the apparent owner- 
 ship and right of control, and where innocent parties on the faith 
 of the evidence thus furnished have made advances on the prop- 
 erty.' 
 
 ' § 1037. How Lien may be lost. "When the lien of the factor 
 has once attached, it can, like other liens, only be lost or de- 
 stroyed by some act of the factor. It is superior to the claims 
 of subsequent purchasers, and cannot be defeated by a levy of an 
 
 » Fitch V. Newberry, 1 Doug. whose name such shipment shall have 
 
 (Mich.) 1, 40 Am. Dec. 33; Robinson been made, to or for the use of such 
 
 V. Baker, 5 Cush. (Mass.) 137, 51 Am- consignee. 
 
 jjgg 54 § 2. The lien provided for in the 
 
 9 Thus the statute of New York preceding section, shall not exist 
 
 provides as follows:— where such consignee shall have 
 
 " 1 1. After this act shall take notice, by the bill of lading or other- 
 effect, every person in whose name wise, at or before the advancing of 
 any merchandise shall be shipped, any money or security by him, or at 
 shall be deemed the true owner or before the receiving of such money 
 thereof, so far as to entitle the con- or security by the person in whose 
 signee of such merchandise to a lien name the shipment shall have been 
 thereon. made, that such person is not the 
 
 1. For any money advanced, or actual and 6ona ^(fe owner thereof." 
 negotiable security given by such Rev. Stat. 1883, p. 2257. 
 consignee, to or for the use of the 3 Kinsey i7. Leggett, 71 N. Y. 387; 
 person in whose name such shipment Merchants', &c. Bank v. Farmers', 
 shall have been made; and, &c. Bank, 60 N. Y. 43; Newland «. 
 
 2. For any money or negotiable Woodruff, 60 N. Y. 73. 
 security received by the person in 
 
 850
 
 Chap. IV.] 
 
 FACTORS. 
 
 § 1038. 
 
 attachment or execution against the principal, or by summoning 
 the factor in garnishment.' 
 
 The factor may waive his lien by voluntarily parting with the 
 possession of the goods, but a temporary change of custody for a 
 special purpose, — the factor still retaining his control over them, — 
 will not amount to a waiver.* If he is wrongfully deprived of 
 the goods, he has such an interest as will entitle him to recover 
 them.* 
 
 If the factor wrongfully sells, pledges or disposes of the prop- 
 erty or suffers it to be taken for his debt, he loses his lien,* and 
 it will be deemed to be waived if, when called upon for the 
 property, he bases his right of detention upon other grounds.^ 
 
 § 1038. How Lien enforced. As has been seen in an earlier 
 section a factor, who has made advances upon his principal's 
 goods, may, if the principal neglect to repay the same within a 
 reasonable time after a demand for repayment, sell enough of 
 the goods to satisfy his claim, even though such sale be in con- 
 travention of his principal's instructions.* 
 
 ' Eaton «. Truesdail, 52 111. 307; 
 MuUer «. Pondir, 55 N. Y. 325; Bard 
 V. Stewart, 3 T. B. Mon. (Ky.) 72; 
 White Mountain Bank v. West, 46 
 Me. 15; Barnett v. Warren, 82 Ala. 
 557. 
 
 Factor who has made advances to 
 his principal may proceed to sell not- 
 withstanding the service of an attach- 
 ment sued out by a creditor of the 
 principal. The attaching creditor 
 cannot arrest a sale without tendering 
 to the factor the amount of his 
 advances. Baugh v. Kirkpatrick, 6i 
 Penn. St. 84, 93 Am, Dec. 675. 
 
 * Matthews v. Menedger, 2 McLean 
 (U. S. C. C.) 145; Winne v. Ham- 
 mond, 37 111. 99; Cator v. Merrill, 16 
 La. Ann. 137; Gragg v. Brown, 44 
 Me. 157; Baker v. Fuller, 21 Pick. 
 0VIa8S.)318; Archer v. McMechan, 21 
 Mo. 43; Bull v. Sigerson, 24 Mo. 53; 
 Jordan v. James, 5 Ohio, 88. 
 
 3 Holbrook v. Wight. 24 Wend. 
 (N. Y.) 169, 35 Am. Dec. 607. 
 
 * Jarvis v. Rogers, 15 Mass. 389 ; 
 
 Holly©. Huggeford, 8 Pick. (Mass.) 
 73, 19 Am. Dec. 303. 
 
 » McPherson v. Neuffer, 11 Rich. 
 (S. C.) L. 267; Holbrook v. Wight, 24 
 Wend. (N. Y.) 169, 35 Am. Dec. 607; 
 Winter v. Coit, 7 N. Y. 288, 57 Am. 
 Dec. 522. 
 
 The factor's statutory lien is not 
 waived by taking a note for the 
 advances. Story v. Flournoy, 55 Ga. 
 56. A factor does not waive his liea 
 by holding out his principal as the 
 owner of the goods. Seymour v. 
 Hoadley, 9 Conn. 418, nor where his 
 advances exceed the value does he 
 lose his lien by certifying, in good 
 faith, in attachment proceedings 
 against his principal, that he holds no 
 goods for the benefit of the latter. 
 Bank v. Sturgis, 9 Bosw. (N. Y.) 660. 
 
 But taking a judgment note has 
 been held to be a waiver of the lien. 
 Darlington v. Chamberlain, 20 111. 
 App. 443. 
 
 » See ante, § 1009. 
 
 Where an agent acting under a 
 
 851
 
 § 1039. THE LAW OF AGENCY. [Book Y. 
 
 VI. 
 
 EIGHTS OF FACTOE AGAINST THIED PERSONS. 
 
 a. In Contract. 
 
 § 1039. May sue for Price of Goods sold. A factor who has 
 sold goods for his principal, may maintain an action in his own 
 name to recover the price.* So if he has, upon the sale, taken 
 the note or other obligation of the purchaser payable to himself, 
 he may recover upon it in his own name.' 
 
 This right of the factor to sue for the price is, in general, sub- 
 ordinate to the principal's right to interpose and recover the 
 price himself.' But where the factor has a lien upon the goods 
 or their proceeds, equal to or greater than their value, the prin- 
 cipal can not cut off the factor's right to sue.* 
 
 So, as has been seen,' the factor has a lien not only upon the 
 goods, but upon their proceeds, and if, before the purchaser has 
 paid the principal, the factor gives notice of his lien to the pur- 
 chaser, no subsequent payment by the purchaser to the principal 
 will prevent the factor from recovering to the extent of his lien 
 from the purchaser.' It has been considered that the factor 
 
 dd credere commission has a lien upon 
 goods exceedinix their value, a bill of 
 sale of the goods made to him by his 
 insolvent principal, though perhaps 
 unlawful, will be sustained as a fore- 
 closure of the lien. Fourth Nat. 
 Bank v. American Mills Co., 29 Fed. 
 Rep. 611. 
 
 > Graham v. Duckwall, 8 Bush 
 (Ky.) 13; Ilsley v. Merriara, 7 Cush. 
 (Mass.) 242, 54 Am. Dec. 721; Toland 
 t. Murray, 18 Johns. (N.Y.) 24; Ladd 
 p. Arkell, 37 N. T. Super. Ct. 35; 
 White V. Chouteau, 10 Barb. (N. Y.) 
 202; Miller v. Lea, 35 Md. 396, 6 Am. 
 Rep. 417. 
 
 » Van Staphorst «. Pearce, 4 Mass. 
 258. 
 
 » See post, % 1042. 
 
 * Hudson V. Granger, 5 B. «fc Aid. 
 27. In this case the owner of the 
 goods being indebted to the factor in 
 
 an amount exceeding their value, 
 consigned them to him for sale. The 
 factor who was also indebted to the 
 defendant sold the goods to him. 
 The factor became bankrupt and on 
 a settlement of accounts bptween 
 defendant and the factor's assignees, 
 the defendant allowed credit for the 
 price of the goods and proved his 
 claim for the balunce against the fac- 
 tor's estate. The plaintiffs, who were 
 the original owners of the goods, 
 brought suit against the defendant for 
 the price; but the court held that as 
 the factor had a lien on the whole 
 price of the goods, the settlement 
 between defendant and the assignees 
 was a bar to the action. 
 
 « Ante, § 1032. 
 
 • Drinkwater v. Goodwin, Cowp. 
 251 ; Paley's Agency, 865, 6. 
 
 852
 
 Chap. IV.] FACTORS. § 1040. 
 
 must, in such a case, indemnify, or offer to indemnify, the pur- 
 chaser against an adverse suit by the principal. "Whether such 
 indemnity, however, is essential, is," says Mr. Whakton, " a mat- 
 ter of dispute. Lord Mansfield's authority, in the case last 
 cited, is to the affirmative, and such is the view of Mr. Paley.* 
 On the other hand Mr. Eussell* says : ' It appears to be taken 
 for granted that in such cases third persons are entitled to an 
 offer of indemnity from the factor ; and it is believed that in 
 practice such indemnity is usually offered ; although whether 
 this be absolutely essential in order to the security of the factor's 
 rights may admit of question.' And Judge Stort » speaks even 
 more doubtfully : ' It seems at least a questionable point whether 
 there is any principal of law which positively requires such indem- 
 nity or offer of indemnity.' " * 
 
 Where the action is brought by the factor in his own name, 
 the defendant may avail himself — 
 
 1. Of any defenses which he has against the factor who is the 
 plaintiff in the suit;* and 
 
 2. Of any defenses which he has against the principal,* except 
 that such defenses can not defeat the factor's action to the extent 
 of his lien.' 
 
 § 1040. May sue on Contracts made in his Name. So where 
 the factor has entered into contracts with third persons in his 
 own name in reference to the goods, he may sue upon the same. 
 Thus cotton factors, who have sold goods consigned to them, 
 may, in their own names, recover the damages resulting from a 
 breach of the contract by the buyer, although they may be bound 
 to pay such damages when recovered to the consignor. They 
 have a special property in the cotton, and a lien upon it for their 
 commissions which attaches on the very damages recovered and 
 would be increased thereby." So a factor may sue a third person 
 for the breach of a contract of storage.* 
 
 » Paley's Agency, 865, 6. • Atkyns v. Amber, 2 Esp 493; 
 
 « Factors & Brokers, 247. Grice v. Kenrick, L. R. 5 Q. B. 344.' 
 
 8 Agency, § 409. t Drinkwater v. Goodwin, Cowp. 
 
 ♦ Wharton on Agents, § 777. 251. 
 
 5 Ewell's Evans on Agency, 387; « Groover v. Warfield,50 Ga. 644. 
 
 Gibson v. Winter, 5 B. & Ad. 96; • Allen v. Steers, 39 La. Ann. 586. 
 
 Bauerman v. Radenius, 7 T. R. 659. 
 
 853
 
 § 1041. THE LAW OF AGENOT. [Book Y. 
 
 I. In Tort. 
 
 § 1041. May maintain Trespass, Bepleyin or Trover. The fac- 
 tor has such a special interest in the goods that he may maintain 
 trespass or trover against one who injures them, or deprives him 
 of their possession.' As against a mere stranger he could recover 
 the full value of the goods ; * but as against the principal or one 
 claiming under him, he can recover only to the extent of his 
 interest.* 
 
 So a factor under a del credere commission, having a lien for 
 advances made by him upon goods consigned to him and 
 delivered to another to hold for him, may maintain replevin 
 against the bailee for their non-delivery.* 
 
 vn. 
 
 EIGHTS OF PRINCIPAL AGAINST THIRD PERSONS. 
 
 a. In Contract. 
 
 % 1042. May sue for Price of Goods sold. Except in those 
 cases in which the factor has a lien equal to or exceeding the 
 value of the goods,' the principal may sue for and recover in his 
 own name the price of the goods sold for him by the factor, even 
 though the principal was not disclosed and the factor acted as 
 the ostensible principal.* Where the factor, having a lien upon 
 the proceeds, has given notice to the purchaser not to pay the 
 amount of it to the principal, the latter may recover the surplus ; 
 or, by satisfying the factor's claim, can recover the whole.* In 
 other cases, the right of the principal to sue is precedent to that 
 
 ' See ante, § 765; Fitzhugh e. Wi- Johns. 9 Allen (Mass.) 419; llsley «. 
 
 man, 9 (N. Y.) 559; Beyer v. Bush, Merriam, 7 Cush. (Mass.) 243, 54 Am. 
 
 50 Ala. 19; Robinson v. Webb, 11 Dec. 721; Girard v. Taggart, 5 S. & 
 
 Bush (Ky.) 464; Gorum v. Carey, 1 R. (Penn.) 19; Graham c.Duckwall, 8 
 
 Abb. (N. Y.) Pr. 285. Bush (Ky.) 12; Miller v. Lea, 35 Md. 
 
 « See ara^f, § 765. 39G, 6 Am. Rep. 417; Huntington 
 
 » Heard v. Brewer, 4 Daly, (N. Y.) v. Knox, 7 Cush. (Mass.) 371; Locke 
 
 136. V. Lewis, 124 Mass. 1; 2G Am. Rep. 
 
 < Holbrook v. Wight, 24 Wend. 631; Ladd. v. Arkell, 40 N. Y. Super 
 
 (N. Y.) 169, 35 Am. Dec. 607. Ct. 150; Stewart c. Woodward, 50 Vt 
 
 s Hudson V. Granger, 5 B. «fe Aid. 78; 28 Am. Rep. 488, Brewster v, 
 
 27. Saul, 8 La. 296. 
 
 • Roosevelt v. Doherty, 129 Mass. "> Story on Agency. 
 
 301, 37 Am. Rep. 356; Lerned v. 
 
 854
 
 Chap. lY.] FACTORS. § 1043. 
 
 of the factor, and the principal, although previously undisclosed, 
 may intervene at any time before the payment to the factor and, 
 by notice to the purchaser, require payment to himself.' The 
 fact that the factor has taken a note payable to himself, will not 
 defeat the principal's right of action, except where the note con- 
 stitutes payment or has been negotiated.' But where the factor, 
 in selling the goods of several principals, takes a note payable to 
 himself for the entire price, no one of the principals can sue for 
 his proportion of the price, nor can he, though no note was 
 given, sue for his proportion, where the goods of himself and 
 other principals, or of himself and the factor personally, were 
 sold for a gross price.* 
 
 § 1043, Same Subject— What Defenses Principal subject to. 
 Where the purchaser knew,* or had reasonable grounds to be- 
 lieve,* that the factor was acting as agent for a principal, he will 
 not be permitted to avail himself, in an action brought by the 
 principal, of set-offs or other defenses which he may have against 
 the agent. But mere knowledge that the seller was a factor is 
 not enough, as he may sell his own goods.* 
 
 Where, however, the principal has permitted the factor to sell 
 as the apparent principal in the transaction, the real principal, if 
 he intervenes, must take the contract subject to such defenses as 
 the purchaser, who did not know or have reason to believe that 
 the factor was but an agent, and who has acted in good faith, has 
 acquired up to the time when the principal intervenes and de- 
 mands performance to himself.' 
 
 • Kelley r. Munson, 7 Mass. 319, 5 Super. 150; Stewart ». "Woodward, 
 Am. Dec. 47; Golden v. Levy, 1 Car. 50 Vt. 78; 28 Am. Rep, 488. 
 
 L. Repos. 527; 6 Am. Dec. 555. • Schell v. Stephens, 50 Mo. 379; 
 
 2 See ante, § 772, See Roosevelt «. Graham v. Duckwall, 8 Bush (Ky.) 
 
 Doherty, 129 Mass. 301, 37 Am. Rep. 12. 
 
 356. » Roosevelt v. Doherty, 129 Mass. 
 
 8 Roosevelt p. Doherty. s«j9ra. 801, 37 Am. Rep. 356; Locke •». 
 
 * Darlington v. Chamberlin, 120 Lewis, 124 Mass. 1 ; 26 Am. Rep. 
 111. 585, 12 North E. Rep. 78; St. 633; Huntington ». Knox, 7 Cush. 
 Louis Bank v. Ross, 9 Mo. App. 390; (Mass.) 371; Barry?;. Page, 10 Gray, 
 Miller e. Lea, infra; Catterall v. (Mass.) 398; Hogan v. Shorb, 24 
 Hindle, L. R.,1 C. P. 186; Dresser v. Wend. (N. Y.) 458; Merrick's Estate, 
 Norwood, 17 C. B. (N. S ) 466. Guy 5 W. &. S. (Penu.) 9. 
 
 «. Oakley, 13 Johns. (KY.) 331. A foreign factor sold merchandise 
 
 s Miller z). Lea, 35 Md. 396,6 Am. to the defendant in his own name 
 
 Rep. 417; Ladd v. Arkell, 40 N. Y. and without disclosing his principal 
 
 855
 
 § 1044. 
 
 THE LAW OF AGEKCT. 
 
 [Book Y: 
 
 § 1044. Eight to follow Property. Notwithstanding the con- 
 signment to the factor or his advances upon them, the goods still 
 remain the property of the principal, and so continue until law- 
 fully sold by the factor. They cannot be taken for the factor's 
 debts,* nor appropriated by him to their payment,* nor, except by 
 virtue of a statute, can they be pledged as security for his pri- 
 vate demands.' Neither, as in other like cases, can the factor, 
 without his principal's consent, be permitted to sell to himself, 
 or to a third person in trust for himself.* Property so disposed 
 of, or its value, may be recovered by tlie principal. 
 
 So the factor stands in the situation of a trustee for his princi- 
 pal, and if the principal can trace his property, whether it be the 
 identical article which first came into the factor's possession, or 
 other property purchased for the principal by the factor with the 
 proceeds ; or if, upon the sale, the factor has taken notes or other 
 securities for the price, the principal may follow and recover the 
 property or its proceeds either in the hands of the factor or of 
 his legal representatives, or of his assignee if he should become 
 insolvent or bankrupt, or in the hands of a third person who 
 has taken it with notice of the trust or without consideration.' 
 
 and received his own check in part 
 payment therefor. Held in an action 
 by the principal to recover the price 
 of the merchandise thus sold, that, in 
 the absence of proof that the defend- 
 ant I? new of the representative char- 
 acter of the factor, the principal 
 could not recover. Traub v. Milliken, 
 57 Me. 63, 2 Am. Rep. 14. 
 
 > Loomis V. Barker, 69 III. 360; 
 Holly V. Huggeford, 8 Pick. (Mass.) 
 73, 19 Am.Dec 303; Blood v. Palmer, 
 11 Me. 414, 26 Am. Dec. 547; Moore 
 V. Hillabrand, 16 Abb. N.Cas. (N.Y.) 
 477; Ellsner v. Radclifl, 21 111. App. 
 195. 
 
 « Stewart «. Woodward, 50 Vt. 78, 
 28 Am. Rep. 488; Benny v. Rhodes, 
 18 Mo. 147, 69 Am. Dec. 293; Benny 
 e. Pegram, 18 Mo. 191, 59 Am. Dec. 
 898. 
 
 » See ant^, % 994. 
 
 * See ante, % 1007. 
 
 •Veil*. Mitchel, 4 Wash. (TJ. S. 
 C. C.) 105; Fahnestock v. Bailey, 3 
 Mete. (Ky.) 48, 77 Am. Dec. 161; 
 Price V. Ralston, 2 Dall.(Penn.) 60, 1 
 Am. Dec. 2G0; Thompson v. Perkins, 
 3 Mason (U. S. C. C.) 233; Chester- 
 field Mnfg Co. V. Dehon, 5 Pick. 
 (Mass.) 7, 16 Am. Dec. 367; Sheflfer 
 Montgomery, 65 Penn. St. 329; 
 Farmers' &c. Bank v. King, 57 Penn. 
 St. 202,98 Am. Dec. 215; Holly tj. 
 Huggeford, 8 Pick, (Mass.) 73, 19 
 Am. Dec. 303; Kelly v. Munson, 7 
 Mass. 319; Blackman v. Green, 24 
 Vt. 17; Potter v. Dennison, 10 111. 
 590; Tooke v. Hollingworth, 5 T. R. 
 215; Scott ti. Surman, Willes 400; 
 Bryson v. Wylie, 1 Bos. & Pul. 83, 
 foot note; Horn v. Baker, 9 Ea8t.21o; 
 Hamilton «. Bell, 10 Ex. 545; Whit- 
 field V. Brand, 16 Mees. & W. 282; 
 St. Louis Bank v. Ross, 9 Mo. App. 
 399. 
 
 85G
 
 Chap. ly.] FACTORS. § 1045. 
 
 Where, however, the factor sells the goods for cash and mixes 
 it indiscriminately with his own, there cannot ordinarily be any 
 subsequent specific appropriation of it' And money cannot be 
 followed which is paid away in due course of business without 
 any notice of the trust.' 
 
 A factor, however, who has sold goods, has no implied author- 
 ity to sell a debt existing in the form of an open account and 
 arising out of the sale, so as to transfer the title to the debt, 
 where the principal was not in default, and had not been called 
 upon to repay the factor his advances." 
 
 But if the factor, having sold the goods, lends the money to a 
 third person, who knows that it belongs to the principal, the 
 principal may recover it of the borrower.* Where, however, the 
 factor loans the money of his principal to one having no knowl- 
 edge that it did not belong to the factor, the borrower may apply 
 it to a debt owing to him by the factor and the principal can not 
 recover it.' 
 
 b. In Tort. 
 
 § 1045. For Injuries to or Conversions of the Goods. For all 
 injuries to, or conversions of the goods, which affect the title to 
 them, the principal, notwithstanding the consignment to the fac- 
 tor or his lien upon them, may maintain such appropriate actions 
 against third persons as are based upon the general ownership of 
 the goods.' 
 
 ' Price V. Ralston, 8 Dall. (Penn.) 60, Wliere the proceeds are so deposited 
 
 1 Am. Dec. 260. But see ante, § 534. in a separate account the fact that the 
 
 2 Price V. Ralston, supra; Veil v. account also includes the factors' 
 
 Mitchel. 4 "Wash. (U. S. C. C.) 105; commissions will not prevent the 
 
 Fahnestock v. Bailey, 3 Mete. (Ky.) principal from following it, nor 
 
 48, 77 Am. Dec. 161. enable the factors' creditors to reach 
 
 An insolvent firm of factors opened it. Richardson v. St. Louis Nat. 
 
 an account in a bank in their name as Bank, 10 Mo. App. 246. 
 
 " agents " in order to protect their » Commercial National Bank v. 
 
 principal, which purpose the bank Heilbronner, 108 N. T. 439, 15 North 
 
 knew. The factors deposited the E. Rep. 701. 
 
 proceeds of their principal's goods in < Shefifer v. Montgomery, 65 Penn. 
 
 this account and on settlement gave St. 329. 
 
 him a check to balance. Held that s Lime Rock Bank v. Plimpton, 17 
 
 the bank might not charge to that Pick. (Mass.) 159, 28 Am. Dec. 286. 
 
 account a debt of the agents, even See Thacher v. Pray, 113 Mass. 291, 
 
 with their consent. Baker ». New York 18 Am. Rep. 480. 
 
 National Bank, 100 N. Y. 31, 53 Am. « See ante, % 792; Holly v. Hugge- 
 
 Rep. 150. foid,8Pick.(Mass.) 73,19 Am.Dec.303. 
 
 857
 
 § 1046. THE LAW OF AGBNOT. [Book Y. 
 
 YIII. 
 EIGHTS OF THIBD PERSONS AGAINST PRINCIPAL. 
 
 § 1046. Same as in other Cases. The factor is ordinarily a 
 general agent, pursuing a vocation to which, in the absence of 
 known limitations, certain implied powers are incidental. What 
 these powers are have already been seen. The principal may, 
 however, extend the scope of these powers, either by express 
 authority, or by holding the factor out as possessing the ex- 
 tended power. Wherever, therefore, the factor, acting within 
 the scope of his authority, has incurred obligations on the part 
 of his principal to third persons, the principal is liable as in 
 other cases, although the factor may have violated his instruc- 
 tions.' 
 
 § 1047. How when Principal undisclosed. Even although 
 the principal was, at the time of making the contract, undis- 
 closed, he may yet be held liable upon it when discovered.* This 
 general doctrine, with its application and limitations, has already 
 been considered.* 
 
 § 1048. How when exclusive CJredit given to the Factor. 
 But where the other party, knowing the principal, has seen fit to 
 give exclusive credit to the factor, he cannot afterwards resort to 
 the principal, even though the factor becomes insolvent.* 
 
 IX. 
 
 BIGHTS OF THIRD PERSONS AGAINST FACTOR. 
 
 § 1049. Same as in other Cases. The liability of the factor 
 to the other party rests upon the same principles as in other 
 cases. Thus if the factor conceals his principal,* or pledges his 
 
 1 Lobdell V. Baker, 1 Mete. (Mass.) » See ante, § 695, et teg. 
 
 193, 35 Am. Dec. 358; Daylight * Paige v. Stone, 10 Mete. (Mass.) 
 
 Burner Co. t». Odlin, 61 N. H. 56, 13 160, 43 Am. Dec. 420; McCullough 
 
 Am. Rep. 45; Dias v. Chickering, 64 «. Thompson, 45 N. Y. Super. Ct. 449 
 
 Md. 348, 54 Am, Rep. 770; Higgina Chapman v. Durant, 10 Mass, 47 
 
 e. McCrea, 116 U. 8. 671. Tudor e. Whiting, 12 Mass, 212 
 
 s Taintor v. Prendergast, 3 Hill (N, French «. Price, 24 Pick. (Mass.) 13 
 
 T.)72, 38 Am. Dec. 618; Pentz v. James v. Bixby, 11 Mass. 34. See 
 
 Stanton, 10 Wend. (N. Y.) 271, 25 ani^, § 698. 
 
 Am. Dec. 558; Raymond v. Crown, » Cobb «. Knapp, 71 N. Y, 348, 27 
 
 &e. Mills, 2 Mete. (Mass.) 319. Am, Rep. 51; Raymond v. Crown, 
 
 858
 
 Chap. IV.] FACT0K8. § 1051. 
 
 own personal credit,' or violates his implied warranty of author- 
 ity,' he is liable as in the case of any other agent. 
 
 § 1050. When liable for Conversion. A factor who has re- 
 ceived goods from one not the owner, or from one having no 
 authority to dispose of them, and who, after notice of his con- 
 signor's lack of authority and without the authority of the true 
 owner, proceeds to sell the goods, or refuses to recognize the 
 owner's title to them or their proceeds, or who sells them as the 
 principal, may be held liable to the owner as for a conversion of 
 them ; * but where the factor, acting in good faith and in the 
 regular course of business, has sold the goods as agent merely, 
 and has paid over the proceeds to his consignor without notice 
 that he was not the owner, he can not subsequently be held liable 
 to the owner for a conversion.* 
 
 § 1061. How in Case of Foreign Factor. It was formerly held 
 that where the factor acts for a foreign principal, he is personally 
 liable upon all contracts made by him for such principal, and 
 this without any distinction whether the factor describes himself 
 in the contract as agent or not. This rule rested upon the pre- 
 sumption that credit was given to the factor personally.* 
 
 In modern cases, however, this arbitrary presumption does not 
 prevail, and while the fact that the principal is a foreigner may 
 properly be taken into consideration, the true rule seems to bo 
 that it is in all cases a question of fact, to be determined from 
 
 &Co Mills, 2 Mete. (Mass.) 819; Nixou several months, and an agreement in 
 
 e. Downey, 49 Iowa, 166; Baldwin the meantime between the principal 
 
 9. Leonard; 89 Vt. 260, 94 Am. Dec. and factor for a new appropriation of 
 
 824. the fund for the benefit of the latter. 
 
 * McCullough «. Thompson, 45 N. Lowery v. Steward, 25 N. Y. 239, 82 
 
 T Super 446; Nixon «. Downey Am. Dec. 346. 
 supra. « See ante, §§ 541-550. 
 
 A draft by the principal on the ^ See Roach v. Turk, 9 Heisk. 
 
 factor for sum payable to third per- (Tenn.) 708, 24 Am. Rep. 360; Saltus 
 
 son out of proceeds of goods when v. Everett, 20 Wend. (N. Y.) 263, 32 
 
 the same should be sold, is a specific Am. Dec. 541 ; Hollins v. Fowler, L. 
 
 appropriation to the use of the latter, R, 7 H. L. 757, 14 Eng. Rep. 138. 
 and binds the factor to retain so much * Roach v. Turk, 9 Heisk. (Tenn.) 
 
 of the proceeds as is necessary to 708, 24 Am. Rep. 360, overruling 
 
 meet the draft; and the obligation of Taylor v. Pope, 5 Cold. (Tenn.) 413. 
 the factor to the payee is not dis- • See Story on Agency, § 268, and 
 
 charged by the failure of the payee cases cited, 
 to present the draft for payment for 
 
 859
 
 § 1052. THE LAW OF AGENCY. [Book V. 
 
 the terms of the particular contract and the surrounding circum- 
 stances of the case, whether the credit was given to the factor 
 personally or not.* 
 
 A principal residing in another of the United States than that 
 in which the factor resides, is not a foreign principal in contem- 
 plation of this rule.* 
 
 HOW KELATION TERMINATED. 
 
 § 1052. As in other Cases of Agency. The authority of the 
 factor to sell the goods may be revoked, like that of any other 
 agent, if no advances have been made upon them, at any time 
 before the sale is made.' Where, however, the factor has made 
 advances or incurred liabilities in respect of the goods, the prin- 
 cipal can not, as has been seen, deprive the factor of his right to 
 sell enough to reimburse himself, without first paying or tender- 
 ing to the factor the amount due to him.* 
 
 The factor's power to sell for his own reimbursement is a 
 power coupled with an interest, and is therefore not revoked by 
 the principal's death or other disability.' 
 
 So the factor being under no obligation to accept the agency, 
 is under no obligation to continue it, and may in general re- 
 nounce the agency at any time.' But this right must be exer- 
 cised with due regard to the interests of the principal, and the 
 factor having accepted the goods can not arbitrarily and sum- 
 marily relieve himself of the responsibility for their custody and 
 care. If he desires to terminate the agency he must give to the 
 principal reasonable notice to that effect, and must afford to the 
 
 * Maury v. Ranger, 38 La. Ann. » Knapp v. Alvord, 10 Paige (N.T.) 
 485, 58 Am. Rep. 197; Bray v. Ket- 205, 40 Am. Dec. 341; Bergen v. Ben- 
 tell, 1 Allen (Mass.) 80; Goldsmith v. nett, 1 Cairnes Cas. (N. Y.) 1, 2 Am. 
 Manheim, 109 Mass. 187; Rogers v. Dec. 281; Raymond v. Squire, 11 
 March, 33 Me. 106; Oelricks v. Ford, Johns. (N. Y.) 47; Hunt v. Rousman- 
 23 How. (U. S.) 49; Kaulback «. ier, 8 Wheat. (U. S.) 174. Where the 
 Churchill, 59 N. H. 296. lien of the factor attaches before the 
 
 » Vawter v. Baker, 23 Ind. 63. principal's death, that event does not 
 
 •Farmer©. Robinson, 2 Camp. 339, defeat it. Hammonds v. Barclay, 2 
 
 note; Scott e. Rogers, 81 N. Y. 676. East. 227. 
 
 * See ante, % 1009. ' DuPeirat v. Wolfe, 29 N. Y. 436. 
 
 860
 
 Chap. lY.] 
 
 FACTORS. 
 
 § 1052 
 
 latter reasonable time and opportunity to resume possession or to 
 make other arrangements.' 
 
 The factor's special interest in the goods by reason of his 
 advances upon them is not terminated by his death or disability,' 
 although his general authority, as in other cases, would be.' 
 
 A factor's authority, like tliat of other agents, is terminated by 
 the completion of his undertaking, or by the expiration of the 
 time, if any, fixed for its continuance.* 
 
 1 Edwards on Factors & Brokers, 
 §90. 
 
 « Hammonds «. Barclay, 2 East. 
 227. 
 
 3 See ante, % 249. A factor who 
 receives goods, and, in his own name, 
 ships them to another market to be 
 sold by a subagent, cannot collect the 
 proceeds against the will of the 
 owner. After the sale, the subagent 
 
 is the debtor and not the trustee of 
 the principal. In such a case the 
 death of the factor is a revocation of 
 his authority; and if his administrator 
 receives the fund from the subagent, 
 he receives it as the agent of the prin- 
 cipal. Jackson Ins. Co. v. Paitee, 9 
 Heisk. (Tenn.)296 
 « See ante, §§ 200-202. 
 
 861
 
 APPENDIX. 
 
 STATUTORY PROVISIONS. 
 
 In several of the States, the law of agency has been, to a greater or lest 
 extent, made the subject of statutory enactment. The most important of 
 these provisions are here appended. 
 
 DAKOTA AND CALIFORNIA. 
 
 The provisions of Dakota code are copied from those of California. The 
 Dakota sections are here given, followed respectively by the corresponding 
 section number of the California code. 
 
 Arttclk I. Dkfinition of Agency. 
 
 § 1337. Agency defined. An a^rent is one who represents another 
 called the principal, in dealings with third persons. Such representation in 
 called agency. 
 
 Cal. 2295. 
 
 § 1838. Qualifications. Any person, having capacity to contract, may 
 api'oint an agent; and any person may be an agent 
 Cal. 2296. 
 
 § 1339. Special and general. An agent for a particular act or trans- 
 action is called a special agent. All others are general agents. 
 
 Cal. 2297. o t, 
 
 § 1340. Classified. An agency is either actual or ostensible. 
 Cal. 2298. 
 
 § 1341 Actual agency. An agency is actual when the agent Is really 
 employed by the principal. 
 Cal" 2299. 
 
 § 1343. Ostensible. An agency is ostensible when the principal inten- 
 tionally, or by want, of ordinary care, causes a third person to believe anotlier 
 to be his agent who is not really employed by him. 
 
 CaLawu. 
 
 Article II. Authority of Agknts. 
 
 § 1343. What powers. An agent may be authorized to do any acts 
 which the principal rai^lit do, except those to which the latter is bound to 
 give his personal attention. 
 
 Cal. 2304. 
 
 § 1344. Any lawful act. Every act which, according to this Code, 
 may be done by or to any person, miy be done by or to the a?ent of such per- 
 son for that purpose, unless a contrary intention clearly appears. 
 
 Cal. 2305. 
 
 § lo45. Not to defraud pi'incipal. An aaent can never have authority, 
 eithiT actual or osteu.sible, to tio an act which is, and is known or suspected 
 by the porson with whom he deals to be, a fraud upon the principal 
 
 Cal. 2306. 
 
 8^3
 
 864 THE LAW OF AGENCY. 
 
 § 1346. How authorized. An agency may be created, and an authority 
 may be conferred, by a precedent authorization or a subsequent ratification. 
 Cal. 3307. 
 
 § 1347. No consideration. A consideration is not necessary to make 
 an authority, whether precedent or subsequent, binding upon the principal. 
 
 Cal. 2308. 
 
 § 1348. Form of authority. An oral authorization is sufficient for any 
 purpose, except that an authority to enter into a contract required by law to 
 he in writing can only be given by an instrument in writing. 
 
 Cal. 2309. 
 
 § 1349. Form of ratification. A ratification can be made only in the 
 manner that would have been necessary to confer an original authority for 
 the act ratified, or, where an oral authorization would suffice, by accepting 
 ur retaining the benefit of the act, with notice thereof. 
 
 Cal 2310. 
 
 § 1350. Part includes whole. Ratification of part of an indivisible 
 transaction is a ratification of the whole. 
 Cal. 2311. 
 
 § 1351. When void. Aratificationisnot valid unless, at the time of ratify 
 ing the act done, the principal has power to confer authority for such an act. 
 Oal. 2312. 
 
 § 1353. Retroactive, limited. No [unjauthorized act can be made 
 valid, retroactively, to the prejudice of third persons, without their consent. 
 CaL 2813. 
 
 § 1353. Rescission of ratification. A ratification may be rescinded 
 when made without such consent as is required in a contract, or with an 
 imperfect knowledge of the material facts of the transaction ratified, but not 
 otherwise. 
 
 Cal. 2314. 
 
 § 1354 Authority. An agent has such authority as the principal, 
 actually or ostensibly, confers upon him. 
 Cal. 2315. 
 
 § 1355. Actual. Actual authority is such as a principal intentionally 
 confers upon the agent, or intentionally or by want of ordinary care allows 
 the agent to believe himself to possess. 
 
 Cal. 2316. 
 
 § 1356. Ostensible. Ostensible authority is such as a principal inten 
 tionally, or by want of ordinary care, causes or allows a third person to be- 
 lieve the agent to possess. 
 
 Cal. 2317. 
 
 § 1357. Legal construction. Every agent has actually such authority 
 as is defined by this title, unless specially deprived thereof by his principal, 
 and has even then such authority ostensibly, except as to persons who have 
 actual or constructive notice of the restriction upon his authority. 
 
 Cal. 2318. 
 
 § 1358. Necessary authority. An agent has authority: 
 
 1. To do everything necessary or proper and usual in the ordinary course 
 of business for effecting the purpose of his agency; and, 
 
 2. To make a representation respecting any matter of fact not including 
 the terms of his authority, but upon which his right to use his authority de- 
 pends, and the truth of which cannot be determined by the use of reasonable 
 diligence on the part of the person to whom the representation is made. 
 
 CaL 2319. 
 
 § 1359. May disobey. An agent has power to disobey instructions in 
 dealing with the suliject of the agency in cases where it is clearly for the in- 
 terest of his principal that he should do so, and there is not time to communi- 
 cate with the principal. 
 
 Cat. 2330. 
 
 § 1360. Construction. When an authority is given partly in general 
 and partly in specific terms, the general authority gives no higher powers than 
 those specifically mentioned. 
 
 CaL 2321.
 
 STATUTORY PROVISIONS. 8G5 
 
 § 1861. Exceptions to general power. An authority expressed in 
 general terms, however broad, does not authorize an agent: 
 
 1. To act in his own name, unless it is the usual course of business to 
 do SO; 
 
 2. To define the scope of his agency; or, 
 
 S. To do any act which a trustee is forbidden to do by article two of 
 chapter one of the last article. 
 
 Cal. 2323. 
 
 § 1363. Implied authority. An authority to sell personal property 
 includes authority to warrant the title of the principal, and the quality ana 
 quantitv of the property. 
 
 Cal. 2323. 
 
 § 1868. Same as to realty. An authority to sell and convey real 
 propi-rly includes authority to give the usual covenants of warranty. 
 Cal 2:;24. 
 
 § 1864. Receive price. A general agent to sell, who is intrusted by the 
 principal with the possession of the things sold, has authority to receive the 
 price. 
 
 Cal. 2325. 
 
 § 1365. Limited. A special agent to sell has authority to receive the 
 price on delivery of the things sold, but not afterwards, 
 
 Cal. 2326. 
 
 Article III. Mutual Obligations of Principals and Third Persons. 
 
 § 1366. Principal affected by agent. An agent represents his princi- 
 pal for all purposes within the i?cope of his actual or ostensible authority and 
 all the rights and liabilities which would accrue to the agent from transactions 
 within isucli limit, if they had been entered into on his own account, accrue 
 to the principal. 
 
 Cal. 2330 
 
 § 1367. Incomplete execution. A principal is bound by an incomplete 
 execution of an authority when it is consistent with the whole purpose and 
 scope thereof, but not otherwise. 
 
 Cal. 2331. 
 
 § 1368. Notice to both presumed. As against a principal, both prin- 
 cipal and agent are deemed to have notice of whatever either has notice of, 
 and ought, in good faith and the exercise of ordinary care and diligence, to 
 commun irate to the other. 
 
 Cal. 2*32. 
 
 1 1369. Exceeded authority. When an agent exceeds his authority 
 his principal is bound by his authorized a(!ts so far only as they can be plainly 
 separated from those v»rhich are unauthorized. 
 
 Cal. 2333. 
 
 § 1870. Bound by certain acts. A principal is bound by acts of his 
 agent, under a merely ostensible authority, to those persons only who have in 
 good faith and without ordinary negligence, incurred a liability, or parted with 
 value, upon the faith thereof. 
 
 Cal. 2334. 
 
 § 1371. Principal exonerated. If exclusive credit is given to an 
 agent by the per.-^oo dealing with him, hi«! principal is exonerated by payment 
 or other gaiisfaciion made by him to his agmt, in good faith, before receiving 
 notice of the creditor's election to hold him responsible. 
 
 Cal. 2335. 
 
 § 1872. Set-offs against. One who deals with an agent, without know- 
 ing or having- reasou to heiievif that ihe agent acts as such in the transaction, 
 may set off, against any eiaim of the principal arising out of the same, all 
 claims which he might have set off against the agent before notice of the 
 agency. 
 
 Cal. 2336. 
 
 65
 
 866 THE LAW OF AGENCY. 
 
 § 1373. Construction of contract. Any instrument within the scope 
 of his authority, by which an agent intends to bind his principal, does bind 
 him, if such intent is plainly inferable from the instrument itself. 
 
 Cal. 8387. 
 
 § 1374. Agent'8 negligence. Unless required by or under the author- 
 ity of law to employ that particular agent, a principal is responsible to third 
 persons for the negligence of his agent in the transaction of the business of 
 the agency, including wrongful acts committed by such agent in and as a part 
 of the transaction of such business, and for his willful omission to fulfill the 
 obligations of the principal. 
 
 Cal. 2338. 
 
 1 1875. For other wrongs. A principal is responsible for no other 
 wrongs committed by his agent than those mentioned in the last section, unless 
 he has authorized or ratified them, even though they are committed while the 
 agent is engaged in his service. 
 
 Cal. 2339. 
 
 ABTiciiB IV. Oblioations of Agents to Third Persons. 
 
 § 1876. Warranty of authority. One who assumes to act as an agent, 
 thereby warrants, to all who deal with him in that capacity, that he has the 
 authority which he assumes. 
 
 Cal. 2342. 
 
 § 1377. Agent to third persons. One who assumes to act as an agent 
 is responsible to third persons as a principal for his acts in the course of his 
 agency, in any of the following cases, and in no others : 
 
 1. When, with his consent, credit is given to him personally in a trans- 
 action; . 1 , 
 
 2. When he enters into a written contract in the name of his principal, 
 without believing, in good faith, that he has authority to do so; or, 
 
 8. Whea his acts are wrongful in their nature. 
 
 Cal. 234t. 
 
 I 1378. Surrender to third party. If an agent receives anything for 
 the benefit of his principal, to the possession of which another person is 
 entitled, he must, on demand, surrender it to such person, or so much of ir 
 as he hap unde- his control at the time of demand, on being indemnified for 
 any advance which he has made to his principal in good faith, on account of 
 the same; and is responsible therefor, if, after notice from the owner, he 
 delivers it to his principal. 
 
 Cal. 2344. 
 
 ^ 1879. Incapacity to contract. The provisions of this article are 
 subject to the provisions of part one of th^ first division of this Code. 
 
 Cal. 2345. 
 
 Article V. — Delegation of Agency. 
 
 ^ 1380. When authorized. An agent, unless specially prohibited by 
 his principal to do so, can delegate his powers to another person in any of the 
 following cases, and in no others: 
 
 1. When the act to be done is purely mechanical ; 
 
 2. When it is such as the agent cannot himself, and the subagent can, 
 lawfully perform; 
 
 8. When it is the usage of the place to delegate such powers; or, 
 
 4 When such delegation is specially authorized by the principal. 
 
 Cal. 2349. 
 
 § 1381. Agent is principal. If an agent employs a subagent with- 
 out authority, the former is a principal and the latter his agent, and the prin- 
 cipal of the former has no connection with the latter. 
 
 Cal. 2360. 
 
 1882. Rightful subagent. A subagent, lawfully appointed, repre- 
 sents the principal in like manner with the original agent; and the original 
 agent is not responsible to third persons for the acts of the subagent. 
 
 CaL 2851.
 
 8TATUT0KY PROVISIONS. S67 
 
 Article VI. — Termination op Agency. 
 
 § 1383. Classified causes. An agency is terminated, as to erery per- 
 son having notice tliereof, by; 
 
 1. The expiration of its term; 
 
 2. The extinction of its subject; 
 
 3. The death of the agent; 
 
 4. His renunciation of the agency; or, 
 
 5. The incapacity of the agent to act as such. 
 
 Cal. 2355. 
 
 § 1384. Other causes. Unless the power of an agent is coupled with 
 an interest in the subject of the agency, it is terminated as to every person 
 having notice thereof, by: 
 
 1. Its revocation by the principal; 
 
 2. His death; or, 
 
 3. His incapacity to contract. 
 
 Cal. 2358. 
 
 PARTICULAR AGENCIES. 
 
 Article I. Auctioneers. 
 
 § 1385 From seller, limited. An auctioneer, in the absence of 
 special autliorizalion or usage to the contrary, has authority from the seller 
 only as follows: 
 
 1. To sell by public auction to the highest bidder; 
 
 2. To sell for cash only, except such articles as are usually sold on credit 
 at auction; 
 
 3. To warrant in like manner with other agents to sell, according to 
 section one thousand three hundred and sixty-two; 
 
 4. To prescribe reasonable rules and terms of sale; 
 
 5. To deliver the thing sold upon payment of the price; 
 
 6. To collect the price; and, 
 
 7. To do whatsoever else is necessary, or proper and usual, in the ordi- 
 nary course of business for effecting these purposes. 
 
 Cal. 2362. 
 
 Si 1386. To bind both parties. An auctioneer has authority from a 
 bidder at the auction, as well as from the seller, to bind both by a memo- 
 randum of the contract as prescribed in the title on sale. 
 
 Cal. 2363. 
 
 Article II. Factors. 
 
 § 1387. Defined. A factor is an agent who is employed to buy or sell 
 property in his own name, and who is intrusted by his principal with the 
 possession thereof, as defined in section one thousand one hundred and sixty- 
 eight. 
 
 Cal. 2367. 
 
 § 1388. Power beyond agent. In addition to the authority of agents 
 In general, a factor has actual authority from his principal, unless specially 
 restricted : 
 
 1. To insure property consigned to him uninsured; 
 
 2. To sell, on credit, anything intrusted to him for sale, except such 
 things as it is contrary to usage to sell on credit; but not to pledge, mortgage, 
 or barter the same; and, 
 
 3. To delegate his authority to his partner or servant, but not to any 
 person in an independent employment. 
 
 Cal. 2368. 
 
 § 1389. Ostensible authority. A factor has ostensible authority to 
 deal with the property of his principal as his own, in transactions with per- 
 sons not having notice of the actual ownership. 
 
 Cal. 2369.
 
 868 THE LAW OF AGENCY. 
 
 GEORGIA. 
 
 The first section numbers are those of the Codes of 1882 and 1873. Those in 
 parentheses are respectively those of the Codes of 1868 and 1863. 
 
 Article I. Relation of Principal and Agent among Themselves. 
 
 §2178. (2153.) (3157.) How it arises. The relation of principal and 
 agent arises wherever one person, expressly or by implication, authorizes 
 another to act for him, or subsequently ratifies the acts of another in his 
 behalf. 
 
 § 2179. (3158.) (2158.) What may be done by agent. Whatever 
 one miiy do himself may be done by an agent, except such personal trusts in 
 which special confidence is placed on the skill, discretion, or judgment of the 
 person called in to act; so an agent may not delegate his authority to another 
 unless specially empowered to do so. 
 
 § 3180 (3154.) [Executors, etc., may convey by attorney in fact. 
 Executors, administrators, guardians and trustees are authorized to sell and 
 convey property, by attorneys in fact, in all cases where they may lawfully 
 sell and convey in person.] 
 
 § 3181. (2155.) (2159.) Who may be agent. Any person may be 
 appointed an agent who is of souud mind; so a principal is bound by the acts 
 of his infant agent, but &feme covert cannot be an agent for another than her 
 husband except by his consent, in which case he is bound by her acts. 
 
 §2182. (2156.) (2160.) Agency created, how— agents of corpora- 
 tions. The act creating the agency must be executed with the same formality 
 (and need have no more) as the law prescribes for the execution of the act for 
 which the agency is created. A corporation may create an agent in its usual 
 mode of transacting business, and without its corporate seal. 
 
 §2188. (2157.) (3161.) Revocation. Generally, an agency is revocable 
 at the will of the principal. Tiie appointment of a new agent for the perform- 
 ance of the same act, or the death of either principal or agent revokes the 
 power. If, however, the power is coupled with an interest in the agent him- 
 self it is not revocable at will; and in all cases the agent might recover from 
 the principal for an unreasonable revocation, any damages he may have suf- 
 fered by reason thereof. 
 
 § 2184. (2158.) (2102.) Agent limited by his authority. The agent 
 must act within the authority granted to him, reasonably interpreted; if he 
 exceeds or violates his instructions, he does it at his own risk, the principal 
 having the privilege of affirming or dissenting, as his interest may dictate. In 
 cases where the power is coupled with an interest in the agent, unreasonable 
 instructions, detrimental to the agent's interest, may be disregarded. 
 
 § 2185. (2159.) (2168.) Diligence of an agent. An agent for hire is 
 bound to exercise, about the business of his principal, that ordinary care, skill 
 and diligence required of a bailee for hire. A voluntary agent, without hire 
 or reward, is liable only for gross neglect. 
 
 §2186. (2160.) (2164.) Agent cannot buy or sell for himself With- 
 out the express consent of the principal, after a full knowledge of all the facts, 
 an agent employed to sell, cannot be himself the purchaser; and an agent to 
 buy, cannot be himself the seller. 
 
 § 2187. (2161.) (2165.) Personal profit. The agent must not make a 
 personal profit from his principal's property ; for all such he is bound to 
 account. 
 
 § 2188. (2162.) (2166.) Estoppel. An agent cannot dispute his princi- 
 pal's title, except in such cases wJiere legal proceedings, at the instances of 
 others, have been commenced against him.
 
 STATUTORY PEOYISIONS. 869 
 
 §2189. ((2163.) (2167.) Agent of several. Where several persona 
 appoint an agent to do an act for their joint benefit, the instructions of one, 
 not inconsistent with the general directions, shall protect the agent in his act. 
 
 § 2190. (2164.) (3168.) Commission and expenses. An agent who 
 has discharged his duty is entitled to bis commission and all necessary expenses 
 incurred about the business of his principal. If he has violated his engage- 
 ment, he is entitled to no comminsion. 
 
 § 2191. (2165.) (2169.) Illegal purpose. No rights can arise to either 
 party out of an agency created for an illegal purpose. 
 
 § 3193. (3166.) (3170.) Eflfect of ratification. A ratification by the 
 principal relates back to the act ratified, and takes effect as if originally au- 
 thorized. A ratification may be express, or implied from the acts or silence 
 of the principal. A ratification once made cannot be revoked. 
 
 §3193. (2167.) (3171.) Of mingling goods. An agent, by willfully 
 mingling his own goods with those of his principal, does not create a tenancy 
 in common, but if incapable of separation the whole belongs to the principal. 
 
 Akticle II. Rights and Liabilities of Pkincipal as to Thtbd 
 
 Persons. 
 
 § 2194. (2168.) (2173.) Principal, how far bound. The principal is 
 bound by all the acts of his agent within the scope of his authority; if the 
 agent exceeds his authority the principal cannot ratify in part and repudiate 
 in part; he must adopt either the whole or none. 
 
 §2195. (2169.) (3173.) Forms immaterial. The form in which the 
 agent acts is immaterial ; if the priucipal's name is disclosed, and the agent 
 professes to act for him, it would be held to be the act of the principal. 
 
 § 3196. (3170.) (3174.) Extent of authority. The agent's authority 
 will be constructed to include all necessary and usual means for effectually 
 executing it. Private instructions or limitations not known to persons dealing 
 with a general agent cannot affect them. In special agencies for a particular 
 purpose, persons dealing with the agent should examine his authority. 
 
 § 2197, (2171.) (2175.) Failing to disclose principal. If an agent 
 fails to disclose his principal, yet, when discovered, the person dealing with 
 the agent may go directly upon the principal, under the contract, unless the 
 principal shall have previously accounted and settled with the agent. 
 
 §2198 (2172.) (2176.) Credit given to agent. If the credit is given 
 to the agent by the choice of the seller, he cannot afterward demand payment 
 of the principal. 
 
 § 2199. (2173.) (2177.) Representations by agent. The principal 
 is bound by all representations made by his agent in the business of his agency, 
 and also by his willful concealment of material facts, although they are un- 
 known to the principal, and known only by the agent. 
 
 § 2200 (2174.) (2178.) Notice to. Notice to the agent of any matter 
 connected with his agency is notice to the principal. 
 
 §2201. (2175.) (2179.) Principal bound for neglect and fraud. 
 
 The principal is bound for the care, diligence and fidelity of his agent in his 
 business, and hence he is bound for the neglect and fraud of his agent in the 
 transaction of such business. 
 
 § 2302. (3176.) (2180.) Injuries by another agent. The principal is 
 not liable to one agent for injuries arising from the negligence or misconduct 
 of other agents about the same business; the exception in case of railroads has 
 been previously stated. 
 
 § 2203. (2177.) (2181.) Trespass of agent. The principal is not lia- 
 ble for the willful trespass of his agent, unless done by his command or as- 
 sented to by him.
 
 870 THE LAW OF AGENCY. 
 
 §2204. (2178.) (2182.) Benefit of contract to principal. The prin- 
 cipal shall have advantage of hia agent's contracts in the same manner as he 
 18 bound by them, so far as they come within the scope of his agency. If, 
 however, the agency has been concealed, the party dealing with him may set 
 up any defense against the principal which he has against the agent. 
 
 §2205. (2179) (2183.) Money iUegally paid, etc. The principal 
 may recover back money paid illegally, or by mistake of his agent or goods 
 wrongfully transferred by the agent, the party leceiving the goods having 
 notice of the agent's want of authority or willful misconduct. 
 
 §2206. (2180.) (2184.) Agent is a competent witness. The agent 
 is a competent witness either for or against his principal. His interest goes to 
 his credit. The declarations of the agent as to the business transacted by him 
 are not admissible against his principal, unless they were a part of the negoti- 
 ation, and constituting the res gestae, or else the agent be dead. 
 
 Abticle III. Rights and Liabilities of Agent as to Thikd Persons. 
 
 §2207. (2181.) (2185.) Agent may act \inder this Code for princi- 
 pal. Any act authorized or required to be done under this Code by any per- 
 son in the prosecution of his legal remedies, mny be done by his agents; and 
 for this purpose he is authorized to make an affidavit and execute any bond 
 required, though his agency be created by parol. In all such cases, if the 
 principal repudiate the act of the agent, the agent shall be personally bound, 
 together with his sureties. 
 
 § 2208. (2182.) (2186.) Money paid by mistake may be recovered. 
 If money be paid to an agent by mistake, and he in good faith pays it over to 
 his principal, he shall not thereafter be personally liable therefor. In all 
 other cases, he is liable for its repayment. If money be paid by an agent by 
 mistake, he may recover it back in his own name. 
 
 §2209. (2183.) (2187.) When he has a right of action. Generally 
 an agent has no right of action on contracts made for his principal. The fol- 
 lowing are exceptions: 
 
 1. A factor contracting on his own credit. 
 
 2. Where promissory notes or other evidences of debt are made payable to 
 an agent of a corporation or joint stock company. 
 
 3. In all cases where the contract is made with the agent in his individual 
 name, though his agency be known. 
 
 4. Auctioneers may sue in their own name for goods sold by them. 
 
 5. In cases of agency coupled with an interest in the agent known to tht 
 party contracting with him. In all these cases, payment to the principal bfe 
 fore notice of the agent's claim is a good defense. 
 
 §2310. (2184) (2188.) For interference with his possession. Aii 
 agent having possession, actual or constructive, of the property of his princi- 
 pal, has a right of action for any interference with that possession by thiro 
 persons. 
 
 §2211. (2185.) (2189.) When responsible for credit given. Where 
 
 the agency is known, and the credit is not expressly given to the agent, he is 
 not personally responsible upon the contract. The question to whom the 
 credit is given is a question of fact to be decided by the jury under the cir- 
 cumstances of each case. 
 
 § 2212. (2186.) (2190.) Public agents. Public agents contracting in 
 behalf of the public, are not individually liable on such contracts. 
 
 §2213. (2187.) (2191.) Liabilityforexcessof authority. All a <renfs, 
 by an express undertaking to that effect, may render themselves individually 
 liable. And every agent exceeding the scope of his authority is individually 
 liable to the person with whom he deals; so, also, for his own tortious ar-t, 
 whether acting by command of his principal or not, he is responsible; for the 
 negligence of "his under-servant, employed by him in behalf of his principal, 
 he is not responsible.
 
 STATUTORY PROVISIONS. 8T1 
 
 §3214. (2188.) (2192.) Where agent exceeds authority. When 
 the airent exceeds his authority, so that the principal is not bound, the agent 
 cannot enforce the contract in his own name against the person with whom he 
 deals, unless the contract has been fully executed upon the part of the agent, 
 or the credit was originally given to the agent. 
 
 LOUISIANA. 
 The references are to the Code of 1875. 
 Chapter I. 
 
 Art. 2985. — A mandate, procuration or letter of attorney is an act by which 
 one person gives power to another to transact for him and in his name, one 
 or several affairs. 
 
 Art. 2986. — The mandate may take place in five different manners: for 
 the interest of the person granting it alone; for the joint interest of both 
 parties; for the interest of a third person; for the interest of such third person 
 and that of the party granting it; and finally, for the interest of the manda- 
 tary and a third person. 
 
 Art. 2987. — The object of the mandate must be lawful, and the power 
 conferred must be one which the principal himself has a right to exercise. 
 
 Art. 2988. — The contract of mandate is completed only by the acceptance 
 of the mandatary. 
 
 Art. 2989.— a power of attorney may be accepted expressly in the act 
 itself, or by a posterior act. 
 
 It may also be accepted tacitly; and this tacit acceptance is inferred, either 
 from the mandatary acting under it, or from his keeping silence when the 
 act containing his appointment is transmitted to him. 
 
 Art. 2990. — If the proxy or attorney in fact pleads that he has not 
 accepted or acted under the power, it is incumbent on the principal to prove 
 ho has. 
 
 Art. 2991. — The procuration is gratuitous unless there has been a contrary 
 agreement. 
 
 Art. 2992. — A power of attorney may be given, either by a public act or 
 by a writing under private signature, even by letter. 
 
 It may also be given verbally, but of this testimonial proof is admitted 
 only conformably to the title: Of Conventional Obligations. 
 
 Art. 2993. — A blank may be left for the name of the attorney in fact in 
 the letter of attorney. 
 
 In that case, the bearer of it is deemed the person empowered. 
 
 Art. 2994. — It may be either general for all affairs, or special for one 
 affair only. 
 
 Art. 2995. — It may vest an indefinite power to do whatever may appear 
 conducive to the interest of the principal, or it may restrict the power given 
 to the doing of what is specified in the procuration. 
 
 Art. 2996. — A mandate conceived in general terms, confers only a power 
 of administration. 
 
 If it be necessary to alienate or give a mortgage, or do any other act of 
 ownership, the power must be express. 
 
 Art. 2997. — Thus the power must be express and special for the follow- 
 ing purposes: 
 
 To sell or to buy. 
 
 To incumber or hypothecate. 
 
 To accept or reject a succession. 
 
 To contract a loan or acknowledge a debt.
 
 872 THE LAW OF AGENCY. 
 
 To draw or indorse bills of exchange or promissory notes. 
 
 To compromise or refer a matter to arbitration. 
 
 To make a transaction in matters of litigation; and in general where 
 things to be done are not merely acts of administration, or such as facilitate 
 sucli acts. 
 
 Art. 2998. — A power to compromise on a matter in litigation does not 
 Include that of submitting or referring to arbitrators. 
 
 Art. 2999. — A power to receive includes that of giving a receipt in 
 acquittance. 
 
 Art. 3000. — Powers granted to persons, who exercise a profession, or 
 fulfil certain functions, of doing any business in the ordinary course of 
 allairs to which they are devoted, need not be specified, but are inferred from 
 the functions which these mandataries exercise. 
 
 Art. 3001. — Women and emancipated minors may be appointed attorneys; 
 but, in the case of a minor, the person appointing him has no action against 
 him, except according to the general rules relative to the obligations of 
 minors; and in the case of a married woman, who has accepted the power 
 without authority from her husband, she can only be sued in the manner 
 specified under the title: Of Marriage Contract, and the Respective Rights of 
 iJie Parties in Relation to their Properly. 
 
 Chapter II. — Of the Obligations op a Person acting under a Power 
 
 OF Attorney. 
 
 Art. 3002. — The attorney in fact is bound to discharge the functions of 
 the procuration, as long as he continues to hold it, and is responsible to his 
 principal for the damages that may result from the non-performance of his 
 duty. 
 
 He is bound even to complete a thing which had been commenced at the 
 time of the principal's death, if any danger result from delay. 
 
 Art. 3003. — The attorney is responsible, not only for unfaithfulness in 
 his management, but also for his fault or neglect. 
 
 Nevertheless, the responsibility with respect to faults, is enforced less 
 rigorously against the mandatary acting gratuitously, than against him who 
 receives a reward. 
 
 Art. 8004. — He is obliged to render an account of his management, unless 
 this obligation has been expressly dispensed with in his favor. 
 
 Art. 3005. — He is bound to restore to his principal whatever he has 
 received by virtue of his procuration, even should he have received it unduly. 
 
 Art. 8006. — In case of an indefinite power, the attorney can not be sued 
 for what he has done with good intention. 
 
 The judge must have regard to the nature of the affair, and the diflBculty 
 of communication between the principal and the attorney. 
 
 Art. 3007. — The attorney is answerable for the person substituted by bim 
 to manage in his stead, if the procuration did not empower him to substitute. 
 
 Art. 3008. — He is also answerable for his substitute, if, having the power 
 to appoint one, and the person to be appointed not being named in the pro- 
 curation, he has appointed for his substitute a person notoriously incapable, 
 or of suspicious character. 
 
 Art. 3009. — Even where the attorney is answerable for his substitute, the 
 principal may, if he thinks proper, act directly against the substitute. 
 
 Art. 8010. — The attorney can not go beyond the limits of his procuration; 
 whatever he does exceeding his power is null and void with regard to the 
 principal, unless ratified by the latter, and the attorney is alone bound by it in 
 his individual capacity. 
 
 Art. 8011. — The mandatary is not considered to have exceeded his 
 aiitliority, when he has fulfilled the trust confided to him, in a manner more 
 advantageous to the principal, than that expressed in his appointment.
 
 STATUTORY PROVISIONS. 873 
 
 Art. p012.— The mandatary, who has communicated his authority to a 
 person with whom he contracts in that capacity, is not answerable to the 
 latter for anything done beyond it, unless he has entered into a personal 
 guarantee. 
 
 Art. 8013.— The mandatary is responsible to those with whom he con- 
 tracts, only when he has bound himself personally or when he has exceeded 
 his authority without having exhibited his powers. 
 
 Art. 8014.— When there are several attorneys in fact empowered by the 
 same act, they are not responsible in solido for the acts of each, unless such 
 responsibility be expressed in the procuration. 
 
 Art. 3015.— The attorney is answerable for the interest of any sum of 
 money he has employed to his own use, from the time he has so emp'loyed it; 
 and for that of any sum remaining in his hands from the day he becomes a 
 defaulter by delaying to pay it over. 
 
 Chapter III. Op the Mandatary or Agent op Both Parties. 
 
 Art. 3016. — The broker or intermediary is he who is employed to negoti- 
 ate a matter between two parties, and who, for that reason, is considered as 
 the mandatary of both. 
 
 AuT. 3017.— The obligations of a broker are similar to those of an ordi- 
 nary mandatary, with this difference, that his engagement is double, and 
 requires that he should observe the same fidelity towards all parties, and not 
 favor one more than another. 
 
 Art. 8018. — Brokers are not responsible for events which arise in the 
 affairs in which they are employed; they are only, as other agents, answer- 
 able for frauds or faults. 
 
 Art. 3019. — Brokers, except in case of fraud, are not answerable for the 
 insolvency of those to whom they procure sales or loans, aithouiih they 
 receive a reward for their agency and speak in favor of him who buys or 
 borrows. 
 
 Art. 3020. — Commercial and money brokers, besides the obligations which 
 they incur in common with other agents, have their duties prescribed by the 
 laws regulating commerce. 
 
 Chapter IV. Op the Obligations op the Principal who acts by 
 HIS Attorney in Pact. 
 
 Art. 3021. — The principal is bound to execute the engagements contracted 
 by the attorney, conformably to the power confided in htm. 
 
 For anything further he is not bound, except in so far as he has expressly 
 ratified it. 
 
 Art. 3022.— The principal ought to reimburse the expenses and chartTcs 
 which the agent has incurred in the execution of the mandate, and pay his 
 commission where one has been stipulated. 
 
 If there be no fault imputable to the agent, the principal can not dispense 
 with this reimbursement and payment, even if the affair has not succeeded; 
 nor can he reduce the amount of reimbursement, under pretense that the 
 charges and expenses ought to have been less. 
 
 Art. 3023. — The mandatary has a right to retain out of the property of 
 the principal in his hands, a sufficient amount to satisfy his expenses and 
 costs. 
 
 He may even retain, by way of offset, what the principal owes him, 
 provided the debt be liquidated. 
 
 Art. 3024.— The attorney must also be compensated for such losses as he 
 has sustained on occasion of the management of his principal's affairs, when 
 he can not be reproached with imprudence.
 
 874 THE LAW OF AGENCY. 
 
 Art. 3025. — If the attorney has advanced any sum of money for the 
 affairs of the principal, the latter owes the interest of it, from the day on 
 which the advance is proved to have been made. 
 
 Akt. 3028. — If the attorney has been empowered by several persons for an 
 affair common to them, every one of these persons shall be bound in solido 
 to him for all the effects of the procuration. 
 
 Chapter V. How the Procuration Eipirbb. 
 
 Art. 8027.— The procuration expires: 
 
 By the revocation of the attorney. 
 
 By the attorney's renunciation of the power. 
 
 By the change of condition of the principal. 
 
 By the death, seclusion, interdiction or failure of the agent or principal. 
 
 Art. 8028. — The principal may revoke his power of attorney whenever 
 he thinks proper, and, if necessary, compel the airent to deliver up the written 
 instrument containing it, if it be an act under private signature. 
 
 Art. 3029. — If the principal only notifies his revocation to the attorney, 
 and not to the persons with whom he has empowered the attorney to transact 
 for him, such persons shall always have the right of action against the prin- 
 cipal to compel him to execute or ratify what has been done by the attorney; 
 the principal has, however, a right of action against the attorney. 
 
 Art. 8030. — The appointment of a new attorney to transact the same 
 business produces the same effect as a revocation of the first, from the day 
 such appointment is notified to the first attorney. 
 
 Art. 3031. — The attorney may renounce his power of attorney by notify- 
 ing to the principal his renunciation. 
 
 Nevertheless, if this renunciation be prejudicial to the principal, he ought 
 to be indemnified by the agent, unless the latter should be so situated that he 
 can not continue the agency without considerable injury. 
 
 Art. 3032. — If the attorney, being ignorant of the death or of the cessa- 
 tion of the rights of his principal, should continue under his power of attor- 
 ney, the transactions done by him. during this state of ignorance, are con- 
 sidered as valid. 
 
 Art. 8033. — In the cases above enumerated, the engagements of the agent 
 are carried into effect in favor of third persons acting in good faith. 
 
 Art. 3034. — In case of the death of the attorney, his heir ought to inform 
 the principal of it, and in the meantime, attend to what may be requisite for 
 the interest of the principal.
 
 INDEX. 
 
 References are to Sections. 
 
 ABANDONMENT, 
 
 ■when agont may abandon agency, 238. 
 
 what will amount to, 285. 
 
 what will justify, 236. 
 
 effect on right to compensation, 632-644. 
 
 1. when abandonment was lawful, 633. 
 
 2. when abandonment was unlawful, 633. 
 
 distinction between entire and severable contracts, 634. 
 agent generally forfeits all compensation, 635. 
 but the rule of Britton v. Turner is more liberal, 636. 
 what this rule is, 686, 637. 
 
 brief absences do not constitute abandonment, 638. 
 when principal is deemed to have condoned, 639. 
 •what will excuse, 640. 
 Imprisonment of agent will not, when, 235. 
 contracts not to terminate without notice, 641. 
 forfeiture of wages for breach, 643. 
 what works a forfeiture, 643. 
 ACCEPTANCE OF AGENCY, 
 agent must accept, 108. 
 when acceptance presumed, 108. 
 ACCEPTANCES, 
 
 of negotiable paper by agent. 
 
 See Atjthoritt to Makb ob Indorse Neqotiablb Papbb. 
 ACCIDENTS, 
 
 agent not liable for, 601. 
 ACCOMMODATION PAPER, 
 
 agent to manage business, no power to make, 400. 
 
 authority to make negotiable paper does not authorize making of accom- 
 modation paper, 393. 
 ACCOUNT, 
 
 copy of, no evidence of authority to collect, 837. 
 ACCOUNT, ALLOWANCE OF, 
 
 contracts to use influence to secure, void, 38. 
 ACCOUNTING. 
 
 agent must account for property and money received, 522-537. 
 is bound to account to principal only, 533. 
 to whom subagent shall account, 534. 
 
 all profits, benefits and advantages derived by agent belong to prin- 
 cipal, 469. 
 
 875
 
 576 ixDEx. 
 
 References are to Sections. 
 
 ACCOUNTING. — Orn;»»t*«d. 
 
 principal is entitled to agent's earnings — when, 471, 472. 
 agent can not dispute principal's title, 525. 
 
 nor allege illegality of transaction to defeat principal's claim, 526. 
 may not interplead principal and other claimants, 527. 
 must keep correct accounts, 528. 
 
 must keep principal's property and funds separate from his own, 529, 
 at what time he should account, 530. 
 when principal must make demand before suing, 531. 
 when agent will be charged with interest, 532. 
 when ageat's liability barred by limitation, 533. 
 in what form of action agent is liable, 534. 
 when he may set off claims against principal, 535. 
 how far principal may follow his property and funds, 536-537. 
 by attorneys. 
 
 See Attorneys, 826. 
 
 by auctioneers. 
 by brokers, 
 by factors. 
 
 See Auctioneers, 907. 
 See Brokers, 955. 
 See Factors, 1023. 
 
 ACCOUNTS, 
 
 agent must keep correct accounts, 528. 
 auctioneer must keep accounts, 907. 
 brokers must keep accounts, 955. 
 factors must keep accounts, 1021, 
 ACQUIESCENCE, 
 
 ratification may be presumed from, 153, 154. 
 
 the rules governing stated, 157. 
 
 same rules apply to corporations, 158, 159. 
 
 and although assumed agent were mere stranger, 160-163. 
 
 illustrations of, 164, 
 ACTION, 
 
 in what form of, agent liable to principal, 554. 
 
 when trover will lie. 
 
 when right of, accrues to agent against principal, 624. 
 agent liable to, to third persons, when, 541 et seq. 
 
 what form of, maintainable, 549. 
 principal may maintain against third persons, when, 768, 777. 
 
 subject to what defenses, 773, 775. 
 agent may maintain against third persons, when, 754, 765. 
 mctioneer may sue, when, 921, 922. 
 broker may sue, when, 983. 
 factor may sue, when, 1039, 1040. 
 bringing by principal, ratifies agent's act, 151. 
 agent to collect, may sue, when, 386.
 
 INDEX. 877 
 
 Heferences are to Sections, 
 
 ADMINISTRATION, 
 
 grant of, does not necessarily revoke power of attorney previously exe- 
 cuted by person appointed administrator, 219. 
 ADMINISTRATOR, 
 
 can not purchase at his own sale, 463. 
 ADMISSIONS OP AGENT, 
 
 agent's authority can not be established by proof of, 100. 
 nor enlarged, 100. 
 nor renewed, 100. 
 cannot extend scope of written authority, 100. 
 may be used against himself, 100. 
 fact of agency must be shown by other means, 100. 
 
 error in admission of, how cured, 100, note, 
 agent must be called as witness, 101. 
 
 ia a competent witness to prove authority, 101. 
 bind principal only when made witliin scope of authority, 714. 
 and when they are part of res gestm, 714. 
 what embraced within this rule, 715. 
 
 agent's authority must be first shown by other evidence, 716. 
 ADVANCES AND DISBURSEMENTS, 
 agent must be reimbursed for, wlien. 
 
 See Reimbuusement. 
 factor's lien for, see Factors. 
 factor must be reimbursed for, 1009. 
 ADVERSE INTEREST IN AGENT, 
 
 See Double Dealing. 
 disqualification by, 6G-68, 454, ei seq., 795 ei seg. 
 person can not be agent if duty and interest conflict, 66. 
 cannot be agent for both parties, when, 67. 
 cannot be party and agent for opposite party, 68. 
 must not put himself in antagonistic relations, 455. 
 may not deal in business of agency for his own profit, 456. 
 authorized to purchase may not purchase for himself, 4o7, 458. 
 
 if he does, will be held as trustee for principal. 458, 459. 
 authorized to sell may not sell to himself, 461. 
 
 if he does, principal not bound, 461. 
 authorized to buy, may not buy of himself, 462. 
 
 if he does, principal is not bound, 463. 
 employed to settle claim, can not buy and enforce it, 467. 
 AGENCY, 
 defined, 1, 
 
 how related to master and servant, 2. 
 actual and ostensible agencies, 1. 
 other names employed for, 3. 
 special forms of, 10. 
 is a contract relation, 1, 43. 
 may be created by law, 1, 82. 
 how created. 
 
 See Appointment of Aqbnts.
 
 878 iNDKx. 
 
 References are to Sections. 
 
 IlQ^NCY,— Continued. 
 how terminated. 
 
 See TEKMmATiON of Authority; Rkvocatioh. 
 AGENCY— FOR WHAT PURPOSES CREATED, 
 may be created for any lawful purpose, 18. 
 not to perform act of a personal nature, 41. 
 not to do illegal act, 19. 
 not to violate public policy, 19, 20. 
 
 what aervicea in this respect are lawful, 83. 
 
 whether contingent compeasatioa invalidates, 21. 
 
 to procure or defeat legislation, void, 23. 
 
 to procure contracts from governments, 24, 25. 
 
 to prosecute claims, 26. 
 
 to compromise crime, unlawful, 27. 
 
 to procure appointment to office, void, 28. 
 
 whether public or private, 29. 
 to improperly influence elections, 30, 31. 
 to procure pardons, unlawful, 82. 
 
 not when conviction was illegal, 33. 
 to procure or suppress evidence, void, 34. 
 to gamble in stocks or merchandise, unlawful, 35. 
 to procure marriage, unlawful, 38. 
 to corrupt agents or servants, unlawful, 37. 
 to sell tickets in forbidden lottery, unlawful. 33. 
 to procure discharge of drafted men, unlawful, 38. 
 to secure allowance of account, unlawful, 38. 
 to assume unreal disinterestedness, unlawful, 38. 
 to violate rules of war, unlawful, 38. 
 to carry on prohibited saloon, unlawful, 33. 
 or billiard table, 38. 
 or lottery, 38. 
 to work on Sunday, unlawful, 88. 
 agent must participate in unlawful purpose, 39. 
 whole contract is void, when entire, 40. 
 AGENT, 
 
 defined. 1, 6. 
 other names for, 3. 
 how compares with servant, 2. 
 AGENT — CLASSES OF, 
 how agents classified, 5. 
 universal, general and special df;fined, 6. 
 AGENT — DUTIES AND LIABILITIES OF, 
 
 See Duties and Liabilities ok Agent to PRmciPAL; DuTiEfl A3n> 
 Liabilities of Agent to ThipwD Persons. 
 AGENT — RIGHTS OF, 
 
 See Duties and Liabilitles of Principal to Agent; Duties and 
 Llabuaties ok Third Persons to Agent. 
 AGENT — WHO MAY BE, 
 any competent person, 57.
 
 INDEX. 879 
 
 Befereuces are to Sections. 
 
 AGENT— WHO MAY BE,— Cmtinued. 
 
 infants may be. 59. 
 
 slaves might be, 60. 
 
 married women may he, 61. 63. 
 
 married woman as agent for stranger, 61. 
 
 married woman as agent for her husband, 63. 
 
 husband may be for wife, 03. 
 
 corporations may be, 64. 
 
 partnerships may be, 65. 
 
 aliens may be, 57. 
 
 outlaws may be, 57. 
 
 monks may be, 57. 
 
 villeins might be, 57. 
 disqualifcation from adverse interest. 66-68. 
 
 one cannot be agent if duty and interest conflict, 68. 
 
 one cannot be agent for both parties without their consent, 67. 
 
 one cannot be both party and agent for opposite party, 68. 
 AGENT TO RECEIVE SERVICE, 
 
 when authority cannot be revoked, 333. 
 AMBIGUITY, 
 
 in notice of revocation, construed against principal, 330. 
 in instructions, effect of, 484. 
 APPOINTMENT OF AGENT, 
 
 agent appointed only by the will of the principal, 80. 
 how principal's will may be expressed, 81. 
 when authority created by law, 82. 
 when authority exists of necessity, 83. 
 when appointment will be implied, 83. 
 when principal estopped to deny appointment, 84. 
 authority presumed from conduct, 84. 
 appointment implied only from facts, 85. 
 inference must not exceed legitimate effect of facts, 85. 
 Instances of implied authority. 86. 
 when implied from holding one out as agent, 86. 
 inferences from repetition of acts, 86. 
 from openly exercising authority, 86. 
 
 from placing one in genei al charge of store, 86. 
 from acquiescence in agent's acts, 86. 
 what will not justify inference, 87. 
 making note payable at bank does not not make bank agent to receive 
 
 payment, 87. 
 copy of bill or account does not import authority to collect it, 37. 
 may also be express, 88. 
 
 when parol sufficient to sell or lease lands, 89. 
 to demand or collect rents, 90. 
 to execute instruments not under seal, 91. 
 what writing sufficient when writing required, 93. 
 to execute sealed instruments, must be under seal, 93. 
 to fill blanks in deeds, 94
 
 880 INDEX. 
 
 Beferences are to Sections. 
 
 APPOINTMENT OP AQEl^T,— Continued. 
 how when seal superfluous, 95. 
 how when instrument executed in principal's presence and by his direction, 
 
 96. 
 appointment by corporations, 97. 
 
 to execute deeds of realty, 98. 
 not to be established by agent's declarations, 100. 
 cannot be shown by general reputation, 101. 
 may be shown by agent's testimony, 103. 
 when written authority must be produced, 103. 
 except on collateral inquiry, 103. 
 writing construed by the court, 104. 
 undisputed facts construed by coiirt, 105. 
 disputed facts are for jury, 106. 
 ARBITRATION, 
 
 authority to settle does not authorize, 405. 
 factor cannot submit to, 1000. 
 broker cannot submit to, 950. 
 attorney may, 813. 
 ARBITRATORS, 
 
 cannot delegate their powers, 188. 
 
 but may employ mechanical assistance, 188. 
 or obtain expert information, 188. 
 ASSAULT, 
 
 when principal liable for by agent, 741. 
 when principal may recover for, on agent, 795, 
 ASSIGNEE FOR CREDITORS, 
 
 cannot purchase at his own sale, 463. 
 agent's, cannot hold against principal, 536. 
 ASSIGNMENT FOR BENEFIT OF CREDITORS, 
 
 See Bankruptct. 
 terminates agent's authority, 263, 519, subd. 4. 
 ASSOCIATIONS -VOLUNTARY, 
 when bound by acts of agents, 72. 
 how agents may be appointed by, 72. 
 members of when liable for acts of assumed agents, 73. 
 mere membership does not impose liability, 73. 
 must assent to act, 73. 
 or ratify it, 72. 
 
 or it must have been authorized by charter or by laws, 72. 
 illustrations of this rule, 73. 
 the true rule stated, 74. 
 are not partnerships, 72. 
 members not liable as partners, 73. 
 ASSUMPTION OF MORTGAGE, 
 
 agent having general authority, to deal in land, may assume, 838. 
 ATTORNEYS AT LAW, 
 I. Of the Office. 
 attorney at law defined, 803.
 
 INDEX. 881 
 
 Beferences are to Seotioii& 
 
 ATTORNEYS AT 1,AM ,— Continued, 
 is an officer of the court, 803. 
 who may be, 804. 
 
 " citizen " as, 804. 
 women as, 804. 
 party may appear in person, 805. 
 
 but may not appear by an agent who is not an attorney, 806. 
 II. Of the Relation of ATTOiiNSY and Client. 
 is a relation of agency, 807. 
 
 general rules of agency apply, 807. 
 no formal retainer indispensable, 808. 
 
 but authority may be shown as in other cases, 808. 
 in. Appeabance of, presumptively authorized, 809. 
 this presumption is not conclusive, 810. 
 
 opposite party may require him to show authority, 810. 
 what evidence is sufficient, 810. 
 client may dispute his authority, 810. 
 
 either in actions on foreign judgments, 810. 
 or upon domestic judgments, 810. 
 IV. Ikflied Authority of Attorney. 
 has general control of the conduct of the suit, 811. 
 has implied power: — 
 
 to make affidavits in case, 818. 
 to waive a verification, 813. 
 to serve and accept service of papers, etc., 812. 
 to waive formal notices, 812. 
 
 to waive or extend time for proceedings in cause, 818. 
 to refer the cause, 812. 
 to submit it to arbitrators, 812. 
 to dismiss or discontinue the action, 813. 
 to consent to a nonsuit, 812. 
 to appeal the case, 812. 
 to admit facts for purposes of trial, 812. 
 to agree upon the issues, 812. 
 to waive informalities and technicalities, 813. 
 to release attachment lien before judgment, 813. 
 to stipulate that judgment in one action shall be same as in another, 813. 
 to get briefs printed at client's expense, 813. 
 to suspend execution, 813. 
 to remit damages after a verdict, 812. 
 has no implied authority: — 
 
 to admit or accept service of original process, 813. 
 to confess or consent to judgment, 813. 
 to enter a retraxit when it is a final bar, 813. 
 
 to agree that dismissal of action shall bar action for malicious prose- 
 cution, 813. 
 to compromise the claim of his client, 813. 
 to release client's cause of action, 813. 
 56
 
 882 INDEX. 
 
 Heferences are to Sections. 
 
 ATTORNEYS AT 'L^.^ .—Continxied. 
 has no implied authority: — 
 
 to stipulate not to appeal or move for new trial, 813. 
 to release defendant's property from levy or judgment. 818. 
 to release client's security without payment, 813. 
 to release or discharge a surety or indorser, 813. 
 to discharge defendant from custody without satisfaction, 813. 
 to suspend proceedings on judgment, 813. 
 to release a garnishee, 813. 
 to release interest of parties, 813. 
 to grant extensions of time on debt, 813. 
 to assign or transfer debt to another, 813. 
 to consent to stay execution, 813. 
 to waive right to an inquisition, 813. 
 to give up the demand and take other security, 818. 
 to employ counsel at client's expense, 813. 
 to stipulate that cause shall not be tried for a certain period, 813, 
 to undertake journeys at client's expense, 813. 
 can not delegate his powers, 814. 
 
 such a delegation confers no rights against client, 814. 
 unless client ratifies it, 814. 
 
 employment of one of a firm is retainer of all, 814 
 but may employ subordinates, 815. 
 
 or delegate ministerial or mechanical duties, 815. 
 bonds, authority to bind client by, 816. 
 
 may indemnify sheriff against levy, 816. 
 but may not execute appeal bond, 816. 
 or replevin bond, 816. 
 
 or indemnify surety on injunction bond, 816. 
 payment to attorney binds client, when, 817. 
 may give receipts, 817. 
 may accept partial payments, 817. 
 but may not grant extensions, 817. 
 authority may be terminated by notice, 817. 
 but payment on securities binds only when attorney had possession 
 
 of them, 817. 
 fact that he negotiated them makes no difference, 817. 
 authority continues after judgment, 818. 
 but only to attorney of record, 818. 
 what constitutes, 819. 
 can accept money only, and in full, 819. 
 can not accept notes, goods, or land, 819. 
 or drafts, county warrants or bonds, 819. 
 or set off judgments, 819. 
 or accept land, 819. 
 
 or Confederate or depreciated bills, 819. 
 or set off his own debt, 819. 
 or accept his own note or obligation, 819.
 
 INDEX. 888 
 
 References are to Sections. 
 
 ATTORNEYS AT IjhM .—Continued. 
 
 Judgment, attorney may enforce, 820. 
 may sue out execution, 820. 
 direct its service, 820. 
 direct the time and manner of enforcing it, 820. 
 
 but may not direct levy on specific property, 820. 
 may not release lien of judgment or execution, 820. 
 nor stay proceedings so long as to lose lien, 820. 
 may issue alia» if necessary, 820. 
 V. Duties and Liabilities to Client. 
 bound to highest honor and integrity, 821. 
 must disclose adverse interests, 822. 
 must remain loyal, 823. 
 bound to use reasonable care and skill, 834. 
 
 not liable for errors in law or judgment, when, 825. 
 not liable for " street advice," 497. 
 liable for negligence in collecting, 826. 
 
 what this rule includes, 826. 
 liable for negligence in bringing suit, 827. 
 
 a. for bringing suit in wrong court, 827. 
 
 b. for neglect in practice, 827. 
 
 «. for using defective papers, 827. 
 liable for negligence in trial of action, 828. 
 
 what this rule includes, 828. 
 liable for negligence in examining titles, 829. 
 
 does not warrant title to be good, 82!). 
 liable for negligence in preparing contracts, 830. 
 
 liability measured by his undertaking, 830. 
 liable for neglect of partner or clerk, 831. 
 
 liability same as in trading partnerships, 831. 
 
 but is not liable for neglect or default of associate, 831, 
 
 liai)le for neglect of his substitute or subagent, 615. 
 liable for exceeding authority, 832. 
 
 or violiiting instructions, 832. 
 
 for entering satisfaction without payment in full, 833. 
 
 or delaying action whereby claim is lost, 833. 
 liable for money collected, 833. 
 
 liable if he uses it himself, 833. 
 
 or commingles it with his own, 833. 
 
 or deposits it in his own name, 8o3. 
 
 no action ordinarily until after demand, 888. 
 but exceptions to this rule, 833. 
 
 liable for interest when, 833. 
 liability though acting gratuitously, 834. 
 
 same as in case of other agents, 834. 
 measure of damages is compensation to client, 835. 
 
 client must show loss by attorney's default, 835.
 
 884 INDEX. 
 
 References are to Sections. 
 
 ATTORNEYS AT IjKW ,— Continued. 
 VL Liability of Attouney to T^ird Persons. 
 not liable for breach of duty owins^ to client only, 836. 
 not liable for defective search made for clieat, 836. 
 or for negligence in taking securities, 836. 
 cases of fraud rest on other grounds, 886. 
 liable where he contracts personally, 837. 
 
 same as in case of other agents, 558, 887. 
 liable for clerk's officer's and witness's fees, when, 838. 
 
 not liable for referee's or stenographer's fees, 838. 
 liable for torts committed to ihird persons, 839. 
 
 not liable for result of suit if he acts in good faith, 839. 
 but liable for false imprisonment, when he directs arrest, 839. 
 or participates in client's malicious prosecution, 839. 
 or uses client's cause to vent his own malice, 839. 
 VIL Liability op Client to Attorney. 
 1. attorney's right to reimbursement and indemnity. 
 
 attorney entitled to reimbursement and indemnity, 840. 
 
 unless rendered necessary by his own neglect or default, 840. 
 8. attorney's right to compensation, 
 is entitled to compensation, 841. 
 and may sue for it, 843. 
 parties may agree upon amount, 843. 
 
 express agreements conclusive, 843. 
 may make compensation contingent on success, 844. 
 
 but contract must not be unfair, 844. 
 •what contracts are chami)ertous, 845. 
 
 various rules stated, 845 and notes. 
 Buch contracts do not prevent settlement by client, 848. 
 
 attorney can protect himself only by assignment and notice, 848. 
 but attorney may recover from client, 847. 
 
 reasonable value at all events, 847. 
 where no express contract, reasonable value in rule, 848, 
 
 what evidence is admissible as to value, 849. 
 
 what is not admissible, 850. 
 lack of success is no defense, 851. 
 
 if attorney did his duty, 851. 
 negligence or bad faith may be shown, 853. 
 
 in bar or mitigation, 852. 
 breach of trust forfeits fees, 853. 
 
 as where attorney refuses to pay over money collected, 853. 
 abandonment by attorney forfeits fees, 854. 
 
 unless he had good reason for it, 854. 
 
 what will justify abandonment, 855. 
 discbarge by client, effect of, 856. 
 
 attorney's contract is entire, 856. 
 
 but client's is not, 856. 
 
 attorney's lien will bj protected, 856.
 
 INDEX. 885 
 
 References are to Sections. 
 
 ATTORNEYS AT 'Lh.'W ,— Continued. 
 what will justify, 857. 
 
 when attorney's claim barred by limitation, 858. 
 %. Attorney's right of Lien. 
 
 two kinds — general or retaining, and particular or charging, 869. 
 
 a. the general or retaining lien, 860. 
 
 declared by statute in some states, 861. 
 adheres to papers, property and money, 863. 
 
 papers must be in his possession, 862. 
 
 and as attorney at law, 862. 
 
 lien does not attach to papers received for special purpoM, 
 862. 
 
 nor to public files, records or documents, 863. 
 
 attaches to articles of property, 8(52. 
 
 and to money in attorney's possession, 862. 
 
 attorney may retain his own fees, 883. 
 secures attorney's general balance of account, 863. 
 prevails against client's creditors or assignees, 864. 
 lost by voluntary surrender, 865. 
 
 cannot be transferred, 865. 
 waived by inconsistent conduct, 866. 
 
 by taking security, 866. 
 enforcement of, 867. 
 
 b. the special or charging lien, 868. 
 
 exists in what states. 869, note. 
 
 protects what charges, 870. 
 
 attaches only when judgment is rendered, 871. 
 
 before judgment, attorney not p.-otected, 871. 
 attaches to judgment or decree only, 872. 
 
 and not to land recovered, 872. 
 protected against unlawful dealings, 873. 
 cannot be cut off by subsequent set off, 873. 
 notice must be given, when, 873. 
 enforced like other assignments of judgments. 874. 
 waived or lost like other liens, 875. 
 governed by law of place where judgment obtained, 870. 
 VllX. Dealings between Attorney and Client. 
 good faith and perfect fairness required, 877. 
 purchases from, and sales to, client, 87S. 
 
 cannot buy client's land at tax or execution sales, 878. 
 will be charged as trustee of client, 878. 
 attorney must show perfect fairness of transactions, 878. 
 but relation of attorney and client must exist, 879. 
 
 mere fact that opposite party was attorney, not enough, 879. 
 IX. Pritileqed Communications. 
 
 confidential communications privileged, 880. 
 under what circumstances privilege exists, 881. 
 must have been made in confidence, 881.
 
 886 INDKX. 
 
 References are to Sections. 
 
 ATTORNEYS AT 1,K.W ,— Continued. 
 
 not privileged if made in contemplation of a crime, 881. 
 
 but mere fraud not to be exposed, 881. 
 must have been received in capacity of attorney, 882. 
 
 does not apply to facts otherwise learned, 882. 
 
 nor to third persons present, 883. 
 
 nor to collateral facts involving no confidence, 883. 
 relation of attorney and client must exist, 883. 
 
 but no formal retainer or fee is necessary, 883. 
 
 communications to mere scrivener not privileged, 883. 
 communications must have been made to attorney, 884. 
 
 or to his clerk, agent, interpreter or representative, 884. 
 
 made to mere student not privileged, 884. 
 
 nor to unlicensed attorney where license required, 884. 
 privilege is that of a client, 885. 
 
 but he may waive it, 885. 
 attorney cannot, 885. 
 
 what constitutes a waiver, 885. 
 continues perpetually, 886. 
 
 death of client or attorney does not release It, 886. 
 attorney may disclose for his own protection, 887. 
 
 as when sued by client, 887. 
 
 or when suing him, 887. 
 X. Termination of Relation. 
 by operation of law, 888. 
 
 death, insanity or bankruptcy of principal, 883. 
 death, insanity, removal, disbarment of attorney, 888. 
 by act of parties as in other cases, 204-287, 889. 
 
 AUCTION, 
 
 See Auctioneeks. 
 
 authority to sell does not authorize sale at auction, 894, 858. 
 authority to sell at private sale does not authorize auction sale, 858. 
 authority to sell at auction does not authorize private sale, 903. 
 Bending goods to auction room implies authority to sell at auction, 894. 
 sale of A's property at B's sale does not bind purchaser, 913. 
 AUCTIONEERS, 
 1. Of the Auctioneer. 
 defined, 891. 
 who may be, 893. 
 
 license and bond required, 893. 
 is agent of seller, 893. 
 
 is bidder's agent in accepting and entering bid, 893. 
 
 such entry sufficient to satisfy statute of frauds, 893. 
 
 but must be made at time and place of sale, 893. 
 %. How Authorized. 
 
 authorized like other agents, 894. 
 
 parol authority sufficient even to sell land, 894. 
 
 authority to sell does not authorize, 894. 
 
 sending goods to auction room evidence of, 894.
 
 INDEX. 887 
 
 Rcforences are to Sections, 
 
 A UCTIONEERS,— C7(?n<»nti«d. 
 <3. Implied Powers. 
 terms of sale, auctioneer may fix, 895. 
 
 not to be inconsistent with printed terms, 895. 
 acceptance of bid, auctioneer's power, 896. 
 
 can not in general refuse to accept bids, 896, 
 
 but may of incompetent or irresponsible bidder, 896. 
 price, auctioneer's power to receive, 897. 
 
 may receive price of chattels, 897. 
 
 but only deposits on sale of land, 897. 
 
 can receive nothing but money, 897. 
 sue for price, when auctioneer may, 898. 
 
 subject to what set-offs, 898. 
 delegate his authority, auctioneer may not, 899. 
 
 but may employ another to make outcry, 899. 
 
 or wield the hammer under his direction, 899. 
 credit, has no power to grant, 900. 
 
 unless justified by usage, 900. 
 rescind sale, has no power to, 901, 
 
 or to permit bidder to withdraw accepted bid, 901, 
 private sale not warranted when authorized to sell at auction, 903. 
 
 even though better terms received, 902. 
 bidding for himself unauthorized, 903. 
 
 or to authorize another to bid for him, 903, 
 warranty of quality unauthorized, 904. 
 
 in absence of usage to that effect, 904, 
 4. Duties and Liabilities to Principal. 
 bound for reasonable skill and diligence, 905. 
 
 but is not charged with infallibility or highest care, 905 
 obey instructions, duty to, 906. 
 
 liable for loss from disobedience, 906, 
 accounting for proceeds, duty of, 907. 
 
 may deduct hia reasonable costs and charges, 907, 
 caring for goods, 908. 
 
 bound to take reasonable care, 908. 
 cash sales, duty to make, 909, 
 
 must bear loss incurred from credit sale, 909, 
 third persons, must sell only to, 910. 
 
 sale to or for himself not binding, 910, 
 Bell in person, duty to, 911, 
 
 liable for losses from delegation, 911. 
 disclosing principal, duty as to, 912. 
 
 personally liable otherwise, 912, 
 
 sale of property of A at B's sale should be announced, 912 
 8. Duties and Liabilities to Third Persons, 
 concealing his principal, liable as seller, 913. 
 
 but not where principal is disclosed, 913, 
 exceeding his authority, liable where, 914. 
 
 as if title to goods fails, &c., 914,
 
 888 INDEX. 
 
 Heferences are to Sections. 
 
 AUCTIONEERS, — Cl?n<t»t««d. 
 
 Btolea property, liable for selling, 915. 
 
 or for selling property of stranger, 915. 
 not holding auction, not liable for, 916. 
 
 although no notice given, 916. 
 
 6. Rights Against PKiNcrPAik 
 compensation, reimbursement, indemnity, 91T 
 
 is entitled to compensation, 917. 
 
 and reimbursement for lawful expenses, 917. 
 
 and indemnity against authorized acts, 917. 
 recoupment of damages, 918. 
 
 principal may recoup against auctioneer, 918. 
 lien of. 919. 
 
 may retain commissions and disbursements, 919. 
 principal's title, can not dispute, 930. 
 
 7. Rights against Thtrd Persons. 
 suing bidder, auctioneer's power, 921. 
 wrongdoer, auctioneer may sue, 922. 
 
 8. PKiNcrPAii's Rights against Third Persons. 
 purchase price, principal , may recover, 923. 
 
 even though principal was not disclosed, 923. 
 how when bidder refuses to complete purchase, 924 
 usual remedy is a resale, 924. 
 
 9. Rights op Third Persons against PRrNCiPAL. 
 principal liable for auctioneer's acts and statements, when, 926. 
 
 liable where he refuses to complete the sale, 926. 
 AUTHORITY OF AGENT. 
 
 in its nature, express or implied, 272. 
 
 in its extent, universal, general or special, 272. 
 
 express authority exclusive of implied, 278. 
 
 persons dealing in view of, must notice limitations, 273. 
 
 so where express authority is required by law, 273. 
 Implied authority more general in its scope, 274. 
 
 but cannot exceed legitimate limits, 274 
 
 is to be implied from facts only, 274. 
 
 must find its source in act of principal, 274. 
 
 must be limited to acts of similar kind. 274 
 universal agency very rare, 6, 
 
 must be created by express language, 275. 
 authority of agent must be ascertained by persons dealing with him, 
 276. 
 
 they deal with agent at their risk, 276. 
 
 and must prove his authority if controverted, 276. 
 how authority to be determined, 277. 
 
 different aspects of question, 277. 
 authority is an attribute if character bestowed by principal, 278. 
 
 principal estopped to deny attributes, 278. 
 the province of instructions, 279, 284.
 
 INDEX. 889 
 
 References are to Sections. 
 
 AUTHORITY OF AQE^T,— Continued. 
 
 apparent authority cannot be limited by secret instructions, 279. 
 
 although agent violate secret instructions, principal is bouad, 279. 
 when instructions and authority coincide, 279. 
 implied powers, the doctrine of, 311. 
 usage, powers conferred by, 281. 
 must be reasonable, 281. 
 lawful. 281. 
 general, 281. 
 when presumption not conclusive, 281. 
 usage cannot contravene express instructions, 281. 
 nor change intrinsic character of agency, 281. 
 nor authorize invalid contract, 231. 
 nor force on principal things he did not order, 281. 
 what constitutes authority, 282. 
 
 made up of different elements, 282. 
 
 1. powers directly conferred, 282. 
 
 2. powers incidental to main power, 282. 
 8. powers conferred by usage, 282. 
 
 4. powers recognized by acquiescence, 282. 
 
 5. powers authorized by ratification, 283. 
 
 these principles apply to general and special agencies, 383. 
 
 apparent authority is real authority, 283. 
 
 how general and special authority distinguished, 284, 285. 
 
 general agency not unlimited, 288. 
 
 general agent binds principal only when acting within the scope of 
 
 his authority. 287. 
 special agent's authority must be strictly pursued, 288. 
 third persons dealing with agent must act in good faith, 289. 
 and exercise reasonable prudence, 289. 
 must ascertain whether necessary conditions exist, 290. 
 authority if public agent must be ascertained, 291. 
 construction of the authority, 293-315. 
 
 construction of writings for the court, 294. 
 
 intention of parties is the true test, 295. 
 
 how intention to be discovered, 296. 
 
 entire writing to be viewed, 297. 
 
 other collateral writings may be used, 297. 
 
 surroundings of the parties to be viewed, 298. 
 
 use of parol evidence to explain ambiguity, 299. 
 
 or to identify subject-matter. 300. 
 
 cannot enlarge authority, 301. 
 
 nor contradict writing, 302. 
 effect to be given to every word and clause, 803. 
 transaction to be upheld rather than defeated, 804. 
 authority to be interpreted in light of lex loci, 305. 
 general powers limited by specific object, 306 
 
 construed to apply only to principal's business, 307.
 
 800 INDEX. 
 
 References are to Sections. 
 
 AUTHORITY OF AQm^T.—Condnued. 
 
 only those powers expressly given or necessarily implied, 308, 
 authority carries with it the power to effect the object, 311. 
 implied authority not to be extended beyond its scope, 313. 
 
 limited to principal's business, 313. 
 ambiguous authority construed against principal, 314. 
 construction adopted in good faith binds, 315. 
 AUTHORITY BY LAW. 
 
 authority may be created by law, 82. 
 AUTHORITY OF NECESSITY. 
 
 when exists, 82. 
 AUTHORITY TO DISCOUNT PAPER. 
 
 implies authority to indorse same when necessary, 391. 
 AUTHORITY TO FILL BLANKS, 
 in deeds. 
 
 how conferred, 94. 
 
 how in principal's presence and by his direction, 96. 
 ■what execution of. binds principal, 394. 
 in negotiable paper. 
 
 principal bound to bona fide holder though agent violate instructions, 
 394. 
 AUTHORITY TO MAKE OR INDORSE NEGOTIABLE PAPER, 
 what constitutes such authority, 389. 
 must be expressly conferred, 389. 
 authority is strictly construed, 390. 
 implied only when necessary, 391. 
 cannot be delegated to subagent, 186. 
 terminates with principal's death, 246. 
 ageuf; to manage grocery store has not, 391. 
 
 nor agent employed to manufacture carriages, 391. 
 nor agent authorized to manage farm, 391. 
 nor agent authorized to manage principal's business, 891. 
 nor agent authorized to buy goods and pay for them, 391. 
 authority to discount bills implies authority to indorse them, 391. 
 authority must be confined to principal's business, 392. 
 agent authorized to make or indorse, can not make or indorse for Mb own 
 
 benefit or that of third persons, 392. 
 execution must be confined to limits specified, 393. 
 
 authority to make for one purpose does not justify making for 
 
 another, 393. 
 authority to make for one sum, will not authorize making for a 
 
 different sum, 393. 
 authority to make for a given time, will not authorize making for a 
 
 different time, 393. 
 authority to sign as surety does not justify signing as principal, 393. 
 authority to make note does not imply authority to pay it, 393. 
 authority to draw bills on time does not authorize post dated bills, 
 393.
 
 INDEX. 891 
 
 References are to Sections. 
 
 ACTHORITY TO MAKE OR INDORSE NEGOTI^VBLE PAPER, 
 
 — Continued. 
 
 authority to draw does not authorize indorsing or accepting bills, 
 393. 
 
 authority does not justify unusual paper, 393. 
 
 authority to fill paper delivered in blank, 394. 
 AUTHORITY TO MANAGE BUSINESS, 
 
 extent of depends on nature of busioess, 395. 
 when implies power to pledge principal's credit, 398. 
 when authorizes sale of product of business, 397. 
 
 no implied power to exchange product for others, 397. 
 when authorizes hiring of workmen, 397. 
 does not authorize the making of negotiable paper, 398. 
 
 such power must be expressly conferred, 398. 
 does not authorize borrowing of money, 399. 
 does not authorize making of accommodation paper, 400. 
 may not pledge or mortgage the business, 401. 
 may not sell principal's land, 403. 
 may not embark in new or different business, 403. 
 may not sell the business, 404. 
 AUTHORITY TO PURCHASE, 
 
 agent may not buy on credit if furnished with funds, 863. 
 
 but may when not supplied with funds, 364. 
 
 so when he has general authority to buy and sell, 364. 
 implies power to agree upon price and terms of purchase, 365. 
 
 to determine time and method of delivery, 365. 
 
 to acknowledge receipt of goods, 365. 
 
 to acknowledge amount of indebtedness therefor, 365. 
 limits as to quantity are not to be exceeded, 366. 
 
 discretion may be exercised where no limit is fixed, 366. 
 limits as to quality or species must be observed, 367. 
 restrictions as to persons must be observed, 368. 
 
 may make representations as to principal's credit when authorized to buj 
 on credit, 369. 
 
 but not if unnecessary, 369. 
 does not authorize making negotiable paper, 370. 
 ceases with principal's death, 246. 
 
 but not where order was mailed before death, 246. 
 AUTHORITY TO RECEIVE PAYMENT, 
 
 when implied from having sold personal property, 336. 
 
 not implied from possession of bill or account, 337. 
 
 not implied from having negotiated securities, 372. 
 
 party paying must see that securities are in agent's possession, 873. 
 
 agent selling goods in his possession may receive payment, 338. 
 
 agent merely to solicit orders cannot, 339. 
 
 when travelling salesmen may receive payment, 340. 
 
 how when payment to agent is made part of terms of sale, 341. 
 
 how notice of want of authority may be given, 342.
 
 892 INDEX. 
 
 Heferences are to Sections. 
 
 AUTHORITY TO RECEIVE PAYM^^T,— Continued. 
 
 agent authorized to, can not receive anything but money, 375. 
 can not take debtor's note, 375. 
 or note of third petson, 375. 
 or note of his own, 375. 
 or draft on a stranger, 375. 
 or depreciated currency, 375. 
 
 or horses, wheat, merchandise or other property, 875 
 or set off debts due from himself, 375. 
 or take property for his own use in payment, 375. 
 when may take certificates of deposit, 375. 
 agent to receive payment has no implied authority to take checks, 852- 
 381. 
 liable if bank fails before payment, 352, note, 
 agent to receive payment may not release or compromise the debt with, 
 out full payment, 376. 
 may receive part payment, 377. 
 agent may not extend time, 378. 
 
 authority to receive interest does not authorize receipt of principal, 879. 
 does not authorize receipt of payment before due, 380. 
 authority to take check or note in payment does not imply authority to 
 
 indorse and collect it, 883. 
 agent to collect note on demand can not sell it, 383. 
 
 or deal with funds collected, 384. 
 implies authority to give appropriate discharge, 385. 
 when implies authority to sue, 386. 
 when may sue in his own name, 387. 
 when may employ counsel, 388. 
 not necessarily revoked by appointment of another agent to collect sam^ 
 
 sum, 219. 
 terminates at principal's death, 246. 
 AUTHORITY TO SELL LAND, 
 
 what is sufficient for the purpose, 318. 
 terminates at principal's death, 246. 
 when authority to be exercised, 319. 
 
 authority to sell "immediately," 319. 
 authority to sell "within a short time," 319. 
 what form of execution authorized, 320. 
 
 when includes land subsequently acquired, 320. 
 implies right to convey, 321. 
 to insert usual covenants of warranty, 323. 
 does not imply power to mortgage, 323. 
 Implies authority to receive bo much of purchase price as is to be paid 
 
 down, 324. 
 does not imply authority to give credit, 325. 
 except where agent is left to fix terms, 325. 
 
 when no time fixed, agent authorized to give credit, may give reason- 
 able time, 325.
 
 INDKX. 893 
 
 Beferences are to Sections, 
 
 AUTHORITY TO SELL LA.iiD,— Continued. 
 
 does not authorize exchange or gift of laads, 826. 
 does not authorize waste, 337. 
 
 or sale of timber separate from land, 327. 
 does not authorize changing boundaries of land, 328. 
 does not authorize partition, 329. 
 does not authorize dedication to public use, 330. 
 does not authorize conveyance in payment of agent's debts, 831. 
 does not imply power to revoke contract, 332. 
 does not imply power to discharge mortgages, 333. 
 
 but agent having general authority to deal in land may assume mort- 
 gage as part of the purchase price, 333. 
 does not imply power to invest proceeds, 334. 
 AUTHORITY TO SELL PERSONAL PROPERTY, 
 what constitutes such authority, 335. 
 can not be delegated to subagent, when, 186. 
 terminates with principal's death, 246. 
 when implies authority to receive payment, 836. 
 
 authority to receive payment not implied from possession of the bill, 337 
 agent having possession or other indicia of ownership may receive pay- 
 ment, 338. 
 
 agent to sell merely or to solicit orders, without possession of goods, 
 not authorized to receive payment, 339. 
 
 when travelling salesman may receive payment, 340. 
 
 how when payment to agent was part of the terms of sale, 841. 
 
 notice of want of authority, 342. 
 has no implied authority to sell his samples, 343. 
 purchaser from can not set off debt due from agent, 344. 
 when implies authority to hire horses, 345. 
 
 or authority to procure other supplies, 346. 
 when implies authority to warrant quality, 347, 348, 349, 850. 
 when implies authority to warrant title, 351. 
 does not imply power to barter or exchange, 85a. 
 does not imply power to give credit, 353. 
 does not authorize appropriation to agent's use, 354. 
 does not imply power to release principal's right or to pay his debts, 855. 
 does not imply authority to pledge, 356. 
 
 or to mortgage, 361. 
 does not imply authority to promise commissions on subsales, 857. 
 does not imply authority to sell at auction, 358. 
 when authority is to be executed, 359. 
 agent to sell has no implied power to rescind sale, 860. 
 
 may fix the price and terms of sale, 3C3. 
 AUTHORITY TO SETTLE, 
 
 authority to settle dispute does net authorize submission of it to arbitra- 
 tion, 405. 
 does not authorize assignment or pledge of demand, 406. 
 when implied, to settle claims for corporation, 86, note.
 
 394 INDEX. 
 
 References are to Sections. 
 
 BANKS. 
 
 liability of, in collecting, 514. 
 
 liable for ueglect of its own servants and agents, 514. 
 when liable for neglect of notary public employed by it, 514. 
 
 liable when it employs the notary by the year, 514. 
 when liable for neglect of correspondent banks, 514. 
 
 debtor himself not proper subagent, 514. 
 measure of damages against, 518. 
 BANKRUPTCY, 
 
 of principal terminates agent's authority, 263. 
 mere insolvency not enough, 264. 
 
 principal must voluntarily or involuntarily surrender control of busi- 
 ness, 264. 
 agent's authority not revoked when coupled with an interest, 265. 
 agent's right to compensation not defeated by, 638. 
 third persons dealing in ignorance of bankruptcy protected, 260. 
 of agent, dissolves general business authority, 267. 
 but not personal trusts, 267. 
 BARTER, 
 
 authority to sell no authority to barter, 353. 
 factor may not barter, 997. 
 BILL, 
 
 possession of no evidence of authority to collect, 337. 
 BILL BROKER, 
 
 definition of, 929. 
 
 liable as seller where principal concealed, 939. 
 warrants his authority to sell, 939. 
 and genuineness of signatures, 929. 
 but not solvency unless he indorses, 939. 
 BILL OF LADING, 
 
 when principal bound by, though goods not received, 717. 
 BILLIARD TABLE, 
 
 contracts to keep, when forbidden, void, 38. 
 BLANKS. 
 
 authority to fill, 
 
 in deed, liow conferred, 94. 
 
 how in principal's presence and by his direction, 96. 
 what execution of, binds principal, 394. 
 in negotiable paper, principal bound to bona fide holder though agent vio- 
 late instructions. 394. 
 BOARD, 
 
 when principal bound for board of traveling salesman, 346. 
 BOND, 
 
 given by agent, ratified, how, 151. 
 execution of, by agent, proper manner, 418, 430. 
 when agent bound by, 431. 
 when attorney may execute, 816. 
 BOND OF INDEMNITY, 
 
 against consequences of proposed unlawful act, invalid, 654.
 
 INDEX. ^5 
 
 Beferenoes are to Sections. 
 
 BOUGHT NOTE, 
 
 purpose and form of, by broker, 933. 
 BRITTON «. TURNER, the rule in tke caae of, 636, 637. 
 BROKERS, 
 I. Definitions and DrvisiON8. 
 
 brokers defined, 13, 937. 
 
 how differ from factors and auctioneers, 927. 
 differeDt kinds of, 928. 
 
 bill and note brokers, 929. 
 
 liable where principal is not disclosed, 929. 
 exchange brokers, 930. 
 Insurance brokers, 931. 
 
 how different from insurance agent, 931. 
 implied powers of insurance agent, 931. 
 implied power of insurance broker, 931. 
 duties of, to principal, 931. 
 may sue upon policy, when, 931. 
 have a lien upon the policy and its proceeds, 931. 
 merchandise brokers, 932. 
 defined, 932. 
 
 bought aod sold notes given by, 932. 
 pawnbrokers, 933. 
 
 are not ordinarily agents at all. 933. 
 real estate brokers, 934. 
 
 defined, 934. 
 ship brokers, 935. 
 
 definition and functions of, 935. 
 stock brokers, 736. 
 
 definition and functions of, 936. 
 mode of dealing, 936. 
 powers and duties of, 936, note. 
 n. Appointment and Termination. 
 appointed like other agents, 937. 
 
 appointment must be shown, 937. 
 no recovery for voluntary services, 937. 
 terminated as in other cases, 939. 
 III. Implied Powers op Brokers. 
 limited by scope and nature of undertaking, 989. 
 usage has largely developed them, 940. 
 
 what usages are valid, 940. 
 usual and necessary powers implied, 941. 
 effect of his instructions, 942. 
 acting for both parties, 943. 
 
 only with principal's consent, 943. 
 delegation of powers not generally permitted, 944. 
 
 but usage may sanction it, 944. 
 acts usually in name of principal, 945. 
 
 but usage may sanction different course, 945.
 
 896 INDEX. 
 
 Beferences are to Sections. 
 
 BROK^TIS,— Continued. 
 
 price may be fixed by, when, 946. 
 
 must be usual or market price, 948. 
 warranty of quality may be given, when, 947. 
 
 may sell by sample, when, 947. 
 credit may be given on sales, 948. 
 
 unless there be usage to the contrary, 948. 
 payment to does not generally bind principal, 949. 
 
 is therefore at payer's risk, 949. 
 rescission by, unauthorized, 950. 
 
 and so of arbitration of disputes, 950. 
 
 IV. DlTTIKS AND LlABIIilTIEB TO PRINCIPAL. 
 
 bound to exercise reasonable skill and diligence, 951, 
 
 is liable for losses occasioned by failure, 951. 
 fidelity to principal is required, 953. 
 
 cannot buy of or sell to principal, when, 952. 
 
 usage will not justify it, 953. 
 acting for both parties only allowed with consent of principal, 958. 
 
 without such consent, transaction voidable, 953. 
 instructions must be obeyed, 954. 
 
 except in case of sudden emergency, 954. 
 
 disobedience in other cases subjects broker to liability, 954. 
 
 illustrations of this rule, 954. 
 accounts must be kept and rendered. 955. 
 
 profits belong to the principal, 951. 
 
 V. Duties and Liabilities to Third Persons. 
 not liable when principal disclosed, 956. 
 
 if broker keeps within his authority, 956. 
 liable if principal is concealed, 957. 
 
 actual knowledge of the principal will alone relieve W7. 
 liable where he expressly charges himself, 958. 
 
 whether he has done so is a question of fact, 958. 
 liable where he acts without authority, 959. 
 liable for money received, 960. 
 guilty of a conversion, when, 961. 
 
 VI. Rights of Broker Against Principai.. 
 1. Bight to Gompensation. 
 
 broker is entitled to compensation, 963. 
 
 usually a commission, 963. 
 amount determined, how, 963. 
 
 usage or contract may fix, 963. 
 employment by principal must be shown, 964. 
 
 mere volunteer can not recover, &64. 
 performance of undertaking must be shown, 965. 
 
 and upon the terms specified, 965. 
 real estate broker entitled to compensation, when, 968. 
 
 is not required to obtain binding contract, 9G6.
 
 INDEX. 897 
 
 References are to Sections. 
 
 BROKERS, — Continued. 
 
 if purchaser produced is able, willing and ready to buy on terms pro- 
 posed, broker has performed, 966. 
 
 not necessary that broker should personally conduct negotiation, 060. 
 
 nor that he should have been present, 966. 
 
 nor that principal should know that broker produced the purchaser, 
 966. 
 
 if broker's efforts were procuring cause, sufficient, 966. 
 
 purchaser must be one on terms proposed, 966. 
 
 and be found within time limited, 966. 
 
 pecuniary ability of purchaser must be shown, 966. 
 
 abandonment by broker forfeits commissions, 966. 
 
 principal may eflEect sale himself, 967. 
 
 broker's commissions not to be defeated by principal, 967. 
 
 as by changing his terms, 967. 
 
 or refusing to sell, 967. 
 
 or by selling to another person, 967. 
 
 or by 80 negligently dealing as to lose sale, 967. 
 
 or by principal's title proving defective, 967. 
 
 or by his wife's refusal to sign deed, 967. 
 
 or by failure of sale on account of principal's false representations, 
 967. 
 reasonable time must be given to broker to sell, 968. 
 
 when contract for implied,968. 
 two or more brokers employed, rule as to, 969. 
 
 sale by one revokes authority of others, 969. 
 
 one who first sells entitled to the commission, 969. 
 
 abandonment by one forfeits his claim, 969. 
 
 broker who has sold should notify principal, 969. 
 loan broker, commissions of, 970. 
 
 is entitled when he has found lender ready and able, 9701 
 
 though principal neglects or refuses to borrow, 970. 
 
 or security proves invalid, 970. 
 exchange, broker to effect commissions of, 971. 
 
 not defeated by principal's neglect or default, 971. 
 both parties, broker can not have commissions from, 972. 
 
 unless with consent of both, 973, 
 
 usage can not justify, 973. 
 middle man, how in case of, 973. 
 
 these cases are exceptional, 973. 
 illegal undertakings, no commissions for, 974. 
 
 but broker must have been particeps erimmis, 974. 
 misconduct of broker forfeits commissions, when, 975. 
 
 principal may recoup his damages, 975. 
 unlicensed broker can not recover, 976. 
 
 but rule does not apply to single sale by private individual, 976L 
 2. Eight to Reimbursement and Indemnity. 
 is entitled to be reimbursed for lawful expenses, 977. 
 
 67
 
 898 INDEX. 
 
 References are to Sections. 
 
 BB.OKEB.Q,— Continued. 
 
 and to be indemnified against liability, 977. 
 
 as where he buys property by principal's order, 977. 
 or sells property which proves to be a stranger's, 977. 
 but liability must have been incurred by principal's authority or 
 direction, 977. 
 expenses incurred when undertaking not performed, 978. 
 8. Eig?it to a Lien. 
 no general lien possessed by brokers, 979. 
 
 reasons for the rule, 779. 
 special lien exists in certain cases. ♦ 
 
 as in case of insurance broker, 980. 
 no lien except for debt due from principal, 981. 
 
 no lien if broker knew he was dealing with an agent, 981. 
 
 VII. Rights of Broker against Third Persons. 
 no right of action generally, 982. 
 
 but may sue in certain cases, 983. 
 
 VIII. Rights of Principal against Third Persons. 
 entitled to all rights and remedies, 984. 
 
 IX. Rights of Thikd Persons against Principal. 
 same as in other cases of agency, 985. 
 
 set off of broker's debts not allowed, 986. 
 
 CALIFORNIA, 
 
 code provisions respecting agency. See Appendix. 
 CARRIERS OF PERSONS. 
 
 liability for negligence of servants and agents, 734-738. 
 
 for malicious or willful acts of servants or agents, 740-743. 
 (i^gn See Sales for Cash. 
 
 CERTIFICATE OF DEPOSIT, 
 
 when agent may take in payment, 375. 
 CHAMPERTY. 
 
 what contracts are champertous, 845. 
 CHATTELS— AUTHORITY TO SELL, 
 when the authority exists, 335. 
 when implies authority to receive payment. 838. 
 not implied from mere possession of bill, 337. 
 agent having possession or other indicia of ownership may recelTe 
 
 payment, 338. 
 agent to sell merely or to solicit order, not authorized to receive 
 
 payment, 339. 
 when travelling salesman may receive payment, 840. 
 how when payment to agent, part of terms of sale, 341. 
 what notice of want of autliority is sufficient, 342. 
 implies no authority to sell his samples, 343. 
 nor to set off debt due from himself, 344. 
 when may hire horses, 345. 
 or procure other supplies, 316.
 
 INDEX. 899 
 
 References are to Sections. 
 
 CHATTELS — AUTHORITY TO SIILL,— Co ntiJiued. 
 when implies authority to warrant quality, 347, 348. 
 
 illustrations of this, 349. 
 
 limits of the rule, 350. 
 
 no unusual or extraordinary warranty authorized, 350. 
 when implies authority to warrant title, 351. 
 when implies authf>rity to fix price and terms of sale, 363. 
 implies no power to exchange or barter, 352. 
 
 nor to give credit, 353. 
 
 nor to appropriate goods to his own use, 354. 
 
 nor to pay principal's debts, 355. 
 
 nor pledge goods, 356. 
 
 nor to mortgage them, 861. 
 
 nor to pay commissions for subsales, 357. 
 
 nor to sell at auction, 358. 
 
 nor to rescind the sale, 360. 
 
 nor to sell at other times than those specified, 359. 
 0HECK8, 
 
 agent to receive payment no authority to take, 352. 
 
 liable if bank fails before payment, 853, note. 
 CHURCH. 
 
 members of, when liable on contracts m-.ide in their behalf, 78. 
 
 CLAIM, 
 
 agent to settle, cannot buy and enforce against principal, 467. 
 discounts secured belong to principal, 469. 
 CLAIMS— PROSECUTION OF, 
 
 when undertakings for, are lawful, 26. 
 are lawful where no improper means contemplated, 26. 
 are void if personal solicitation is to be used, 26. 
 CLUBS, 
 
 when bouod by acts of agents, 72. 
 
 how agents may be appointed by, 72. 
 
 when members individually liable on contracts, 73. 
 
 mere membership does not create liability, 72. 
 
 unless so provided in charter or by-laws, 73, 74 
 member in other cases must assent, 72, 73, 74. 
 
 or ratify, 72. 
 illustrations of this rule, 73. 
 the true rule stated, 74. 
 are not partnerships, 72. 
 members not liable as partners, 72. 
 COLLECTION AGENCY, 
 
 See Collection Agent; MiiRCANTTLE Aoenot. 
 COLLECTION AGENT. 
 
 when authorized to collect, 371. 
 
 when authority implied from having negotiated contracts, 873. 
 from possession of bill or securities, 373. 
 from having sold the goods, 374.
 
 900 INDEX. 
 
 Beferences are to Sections. 
 
 COLLECTION AGEIHT,— Continued. 
 
 can receive nothing but money in payment, 375. 
 
 cannot release or compromise the debt, 876. 
 
 ■when may receive part payment, 877. 
 
 may not grant extensions of time, 378. 
 
 authority to collect interest does not warrant collection of principal, 879. 
 
 cannot receive before debt is due, 380. 
 
 cannot accept checks, 881. 
 
 cannot indorse or collect checks or notes taken in payment, 883. 
 
 cannot sell the demand, 383. 
 
 nor speculate with proceeds, 884. 
 
 may give receipt or discharge, 885. 
 
 when may sue, 386. 
 
 when may sue in his own name, 887. 
 
 may employ necessary counsel, 388. 
 
 liable for loss of debt through his neglect, 511. 
 
 must take all steps reasonably necessary to collect, 511. 
 
 must protest paper when necessary, 611. 
 
 must give necessary notices, 511. 
 
 must procure acceptance without delay, 511. 
 liable for negligence in remitting the money, 512. 
 
 must notify principal of collection, 530. 
 
 may then await principal's instructions as to mode of sending the 
 money, 530. 
 when his undertaking to collect is absolute, 515. 
 
 construction of receipt "for collection," 515. 
 
 is liable for correspondents and subagents, 513. 
 
 may limit his liability by express stipulations, 616. 
 
 measure of damages against, 518. 
 
 when demand on, necessary before suit, 531. 
 
 when chargeable with interest, 532. 
 COMMERCIAL TRAVELLER, 
 
 See Travellino Agent. 
 COMMISSION MERCHANT, 
 
 See Factobb. 
 
 COMMISSIONS, 
 
 See Compensation of Agent. 
 
 of broker, 962, et seq. 
 
 of auctioneer, 917, et seq. 
 
 of factor, 1027, et seq. 
 COMMITTEES. 
 
 when bound by member's act, 73, 73, 74. 
 
 when members of, individually liable, 72, 73, 74. 
 
 members liable who assent or ratify, 72, 73. 
 
 how assent shown, 73. 
 
 liable when they represent an irresponsible principal, 557.
 
 INDEX. 901 
 
 Beferences are to Sections. 
 
 COMPENSATION OP AGENT, 
 1. Right to Compensation. 
 parties may make express agreements concerning, 697. 
 express agreement conclusive, 598. 
 agreement must be express, when, 699. 
 when promise to pay will be implied, 600, 601. 
 
 no recovery for mere friendly acts, 600. 
 
 or for spontaneous acts of kindness, 600. 
 
 or for services rendered without expectation of reward, 600. 
 
 gratuitous services no consideration for promise to pay, 600. 
 promise to pay implied where services are requested, 601. 
 or where rendered under circumstances implying promise, 601. 
 or where party permits them to be rendered knowing that agent ezpecti 
 
 pay, 601. 
 unauthorized agent entitled to, if act ia ratified, 602. 
 3. Amount op Compensation. 
 express contract governs, 603. 
 may be left for principal to determine, 604. 
 
 where no express agreement, reasonable compensation implied, 605. 
 what elements may be considered in fixing, 606. 
 what evidence of value is admissible, 607. 
 
 agent continuing after expiration of term, presumed to be at old rate, 
 608. 
 8. When Compensation is Eaknbd. 
 earned when undertaking is fully completed, 610, 
 how when full performance a condition precedent, 611. 
 not defeated by principal's default, 612. 
 immaterial that principal realized no profit, 613. 
 how when authority revoked before performance, 614, 
 
 when agency at will of principal, 616. 
 
 when agency terminable on contingency, 617. 
 
 when terminable for breach of conditions, 618. 
 
 when terminated for agent's misconduct, 619. "v, 
 how when authority was revoked without cause, 620. 
 agent's remedies, 621. 
 the measure of damages, 622. 
 agent's duty is to seek other employment, 623. 
 
 what this means, 623. 
 
 what employment agent is bound to accept, 623. 
 
 what will excuse the acceptance of it, 623. 
 when agent's right of action accrues, 624. 
 
 doctrine of present breach, 624. 
 agent cannot recover if he acquiesces in discharge, 625. 
 
 but proof of his acquiescence must be clear, 635. 
 agent not entitled to damages if agency revoked by principal's death, 
 626. 
 
 nor by his insanity, 627. 
 
 but principal's bankruptcy does not excuse, 628.
 
 902 INDEX. 
 
 Eeferoncos aro to Sections, 
 
 COMPENSATION OF AG'E.^T,— Continued. 
 
 how when agency revoked by agent's death, 629. 
 when by insanity of agent, 630. 
 when by agent's sickness or incapacity, 631. 
 how when agent abandons agency, 632. 
 
 no forfeiture if abandonment lawful, 632. 
 
 but otherwise if abandonment was wrongful, 633. 
 
 how when contract entire, 634 
 
 and severable, 634. 
 the rules stated, 635. 
 
 full performance a condition precedent, 635. 
 the more liberal rule of Britton v. Turner, 636. 
 COMPROMISE, 
 
 attorney at law no implied authority to compromise client's claim. 818. 
 uuauthorizL'd by agent, ratified by accepting proceeds, 149. 
 COMPROMISE OF CRIME, 
 contracts for are void, 27. 
 
 to pivy for discontinuing proceedings, 27. 
 to suppress indictment, 27. 
 to prevent escape of criminal, 27. 
 to use personal influence with prosecuting officers, 27. 
 CONDUCTOR OF RAILWAY, 
 
 may not employ physician to attend injured passenger, 396. 
 CONSIGNEE, 
 
 See Factobs. 
 CONSIGNOR, 
 
 See Factors. 
 
 CONSTRUCTION OF AUTHORITY, 
 1. "When Authority Conferued by Writino, 294, 308. 
 
 construction of writing for court, 294. 
 
 written authority must be produced, 294. 
 
 intention of the parties is the true test. 295. 
 
 how intention is to be discovered, 296. 
 
 language to be given its legal effect, 296. 
 
 intention is to be gathered from whole instrument, 297. 
 
 whether made up of one paper or more than one, 297. 
 surroundings of the parties are to be considered, 298. 
 parol evidence may be resorted to, to explain uncertainties, 299, 
 
 or to identify the subject-matter, 300. 
 parol evidence can not enlarge authority, 301. 
 nature and extent of authority are to be determined from the writing 
 
 itself, 301. 
 where writing is not indispensable, agent's powers may be enlarged or 
 
 extended by parol, 301. 
 parol evidence can not contradict writing, 302. 
 effect is to be given to every word and clause if possible, 303. 
 transaction is to be upheld rather than defeated, 304. 
 lawful interpretation preferred to unlawful, 304.
 
 INDEX. 903 
 
 References aro to Sections. 
 
 CONSTRUCTION OF AUTHORITY,— Con^wMed. 
 authority is to be coustrued in liglit of lex loci, 305. 
 general powers limited by specific object, 306. 
 
 and by recitals, 306. 
 limited to principal's private business, 807. 
 
 only those powers expressly given or necessarily implied are to be in- 
 cluded, 308. 
 formal written instruments strictly construed, 308. 
 2. Where Authority is Unwritten or Implied, 309, 313. 
 more liberal construction prevails, 309. 
 general authority implies incidental powers necessary to accomplish 
 
 object, 311. 
 implied authority not to be extended beyond its legitimate scope, 312. 
 is to be limited to performance of like acts under like circumstances, 
 
 312. 
 is to be confined to principal's own business, 313. 
 8. Where Authority is Ambiguous, 314, 315. 
 duty of principal to make his instructions clear, 314. 
 where authority is ambiguous, construction adopted in good faith, binds 
 
 the principal, 315. 
 language to be given its plain and ordinary meaning, 315. 
 CONSTRUCTION OP WRITINGS. 
 
 construction of writings is for court, 104. 
 
 whether writing produced creates agency is for court to determine, 104. 
 and if so, what is its nature and extent, 101. 
 CONSTRUCTIVE SERVICE. 
 
 doctrine of repudiated in the United States, 623. 
 readiness to perform may be shown by other evidence, 622. 
 CONSULTING PHYSICIAN. 
 
 when may recover for services, 601. 
 CONTINGENT COMPENSATION, 
 when renders contract void, 21. 
 attorney may contract for, 844. 
 CONTRACT. 
 
 agency a legal relation based upon, 1. 
 what contracts of agency are valid, 18 ei seq. 
 how should be executed by agent, 408, 418. 
 contracts under seal, 418, 430. 
 negotiable instruments, 43v, 444. 
 simple contracts, 445, 449. 
 when agent liable upon those made by him, 542, 558. 
 when principal liable, 695, 713. 
 when agent may sue upon, 755, 759. 
 when principal may sue upon, 768, 773. 
 made by agent acting for both parties is voidable, 713. 
 CONTRACTOR. 
 
 See Independent Contractor.
 
 904 INDEX. 
 
 Heferences are to Sections. 
 
 CONTRACTS— PROCURING OP. 
 
 undertakings to procure from government, when void, 34. 
 void if contemplate use of personal influence, 24. 
 especially when for a contingent fee, 24. 
 such contracts are judged by the natural tendency, 24. 
 are valid when no improper means contemplated, 24. 
 illustrations of the rule, 25. 
 CONTRIBUTORY NEGLIGENCE. 
 of agent defeats his recovery, 670. 
 
 what constitutes, 670. 
 of principal defeats recovery against agent, 503. 
 CONVENIENCE. 
 
 agency not presumed from mere considerations of, 85. 
 CONVERSION. 
 
 when agent liable for, 573, 574. 
 when broker liable for, 961. 
 when auctioneer liable for, 915. 
 when factor liable for, 1050. 
 CONVEYANCER. 
 
 duties and liabilities in preparing contracts, 830. 
 communications to not privileged, 883. 
 COUNSEL. 
 
 attorney may employ when, 813. 
 agent for collection may employ, when, 888. 
 CORPORATIONS. 
 
 may appoint agents, 44 
 
 appointment inferred from open exercise of authority, 88. 
 may act as agents, 64. 
 when bound by acts of promoters, 75. 
 how its agents may be appointed, 97. 
 
 to execute deed of corporate realty, 98. 
 may ratify acts of agent, 118. 
 
 may be done indirectly, 118. 
 may ratify acts of promoters, 75. 
 may ratify by acquiescence, 158. 
 
 same results follow ratification as in case of individual, 167 
 cannot delegate management, 191. 
 when dissolution dissolves agency, 221. 
 notice to agent of, is notice to, 729. 
 when notice to director binds, 730. 
 when notice to stockholders binds, 731. 
 CORRUPTION OF AGENTS. 
 
 contracts void, having this for their purpose, 87. 
 CREDIT. 
 
 agent may sell upon, when, 353. 
 auctioneer has no general power to grant, 900. 
 broker may give when usage justifies, 948. 
 factor may sell upon, unless usage forbids, 990.
 
 LNDEX. 905 
 
 Beferenoes are to Seotions. 
 
 OKEDTT,—Omtinued. 
 
 agent may purchase on principal's, when, 364. 
 a^ent may pledge principal's, 396. 
 CRIMINAL ACTS. 
 
 of agent, when principal civilly liable, for, 745. 
 when principal criminally liable for, 749^ 
 CUSTOM. 
 
 Bee UsAGB. 
 DAKOTA. 
 
 code of, as to agency. 
 
 See Appendix. 
 DAMAGES. 
 1. Pkincipal against Agent. 
 agent liable in for injuries caused by his disobedience, 474. 
 what constitutes the measure of, 474. 
 must not be remote or problematical, 474. 
 
 agent liable for failing to remit as instructed, 475. 
 for failure to ship goods as directed, 475. 
 for failure to insure as instructed, 475. 
 for selling to irresponsible purchaser, 475. 
 for failure to cancel insurance as directed, 475, 
 for giving credit contrary to instructions, 475. 
 when liable in trover, 476, 
 what constitutes a conversion, 476. 
 agent's intent is immaterial, 477. 
 how when agency was gratuitous, 478. 
 
 not liable for undertaking performance, 478. 
 but if undertaken, must be faithfully executed, 478. 
 agent not bound to perform illegal or immoral act, 480, 
 departure from instructions may be justified by sudden emergency, 481. 
 when agency substantially executed agent not liable for immaterial 
 
 departure, 483, 
 how when instructions were ambiguous, 484. 
 effect of custom on liability, 485. 
 agent liable for loss from his negligence, 488-493. 
 must exercise usual precautions, 493. 
 when agent warrants that he possesses skill, 496. 
 rule when agency gratuitous, 497. 
 how when employed in capacity implying skill, 498. 
 is bound to exercise the skill he possesses, 499. 
 not liable for unforeseen dangers, 501. 
 contributory negligence of principal releases agent, 503. 
 principal entitled to full compensation, 506, 
 
 when judgments, costs and counsel fees elements, 507. 
 agent liable for neglect in making loans, 509. 
 
 liable for not effecting insurance as directed, 510. 
 liable for loss in making collections, 511. 
 liable for neglect in making remittances, 512. 
 when liable for subagent's neglect, 513.
 
 906 INDEX. 
 
 References are to Sections. 
 
 BA.'M.A.GYIS,— Continued. 
 2. Agisnt against Puincipal. 
 express contract governs, 603. 
 may be left for principal to determine, 604. 
 where no express ai^reement, reasonable compensation, 605. 
 what elements may be considered, 608. 
 what evidence of value admissible, 607. 
 agent contmuing after expiration of agency, presumed to be at old 
 
 rates, 608. 
 agent's claim not defeated by principal's default, 612. 
 
 nor by fact that principal realized no profits, 613. 
 when agent entitled to compensation if authority revoked "before perform- 
 ance, 614. 
 no future compensation if authority is rightly revoked, 615. 
 
 nor where agency was at principal's will, 616. 
 
 nor where agency was terminable on a contingency, 617. 
 but where agent is wrongfully discharged, he is entitled to damages, 618. 
 how when terminated for agent's misconduct, 619. 
 
 what misconduct sufficient, 214, C19. 
 how when agent wrongfully discharged, 620. 
 
 what remedies agent has, 631. 
 
 the measure of damages to be recovered, 623. 
 
 agent's duty to seek other employment, 628. 
 
 what other employment he is bound to accept, 623. 
 
 •when agent's right of action accrues, 624. 
 the doctrine of a present breach, 624. 
 
 no damages if agent acquiesces in discharge, 625. 
 no damages if agency revoked by principal's death, 626. 
 
 nor where revoked by principal's insanity, 627. 
 
 but principal's bankruptcy is no defense, 628. 
 how when revoked by death of agent, 629. 
 
 or by agent's insanity, 630. 
 
 or by agent's sickness or incapacity, 631. 
 how when performance abandoned by agent, 632, 633. 
 
 1. when abandonment was justifiable, 632. 
 
 2. when abandonment was unjustifiable, 633. 
 entire and severable contracts, 634. 
 
 agent forfeits compensation by wrongful abandonment, 635. 
 the rule of Britton v. Turner more liberal, 636, 637. 
 
 brief absences no abandonment, 638. 
 
 condonation of abandonment, 639. 
 
 what will excuse abandonment, 640. 
 contracts not to terminate without notice, 641. 643. 
 
 what are lawful, 641, 642. 
 
 must be express, 641, 642. 
 
 what works a forfeiture, 642. 
 double agency, agent cannot recover for, 643. 
 
 unless fully known and assented to, 644.
 
 INDEX. 907 
 
 References are to Sections. 
 
 I>A.M.A.Q'ES,—ConH7iued. 
 
 unlawful undertakings, no recovery for, 645. 
 
 what these are, 18 et seq. 
 extra services, when recovery for, may be had, 646. 
 
 none when employed at regular salary, 646. 
 recoupment, principal's right of, 647. 
 
 what damages may be recouped, 648. 
 limit of the recovery, 649. 
 right not cut o£E by assignment of claim, 650. 
 none against an infant, 
 agent must be reimbursed for proper outlays, 653. 
 
 but not for those caused by his own default or neglect 653. 
 agent must be indemnified against losses or liabilities incurred in princi 
 pal's behalf, 653. 
 
 but agent is not entitled to indemnity if act was unlawful, 654. 
 1. For Injuries from Risks incident to Business. 
 
 principal generally not liable, 656. 
 S. For Injuries from Negligence of Principal. 
 principal responsible for his own negligence, 657. 
 for dangerous premises, 658. 
 for dangerous tools and machinery, 659. 
 
 for injuries resulting from failure to repair as agreed, 660, 661. 
 for employment of incompetent servants, 663. 
 for injuries outside of employment, 663. 
 8. For Injuries from Negligence of his General Superintendent. 
 principal cannot escape responsibility by employment of general agents, 
 664. 
 is liable for general agent's neglect, 665. 
 when liable to agents of independent contractor, 666. 
 4. Firr Injuries from Negligence of his Fellow-servants. 
 principal in general not liable, 6G7. 
 who is a fellow-servant, 668. 
 volunteer assisting servant is, 669. 
 contributory negligence of servant defeats recovery, 670. 
 agreements to waive liability invalid. 
 3. Third Persons agaikst Puincipal. 
 I. In Contract. 
 1. undisclosed principal. 
 liable when discovered, on simple contracts, 695, 696. 
 the rule of liability stated, 696. 
 
 not liable where he has previously been misled by other party into 
 
 settling with agent, 697. 
 not liable where other party has trusted agent exclusively, 698. 
 what constitutes election to hold agent alone, 699. 
 election must be made within a reasonable time, 700. 
 principal may be charged although name does not app.'ar, 701. 
 or although other party supposed agent to be principal, 701. 
 or although contract is in writing, 701. 
 rule does not apply to contracts under seal, 703.
 
 908 INDEX. 
 
 Beferences are to Sections. 
 
 DAMAGES, — Continued. 
 t, disclosed principal. 
 liable for all of agent's authorized acts and contracts, 704, 705. 
 other party must ascertain agent's authority, 706. 
 what constitutes authority, 707. 
 
 apparent authority not limited by secret instructions, 708. 
 of general and special agents, 709. 
 ajrent's authority must not be exceeded, 710. 
 effect of ratification, 711. 
 unlawful act not enforced, 712. 
 
 principal not bound where agent had adverse interest, 713. 
 liable for agent's admissions and representations, 714. 
 
 but only when made in respect to matter within his authority, 714. 
 and when made at the time of the transaction, 714. 
 must be part of res gesta, 714. 
 what embraced within res gestae, 715. 
 agent's authority must be shown before admissions, 716. 
 liable for agent's representation of extrinsic facts on which authority 
 depends, 717. 
 n. In Tobt. 
 
 liable for agent's wrongful acts expressly directed, 733. 
 liable for agent's neglected act in course of employment, 734. 
 
 what acts are within this rule, 735, 736. 
 not liable for negligence of agent not in course of employment, 737. 
 
 illustrations of the rule, 738. 
 liable for agent's fraudulent acts in course of employment, 739. 
 liable for agent's malicious act in course of employment, 740. 
 
 illustrations of this rule, 741, 
 liable for agent's use of excessive force, 742. 
 liable for agent's false or fraudulent representations, when, 743. 
 
 third persons remedies in such case, 744. 
 liable civilly for agent's criminal or penal act, when, 745. 
 liable criminally for agent's criminal or penal act, when, 746. 
 liable for acts of independent contractor, when, 747. 
 
 illustrations of this rule, 748. 
 effect of ratification on liability, 750. 
 measure of damage recoverable, 751. 
 
 unsatisfied judgment against agent no bar to holding principal, 752. 
 4. Principal against Third Persons. 
 principal may recover securities wrongfully released, 790. 
 may recover property wrongfully sold by agent, 791. 
 principal may recover for injuries from third person's torts, 793. 
 for enticing agent away, 793. 
 
 for preventing agent from performing his duty, 794. 
 for personal injury to agent causing loss of service, 795. 
 third person not liable for agent's own torts or neglect, 796. 
 cannot build up claim on ratification of agent's unauthorized act, 179. 
 principal entitled to enforce all rights against third persons, 767.
 
 INDEX. 909 
 
 References are to Sections. 
 
 'DAMA.GES,— Continued. 
 
 may sue on contracts made in his name, 768. 
 may sue on contracts made in his behalf but in a!z:ent*9 name, 769. 
 except where contract was personal to the a<;enf, 770. 
 or where it was made with agent exclusively. 771. 
 principal's right to sue superior to agent's, 772. 
 
 principal subject to defenses which could have been made af,'ainst agent, 
 773. 
 unless other party knew he was dealing with an agent, 774. 
 principal takes subject to defenses founded on agent's fraud or misrepre- 
 sentations, 775. 
 third persons cannot dispute principal's title, when, 776. 
 principal may recover money wrongfully paid or used by agent, 778, 779, 
 
 783. 
 principal may follow and recover trust funds as long as they can be 
 
 Identified, 780-782. 
 principal may recover property wrongfully used or disposed of by agent, 
 
 784-787. 
 principal may recover property appropriated to agent's use, 789. 
 
 5. A.GENT AGAINST ThIRD PERSONS, 
 
 agent may recover money paid by him under mistake or illegal contract, 
 
 761. 
 what defenses open to third person, 763. 
 what damages agent may recover on contract, 763. 
 agent may recover for personal trespass, 764, 
 when agent may recover for injuries to ptincipars property, 705. 
 
 6. Third Persons against Agents. 
 A. Private Agents. 
 
 1. In Contract, 
 agent not liable for non-feasance, 539. 
 liable for misfeasance, 540. 
 liable where he acts without authority, 542, 550. 
 
 liable where he expressly warrants his authority, 513. 
 liable where he makes false representations as to, 543. 
 liable where, while he knowehe has no authority, he yet contract* 
 
 as authorized, 544. 
 liable for assuming an authority he does not possess, 545 
 but other party must have acted in good faith. 545. 
 implied warranty limited to matters of fact, 545. 
 how where he fully discloses his authority, 546. 
 how in case of public agents, 547. 
 
 contract must have been one enforceable against principal, if author- 
 ized, 518. 
 in what form of action agent is liable, 549. 
 when agent is liable on contract itself, 550. 
 liable where, though authorized, he fails to bind principal, 552. 
 liable for breach of implied warranty of authority, 553. 
 only when it depends on questions of fact, 553. 
 not liable for defect in point of law, 653 and note.
 
 910 INDEX. 
 
 References are to Sections, 
 
 DAMKO^S.— Continued. 
 
 liable where he conceals agency, 554. 
 
 or name of his principal, 554. 
 not liable where he makes a full disclosure, 555. 
 how when agent acts for a foreign principal, 556. 
 liable where there is no responsible principal, 557. 
 liable wliere he contracts personally, 558. 
 not liable for money paid over to principal before notice, 561. 
 
 or where before notice his situation has been changed, 563. 
 but is liable if agency was not known, 563. 
 liable for money illegally obtained, 564. 
 
 but not if it was voluntarily paid, 565. 
 how when agent was mere stockholder, 566. 
 when liable to third persons for money received for them, 567. 
 
 what constitutes assent in such cases, 568. 
 2. In Tort. 
 
 not liable for non-feasance, 569. 
 
 not liable to stranger for breach of duty owing to principal, 569, 670. 
 
 malicious motive is not material, 570. 
 liable for misfeasances, 571. 
 distinction between non-feasance and misfeasance, 573. 
 
 principal's knowledge or direction no defense, 573. 
 
 fact that asent derived no benefit, no defense, 573. 
 
 nor that he acted in good faih, 573. 
 
 liability in respect to subagonts, 575. 
 
 B. Public Agents. 
 
 See Public Agents. 
 
 in case of attorneys at law. 
 
 See Attoukets at Law. 
 In case of auctioneers, 
 
 See Auctionp:er8. 
 
 in case of brokers, 
 in case of factors. 
 
 See BiiOKERS. 
 Bee Factors. 
 
 DEATH. 
 
 1. Of PRINCIPAIi. 
 
 terminates authority of agent, not coupled with interest. 240. 
 except so far as already executed, 240. 
 agent not entitled to damages for such termination, 240. 
 when coupled with an interest, subsequent execution will be good, 
 
 241. 
 what interest will be sufficient, 243, 243. 
 instances of this, 243. 
 
 power to collect when not terminated, 243. 
 power of sale in mortgage not terminated, 343. 
 what interest not sufficient, 244. 
 bare power to sell land, 244. 
 
 although for purpose of paying debt, 244.
 
 INDEX. 911 
 
 Beferences are to Sections. 
 
 DI^TU,— Continued. 
 
 interest In compensation not enough, 244. 
 authority to occupy land, 244. 
 or to sell a chattel, 244. 
 or to make repairs, 244. 
 or to demand payment, 244, 
 or to receive notice of dishonor, 244. 
 or to procure a patent, 244. 
 effect on agent's right to compensation, 626. 
 that death was unknown makes no difference, 245. 
 
 payment to agent after death of principal, not good, 246. 
 
 or discount by agent, 246. 
 
 or his sale of real estate, 246. 
 
 or his purchase of goods, 246. 
 
 or his delivery of goods bargained by principal in his life-time, 
 
 246. 
 but where order was sent for goods in principal's life-time, 
 it may be filled afterwards, 246. 
 of one partner or joint owner dissolves agency, 247. 
 dissolves authority of subagent, 
 2. Of Agent. 
 death of agent terminates agency, 249. 
 unless coupled with an interest, 250. 
 effect of, on compensation, 629. 
 death of one of two joint agents terminates authority when agency wa» 
 joint, 251. 
 but not when joint and several, 251. 
 death of agent terminates authority of his subagent, 252. 
 
 but not where the subagent was appointed by the authority of the 
 principal, 252. 
 DEDICATION TO PUBLIC USE, 
 
 authority to sell land does not authorize, 830. 
 DEED. 
 
 authority to execute, how conferred, 93. 
 to fill blanks in, how conferred, 94. 
 how when executed in principal's presence and by his direction, 96. 
 authority to execute deed of corporate realty, liow conferred, 98. 
 how unauthorized execution of deed ratified, 137. 
 rule relaxed in partnership cases, 138. 
 Massachusetts rule, 139. 
 modern rule more liberal, 140. 
 unnecessary seal disregarded, 141. 
 by authority subsequently conferred, 142. 
 by answer in chancery, 143. 
 how to be executed, 419, 430. 
 
 must be made in name of principal, 419. 
 
 how question of proper execution determined, 420. 
 
 not enough that agent be described as such, 421.
 
 912 INDEX. 
 
 Refbrenoes are to Sections. 
 
 DIl>ED,—Ooniimted. 
 
 illustrations of this rule, 422, 423. 
 
 when words continued as deseriptio pertonm, 424. 
 
 what form is sufficient, 426. 
 
 how in case of public agents, 426. 
 
 whether necessary that fact of agency appear, 437. 
 
 rule of Wood v. Qoodridge, 427. 
 
 how this rule considered, 428. 
 
 not imperatively necessary, 429. 
 
 parol evidence not admissible to discharge agent, 480. 
 but may be used to explain ambiguity, 430. 
 DEL CREDERE COMMISSION, 
 defined, 14, 986a. 
 
 liability of factor who sells under, 1014. 
 liability of agent who sells under, 620. 
 not within statute of frauds, 1014^ 
 DELEGATION OP AUTHORITY, 
 delegation by principal, 183. 
 delegation by agent, 184-197. 
 agent may not delegate personal trusts, 185. 
 judgment and discretion cannot be delegated, 186. 
 attorneys cannot delegate, 187. 
 auctioneers cannot delegate, 899. 
 brokers cannot delegate, 944. 
 factors cannot delegate, 998. 
 arbitrators cannot delegate their powers, 188. 
 executors, guardians, &c. cannot delegate their trusts, 189. 
 same rule applies to municipal corporations, 190. 
 
 and to private corporations, 191. 
 exceptions and modifications, 192-197. 
 
 1. mechanical and ministerial duties may be delegated, 198. 
 
 2. may delegate when necessity requires it, 194. 
 
 8. may delegate when usage or course of trade justifies it, 19S. 
 
 4. when delegation originally contemplated, 196. 
 effect of appointment of subagent, 197. 
 DEMAND. 
 
 when must be made on agent before suit against him, 631. 
 
 on factor before suit, 1025. 
 
 on attorney, 833. 
 DISCRETION. 
 
 may not be delegated, 186. 
 DISOBEDIENCE. 
 
 when principal may terminate agency for, 214, 215. 
 agent must obey all lawful instructions, 473, 474. 
 
 liable for damages resulting from disobedience, 474. 
 
 what damages recoverable, 474, 475. 
 
 agent may be discharged, 474. 
 
 illustrations of his liability, 475.
 
 INDEX. 9-18 
 
 References are to Sections. 
 
 DISOBEDIENCE,— C<>7iii««ed. 
 
 liable for not shipping goods as directed, 475. 
 
 for not insuring as directed, 475. 
 
 for not remitting as directed, 475. 
 
 for selling to irresponsible parties, 475. 
 
 for not selling for cash, 475. 
 in what form of action agent liable, 476, 479. 
 how when agency was gratuitous, 478. 
 how when act illegal, 480. 
 
 departure from instructions may be justified by sudden emergency, 481 
 limiiatious upon this rule, 48:3. 
 
 how when authority has been substantially pursued, 483. 
 how when instructions were ambiguous, 484. 
 when usage or custom will justify departure fr<i!n, 485, 486. 
 presumption is that agent did not disobey his iutiiructioui>, 487. 
 DISSOLUTION OF THE AGENCY, 
 variety of methods, 199. 
 by original agreement, 200-202. 
 by efflux of time, 200. 
 by accomplishment of object, 201, 202. 
 by act of the parlies, 203. 
 
 revocation by the principal, 204. 
 
 principal may revoke at any time when not coupled with an 
 intent, 204. 
 
 what interest is sufficient, 205. 
 
 instances of this, 206. 
 
 what interest not sufficient, 207. 
 
 bare powers may be revoked, 208. 
 
 how power to revoke distin!:;uished from right to revoke, 209. 
 
 when right to revoke exists, 210. 
 
 what amounts to a contract for a definite time, 211. 
 
 how when contract unilateral, 211. 
 
 how when there is no mutuality, 211. 
 
 when definite time will be inferred, 212. 
 
 when agency terminable for agent's incompetence, 213. 
 
 when agency terminable for agent's misconduct, 214, 215. 
 
 how the authority may be revoked, 216, 
 
 when sealed instrument required, 217. 
 
 express revocation not required — when, 218. 
 
 when revocation may be implied, 219. 
 
 as by disposing of subject-matter, 220. 
 
 by dissolution of partnership, 231. 
 
 by severance of a joint interest, 222. 
 notice of revocation must be given, 223. 
 
 to third persons when agency was general, 224. 
 
 none required when agency was special, 235. 
 
 notice must be given to agent, 236. 
 
 68
 
 914 INDEX. 
 
 References are to Sections. 
 
 DISSOLUTION OF THE AQEl^CY, — Continued. 
 
 when must be given to subagent, 227. 
 how notice should be given, 228. 
 
 how when authority a matter of record, 229. 
 
 notice should be unequivocal, 230. 
 
 how its sufficiency is determined, 231. 
 public agency not revocable at will of principal, 232. 
 renunciation by agent, 233. 
 
 agent may renounce at any time, 283. 
 
 by mutual consent, 234. 
 
 abandonment by agent may be treated as, 235. 
 
 agent may abandon if required to do illegal act, 286. 
 
 notice of renunciation when required, 237. 
 by operation of law, 238. 
 
 by death of principal, 239, 
 
 death of principal terminates agency ^not coupled with an Interest, 
 240, 241. 
 
 except so far as executed, 240. 
 what interest is sufficient, 242. 
 Instances of sufficient interest, 248. 
 what interest not sufficient, 244. 
 how when death unknown, 245. 
 illustrations of this, 246. 
 
 how when partially executed before death, 248. 
 death of partner or joint owner dissolves agency, 247. 
 
 death of principal dissolves authority of subagent or substitute, 
 248. 
 by death of the agent, 249. 
 death of agent usually terminates agency, 249. 
 
 not when coupled with an interest, 250. 
 when death of one of two agents terminates agency, 251. 
 death of agent terminates authority of his substitute, 259. 
 by insanity of principal, 253. 
 
 insanity revokes or suspends agency, 254. 
 
 not when coupled with an interest, 256. 
 
 what evidence of, sufficient, 257. 
 
 how when other party was ignorant of it, 255. 
 by insanity of agent, 258, 259. 
 
 how when insanity unknown, 260. 
 
 insanity of one of two or more agents, 261. 
 
 effect on subagent, 262. 
 by bankruptcy of the principal, 263. 
 
 mere insolvency not enough, 264. 
 
 agent's authority not dissolved when coupled with an Interest, 265. 
 how when bankruptcy unknown, 266. 
 by bankruptcy of the agent, 267. 
 by marriage, 268. 
 by war, 269,
 
 INDEX. 916 
 
 Heferences are to Sections* 
 
 DOUBLE DEALING. 
 
 principal not bound by contracts, obligations or rights in action obtained 
 by, 797. 
 by acting promptly, principal may rescind, 797. 
 or have appropriate relief in equity, 797. 
 principal not bound when agent is in secret employment of other party, 
 798. 
 principal may repudiate contract, 798. 
 may recover what he parted with, 798. 
 that he was not in fact injured makes no difference, 798. 
 DRUMMER. 
 
 see Travellino Aoekt. 
 DRUNKARD. 
 
 when may appoint agents, 49. 
 what degree of drunkenness incapacitates, 49. 
 may appoint during sober interval. 49. 
 may subsequently ratify appointment, 50. 
 agent who becomes, may be discharged, 215. 
 DRUNKENNESS. 
 
 principal may discharge agent for, 215. 
 DUTIES AND LIABILITIES OF AGENT TO PRINCIPAL. 
 1. Agent must be loyal to his trust, 
 loyalty to his trust the first duty of the agent, 454. 
 must not put himself in relations antagonistic to principal, 455. 
 makes no difference that principal not injured, 455. 
 law has regard to tendency of such transactions, 455. 
 may not deal in business of agency for his own benefit, 458. 
 agent authorized to purchase for principal may not buy for himself with- 
 out principal's consent, 457. 
 cannot do indirectly what he cannot do directly, 457. 
 same principle applies to leases, 458. 
 what evidence of the trust is sufficient, 459. 
 when rule does not apply, 460. 
 agent authorized to sell or lease cannot become purchaser or lessee, with- 
 out principal's consent, 461. 
 if he does so the principal may repudiate it and recover back his prop. 
 
 erty, 461. 
 makes no difference that principal was not injured, 461. 
 agent authorized to purchase may not purchase of himself without prin- 
 cipal's consent, 462. 
 if he does, principal may repudiate, 462. 
 no difference that he intended to benefit principal, 463. 
 to what agents this rule applies, 463. 
 disabilities apply to clerks, subagents and partners, 463. 
 can not do indirectly what he can not do directly, 464. 
 principal may ratify act, 464. 
 usage cannot defeat, 465.
 
 916 INDEX. 
 
 Referencas are to Sections. 
 
 DUTIES AND LIABILITIES OF AGENT TO PRINCIPAL,— Con^mtwd. 
 agent may sell to or purchase from principal with the latter's knowledge and 
 consent, 466. 
 but the transaction will be very closely scrutinized, 466. 
 agent employed to settle claim may not buy and enforce it against his prin- 
 cipal, 467. 
 agent may not acquire rights against hia principal based upon bi3 own 
 neglect or default, 468. 
 can not t^ke advantage of defects in principal's title, 463. 
 must first unequivocally relinquish agency, 468. 
 doubts resolved against agent, 468. 
 all profits made in the course of the agency belong to the principal, 
 
 469. 
 whether they are the fruits of the performance or the violation of the 
 
 agent's duty, 469. 
 principal may require agent to account for, 469. 
 illustrations of this rule, 470. 
 principal entitled to agent's earnings, 471. 
 
 this rule does not apply to mere gratuities received by agent, 473. 
 2. To obey instructions, 
 agent must obey all lawful instructions, 473, 474. 
 
 liable for damages resulting from disobedience, 474. 
 what damages recoverable, 474, 475. 
 agent may be discharged, 474. 
 illustrations of his liability, 475. 
 liable for not shipping goods as directed, 475. 
 for not insuring as directed, 475. 
 for not remitting as directed, 475. 
 for selling to irresponsible parties, 475. 
 for not selling for cash, 475. 
 in what form of action agent liable, 476, 477. 
 how when agency was gratuitous, 478. 
 how when act illegal, 480. 
 departure from instructions may be justified by sudden emergency, 
 
 481. 
 limitations upon this rule, 482. 
 
 how when authority has been substantially pursued, 483. 
 how when instructions were ambiguous, 484. 
 when usage or custom will justify departure from, 48."), 486. 
 presumption is that agent did not disobey his instruction, 487. 
 3. Not to be negligent, 
 duty of agent to possess and exercise reasonable care and skill in the per- 
 formance of his undertaking, 490. 
 degree required depends upon nature of undertaking, 491, 493. 
 agent bound to exercise ordinary precaution, 493. 
 is not bound to exercise the highest care, 494. 
 but is bound for good faith and reasonable diligence, 495. 
 when agent warrants possession of skill, 496.
 
 moEx. 917 
 
 References are to Sections. 
 
 DUTIES AND LIABILITIES OF AGENT TO PRINCIPAL,— Omtinued. 
 how when agency was gratuitous, 497. 
 
 liable where undertaking requires skill, 498. 
 
 is bound to exercise the skill he possesses, 499. 
 now degree of skill is to be determined, 500. 
 agent is not liable for unforeseen dangers, 501. 
 agent not presumed to have been negligent, 503. 
 agent is not liable if principal also negligent, 503. 
 when agent is liable for neglect of subagent, 504. 
 agent may be relieved by ratification, 605. 
 what damages recoverable, 506. 
 
 wlieu judgments, costs and counsel fees may be recovered, 507. 
 liable for negligence in making loans, 509. 
 liable for negligence in effecting insurance, 510. 
 liable for negligence in making collections, 511. 
 liable for negligence in remitting money, 512. 
 liable for negligence of his correspondents, 513, 614. 
 
 liability of banks, 514. 
 
 liability of attorneys, 515. 
 
 liability of mercantile agency, 516. 
 
 liability of express company, 517, 
 
 the measure of damages, 518. 
 principal's right of action against subagent, 519. 
 del credere agent how liable to principal, 520. 
 when agent liable for selling to irresponsible party, 531. 
 4. To account for money and property, 
 agent must account to principal for all property, money, profits and Ad- 
 vantages, 522. 
 need account only to principal, 523. 
 to whom subagent accounts, 524. 
 agent may not dispute principal's title, 525. 
 
 may not allege illegality of transaction to defeat principal's claim, 
 526. 
 when agent may compel principal to interplead, 527. 
 agent must keep correct accounts, 528. 
 
 should keep principal's property and fund separate from his own, 529. 
 liability for commingling, 529. 
 at what time agent should account, 530. 
 when demand is necessary before action, 581. 
 when agent liable for interest, 532. 
 when liability barred by limitations, 533. 
 in what form of action agent is liable, 534. 
 what set-offs agent may avail himself of, 535. 
 how far principal may follow trust funds, 536, 537. 
 6. To give notice, 
 agent's duty to give principal notice of material facts, 638.
 
 918 INDEX. 
 
 References are to Sections. 
 
 DUTIES AND LIABILITIES OF AGENT TO THIRD PERSONS. 
 
 A. Private Agents. 
 
 1. In Contract. 
 
 agent not liable for non-feasance, 539. 
 
 liable for misfeasance, 540. 
 
 liable where he acts without authority, 542, 550. 
 
 liable where he expressly warrants his authority, 543. 
 
 liable where he makes false representations as to, 543. 
 
 liable where, while he know he has no authority, he yet contracts 
 as authorized, 544. 
 
 liable for assuming an authority he does not possess, 545. 
 but other party must have acted in good faith. 545 
 implied warranty limited to matters of fact, 545. 
 
 how where he fully discloses his authority, 546. 
 
 how in case of public agents, 547. 
 
 contract must have been one enforceable against principal, if author 
 ized, 548. 
 in what form of action agent is liable, 549. 
 when agent is liable on contract itself, 550. 
 liable where, though authorized, he fails to bind principal, 552. 
 liable for breach of implied warranty of authority, 553. 
 
 only when it depends on questions of fact, 553. 
 
 not liable for defect in point of law, 553 and note, 
 liable where he conceals agency, 554. 
 
 or name of his principal, 554. 
 not liable where he makes a full disclosure, 555. 
 how when agent acts for a foreign principal, 556. 
 liable where there is no responsible principal, 557. 
 liable where he contracts personally, 558. 
 not liable for money paid over to principal before notice, 561. 
 
 or where before notice his situation has been changed, 563. 
 but is liable if agency was not known, 563. 
 liable for money illegally obtained, 564. 
 
 but not if it was voluntarily paid, 565. 
 how when agent was mere stockholder, 566. 
 when liable to third persons for money received for them, 567. 
 
 what constitutes assent in such cases, 568. 
 
 2. In Tort. 
 
 not liable for non-feasance, 569. 
 
 not liable to stranger for breach of duty owing to principal, 569, 67(1 
 
 malicious motive is not material, 570. 
 liable for misfeasances, 571. 
 distinction between non-feasance and misfeasance, 578. 
 
 principal's knowledge or direction no defense, 573. 
 
 fact that agent derived no benefit no defense, 573. 
 
 nor that he acted in good faith, 573. 
 liability in respect to subagents, 575. 
 
 B. Public Aoents. 
 
 See Public Agents.
 
 INDEX. 919 
 
 References are to Sections. 
 
 DUTIES AND LIABILITIES OP PRINCIPAL TO AGENT, 
 L Payment op Compensation. 
 1. Agent's Right to Compensation, 597. 
 express agreement as to payment is conclusive, 598. 
 when agreement must be express, 599. 
 
 between members of same family, 599. 
 when agreement to pay will not be implied, 600, 
 not where services were gratuitous, 600. 
 or were obtruded on party, 600. 
 or were rendered as mere act of kindness, 600. 
 or under such circumstances as repel presumption, 600. 
 when agreement to pay will be implied, 601. 
 
 where party employed in line of his profession, 601. 
 or is expressly requested to perform, 601. 
 when unauthorized act is ratified, 601. 
 8. Amount of Compensation, 
 express contract, if any, governs, 603. 
 may be left for principal to determine, 604. 
 where no agreement, reasonable compensation implied, 605. 
 what elements may be considered, 606. 
 what evidence of value admissible, 607. 
 
 agent continuing after expiration of term, presumed to be at former com- 
 pensation, 608. 
 8. When Compensation is considered to be earned, 609. 
 earned when undertaking is fully completed, 610. 
 when full performance is a condition precedent, 611. 
 agent's claim not defeated by principal's default, 613. 
 nor by fact that principal realized no profits, 613. 
 when agent entitled to compensation if authority revoked before perform- 
 ance, 614. 
 no future compensation if authority is rightly revoked, 615. 
 nor where agency was at principal's will, 616. 
 nor where agency was terminable on a contingency, 617. 
 but where agent is wrongfully discharged, he is entitled to damages, 
 
 618. 
 how when terminated for agent's misconduct, 619. 
 
 what misconduct sufficient, 314, 619. 
 how when agent wrongfully discharged, 630. 
 what remedies agent has, 631. 
 the measure of damages to be recovered, 633. 
 agent's duty to seek other employment, 633. 
 
 what other employment he is bound to accept, 623. 
 when agent's right of action accrues, 634. 
 the doctrine of a present breach, 634. 
 no damages if agent acquiesces iu discharge, 625. 
 no damages if agency revoked by principal's death, 686. 
 nor where revoked by principal's insanity, 637. 
 but principal's bankruptcy is no defense, 638.
 
 920 INDEX. 
 
 References are to Sections. 
 
 DUTIES AND LIABILITIES OF PRINCIPAL TO LQ^NT,—Ooniinued. 
 how when revoked by death of ageat, 629. 
 or by agent's insanity, 630. 
 or by agent's sickness or incapacity, 631. 
 how when performance abandoned by agent, 632, 633. 
 
 1. when abandonment was justifiable, 632. 
 
 2. when abandonment was unjustifiable, 633. 
 entire and severable contracts, 634. 
 
 agent forfeits compensation by wrongful abandonment, 635. 
 
 the rule of Britton v. Turner more liberal, 636, 637. 
 brief absences no abandonment, 638. 
 condonation of abandonment, 639. 
 what will excuse abandonment, 640. 
 contracts not to terminate without notice, 641, 642. 
 what are lawful, 641, 642. 
 must be express, 641, 642. 
 what works a forfeiture, 642. 
 double agencj'^, agent cannot recover for, 643. 
 unless fully known and assented to, 644. 
 unlawful undertakings, no recovery for, 645. 
 
 what these are, 18 et aeq. 
 extra services, when recovery for, may be had, 646. 
 
 none when employed at regular salary, 646. 
 recoupment, principal's right of, 647. 
 
 what damages may be recouped, 648. 
 limit of the recovery, 649. 
 right not cut off by assignment of claim, G50. 
 none against an infant. 
 II. Agent's Right to Reimbttrsement. 
 agent must be reimbursed for proper outlays, 652. 
 
 but not for those caused by his own default or neglect, 652. 
 ni. Agent's Right to Indemnity. 
 agent must be indemnified against losses or liabilities incurred in princi- 
 pal's behalf, 653. 
 but agent is not entitled to indemnity if act was unlawful, 654. 
 rV. Agent's Right to Protection from Injury. 
 
 1. From Risks incident to Business. 
 principal generally not liable, 656. 
 
 2. From Negligence of Principal. 
 
 principal responsible for his own negligence, 657. 
 for dangerous premises, 658. 
 for dangerous tools and machinery, 659. 
 
 for injuries resulting from failure to repair as agreed, 660, 661. 
 for employment of incompetent servants, 662. 
 for injuries outside of employment, 663. 
 8. For Negligence of his General Superintendent. 
 principal cannot escape responsibility by employment of general agents, 
 664.
 
 INDEX. 921 
 
 Keferences are to Sections. 
 
 DUTIES AND LIABILITIES OP PRINCIPAL TO AGENT,— Ow^tnu^ 
 is liable for general agent's neglect, 6G5. 
 when liable to agents of independent contractor, 668. 
 4. For Negligence of his Fellow-servants 
 principal in general not liable, 667. 
 who is a fellow-servant, 668. 
 volunteer assisting servant is, 669. 
 
 contributory negligence of servant defeats recovery, 670. 
 agreements to waive liability invalid, 671. 
 
 V. Agent's Right op Lien. 
 in general. 673. 
 
 liens defined and classified, 673. 
 
 foundation of the claim, 674. 
 
 nature of the lien, 675. 
 
 possession necessary to, 676. 
 
 possession must have been lawfully acquired, 677. 
 
 and must be continuous, 678. 
 
 and have been acquired in course of employment, 679. 
 no lien if contrary to agreement, 680. 
 waiver of by inconsistent conduct, 681. 
 claim of lien no waiver of personal remedies, 683. 
 how lien enforced, 683. 
 agent entitled to lien, 684, 
 is ordinarily a particular lien, 685. 
 for what sums it attaches, 686. 
 
 VI. Agent's Right op Stoppage m Transit. 
 agent liable for price of goods may stop them, 687. 
 
 right exercised as in other cases, 688. 
 such an agent may retain title till goods are paid for, 689. 
 DUTIES AND LIABILITIES OF PRINCIPAL TO THIRD PERSONa 
 i. In Contract. 
 t. undisclosed principal. 
 liable when discovered, on simple contracts, 695, 696. 
 the rule of liability stated, 696. 
 
 not liable where he has previously been misled by other party into 
 settling with agent, 697. 
 
 not liable where other party has trusted agent exclusively, 698. 
 what constitutes election to hold agent alone, 699. 
 
 taking agent's note does not, 699. 
 
 nor, charging goods to him, 699. 
 
 or sending him the bill, 699. 
 
 or filing claim against his estate, 699. 
 
 nor commencing action against him, 699. 
 election must be made within a reasonable time, 700. 
 principal may be charged although name does not appear, 701. 
 
 or although other party supposed agent to be principal, 701. 
 
 or although contract is in writing, 701. 
 
 rule does not apply to contracts under seul, 703.
 
 922 INDEX. 
 
 References are to Sections. 
 
 DUTIES AND LIABILITIES OF PRIKCIPAL TO THIRD PERSONS. 
 — Continued. 
 9. disclosed principal. 
 liable for all of agent's authorized acts and contracts, 704, 705. 
 other party must ascertain agent's authority, 706. 
 what constitutes authority, 707. 
 
 apparent authority not limited by secret instructions, 708. 
 of general and special agents, 709. 
 agent's authority must not be exceeded, 710. 
 effect of ratification, 711. 
 unlawful act not enforced, 712. 
 
 principal not bound where agent had adverse interest, 713. 
 liable for agent's admissions and rejiresentations, 714. 
 
 but only when made in respect to matter within his authority, 714. 
 and when made at the time of the transaction, 714. 
 must be part of res gestm, 714. 
 what embraced within res gestce, 715. 
 agent's authority must be shown before admissions, 716. 
 liable for agent's representation of extrinsic facts on which authority 
 
 depends, 717. 
 notice to the agent is notice to the principal— when, 718. 
 reasons for the rule, 719. 
 
 notice acquired during agency binds principal, 720. 
 how if notice acquired prior to agency, 731. 
 does not bind where agent forbidden to communicate, 723. 
 does not bind when agent is acting adversely, 723. 
 what notice includes, 724. 
 actual notice, 724. 
 constructive notice, 724. 
 notice binds only when in reference to matter within agent's author 
 
 ity, 725. 
 notice after authority terminated does not bind, 726. 
 must be of a material matter, 727. 
 when notice to subagent binds principal, 728. 
 these rules apply to corporations, 729. 
 when notice to director binds, 730. 
 when notice to stockholder binds, 731. 
 n. InTobt. 
 
 liable for agent's wrongful acts expressly directed, 733. 
 liable for agent's neglected act in course of employment, 734. 
 
 what acts are within this rule, 735, 736. 
 not liable for negligence of agent not in course of employment, 787. 
 
 illustrations of the rule, 738. 
 liable for agent's fraudulent acts in course of employment, 739. 
 liable for agent's malicious act in course of employment, 740. 
 
 illustrations of this rule, 741. 
 liable for agent's use of excessive force, 742, 
 liable for agent's false or fraudulent representations, when, 743. 
 third person's remedies in such case, 744.
 
 INDEX. 923 
 
 Keferences are to Sections. 
 
 DUTIES AND LIABILITIES OF PRINCIPAL TO THIRD PERSONS, 
 — Continued. 
 liable civilly for agent's crimiaal or penal act, when, 745. 
 liable criminally for agent's criminal or penal act, when, 746. 
 liable for acts of independent contractor, when, 747. 
 
 illustrations of this rule, 748. 
 effect of ratification on liability, 750. 
 measure of damage recoverable, 751. 
 
 unsatisfied judgment against agent no bar to holding principal, 753. 
 DUTIES AND LIABILITIES OF THIRD PERSONS TO AGENT, 
 right of action on agent's contract generally in principal alone, 753. 
 but agent may sue on contract made with him personally, 755. 
 or where he has a beneficial interest, 756. 
 or where the contract is under seal, 758. 
 agent's right depends on contract, 759. 
 right of assumed agent to show himself principal, 760. 
 •gent may recover money paid by him under mistake or illegal contract, 
 
 761. 
 what defenses open to third person, 762. 
 what damages agent may recover on contract, 763. 
 agent may recover for personal trespass, 764. 
 when agent may recover for injuries to principal's property, 765. 
 DUTIES AND LIABILITIES OF THIRD PERSONS TO PRINCIPAL, 
 principal may recover securities wrongfully released, 790. 
 may recover property wrongfully sold by agent, 791. 
 principal may recover for injuries from third person's torts, 792. 
 for enticing agent away, 793. 
 
 for preventing agent from performing his duty, 794. 
 for personal injury to agent causing loss of service, 795. 
 third person not liable for agent's own torts or neglect, 796. 
 principal not bound where third person colludes with agent, 797. 
 
 nor when agent in secret employment of other party, 798. 
 principal not bound by judgment against agent to which he was not a 
 
 party, 799. 
 cannot be built up on ratification of agent's unauthorized act, 179. 
 principal entitled to enforce all rights against third persons, 767. 
 may sue on contracts made in his name, 768. 
 may sue on contracts made in his behalf but In agent's name, 769. 
 except where contract was personal to the agent, 770. 
 or where it was made with agent exclusively. 771. 
 principal's right to sue superior to agent's, 772. 
 principal subject to defenses which could have been made against agent, 
 
 773. 
 
 unless other party knew he was dealing with an agent, 774. 
 
 principal takes subject to defenses founded on agent's fraud or misrepre- 
 sentations, 775. 
 
 third persons cannot dispute principal's title, when, 776. 
 
 principal may recover money wrongfully paid or used by agent, 778, 779, 
 783.
 
 924 INDEX. 
 
 References are to Sections. 
 
 DUTIES AND LIABILITIES OP THIRD PERSONS TO PRINCIPAL, 
 
 — Continued. 
 principal may follow and recover trust funds as long as they can bo 
 identified, 780. 
 and it makes no difference that form has been changed, 780. 
 unless funds come into the hands of a bona fide holder without 
 
 notice, 780, 781. 
 where indorsement is restrictive third persons are charged with 
 notice, 782. 
 principal may recover property wrongfully used or disposed of by agent, 
 
 784. 
 principal's title not divested without his consent, 785. 
 mere possession of property no evidence of authority to dispose of it, 
 786. 
 but may be when coupled with indicia of ownership, 787. 
 principal may recover property appropriated to agent's use, 789. 
 EARNINGS OF AGENT, 
 
 principal entitled to, when, 471-473 
 ELECTION, 
 
 principal's right of, whether to ratify or not, 154. 
 
 right must be exercised within a reasonable time, 155. 
 third person's right of, whether to hold principal or agent, 696, 698. 
 what constitutes a binding election, 699. 
 taking agent's note, does not, 699. 
 charging goods to him, does not, 699. 
 sending bill to him, does not, 699. 
 filing claim against his estate, does not, 699. 
 commencing action against him, does not, 699. 
 right must be exercised within reasonable time, 700. 
 ELECTIONS, 
 
 services to improperly influence, unlawful, 30. 
 what services are legitimate, 31. 
 EMBEZZLEMENT BY AGENT, 
 
 terminates his authority, 215. 
 EMERGENCY, 
 
 may justify departure from instructions, when, 481. 
 ENTICING AGENT AWAY, 
 
 principal may recover damages for, 793. 
 ENTIRE CONTRACT, 
 
 all void when part void, 40. 
 when contract is entire, 634. 
 attorney's contract to serve is entire, 856. 
 client's contract to employ, is not, 856. 
 ESTOPPEL, 
 
 when principal estopped to deny agency, 83, 84. 
 
 Illustrations of its application, 86, 87. 
 
 limitations upon this rule, 85. 
 
 when tb^d persot estopped from suing principal, 698, 700.
 
 INDEX. 925 
 
 Heferences are to Soctions. 
 
 EVIDENCE, 
 
 authority cannot be established by agent's declarations, 100. 
 
 nor be enlarged, extended or renewed, 100. 
 fact of agency must be first established, 100. 
 agent's statements and admissions evidence against himself, 100. 
 principal's recognition of agency pertinent, 100. 
 agent's authority not established by general reputation, 101. 
 agent's authority may be shown by agent's testimony, 103. 
 when in writing, writing must be produced, 103. 
 
 except on collateral issue, 103. 
 
 writing to be construed by court, 104. 
 
 undisputed facts to be construed by court, 105. 
 when disputed, question of authority is for the jury, 106. 
 whatever has a tendency to prove agency, admissible, 108. 
 
 although not full or satisfactory, 106. 
 sufficiency of is for jury, 106. 
 parol evidence, admissibility of, 
 
 See Pakol Evidence. 
 EYTDENCE— CONTRACTS TO PROCURE, 
 contracts to procure evidence, when void, 34. 
 contracts to suppress, are void, 34. 
 
 to procure witnesses to testify in certain manner, void, 34. 
 
 to furnish evidence to win a case, void, 34. 
 
 to destroy evidence, void, 34. 
 EXCESSIVE EXECUTION, 
 
 when excess may be disregarded 414, 416. 
 EXCESSIVE FORCE, 
 
 by agent, when principal liable for, 743. 
 EXCHANGE, 
 
 broker to eCect, entitled to commissions, when, 971. 
 unauthorized, ratified by keeping proceeds, 150. 
 authority to sell, does not justify, 353. 
 factor cannot exchange property, 997 
 EXCHANGE BROKERS, 
 defined, 930. 
 
 entitled to commissions, when, 971. 
 EXECUTION, 
 
 power of attorney at law to issue and control, 830, 812, 813. 
 EXECUTION OP AUTHORITY, 
 
 primary purpose of, is to bind principal, 408. 
 
 agent must act within scope of his authority, 409. 
 
 necessity of proper execution, 410. 
 
 how question determined, 411. 
 
 execution within and exceeding authority, 413. 
 
 slight deviations do not invalidate, 413. 
 
 when separable, authorized part may stand, 414. 
 
 when execution lacks essential elements principal is not bound, 415. 
 
 summary of rules, 416.
 
 926 INDEX. 
 
 Beferences are to Sections. 
 
 EXECUTION OP AVTKOHITY,— Continued. 
 
 execution should be in name of principal, 417. 
 EXECUTION OP NEGOTIABLE PAPER, 
 the proper manner, 432. 
 the general rule, 433. 
 
 not necessary that agent's name appear, 434. 
 
 not enough that principal be named only in body of instrument, 435. 
 how where intent to charge principal is manifest, 488, 
 when no principal is disclosed, agent is bound, 438. 
 how when drawn payable to agent's order and indorsed by him, 439. 
 how when made by public agents, 440, 
 admissibility of parol evidence to show intent, 441, 
 what rules applied, 442. 
 the true rule, 443. 
 EXECUTION OF SEALED INSTRUMENTS, 
 
 must purport to be made and sealed in name of principal, 419. 
 
 how of this rule, 419. 
 how determined whether agent's deed or principal's, 420. 
 not enough that agent be described as such, 421. 
 illustrations of this rule, 422, 423, 424, 
 when addition mere descriptio personae, 424, 
 what form is suflacient, 425, 
 distinction in case of public agents, 426. 
 whether necessary that deed should purport to be executed by an agent, 
 
 427, 
 rule of Wood v. Goodridge, 427. 
 how of this rule, 427, 428, 
 not generally approved, 428, 
 how should be, 429. 
 parol evidence not admissible to discharge agent, 480. 
 EXECUTION OF SIMPLE CONTRACTS, 
 the proper manner, 445, 
 intention of parties is the true test, 446. 
 agent may bind himself by express words, 447. 
 how when contrary intention manifest, 448. 
 admissibility of parol evidence to show intent, 449. 
 EXECUTOR, 
 
 can not purchase at his own sale, 463. 
 can not delegate his trust, 189. 
 EXEMPLARY DAMAGES, 
 
 when awarded against principal for agent's acts, 741. 
 EXPRESS COMPANY, 
 
 liable for default in collecting claims, 517. 
 liable for default of notary employed by it, 617. 
 measure of damages against, 618. 
 EXTENSION OF TIME, 
 
 agent to receive payment cannot give, 378. 
 factor may not grant, 1002.
 
 INDEX. 927 
 
 Heferences are to Sections. 
 
 EXTRA SERVICES, 
 
 when extra compensation may be recovered for, 646. 
 
 FACTORS. 
 L Dkfenitxons and Distinctions. 
 factor defined, 986a. 
 
 differs from broker how, 986a. 
 
 synonymoua with commission merchant, 986a. 
 
 del credere commission defined, 986a. 
 
 tuper cargo defined, 986a. 
 
 consignee, use of term, 986a. 
 
 II. How APPOINTED. 
 
 like other agents, 987. 
 
 no formal authorization necessary, 987. 
 
 appointment may be inferred from conduct, 987. 
 in. Implied powers op factors. 
 possess the implied and incidental powers necessary to accomplish object, 
 
 988. 
 
 provided they are not forbidden, 988. 
 usage confers what powers, 989. 
 
 factor presumed to be authorized to observe, 989. 
 
 must perform in the usual manner, 989. 
 credit sales may be made in absence of usage otherwise, 990. 
 
 factor may take note for price, 990. 
 
 and collect or discount it for principal, 990. 
 
 but if discounts for himself, makes paper his own, 990. 
 may sell in his own name, 991. 
 
 unless instructed otherwise, 991. 
 warranty of quality, factor may give when usual, 993. 
 payment may be received by factor, 992. 
 
 he may give proper receipt, 992. 
 pledge, factor has no implied authority to, for his own debts, 994. 
 
 can not deposit bill of lading in, 994. 
 
 usage can not confer power, 994. 
 
 may pledge to pay charges on goods, 994. 
 or to meet principal's drafts, 994. 
 
 bona fide pledgee protected to amount of factor's lien, 994 
 unauthorized pledge may be ratified, 994. 
 
 Factor's Acts confer power to pledge, 995. 
 
 in what States they exist, 995, note. 
 
 construction of these acts, 995. 
 pay his own debts, factor can not use principal's property to, 998. 
 
 bona fide holder getB no title, 996. 
 barter or exchange, factor not authorized to, 997, 
 
 such transaction does not divest principal's title, 997. 
 delegate his authority, factor can not, 998, 
 
 unless usage or necessity justifies it, 998, 
 compromisft of debt unauthorized, 999. 
 
 or discharge of it without full payment, 999.
 
 928 INDEX. 
 
 Beferenoes are to Sections. 
 
 FACTORS,— Continued. 
 
 arbitration, factor has no power to submit to, a dispute arising out of hii 
 
 transactions, 1000. 
 rescission of sale, by factor is unauthorized, 1001. 
 
 or a discharge of purchaser from his liability to buy, lOOL 
 extending time, by factor unauthorized, 1002. 
 
 his authority terminates with the sale, 1002. 
 payment, factor can receive nothing but money in, 1003. 
 cannot receive goods or depreciated currency, 1003. 
 negotiable paper, factor can not bind principal by making, accepting or 
 
 indorsing, 1004. 
 insurance, factor not bound to effect unless instructions or usage require 
 
 it, 1005. 
 may eflfect insurance in his own name, 1005. 
 and to full amount of goods, 1005. 
 rV. Duties and Liabilities to PrincipaIi. 
 care and prudence must be exercised by factor, 1006. 
 
 liable for loss from negligence, when, 1006. 
 good faith is required, 1007. 
 
 must not put himself in antagonistic position, 1007. 
 obedience to instructions is required, 1008. 
 
 advances or sudden emergency may excuse, 1008. 
 liable for loss occasioned by disobedience, 1008. 
 
 not if instructions were ambiguous, 1008. 
 acceptance of consignment binds factor, 1008. 
 damages recoverable against, 1008. 
 instructions to sell, factor's general duty to obey, 1009. 
 
 liable for loss from disobedience, 1009. 
 reimbursing himself, factor's right to sell for, 1009. 
 must not exceed the necessity of the case, 1009. 
 right to, may be waived, 1009. 
 measure of damages against factor, 1009. 
 
 during what period, prices may be considered, 1009. 
 cash, instructions to sell for, 1010. 
 
 usage can not justify violation of, 1010. 
 insurance, instructions to effect, 1011. 
 
 factor liable as insurer, for disobedience. 1011. 
 informing principal, duty of factor as to, 1012. 
 
 illustrations of this duty, 1012. 
 responsible purchaser, duty to sell only to, 1013. 
 
 factor liable as guarantor, 1013. 
 del credere commissions, effect of, 1014. 
 factor liable as principal debtor, 1014. 
 does not extend his powers or relieve him from duty, 1014 
 undertaking of not within statute of frauds, 1014. 
 caring for property, duty of, 1015. 
 
 must exercise reasonable care and prudence, 1015. 
 discretion as to sales, 1016. 
 
 factor may exercise, when, 1016.
 
 INDEX. 929 
 
 References are to Sections. 
 
 TXCTORS,— Continued. 
 
 place of sale, what to be, 1017. 
 
 presumed to be at place where factor resides, 1017. 
 time of sale, must be reasonable, 1018. 
 
 liable if he neglects to sell within, 1018. 
 price, must sell at market, 1019. 
 
 liable for loss from under sale, 1019. 
 collection of price, duty as to, 1020. 
 
 liable if lost by negligence, 1020. 
 accounts, duty of factor to keep, 1021. 
 
 of different principals to be kept separate, 1021. 
 should not take oue note for several debts, 1021. 
 acceptance of, when final, 1023, 
 conclusiveness of, 1030. 
 funds, not obliged to keep separate, 1028. 
 
 but makes himself debtor by commingling, 1023. 
 accounting for money and property, 1023. 
 is bound to account, 1023. 
 at what time, 1023. 
 ■what covered by, 1023. 
 demand necessary when, 1023. 
 can not dispute principal's title, 1023. 
 or allege illegality of transaction, 1023. 
 remitting profeeds, duty as to, 1024. 
 should obey instructions as to, 1024. 
 liable for loss when, 1024. 
 action against, when principal may bring, 1025. 
 only after demand, 1025. 
 interest may be charged when, 1025. 
 subagent, factor liable for, when, 1026. 
 V. Rights of Factor against PRiNCiPAifc 
 a. eommissions. 
 factor is entitled to commissions, 1027. 
 amount of, how determined, 1027. 
 forfeited by gross fraud, 1027. 
 
 or by rendering false accounts, 1027. 
 or by embezzling proceeds, 1027. 
 or by violating his instructions, 1027. 
 no compensation if payment would reduce below amount guaranteed 
 
 by factor, 1027. 
 double commissions can be recovered only when double agency fully 
 understood and agreed to, 1028. 
 h. reimbursement. 
 factor is entitled to reimbursement for lawful advances and disbursements, 
 1029. 
 hag personal claim therefor against principal, 1029. 
 not obliged to wait until goods are sold, 1029. 
 dd credere commission does not defeat this right, 1029. 
 
 59
 
 930 mDEx. 
 
 Beferences are to Sections. 
 
 TAOTO'RQ.—Cbntinued. 
 
 c. indemnity. 
 
 factor must be indemnified against liability, when, 1031. 
 ■what this rule covers, 1031. 
 
 d. lien. 
 
 factor is entitled to a lien for his advances and disbursements. 1033. 
 lien does not exist if balance of account is against factor, 1033. 
 
 nor if it would be contrary to intention of parties, 1033. 
 lien is special interest only, 1034. 
 
 principal not deprived of his ownership by, 1034. 
 
 principal may remove at any time by payment, 1034. 
 
 is a privilege personal to the factor, 1034. 
 
 cannot be transferred to, or set up by another, 1034. 
 lien attaches only on lawful possession, 1035. 
 
 what constructive possession will support, 1035. 
 who may confer lien, 1036. 
 
 statutes enlarging this rule, 1036. 
 how lien may be lost, 1037. 
 
 superior to claims of creditors and purchasers, 1037. 
 
 garnishment of factor does not defeat, 1037. 
 
 factor may waive his lien, how, 1037. 
 enforcement of lien in what manner, 1009, 1088. 
 
 VI. Rights op Factor against Third Persons. 
 may sue for price of goods sold by him, 1039. 
 
 his right to sue subordinate to principal's, 1039. 
 
 unless factor's lien equals or exceeds value of goods, 1039. 
 factor may stop money in hands of purchaser, 1039. 
 
 whether factor must offer purchaser indemnity, 1039. 
 may sue on contracts made in his own name, 1040. 
 as for breach of contract of purchaser, 1040. 
 or of contract of storage, 1040. 
 or in tort for conversions of or injuries to the goods, 1041. 
 
 VII. Rights op PRiNciPAii against Third Persons. 
 may sue for and recover price of goods, 1042. 
 
 right of principal superior to that of factor, 1042. 
 
 except as to extent of factor's lien, 1042. 
 
 fact that factor took note does not defeat principal's action, 1043. 
 
 except that where one note is taken for goods of several principals, one 
 can not sue on it, 1042. 
 
 nor can one of several principals sue for his proportion of entire price 
 though no note was taken, 1042. 
 what defenses may be made against principal, 1043. 
 
 no set-off if purchaser knew or had reason to believe factor was sell- 
 ing goods of another, 1043. 
 
 mere knowledge that he acted as factor not enough, 1043. 
 
 but where factor permitted to sell as apparent principal, real principal 
 is subject to defenses, 1043. 
 right to follow and recover his property, 1044,
 
 INDEX. 931 
 
 Keforencos are to Sections. 
 
 VACT0113,— Continued. 
 
 factor holds as trustee of principal, 1044. 
 
 principal may follow and recover goods or proceeds so long as he can 
 
 trace them, 1044. 
 unless they come into hands of bona fide holder, 1044. 
 cash can not ordinarily be followed, 1044. 
 loan of by factor, when principal can recover, 1044. 
 may sue for injuries to conversions of the goods. 1045. 
 
 VIII. Rights of Third Persons against PRiNCiPAii. 
 same as in other cases of agency, 1046. 
 
 undisclosed principal liable when discovered, 1047. 
 not liable where exclusive credit given to factor, 1043. 
 
 IX. Rights of Third Persons against Factor. 
 same as in other cases of a;^ency, 1049. 
 
 when factor liable for selling goods of a stranger, 1050. 
 how in case of foreign factor, 1051. 
 who is a foreign factor, 1051. 
 
 X. How Relation Terminated. 
 same as in other cases of agency, 1053. 
 
 factor's power coupled with an interest when, 1053. 
 may renounce agency, when, 1052. 
 
 authority terminated by completion of undertaking, 1053. 
 FACTORS' ACTS, 
 
 power of factor to pledge under, 995. 
 
 in what States exist, 995, note. 
 
 construction of these acts, 995. 
 FALSE IMPRISONMENT, 
 
 by agent when piincipal liable for, 741. 
 
 attorney at law is liable for when, 839. 
 FALSE REPRESENTATIONS, 
 
 by agent, when principal liable for, 743. 
 
 what elements must concur, 743. 
 
 remedies of the otlier party, 744. 
 FELLOW SERVANTS, 
 
 principal not liable to one servant for injury by fellow-servant, 667. 
 
 who are fellow-servants, 668. 
 
 volunteer assisting servant is, 669. 
 FIRE, 
 
 factor not liable for loss from accidental, 1018. 
 but may be if he disobeyed instructions, 1015. 
 FOREIGN AGENT. 
 
 liability of, 556. 
 FOREIGN FACTOR, 
 
 liability of, 1051. 
 
 who deemed to be, 1051. 
 FOREIGN INSURANCE COMPANY, 
 
 cannot revoke statutory agency to receive service of process without 
 appointing another, 232.
 
 932 INDEX. 
 
 Beferenoes are to Sections. 
 
 FOREIGN PRINCIPAL, 
 
 liability of agent who acts for, 656. 
 
 who deemed to be, 1051, 
 FORGERY, 
 
 when may be ratified, 118. 
 "FUTURES," 
 
 contracts for purchase of, when void, 8S. 
 
 GAMBLING, 
 
 principal may discharge agent for, 215. 
 GARNISHMENT, 
 
 of factor does not defeat his lien, 1037. 
 
 principal's title not cut off by proceedings in, against agent, 536, 784-791, 
 GIFTS, 
 
 agent cannot make, of principal's property, 784-791. 
 
 from client to attorney closely scrutinized, 877, 878. 
 GENERAL AGENCY, 
 
 defined, 6. 
 
 how distinguished from special agency, 6, 275, 283. 
 
 uses of these distinctions, 7, 284, 
 
 difficulty of determination, 8. 
 
 how determined, 9, 285. 
 
 the true distinction, 285. 
 
 is not an unlimited agency, 286. 
 
 general agent binds principal only when acting within the scope of hi* 
 authority, 287. 
 GENERAL POWERS, 
 
 must be limited by specific object, 806. 
 
 must be confined to principal's business, 807. 
 GENERAL WORDS, 
 
 limited by recitals, 200. 
 
 by context and evident purpose, 806. 
 GEORGIA, 
 
 code provisions respecting agency, 
 see Appendix, 
 GRATUITOUS AGENCY, 
 
 agent not liable for not entering upon, 478. 
 
 but if he undertakes or enters upon the performance he is liable for 
 breach of instructions, 478. 
 
 when gratuitous agent liable for negligence, 497. 
 
 liable where employed in a capacity requiring skill, 498. 
 
 such an agent is bound to exercise the skill he possesses, 499. 
 GRATUITOUS SERVICES, 
 
 no recovery of compensation for, 600. 
 
 not good consideration for subsequent promise to pay, 600. 
 
 but may be when not intended to be gratuitous, 600. 
 
 HOMESTEAD, 
 
 authority to sell terminated by owner's marriage, 268.
 
 INDEX. 933 
 
 Beferenoes are to Seotions. 
 
 HORSE, 
 
 when agent may warrant, 850. 
 HOTEL, 
 
 agent to manage, may buy necesaary supplies, 898. 
 
 but not bind for care and safe keeping of horses and carriages f o? 
 guests, 896. 
 HUSBAND, 
 
 may appoint wife as agent, 63. / 
 
 when her agency implied, 63. 
 
 when authorized binds him like other agents, 63. ' 
 
 may be agent for his wife, 63. 
 
 his authority must come from her, 68. 
 
 eviilence of his appointment must be very clear, 63. 
 so of her ratification of his acts, 63. 
 
 cannot establish his authority by his own declarations, 68, note, 
 
 limits to his authority, 63, note. 
 
 when authority will be implied to act for wife, 86. 
 
 IDIOT, 
 
 can not appoint an agent, 47. 
 ILLEGAL ACTS, 
 
 cannot be delegated, 19. 
 
 what are, 19-88. 
 
 cannot be ratified, 115. 
 
 agent not bound to perform, 480, 
 
 no compensation for performing, 685. 
 ILLEGALITY, 
 
 agent can not set up, to defeat principal's claim against him, 538. 
 " IMMEDIATELY." 
 
 authority to sell land immediately when may be exercised, 319 
 IMPLIED POWERS, 
 
 general doctrine of, 380. 
 INCHOATE CORPORATIONS, 
 
 when corporation bound by acts of promoters, 76. 
 INCOMPETENCY— IN GENERAL. 
 
 how it may arise, 46. 
 
 of what kind it is, 46. 
 
 natural incompetency, 46. 
 
 legal incompetency, 46. 
 
 idiots, lunatics and other persons of unsound mind cannot enter into 
 relations of agency, 47. 
 
 who included within this rule, 47. 
 
 innocent party dealing with, protected when, 48. 
 
 drunkenness, when incapacitates, 49. 
 
 how when act done during sober interval, 49. 
 
 acts done while incompetent may be ratified, 50. 
 or disaffirmed, 50. 
 
 who may ratify or disaffirm for, 50.
 
 934 INDEX. 
 
 Beferences are to Sections. 
 
 INCOMPETENCY— IN QmiWRM,,— Continued. 
 infants cannot appoint an agent, 61. 
 nor ratify an appointment, 52. 
 what acts by infant's agent are void, 53. 
 
 what are valid, 54. 
 how rule should be in reason, 55. 
 married women may act by agent — when, 56. 
 how their capacity affected by modern statutes, 56. 
 how she may appoint agents, 56. 
 any competent person may be agent, 57. 
 
 monks, infants, married women, slaves, aliens, etc., may be agents, 87. 
 less degree of competency required in agent than in principal, 53. 
 degree required depends on nature of duties, 58. 
 what persons interested in question of agent's competency, 58. 
 infants may be agents, 59. 
 
 but the relation not a perfect one, 59. 
 slaves were competent, 60. 
 married women may be agent for third person, 61. 
 
 or for her husband, 62. 
 how her competency affected by modern statutes, 61. 
 what liabilities agency imposes upon her, 62. 
 husband may be agent for wife, 63. 
 
 his power as such must be derived from her appointment, 63. 
 evidence of husband's agency should be clear, 63. 
 
 so of her ratification of his acts, 63. 
 corporations may be principals, 54. 
 
 or agents, 64. 
 partnerships may be principals, 55. 
 or agents, 65. 
 INCOMPETENCY FROM ADVERSE INTEREST, 
 one cannot be agent if duty and interest conflict, 66. 
 one cannot be agent for both parties, — when, 67. 
 
 may be with knowledge and consent of both, 67. 
 where both knowingly employ him, bound, 67. 
 one cannot be party and agent for opposite party, when, 68. 
 
 may be with full knowledge and consent of other party, 68. 
 INCOMPETENCY OF AGENT. 
 
 when will justify his discharge, 618. 
 INDEMNITY. 
 
 agent must be indemnified against consequences of lawful acts, 653. 
 
 where agent believes act to be right law implies promise to hold him 
 
 harmless. 653. 
 entitled to indemnity where by principal's order he takes property of 
 a stranger, 653. 
 or cuts timber on stranger's land, 658. 
 or sells stranger's property, 653. 
 or ejects passenger from train, 653. 
 or makes contract which principal repudiates, 653. 
 or buys property for principal, 653.
 
 INDEX. 935 
 
 References are to Sections. 
 
 INDEMNITY,— Con^mwed. 
 
 need not wait to be sued by person injured, 653. 
 may pay at once, and recover of principal, 653. 
 but can only recover actual amount of injmy done, 858. 
 immaterial whether sued with principal, or alone, 653. 
 no Indemnity where agent knows act to be unlawful, 6o4. 
 not even express bond is good, 654. 
 but this rule does not apply to act done in good faith with honest 
 
 motives, 654. 
 indemnity for past act is good, 654. 
 factor's duty to furnish to purchaser before recovery of price, 1039. 
 attorney entitled to, 840. 
 auctioneer entitled to, 917. 
 broker entitled to, 977. 
 factor entitled to, 1031. 
 INDEPENDENT CONTRACTOR, 
 
 when principal liable for negligence of, 747. 
 ENFANT— AS PRINCIPAL, 
 can not appoint agent, 51. 
 reasons for this rule, 51. 
 cannot ratify his appointment of an agent, 52. 
 in what cases infant's appointment of agent is void, 58. 
 his power of attorney to sell his lands, void, 53. 
 to confess judgment against him, void, 53. 
 to represent him in court, void, 53. 
 to buy real estate, void, 53. 
 modern dissent from general rule, 54. 
 may appoint attorney to do act for his advantage, 54. 
 how the rule should be in reason, 55. 
 INFANT— AS AGENT, 
 
 above seven years, may be agent, 59. 
 his agency not a perfect one, 59. 
 INSANE PERSONS, 
 
 when can act by agents, 47. 
 
 how when opposite party ignorant of insanity, 48. 
 may act during sane interval, 48. 
 ratification or disafflrinance of appointment, 50. 
 INSANITY, 
 
 of principal, revokes agency, 253, 254. 
 how when other party ignorant, 255. 
 not when coupled with an interest, 256. 
 what evidence of, sufficient, 257. 
 effect on agent's right to compensation, 637. 
 of agent, terminates agency, 258, 259. 
 how when insanity unknown, 261. 
 insanity of one of two or more agents, 261. 
 effect on agent's right to compensation, 630.
 
 936 INDEX. 
 
 Beferenoes are to Sections. 
 
 IN80LVENCT, 
 
 of principal, tenninat«B agency, when, 263. 
 must be followed by assignment, 264, 
 does not terminate when coupled with an interest, 366. 
 third persons dealiag in ignorance of, protected, 266. 
 does not defeat agent's right to compensation, 628. , 
 of business agent, dissolves authority, 267. 
 
 except so far as personal trust is concerned, 267. 
 of agent may be considered in determining whether credit was given to 
 agent or principal, 558. 
 INSTRUCTIONS, 
 
 the province of, in limiting authority, 279, 284. 
 
 secret cannot affect apparent powers, 279, 282. 
 agent must obey, 478. 
 
 liable for losses occasioned by his disobedience, 474, 475. 
 
 when liable in trover. 476. 
 
 agent's intent immaterial, when, 477. 
 
 how when agency gratuitous, 478. 
 
 agent not bound to perform illegal or immoral act, 480. 
 
 departure from instructions may be justified by sudden emergency, 
 
 481. 
 but departure must not be greater than emergency demands, 482. 
 where authority has been substantially pursued agent not liable for im- 
 material departure, 483. 
 where instructions are ambiguous, construction adopted in good faith, 
 
 sufficient, 484. 
 how affected by custom, 485, 486. 
 no presumption of disobedience, 487. 
 INSURANCE, 
 
 when agent should effect, 474, 510. 
 
 agent must exercise reasonable care and prudence in effecting, 610. 
 must insure in solvent companies, 510. 
 and secure proper policies, 510. 
 and cover the proper risks, 510. 
 and insure in proper amounts. 510. 
 agent must give notice of his inability to insure, 510. 
 amount of, how determined, 510. 
 factor shoidd insure, when, 1011. 
 INSURANCE AGENT, 
 
 how distinguished from insurance broker, 981. 
 may waive forfeitures, 931. 
 
 or performance of conditions, 931. 
 or prepayment of premium, 931. 
 notice to him binds company, 931. 
 may consent to prior or subsequent insurance, 931. 
 facts correctly stated to him sufficient though he mis-states to com- 
 pany, 931. 
 cannot be made agent of insured merely by stipulation in policy, 931.
 
 INDEX. 937 
 
 Beferenoes are to Sections. 
 
 INSURANCE BROKER, 
 
 defined, 931. 
 
 how differs from iasurance agent, 931. 
 
 is usually a special agent, 981. 
 
 binds principal only within scope of authority, 981. 
 
 has no authority to surrender or substitute policies, 931. 
 
 subsequent notice to him does not bind principal, 931. 
 
 bound to reasonable care and diligence, 931. 
 
 may sue upon the policy, when, 931. 
 
 lien of, 980. 
 INTEREST, 
 
 when agent chargeable with, 533. 
 
 when attorney chargeable with, 833. 
 JOINT AGENTS, 
 
 when may be appointed, 76. 
 
 when agency is private, all must join in execution, 77. 
 
 public trust or agency may be executed by majority, 78. 
 
 but all must be present or have opportunity to be present, 78. 
 no unfair means or practice must be resorted to, 78. 
 
 when death of one terminates agency, 251. 
 
 when insanity of one terminates agency, 261. 
 
 authority of, not necessarily revoked by subsequent authorization of one 
 of them, 219. 
 JOINT PRINCIPALS, 
 
 when power of appointing agents is joint, 69. 
 
 when joint in partnership cases, 70. 
 
 how in cases of joint tenants and tenants in common, 71. 
 
 how in cases of associations, clubs and committees, 72. 
 
 how in case of inchoate corporations, 75. 
 
 when severance of interest dissolves agency, 222. 
 
 death of one dissolves agency, 247. 
 
 one of two or more can not sue purchaser where factor has taken note 
 for entire price payable to himself, 1042. 
 
 nor can one sue for his proportion of entire price, though no note was 
 taken, 1042. 
 JOINT-TENANTS, 
 
 appointment of agents by, 71. 
 
 when one may appoint for all, 71. 
 
 severance of interest revokes agency, 233. 
 
 death of one dissolves agency, 247. 
 JOURNEYS, 
 
 attorney no Implied power to go on at client's expense, 818. 
 JUDGE, 
 
 See Judicial Ofpiceks. 
 JUDGE OF PROBATE, 
 
 cannot purchase at his own sale, 463. 
 JUDGMENT, 
 
 against agent not binding on principal if not a party, 799.
 
 i)38 INDEX. 
 
 References are to Sections. 
 
 JVDQMENT,— Continued. 
 
 when judgment against principal for agent's wrong, conclusive in action 
 by principal against agent for indemnity, 507. 
 JUDICIAL OFFICERS, 
 
 not liable to individuals for act witliin his jurisdiction, 580l 
 their liability is not affected by motives alleged, 581. 
 this immunity extends to judicial officers of all grades, 583, 
 but jurisdiction is essential to this immunity, 583. 
 what jurisdiction means, 583. 
 
 jurisdiction of the person, 583. 
 jurisdiction of the subject-matter, 583. 
 act must have been confined within his jurisdiction, 584. 
 when jurisdiction will be presumed-, 585. 
 
 distinction between courts of general and those of limited jurisdic- 
 tion, 585. 
 limitations upon these rules, 586. 
 not liable when jurisdiction is assumed through mistake, 587. 
 what duties are judicial, 588. 
 
 KNOWLEDGE, 
 
 See NoTiOB. 
 LAND, AUTHORITY TO SELL, 
 what authority is sufficient, 818. 
 when it may be exercised, 319. 
 what execution is justified by, 320. 
 implies right to convey, when, 321. 
 
 and to insert usual covenants of warranty, 333. 
 but not to mortgage land, 323. 
 implies authority to receive payment, when, 324. 
 implies no authority to give credit, 325. 
 does not authorize exchange or gift, 326. 
 nor waste, or sale of timber, 327. 
 nor changing boundaries of land, 328. 
 nor a partition of land, 329. 
 nor dedication to public use, 330. 
 nor conveyance in payment of agent's debts, 381. 
 does not authorize rescission of contract, 332. 
 implies no authority to discharge mortgages, 333. 
 nor to reinvest proceeds, 334, 
 LANDLORD, 
 
 cannot oust tenant on unauthorized notice to quit given by an agent, 179. 
 LAWYER, 
 
 See Attoknbys at Law. 
 
 LEASE, 
 
 agent employed to obtain for principal can not obtain for himself, 458. 
 
 agent employed to grant a lease, can not lease to himself, 461. 
 LEofsLATIVE OFFICERS, 
 
 exempt from action by private individuals, 589.
 
 INDEX. 939 
 
 Beferences are to Seotions. 
 
 LEGISLATIVE OFFICERS,— Continued. 
 
 exemption extends to lesser grades, as supervisor, city councils, com- 
 missioners, etc., 589. 
 LEGISLATION, 
 
 contracts for services in securing or defeating, void, 23, 23. 
 LETTER, 
 
 authority may be conferred by, 318. 
 information as to agent's act, communicated by, 163. 
 revocation by, of agent's autliority, takes effect when it readies him, 2S6. 
 LEX LOCI, 
 
 authority of agent to be construed in light of, 305. 
 LIABILITIES, 
 
 of various parties to the relation. 
 
 See DuTiss akd Liabilitibs. 
 LIEN. 
 
 defined, 673. 
 
 general and particular, 673. 
 foundation of the right, 674. 
 nature of the lien, 675. 
 
 is right of retainer merely, 675. 
 cannot be assigned or attached, 675. 
 is purely personal to lien holder, 675. 
 cannot be set up by stranger, 675. 
 possession is requisite to, 676. 
 
 mere workman or servant not entitled to lien. 678. 
 possession must have been continuous, 678. 
 possession must have been lawfully acquired, 677. 
 possession must have been continuous, 678. 
 voluntary relinquishment defeats lien, 678. 
 possession lost by fraud or misrepresentation does not, 678. 
 no change of possession for temporary purpose, 678. 
 possession must have been acquired in course of employment, 679. 
 no lien if contrary to intention of parties, 680. 
 taking security waives lien, 680. 
 or taking note in payment, 680. 
 
 or agreement to deliver property before time for payment, 680, 
 or special contract as to payment, 680. 
 agreement for fixed price no waiver, 680. 
 may be waived by inconsistent conduct, 681. 
 by general refusal to deliver property, 681. 
 or claim on other grounds than lien, 681. 
 claim of lien no waiver of personal remedies, 683. 
 may resort to principal as well as to lien, 682. 
 hold lien enforced, 683. 
 
 no right of sale in general, 683. 
 
 unless transaction amounts to pledge or bailment, 683. 
 agent has particular lien for reimbursement, 684. 
 
 so where he accepts drafts on consignments, 684.
 
 940 INDEX. 
 
 References are to Seotions. 
 
 LIEN, — Continued. 
 
 or obtains loan on commission, 684. 
 has no general lien except in special cases, 685. 
 lien attaclies only foi lawful cliarges, 686. 
 not for unliquidated damages, 686. 
 only for debts arising in course of employment, 686. 
 subagent is entitled to a lien, when, 693. 
 LIMITATIONS, 
 
 Bee Statute of Limitations. 
 LIQUORS, 
 
 agent to sell may warrant quality, but not that they will not be seized for 
 violation of revenue laws, 350. 
 LOAN, 
 
 negligence of agent in making, liability for, 509. 
 of principal's money by agent, when principal may recover, 686, 1044. 
 LOAN BROKER, 
 
 entitled to commissions, when, 970. 
 has a lien upon loan for commissions, 684 
 LOTTERY, 
 
 employment to sell tickets in forbidden, void, 88. 
 contracts to men, void, 38. 
 LOUISIANA, 
 
 code of as to agency. 
 
 See Appendix. 
 LOYALTY TO TRUST, 
 
 loyalty to his trust the first duty of the agent, 454. 
 must not put himself in relations antagonistic to principal, 455. 
 makes no difference that principal not injured, 455. 
 law has regard to tendency of such transactions, 455. 
 may not deal in business of agency for bis own benefit, 458. 
 agent authorized to purchase for principal may not buy for himself with- 
 out principal's consent. 457. 
 cannot do indirectly what he cannot do directly, 457. 
 same principle applies to leases, 458. 
 what evidence of the trust is sufficient, 459. 
 when rule does not apply, 460. 
 agent authorized to sell or lease cannot become purchaser or lessee, with- 
 out principal's consent, 461. 
 If he does so the principal may repudiate it and recover back hia 
 
 property, 461. 
 makes no difference that principal was not injured, 461. 
 ■ agent authorized to purchase may not purchase of himself without prin 
 cipal's consent, 462. 
 if he does, principal may repudiate, 462. 
 no difference that he intended to benefit principal, 463. 
 to what agents this rule applies, 468. 
 disabilities apply to clerks, subageuts and partners, 463. 
 can not do indirectly what he can not do directly, 464.
 
 INDEX. 941 
 
 References are to Sections. 
 
 LOYALTY TO TRV ST. —ContintiecL 
 principal may ratify act, 464. 
 usage cannot defeat, 465. 
 
 agent may sell to or purchase from principal with the latter's knowledge 
 and consent, 466. 
 but the transaction will be very closely scrutinized, 466. 
 agent employed to settle claim may not buy and enforce it against his 
 
 principal, 467. 
 agent may not acquire rights against his principal based upon his own 
 neglect or default, 468. 
 can not take advantage of defects in principal's title, 468. 
 must first unequivocally relinquish agency, 468. 
 doubts resolved against agent, 468. 
 LUNATICS, 
 
 can not in general act by agent, 47. 
 
 how when opposite party ignorant, 48. 
 
 may act during sane interval, 48. 
 
 ratification or disaffirmance of appointment, 60. 
 
 MACHINERY, 
 
 principal's duty to furnish that which is safe, 659. 
 principal liable for negligence in this regard, 659. 
 MACHINES, 
 
 agent to sell may warrant quality, 349. 
 
 may sell with privilege of return if not satisfactory, 349. 
 may sell on condition that it does good work, 349. 
 may waive return of machine, 349. 
 
 custom or instructions not to warrant immaterial, if purchaser igno- 
 rant of them, 349. 
 fact that principal gave agent printed warranty does not preclude oral 
 one, unless purchaser knew of it, 349. 
 MAIL, 
 
 when agent may remit by, 512. 
 MAJORITY, 
 
 may execute public trust or agency, 78. 
 MALICE, 
 
 of agent, when imputable to principal, 740. 
 
 principal liable for agent's malicious act within scope of his employment, 
 740. 
 MALICIOUS PROSECUTION, 
 
 when attorney liable for, by client, 839. 
 by agent, when principal liable for, 741. 
 MANAGER, 
 
 extent of his authority depends on nature of business, 395. 
 authority as, implies power to pledge principal's credit, when, 398. 
 when authorizes sale of product of business, 397. 
 
 no implied power to exchange product for others, 397. 
 when authorizes hiring of workmen, 397.
 
 942 INDEX. 
 
 References are to Sections. 
 
 TAANA.Q'KR,— Continued. 
 
 does not authorize the making of negotiable paper, 898. 
 such power must be expressly conferred, 898. 
 
 does not authorize borrowing of money, 399. 
 
 does not authorize making of accommodatioQ paper, 400. 
 
 may not pledge or mortgage the business, 401. 
 
 may not sell principal's land, 403. 
 
 may not embark in new or different business, 403. 
 
 may not sell the business, 404. 
 
 negligence of, principal liable for, when, 665. 
 "MARGINS," 
 
 contracts for purchase of, when void, 35. 
 MARRIAGE, 
 
 of principal revokes authority to do act which would defeat marital 
 rights, 268. 
 as to sell the homestead, 268. 
 marriage of feme sole revokes general authority to contract, 268. 
 
 contracts to procure, void, 36. 
 MARRIAGE BROKERAGE, 
 
 contracts to procure marriage, void, 38. 
 MARRIED WOMAN, 
 
 could not appoint agent at common law, 56. 
 
 may act by agent under modern statutes in reference to her sole prop*- 
 erty, 56. 
 
 to this extent is competent as though unmarried, 56. 
 
 her agent can bind her only where she could bind herself, 56. 
 
 appoints agent in same manner as other persons, 56. 
 
 bound by ber agent's acts, like other principals, 56. 
 
 may be agent for third persons, 61. 
 but relation not a perfect one, 61. 
 
 effect of modern statutes on her capacity, 61. 
 
 may be agent for ber husband, 62. 
 
 this agency of two kinds, 62. 
 
 no authority merely as wife to contract generally, 63. 
 
 may bind her husband like other agents, 62. 
 
 how if duties to husband and stranger conflict, 61. 
 
 may appoint her husband her agent, 63. 
 
 husband has no general powers merely as husband, 68. 
 
 when duly authorized he binds her like other agents, 63. 
 
 evidence of wife's appointment must be clear, 63. 
 
 husband's agency cannot be established by his declarations, 63, note. 
 
 may not bind her by negotiable paper, when, 63, note. 
 MASTER, 
 
 how compares with principal, 3. 
 1. LiABrLiTT TO Servant. 
 
 not liable to servant for risks incident to business, 656. 
 
 is responsible for his own negligence, 657. 
 for dangerous premises, 658.
 
 INDEX. ^3 
 
 Heferences are to Sections. 
 
 MASTER, — Oontinued. 
 
 for dangerous tools and machinery, 659. 
 
 for failure to repair as agreed, 660, 661. 
 
 for employment of incompetent servants. 663. 
 
 for employing servant outside of his employment, 663. 
 is responsible for negligence of his general superintendent, 665. 
 when liable to servants of contractor, 66G. 
 not liable for negligence of a fellow-servant, 667. 
 
 who is a fellow-servant, 668. 
 
 volunteer assisting servant, is, 669. 
 contributory negligence of servant defeats recovery, 670. 
 
 what constitute, 670. 
 waiver of master's liability, invalid, 671. 
 
 3. LiABrLiTY TO Tehrd Persons. 
 
 liable for servant's contracts, when, 695-713. 
 
 for servant's statements and representations, when, 714-717. 
 notice to servant is notice to master, when, 718-731. 
 
 for servant's negligence, when, 733-738. , 
 
 for servant's fraud, when, 739. 
 
 for servant's malicious act, when, 740, 741. 
 
 for servant's use of excessive force, when, 742. 
 
 for servant's false or fraudulent representation, when, 748. 
 
 for servant's criminal or penal act, when, 745, 746. 
 
 for acts of independent contractor, when, 747, 748. 
 
 for acts of a subagent, when, 749. 
 8. Rights against Third Persons. 
 may sue on contracts made by servant, when, 768-777. 
 may recover money paid or used by servant, when, 778-788. 
 may recover property disposed of by servant, when, 784-791. 
 may recover for injuries to his property, 792. 
 
 for enticing servant away, 793. 
 
 for preventing servant from performing, 794. 
 
 for personal injury to servant causing loss of service, 795. 
 
 for conspiring with servant to defraud him, 797. 
 
 4. Rights against Servant. 
 
 servant must be loyal to his master's interests, 454 et seg. 
 must not deal with business for his own benefit, 456. 
 earnings of servant belong to master, 471. 
 servant must obey instructions, 473. 
 
 is liable for losses occasioned by his disobedience, 474 ei seq. 
 servant must use reasonable care and diligence, 490 et seq. 
 
 is liable for injuries from his negligence, 490 et seq. 
 for detailed rights and obligations of master. 
 See PRiNcrpAL. 
 MEASURE OF DAMAGES, 
 
 See Damages. 
 for agent's negligence, 506. 
 
 agent's negligence in making loans, 509.
 
 944 INDEX. 
 
 References are to Sections. 
 
 MEASURE OF DA^AQ^S,— Continued. 
 
 agent's negligence in effecting insurance, 510. 
 agent's negligence in making collections, 518. 
 for wrongful discharge of agent, 622. 
 what damages may be recouped against agent, 648. 
 in action by third persons against principal, 751. 
 in action by agent against third persons, 763-765. 
 in action by principal against factor, 1009. 
 MECHANICAL POWERS AND DUTIES, 
 
 may be delegated, 193. 
 MERCANTILE AGENCY, 
 
 liable for default or neglect of its subagents, 516. 
 unless limited by express stipulartion, 516. 
 such limitations not opposed to public policy, 516. 
 liable where it reserves control of methods to be pursued, 516. 
 MERCHANDISE BROKERS, 
 defined, 932. 
 
 are governed by ordinary rules of agency, 933. 
 mode of dealings by, 932. 
 bought and sold notes by, 932. 
 MIDDLEMAN, 
 
 when broker stands in attitude of, 943, 973. 
 when entitled to commissions from both parties, 973. 
 MINING SUPERINTENDENT, 
 
 may buy and sell property for use about the mine, 396. 
 may not bind his principal for debts of third person, 396. 
 MINISTERIAL OFFICERS, 
 
 liable for neglect or default to party specially injured, 500. 
 no defense that officer mistook his duty, 590. 
 or acted in good faith, 590. 
 or that penalty is also imposed by law, 590. 
 nature of duty governs liability, 591. 
 what duties are ministerial, 592. 
 
 those which are required by law and which are not dependent on of- 
 ficer's judgment or discretion, 592. 
 MINISTERIAL POWERS AND DUTIES, 
 
 may be delegated, 193. 
 MISCONDUCT OF AGENT, 
 
 agency may be terminated, because of, 214. 
 for disobedience of instructions, 214. 
 for dishonesty, 215. 
 
 for embezzlement of principal's funds, 215. 
 for engaging in trade in opposition to principal, 215. 
 for being in secret employment of others, 215, note, 
 for assaulting principal's servant, 215. 
 for seducing principal's daughter, 215. 
 for becoming or being a drunkard, 215. 
 for gambling on Btock exchange, 215.
 
 INDEX. 945 
 
 References are to Sections. 
 
 MISCONDUCT OF AGENT— Continved. 
 what must be nature of offense, 215. 
 of attorneys. 
 
 of auctioneers, 
 of brokers, 
 of factors. 
 
 See Attohnets at Law. 
 
 See Auctioneers. 
 
 See Brokers. 
 
 See Factors. 
 MISFEASANCE OP AGENT, 
 
 distinction between, and non-feasance, 573. 
 agency no excuse for, 571. 
 
 principjil's knowledge or directions no defease, 573, 574. 
 MISREPRESENTATIONS, 
 
 by agent, when principal liable for, 743. 
 principal's right of action affected by, 775. 
 MISTAKE, 
 
 money paid to agent under, may be recovered, when, 561, 563. 
 agent may recover money by him under, when, 761. 
 MONET, 
 
 agent not liable for money paid over to principal, when, 561, 563. 
 liable if agency was not known, 56:1 
 liable for money illegally obtained, 564. 
 but not for that voluntarily paid, 565. 
 agent when liable for money paid to him for third persons, >07, 568. 
 principal may recover that wrongfully paid out by agent, 783. 
 or that illegally exacted from agent, 780, 791. 
 may recover money loaned by his agent, when, 5116, 1044. 
 MONTHLY HIRING, 
 
 not implied from monthly salary, merely, 213. 
 but may be implied from other circumstances, 318. 
 
 instances of this rule, 212. 
 continuance for second month implies, on same terms, 213. 
 MORTGAGE. 
 
 power to sell conveys no power to, 323. 
 discharge, agent to sell land has no power to, 833. 
 assumption of by agent, 333. 
 MORTGAGEE. 
 
 death of, does not defeat power of sale, 250. 
 nor does his insanity, 256. 
 MORTGAGOR, 
 
 death of does not terminate power of sale, 243. 
 nor his insanity, 256. 
 nor his bankruptcy, 865. 
 MUTUALITY, 
 
 in contracts of employment, necessary for, 211. 
 how under statute of frauds, 811. 
 
 60
 
 946 INDEX. 
 
 Beferenoes axe to Seotions. 
 
 NECESSARY POWERS, 
 
 when implied, 283, 311, 
 
 limitations upon, 274. 
 NECESSITY, 
 
 authority by, 83. 
 
 will justify appointment of subagents, when, 194. 
 
 will excuse departure from instructions, when, 481. 
 NEGLIGENCE, 
 1. Of Agentb. 
 
 difficulty in defining, 489. 
 
 a. liability of agent to principal for. 
 
 the true rule as to, 490. 
 
 agent bound to exercise reasonable precautions, 493. 
 
 not bound to exercise highest care, 494. 
 
 bound for good faith and reasonable diligence, 495. 
 
 warranty of skill, when implied, 496. 
 
 how when agency gratuitous, 497, 
 
 how when agent employed in capacity which implies skill, 498 
 
 agent bound to exercise skill he possesses, 499. 
 how degree of skill required to be determined, 500. 
 contributory negligence of principal excuses, 503. 
 agent not liable for unforeseen dangers, 501. 
 no presumption of negligence, 503. 
 when agent liable for neglect of subagent, 504. 
 ratification by principal relieves agent, 505. 
 measure of damages, principal entitled to, 50&-508. 
 neglect in making loans, 509. 
 negligence in effecting insurance, 510. 
 negligence in making collections, 511. 
 negligence in making remittances, 513. 
 liability for neglect for negligence of subagents, 618. 
 
 liability of banks, 514. 
 
 liability of attorneys. 515. 
 
 liability of mercantile agencies, 516. 
 
 liability of express companies, 517. 
 the measure of damages, 518. 
 
 when principal may proceed against subagents, 519. 
 negligence in selling to irresponsible parties, 521. 
 
 b. liability of agent to third person. 
 
 not liable for neglect of duty owing solely to principal, 569, 570. 
 but is liable for misfeasance, 571. 
 distinction between non-feasance and misfeasance, 572. 
 principal's knowledge or direction, no defense, 673, 574. 
 when liable for negligence of subagents, 575. 
 9. Of Principal. 
 principal is responsible to agent for his own negligence, 657. 
 liable for injury from dangerous premises, 658. 
 agent must be given warning of dangers, 668.
 
 INDEX. 947 
 
 Befereuces are to Sections. 
 
 ■NEGLIGENCE.— Corafonwd. 
 
 but has no remedy for injury happening in place whera he had 
 no right to be, 658. 
 liable for injury from dangerous tools and machinery, 659. 
 but only where principal is to furnish them, 659. 
 principal not obliged to furnish newest and best tools, 859. 
 duty performed if he furnishes reasonably safe and proper ones, 
 
 659. 
 must give agent warning of hidden or unusual danmrs, 659. 
 that agent was young or inexperienced must be considered, 
 
 659. 
 principal's knowledge of dangers must be shown, 659. 
 liable for not repairing as agreed, 660. 
 
 agent must give principal notice of defects, 660, 661. 
 
 may give principal reasonable opportunity to repair, 660. 
 
 if he remains after promise is broken, he assumes the risk 660 
 
 661. 
 whether he was negligent in remaining is question for jury, 661. 
 liable for employing incompetent servants, 662. 
 
 or for retaining them with knowledge of incompetence, 662. 
 duty is measured by reasonable care and prudence, 662. 
 liable for injuries happening while he is employing agent outside the 
 scope of his undertaking, 663. 
 
 agent must not go into palpable danger, 663. 
 but fact of principal's order must be considered, 603. 
 liable for negligence of general superintendent. 664. 
 
 principal can not relieve himself from liability by delegating his 
 
 duties to general agent or manager, 664. 
 negligence of such general agent is negligence of principal, 665. 
 such general agent is not a fellow-servant, 665. 
 principal not liable to agents of contractor, 666. 
 unless he has agreed to furnish part of the labor or machinery, 
 666. 
 not liable for negligence of fellow-aervants, 667. 
 who are fellow-servants, 668. 
 volunteer assisting servant is, 669. 
 contributory negligence of servant defeats his recovery, 670. 
 
 when excused by master's orders, 670. 
 agreements to waive liability invalid, 671. 
 for negligence of attorney. 
 
 See Attorneys at Law. 
 for negligence of auctioneer, 
 
 See Auctioneers. 
 for negligence of brokers. 
 
 See Brokers. 
 for negligence of factor. 
 
 See Factors.
 
 948 iNPKX. 
 
 References are to Sections. 
 
 NEGOTIABLE INSTRUMENTS, 
 execution of. 432-444. 
 
 the proper manner, 432, 433. 
 not necessary that agent's name appear. 434. 
 not enough that principal be named in body of note only, 435. 
 principal bound when that intent is manifest 436, 437. 
 •where no principal disclosed, agent liable, 438. 
 how when payable to agent's order and indorsed by him, 439. 
 how when made by public agents, 440. 
 admissibility of parol evidence to show intent, 441-444. 
 what rules applied, 442. 
 the true rule, 443, 444. 
 authority to execute, 389-394. 
 
 what constitutes such authority, 389. 
 must be expressly conferred, 389. 
 authority is strictly construed, 390. 
 implied only when necessary, 391. 
 cannot be delegated to subagent, 186. 
 terminates with principal's death. 246. 
 agent to manage grocery store has not, 391. 
 
 nor agent employed to manufacture carriages, 391. 
 nor agent authorized to manage farm, 391. 
 nor agent authorized to manage principal's business, 391. 
 nor agent authorized to buy goods and pay for them, 391. 
 authority to discount bills implies authority to indorse them, 391. 
 authority must be confined to principal's business, 393. 
 agent authorized to make or indorse can not make or indorse for his 
 
 own benefit or that of a third person, 392. 
 execution must be confined to limits specified, 393. 
 
 authority to make for one purpose does not justify making for 
 
 another, 393. 
 authority to make for one sum, will not authorize making for a 
 
 different sum, 393. 
 authority to make for a given time, will not authorize making 
 
 for a different time, 393. 
 authority to sign aa surety does not justify signing as principal 
 
 393. 
 authority to make note does not imply authority to pay it. 393. 
 authority to draw bills on time does not authorize post-dated 
 
 bills, 393. 
 authority to draw does not authorize indorsing or accepting bills, 
 
 393. 
 authority does not justify unusual paper. 393, 
 authority to fill paper delivered in blank, 894. 
 agent to sell negotiable instruments, liability of, 929. 
 NEGOTIABLE PAPER, 
 
 See Negotiable Instruments. 
 factor may take, 990.
 
 INDEX. 949 
 
 References are to Seotiona. 
 
 IfEGOTIABLE PAVER,— Continued. 
 
 may collect or discount it for principal, 990. 
 but if he discounts for himself, liable, 990. 
 NON-FEASANCE OF AGENT, 
 
 agent not liable to third person for, 639, 569. 
 illustrations of this rule, 570. 
 NOTARY PUBLIC, 
 
 when bank liable for negligence of, employed by it, 514. 
 NOTE, 
 
 See Negotiable Instruments. 
 factor should not take one for several debts, 1021. 
 agent for collection cannot receive in payment, 375. 
 NOTE BROKERS, 
 definition of, 929. 
 
 liable as seller where principal is concealed, 929. 
 warrants his authority to sell, 929. 
 and genuineness of signatures, 929. 
 but not solvency, unless he indorses, 929. 
 NOTICE, 
 
 notice to the agent is notice to the principal — when, 718. 
 reasons for the rule, 719. 
 
 notice acquired during agency binds principal, 720. 
 how if notice acquired prior to agency, 721. 
 does not bind where agent forbidden to communicate, 729. 
 does not bind when agent is acting adversely, 723. 
 what notice includes, 724. 
 actual notice, 724. 
 constructive notice, 724. 
 notice binds only when in reference to matter within agent's author- 
 ity, 725. 
 notice after authority terminated does not bind, 726. 
 must be of a material matter, 737. 
 when notice to subagent binds principal, 728. 
 these rules apply to corporations, 729. 
 when notice to director binds, 730. 
 when notice to stockholder binds, 731. 
 NOTICE OF REVOCATION, 
 must be given, 223. 
 
 to third persons where authority was general, 224. 
 
 but not where authority was special, 235, 
 to agent, notice must be given, 226. 
 when takes effect, 226. 
 how when given by letter, 226. 
 to subagent, notice must be given when he derives his authority from 
 the principal, 227. 
 but not when he is merely agent's agent, 227. 
 how notice shall be given, 228. 
 
 rule similar to that applicable in partnership cases, 228.
 
 950 INDEX. 
 
 References are to Sections. 
 
 NOTICE OP B.'EYOCA.TIO'^,— Continued. 
 
 actual notice to those who have had notice of agency, 
 constructive notice may be given to others, 228. 
 when notice by publication is sufficient, 238. 
 how when evidence of authority was recorded, 229. 
 notice should be unequivocal, 230. 
 
 any ambiguity construed against principal, 230. 
 how sufficiency of the notice is to be determined, 281. 
 undisputed facts are for the court, 231. 
 disputed facts are for the jury, 231. 
 NOTICE NOT TO PAY TO AGENT, 
 
 effect of, when printed on bills of goods sold by him, 343. 
 what is sufficient notice, 342. 
 NOTICE OF INTENTION TO TERMINATE AGENCY, 
 agent may, by contract, be required to give, 641. 
 
 contract may provide for forfeiture of wages if notice is not given, 
 
 643. 
 such contracts must be reasonable and fair, 642. 
 what will work a forfeiture, 643. 
 NOTICE TO QUIT, 
 
 ratification of unauthorized, not effective in behalf of principal, 179. 
 NUISANCE. 
 
 principal liable for creation of, by independent contractor, 747 
 
 OFFICE— APPOINTMENT TO, 
 
 services to secure, when lawful, 28. 
 
 only when they contemplate open and fair means, 28, 29. 
 contracts to procure are void, 28. 
 void, where party is to feign disinterestedness, 29. 
 or to conceal his agency, 29. 
 or to violate trust reposed, 29. 
 same rules apply to private as to public officers, 29. 
 
 contract void to procure appointment as cashier of bank, 29.. 
 or treasurer of corporation, 29. 
 or to pay for personal recommendation, 29. 
 OFFICERS— PUBLIC, 
 
 See PoBLic Officers. 
 
 "OPTIONS," 
 
 contracts for purchase of, when void, 35. 
 OTHER EMPLOYMENT, 
 
 agent wrongfully discharged must seek, 623. 
 
 what other employment he is bound to accept, 623. 
 OWNERSHIP-APPARENT, 
 
 agent having, may receive payment, 838. 
 
 persons dealing with agent having, protected, 887. 388. 
 
 PARDONS, 
 
 services in procuring, when lawful, 32.
 
 INDEX. 951 
 
 References are to Seotiona. 
 
 PARDONS,— Continued. 
 
 how when conviction was illegal, 38. 
 PAROL AUTHORITY, 
 
 sufficient for what purposes, 83-91. 
 
 to sell or lease lands, 89. 
 
 to demand and collect rents, 90. 
 
 to execute instruments not under seal, 91. 
 AROL EVIDENCE, 
 
 admissible, to show assent to contract by member of club or committee 
 78. 
 
 to show authority of agent, 84-107. 
 
 of agent, competent to prove or disprove his authority, 103. 
 
 to identify parties or subject-matter, 298, 300. 
 
 to explain ambiguities, 299. 
 
 to show intent of parties to contract, 441, 449. 
 
 to establish trust in real estate, 459. 
 
 to charge undisclosed principal, 695, 701. 
 inadmissible, of agent's statements to show authority, 100. 
 
 of general reputation to prove authority, 101. 
 
 of agent, to prove authority required to be in writing, 103. 
 
 to enlarge or vary written authority, 801 , 802. 
 
 to discharge agent from contract, 430, 441. 
 
 to establish trust in real estate, 459. 
 
 See Evidence. 
 PARTITION, 
 
 authority to sell landg does not authorize, 829. 
 PARTNERSHIP, 
 
 may appoint agents. 45. 
 
 may act as agents, 65. 
 
 when one partner may appoint agents, 70. 
 
 when partnership is agent either partner may act, 65. 
 
 in such case, act of one is act of all, 65, 
 may ratify acts of agent, 119. 
 when dissolution revokes agency, 221. 
 when death of partner revokes agency, 247. 
 notice of agency to one partner when notice to firm, 554. 
 PAWNBROKERS, 
 
 definition and functions of, 933. 
 PAYMENT, 
 
 when payment to agent binds principal, 336, 352. 
 
 authority to receive, when implied from having sold goods, 336. 
 
 not implied from possession of bill or account, 337. 
 
 not implied from having negotiated securities, 372. 
 
 party pajring must see that securities are in agent's possession, 373. 
 
 agent selling goods in his possession may receive paj'ment, 338. 
 
 agent merely to solicit orders cannot, 339. 
 
 when travelling salesmen may receive payment, 340. 
 
 how when payment to agent is made part of terms of sale, 341.
 
 952 INDEX. 
 
 References are to Sections. 
 
 PAYMENT, — Continued. 
 
 how notice of want of authority may be given, 342. 
 agent authorized to, can not receive anything but money, 376. 
 can not take debtor's note, 375. 
 or note of third person, 875. 
 or note of his own, 875. 
 or draft on a stranger, 375. 
 or depreciated currency, 375. 
 
 or horses, wheat, merchandise or other property, 875. 
 or set off debts due from himself, 375. 
 or take property for his own use in payment, 375. 
 when may take certificates of deposit, 375. 
 agent to receive payment has no implied authority to take checks, 853- 
 881. 
 liable if bank fails before payment, 353, note, 
 agent to receive payment may not release or compromise the debt with- 
 out full payment, 376. 
 may receive part payment, 377. 
 agent may not extend time, 378. 
 
 authority to receive interest does not authorize receipt of principal, 379. 
 does not authorize receipt of payment before due, 880. 
 authority to take check or note in payment does not imply authority to 
 
 indorse and collect it, 383. 
 agent to collect note on demand can not sell it, 383. 
 
 or deal with funds collected, 384. 
 implies authority to give appropriate discharge, 385. 
 when implies authority to sue, 386. 
 when may sue in his own name, 887. 
 when may employ counsel, 388. 
 not necessarily revoked by appointment of another agent to collect same 
 
 sum, 319. 
 terminates at principal's death, 346. 
 PECUNIARY ABILITY, 
 
 of purchaser, when broker must show, 966. 
 PERSONAL CONFIDENCE, 
 
 can not be delegated, 41. 
 PERSONAL DUTY, 
 
 can not be delegated, 41. 
 PERSONAL TRUST, 
 
 can not be delegated, 41. 
 PHYSICIAN, 
 
 contract to pay one for feigning disinterestedness, void, 38. 
 consulting may recover for services, when, 601. 
 PLANTATION, 
 
 agent to carry on, powers of, 396. 
 may sell product of, 397. 
 
 but may not exchange for product of another plantation, 397.
 
 INDEX. 953 
 
 Roferences are to Sections. 
 
 PLEDGE, 
 
 authority to sell does not Justify. 858. 
 
 factor has no implied authority to. for his own debts, 994. 
 
 can not deposit bill of lading in, 994. 
 
 usage cannot confer power, 994, 
 
 may pledge to pay charges on goods, 994. 
 or to meet principal's drafts, 994. 
 
 bona flde pledgee protected to amount of factor's lien, 994. 
 
 unauthorized pledge may be ratified, 994. 
 
 factor's acts confer power to pledge, 995. 
 
 in what States they exist, 995, note. 
 
 construction of these acts, 995. 
 POSTMASTER. 
 
 not liable for neglect or default of clerks and assistants, 594. 
 
 unless negligent in selecting them. 594. 
 
 or in requiring them to properly qualify, 594. 
 
 or in superintending affairs of his oflSce, 594. 
 
 or unless he co-operates in, or authorizes the act, 594. 
 POST OFFICE, 
 
 contracts to procure location of, when valid, 24, note. 
 PRESUMPTION, 
 
 when authority presumed, 83, 84. 
 limitations upon, 85. 
 illustrations of, 86, 87. 
 that agent is to conform to custom, 224. 
 
 that general agency continues until notice of its reyocation, 224, 
 PRICE, 
 
 agent to purchase may agree upon, when, 365. 
 agent to sell may fix, when, 862. 
 factor must sell at what price, 1019. 
 broker may agree upon, when, 946. 
 auctioneer may receive, when, 897. 
 
 may sue for when, 898. 
 
 See Authority to Receite Payment, 
 PRINCIPAL— WHO MAY BE, 
 
 every person competent to act in his own behalf, 43. 
 
 must have capacity to contract, 43. 
 
 corporations may be, 44. 
 
 partnership may be, 45. 
 
 each partner may appoint necessary agents, 45. 
 
 idiots and lunatics cannot be , 47. 
 
 how, when appointed during sane interval, 48. 
 
 drunkard may be, when, 49. 
 
 ratification of appointment by, 50. 
 
 infants can not generally act by agent, 51. 
 
 infants can not ratify appointment, 53. 
 
 what acts by infant's agent are void, 53. 
 
 modern dissent from general rule as to infant's incapacity, 54.
 
 954 INDEX. 
 
 References are to Sections. 
 
 PRINCIPAL— WHO MAY B^,— Continued. 
 how the rule should be in reason, 55. 
 married woman may be, 56, 
 how appointment may be made by her, 56. 
 PRINCIPAL, DUTIES AND LIABILITIES OP, 
 to agent. 
 
 See Duties aitd Liabilities of Principal to Agent. 
 to third persons, 
 
 See Duties and Liabilities of Principal to Third Persons, 
 PRINCIPAL— RIGHTS OF, 
 
 See Rights of PRiNcrPAii. 
 PRIVILEGED COMMUNICATIONS, 
 
 confidential communications to attorney at law are privileged, 880. 
 under what circumstances privilege exists, 881. 
 must have been made in confidence, 881. 
 not privileged if made in contemplation of a crime, 881. 
 
 but mere fraud not to be exposed, 881. 
 must have been received in capacity of attorney, 883. 
 does not apply to facts otherwise learned. 882. 
 nor to third persons present, 883. 
 nor to collateral fads involving no confidence, 888. 
 relation of attorney and client must exist, 883. 
 
 but no formal retainer or fee is necessary, 883. 
 communications to mere scrivener not privileged, 883. 
 oommunications must have been made to attorney, 884. 
 or to his clerk, agent, interpreter or representative, 884. 
 made to mere student not privileged, 884. 
 nor to unlicensed attorney where license required, 884. 
 privilege is that of a client, 885. 
 but he may waive it, 885. 
 attorney cannot, 885. 
 what constitutes a waiver, 885. 
 continues perpetually, 886. 
 
 death of client or attorney does not release it, 886. 
 attorney may disclose for his own protection, 887. 
 or when sued by client, 887. 
 or when suing him, 887. 
 PROFITS, 
 
 all profits of agency belong to principal, 469. 
 PROMOTERS OF CORPORATION, 
 
 when corporation bound by contracts of, 76. 
 PUBLIC AGENCY, 
 
 may be executed by a majority, 78. 
 
 but all must be present or have opportunity to be present, 78w 
 and no unfair means resorted to, 78. 
 when not revocable at will of principal, 233. 
 PUBLIC AGENTS, 
 how classified, 577.
 
 INDEX. 965 
 
 Beferenoes are to Sections. 
 
 PUBLIC AQ-ETHTa.— Continued. 
 
 third persons dealing with must ascertain his authority, 291. 
 presumed not to intend to bind himself personally, 426. 
 when bound on negotiable paper, 440. 
 cannot purchase at his own sale, 463. 
 nor let contract to himself, 463. 
 when liable for acting without authority, 547. 
 liable where he expressly binds himself, 559. 
 liable for money illegally exacted, 564. 
 
 but not if it was voluntarily paid, 565. 
 not liable to individual for breach of duty owing solely to public, 578. 
 liable for wrongs committed in private capacity, 579. 
 not liable for torts of official subordinates, 593. 
 See Public Officers. 
 PUBLIC OFFICERS, 
 
 See Public Agents; Judicial Officers; Leqislativb Officbbs and 
 Ministerial Officers. 
 PUBLIC POLICY, 
 
 agencies for purposes opposed to, void, 20. 
 the element of contingent compensation, 31. 
 procuring or defeating legislation, 22, 23. 
 procuring contracts from governments, 24, 25. 
 services in prosecuting claims, 26. 
 attempts to compromise crime, 27. 
 procuring appointments to office, 28, 29. 
 services in improperly influencing elections, 30, 31. 
 services in procuring pardons, 82, 33. 
 services in procuring or suppressing evidence, 34. 
 services in unlawful dealings in stocks or merchandise, 36. 
 services in procuring marriage, 36. 
 services in attempting to corrupt agents, 37. 
 selling tickets in forbidden lottery, 38. 
 procuring discharge of a drafted soldier, 38. 
 securing allowance of account, 38. 
 posing as assumed disinterested party, 38. 
 violating rules of war, 38. 
 keeping forbidden saloon, 38. 
 or billiard table, 38. 
 or lottery, 38. 
 working upon Sunday, 38. 
 whole contract is void when entire, 40. 
 PUBLIC USE, 
 
 authority to sell land implies no power to dedicate to, 330, 
 but authority to plat or lay out land does, 330. 
 PURCHASE, 
 
 agent may not buy on credit if furnished with funds, 363. 
 but may when not supplied with funds, 364. 
 SO when he has general authority to buy and sell, 364. ■^
 
 956 INDEX. 
 
 Beferences are to Sections. 
 
 PURCHASE,— Con^nwd. 
 
 authority to, implies power to agree upon price and terms of purchase, 
 865. 
 
 to determine time and method of delivery, 865. 
 
 to acknowledge receipt of goods, 365. 
 
 to acknowledge amount of indebtedness therefor, 865. 
 limits as to quantity are not to be exceeded, 366. 
 
 discretion may be exercised where no limit is fixed, 366. 
 limits as to quality or species must be observed, 367. 
 restrictions as to persons must be observed, 368. 
 
 may make representations as to principars credit when authorized to buy 
 on credit, 369. 
 
 but not if unnecessary, 369. 
 does not authorize making negotiable paper, 870. 
 ceases with principal's death, 246. 
 
 but not where order was mailed before death, 246. 
 agent who has bought with his own money may stop goods in transit, 
 
 687. 
 may retain title of goods until paid for, 689. 
 unauthorized, is ratified by keeping property, 150. 
 
 or by claiming title to it, 150. 
 
 RAILWAY SUPERINTENDENT, 
 
 authority to employ physician, 896. 
 RATIFICATION, 
 
 what is meant by, 110. 
 
 what acts may be ratified, 111. 
 
 any act principal could do in person, 111, 113. 
 
 torts may be, 113. 
 
 void acts cannot be, 114. 
 
 voidable acts may be, 114. 
 
 illegal acts cannot be, 115. 
 
 when forgery may be, 116. 
 who may ratify, 117. 
 
 any person capable of doing act, 117. 
 
 corporations may ratify, 118. 
 
 partners may ratify, 119. 
 
 infant cannot ratify, 52, 120. 
 
 agent cannot ratify his own acts, 121. 
 
 superior agent may ratify inferior agent's acts, 131. 
 
 when incompetent person may, 50. 
 
 when guardian or executor may, 50. 
 conditions of ratification. 
 
 principal must have been identified, 124. 
 
 not necessary that he should be known to agent, 124. 
 nor that he should have been named, 124. 
 but must have been capable of identification, 124. 
 
 principal must have been in existence, 125.
 
 INDEX. 967 
 
 Beferences are to Sections. 
 
 RATIFICATION,— Co7irt/i««Z. 
 
 principal must have present ability, 126. 
 
 act must have been done as agent, 137. 
 
 principal must have knowledge of material facts, 128, 129. 
 
 or voluntarily assume act without inquiiy, Van, 139. 
 no ratification of part of act, 130. 
 
 must ratify all or none, 130. 
 rights of other party must have been prejudiced, 131. 
 burden of proof of, upon party alleging it, 133. 
 relief of principal when facts are fully known. 133. 
 what amounts to a ratification, 134. 
 may be express or implied, 135. 
 when facts are undisputed, question is for court, 185. 
 otherwise for the jury, 135. 
 
 act of ratification must be of same nature required for authorization 
 136. 
 
 where sealed authority requisite, sealed ratification must be shown 
 136. 
 
 where statute requires authority in writing, written ratification must 
 
 appear, 136. 
 how deed ratified at common law, 137. 
 
 rule relaxed in partnership cases, 138. 
 
 Massachusetts rule, 139. 
 
 modern rule more liberal, 140. 
 
 unnecessary seal may be disregarded, 141. 
 
 by authority, subsequently conferred, 143. 
 
 by answer in chancery, 143. 
 contract for sale of land ratified by parol, 144 
 how under Statute of Frauds, 145. 
 implied ratification, in general, 146. 
 rariety of methods, 147. 
 
 by accepting benefits, 148. 
 
 one who appropriates fruits of agent's act ratifies, 148. 
 
 must have knowledge of the facts, 148. 
 
 instances, 149, 150. 
 by bringing suit based on agent's acts, 151. 
 
 mere delay in suing, no ratification when, 159. 
 by acquiescence or silence, 153. 
 
 principal has election to ratify or not, 154. 
 
 must elect within reasonable time, 155. 
 
 must not sleep on his rights, 156. 
 
 different rules adopted, 157. 
 
 some rules apply to corporations, 158. 
 
 and to municipal and quasi-municipal corporations, 159. 
 
 how when assumed agent is a mere stranger, 160. 
 
 the true rule, 161. 
 
 silence does not ratify if stranger acted in his own name, 162 
 
 Information from letter, 163.
 
 958 INDEX. 
 
 Beferences are to Sections. 
 
 RATIFICATION,— C7on<m«ed. 
 
 illustrations of rule, 164. 
 rule applies only to principal's, 165. 
 results of ratification, equivalent to prior authorization, 167. 
 
 cannot form basis of afllrmative right or part of principal, 167. 
 
 cannot affect intervening rights, 167. 
 ratification is irrevocable, 169. 
 results of ratification as between principal and agent, 170, 171. 
 
 agent's motives unimportant, 172. 
 
 principal's efforts to avoid loss, no ratification, 178. 
 
 ratification must be of whole act, 174. 
 
 ratification of appointment of subagent, 175. 
 
 does not discharge agent's liability to third persons in tort, 176. 
 
 acts of ratification liberally construed, 177. 
 as between principal and other party, 178, 179. 
 
 other party against principal, 178. 
 
 principal against other party, 179. 
 
 principal can not build up affirmative rights on ratification, 179. 
 as between agent and other party, 180, 181, 183. 
 
 releases agent in contract, 181. 
 
 but not in tort, 182. 
 RECEIPT, 
 
 agent to receive payment may give proper receipt, 385. 
 RECOUPMENT, 
 
 principal's right of, against agent, 647. 
 
 how distinguished from set-off, 647. 
 
 when proper remedy, 647. 
 what damages may be recouped, 648. 
 
 limit of recovery allowed, 649. 
 right of, not cut off by assignment, 650. 
 none against an infant, 651. 
 against broker, 975. 
 against factor, 1010. 
 REFERENCE, 
 
 attorney may consent to, 813. 
 authority to settle does not justify, 405. 
 
 see Arbitration. 
 REIMBURSEMENT. 
 
 agent must be reimbursed for proper outlays, 652. 
 
 cannot claim reimbursement for wrongful expenditures, 653. 
 nor for those incurred in violation of instructions, 652. 
 
 right attaches only to honest management, 653. 
 attorney entitled to, 840. 
 auctioneer entitled to, 917. 
 broker entitled to, 977. 
 factor entitled to, 1029. 
 RELIGIOUS SOCIETY, 
 
 when members of, personally liable on contracts, 73.
 
 INDEX, 959 
 
 Beferenoes are to Sections. 
 
 RENUNCIATION OP AGENCY, 
 
 agent may in general renounce at any time, 333. 
 liable for damages if he renounces contrary to agreement, 283. 
 not liable where agency for indefinite time, 233. 
 may renounce by mutual consent, 234. 
 abandonment treated as renunciation, when, 235. 
 agent may abandon if required to do unlawful act, 236. 
 agent must give notice of his renunciation, 237. 
 principal must also notify third parties, 237. 
 REPLEVIN, 
 
 factor may maintain, when, 1041. 
 REPRESENTATIONS, 
 
 principal liable for agent's representations, when, 714. 
 
 only when made in respect to matter otherwise his authority, 714. 
 and when made at time of transaction, 714. 
 must be part of res gestae, 714. 
 what embraced within res gestm. 715. 
 liable for agent's representation of extrinsic fact on which hia authority 
 
 depends, 417. 
 liable for agent's false or fraudulent representations, 743. 
 RESCISSION, 
 
 agent to sell, cannot rescind sale, 360. 
 auctioneer has no authority to rescind, 901. 
 nor broker, 950. 
 nor factor, 1001 . 
 principal may rescind, when agent deals with himself, 454-468. 
 
 or where agent was in secret employment of other party, 797, 798. 
 or where agent had an adverse interest, 713. 
 third persons may rescind because of agent's false representations, 744. 
 RES GEST^, 
 
 what embraced within, 714, 715. 
 RESIGNATION, 
 
 request for equivalent to discharge, 218. 
 RESPONSIBLE PURCHASER, 
 duty of agent to sell to, 521. 
 factor's duty to sell only to, 1018. 
 RESTRICTIVE INDORSEMENTS, 
 
 charge third persons with owner's rights, 783. 
 principal may claim and recover proceeds, 783. 
 REVOCATION OF AUTHORITY, 
 L By Original Agreement. 
 agency may be terminated in pursuance of stipulation to that effect, 200, 
 
 note, 
 agency may be terminated by expiration of time, 200. 
 
 by accomplishment cf object for which it was created, 201, 203. 
 n. By Act op the Parties. 
 principal may revoke authority at any time, 204. 
 if not coupled with an interest in the agent, 204.
 
 960 I^•uEx. 
 
 References are to Sections. 
 
 REVOCATION OF A-VTROniTY.— Continued. 
 
 fact that authority was declared exclusive or irrevocable makes no 
 difference, 204. 
 what interest will sufllce, 205, 206. 
 
 miist be an estate or interest in the thing, 205. 
 illustrations of this interest, 206. 
 
 mere interest in result or proceeds of execution not enough, 207. 
 commissions for sale of property not interest, 207. 
 or for collection of debt, 207. 
 bare powers revokable at any time, 208. 
 illustrations of this, 208. 
 State may revoke like private individual, 204. 
 jxnBer to revoke to be distinguished from right to revoke, 309. 
 
 principal who revokes contrary to his agreement liable in damages. 
 209, 210. 
 when right to revoke exists, 210. 
 
 where no definite time agreed upon, 210. 
 where authority was to cease in certain event, 210. 
 where agent was to give satisfaction, 210. 
 what amounts to a contract for a definite time, 211. 
 
 no damages for discharge of principal not bound to retain, 211. 
 when there is a corresponding and correlative obligation to retain, 211. 
 how when the contract lacked mutuality, 211. 
 when both parties must but bound or neither, 211. 
 when engagement for definite time will be implied, 212. 
 not from yearly or monthly salary merely, 212. 
 but may be from other circumstances, 212. 
 from continuance for second year or month, 212. 
 authority may be revoked for agent's incompetence, 213. 
 
 unless principal employed agent knowing him to be incompe- 
 tent, 213. 
 authority may be terminated for agent's misconduct, 214. 
 for disobedience of instructions, 214. 
 for dishonesty, 214, 215. 
 for embezzlement, 215. 
 
 for engaging in trade in opposition to principal, 215. 
 for being in secret employment of otliers, 215, note, 
 for assaulting principal's servants, 215. 
 for seducing principal's daughter, 215. 
 for becoming or being a drunkard, 215. 
 for gambling on stock exchange, 215. 
 what must be nature of offense, 215. 
 by what means authority may be revoked, 216. 
 may be by writing under seal, 216. 
 when sealed instrument required, 217. 
 or by parol, 216. 
 
 or may be inferred from circumstances, 216. 
 must be co-extensive with knowledge of agency, 216.
 
 INDEX. UOi 
 
 References are to Sectiona. 
 
 REVOCATION OP AUTHORITY,— Continued. 
 must be recorded when, 217. 
 need not be express, 218. 
 request to resign amounts to, 218. 
 revocation may be implied, 219.- 
 
 where same power is conferred on another, 219. 
 other illustrations, 219. 
 authority revoked by disposal of subject-matter, 220. 
 
 as where principal himself sells thing agent was authorized to 
 sell, 220. 
 authority may be revoked by dissolution of corporation, 231. 
 or by dissolution of partnership, 221. 
 but not by mere change in name, 221. 
 authority will be revoked by severance of joint interest, 222. 
 notice of revocation must be given, 223. 
 
 where authority was general must be given to third persons, 224. 
 
 or agent will continue to bind principal, 224. 
 no notice required to third persons when agency was special, 225. 
 
 unless agent has entered upon its performance, 225. 
 notice of revocation must be given to agent, 226. 
 
 takes effect from time he receives it, 226. 
 when notice must be given to subagents, 227. 
 how notice is to be given, 228 
 
 rule analogous to that in partnership cases, 228. 
 when it should be recorded, 229. 
 notice should be unequivocal, 230. 
 how sufficiency of notice to be determined, 231. 
 agent may renounce authority at any time, 233. 
 
 but will be liable in damages at any time if he renounces contrary to 
 
 his agreement, 233. 
 must give reasonable notice of his intention, 233. 
 authority may be terminated by mutual consent, 234, 
 abandonment by agent terminates authority, 235, 
 
 agent may abandon if required to do illegal act, 236. 
 notice of renunciation must be given, 237. 
 ITT. By operation of law, 238. 
 death of principal terminates agency, 240. 
 unless coupled with an interest, 241. 
 what interest is sufficient, 242, 243. 
 what interest is not sufficient, 244. 
 that death was unknown makes no difference, 245. 
 instances in which rule was applied, 246. 
 death of partner or joint owner dissolves agency, 247. 
 
 but does not relieve firm from liability to agent, 247. 
 death of principal dissolves authority to subagent, 248. 
 
 whether appointed with principal's authority or not, 248. 
 death of agent terminates agency, 249. 
 unless coupled with an interest, 250. 
 
 61 
 
 II
 
 962 INDEX. 
 
 References are to Sections. 
 
 REVOCATION OF AUTHORITY— C'oniwtwd. 
 
 how when one of two or more agents dies, 251. 
 
 effect of subagent's authority, 253. 
 insanity of principal dissolves agency, 253, 254. 
 
 how when other party ignorant of insanity, 255. 
 
 not dissolved when coupled with an interest. 256. 
 
 what evidence of the insanity is sufficient, 257 
 insanity of agent terminates agency, 258, 259. 
 
 unless coupled with an interest, 259. 
 
 how when insanity unknown, 260. 
 insanity of one of two or more agents, 261. 
 
 effect on subagents, 262. 
 bankruptcy of principal terminates agency, 263. 
 
 mere insolvency not enough, 264. 
 
 not terminated when coupled with an interest, 265. 
 
 how when bankruptcy was unknown, 266. 
 bankruptcy of agent generally terminates authority, 267. 
 
 not where act is of personal nature, 267. 
 marriage of principal may terminate agency, 263. 
 
 how in case otfeme sole, 268. 
 war terminates business agencies, 269. 
 
 what cases exempt, 260. 
 principal's removal from office terminates authority of subordinates, 
 
 270. 
 
 See DissoiiTJTioN op Agency. 
 RIGHTS OF AGENT AGAINST PRINCIPAL, 
 L Payment op Compensation. 
 
 1, Agent's Right to Compensation, 597. 
 
 express agreement as to payment is conclusive, 598. 
 when agreement must be express, 599. 
 
 between members of same family, 599. 
 when agreement to pay will not be implied, 600. 
 
 not where services were gratuitous, 600. 
 
 or were obtruded on party, 600. 
 
 or were rendered as mere act of kindness, 600. 
 
 or under such circumstances as repel presumption, 600. 
 when agreement to pay will be implied, 601. 
 
 where party employed in line of his profession, 601. 
 
 or is expressly requested to perform, 601. 
 
 when unauthorized act is ratified, 601. 
 
 2. Amount of Compensation. 
 
 express contract, if any, governs, 603. 
 may be left for principal to determine, 604. 
 where no agreement, reasonable compensation implied, 605. 
 what elements may be considered, 606. 
 what evidence of value admissible, 607. 
 
 agent continuing after expiration of term, presumed to be at former com- 
 pensation, 608.
 
 INDEX. 9t)3 
 
 References are to Sections. 
 
 RIGHTS OP AGENT AGAINST PRINCIPAL —Con<mu<?d. 
 8. When Compensation i» considered to be earned, 609. 
 earned when undertaking is fully completed, 610. 
 when full performance is a condition precedent, Cll. 
 agent's claim not defeated by principal's default, 613. 
 
 nor by fact that principal realized no profits, 613. 
 when agent entitled to compensation if authority revoked before perform- 
 ance, 614. 
 no future compensation if authority is rightly revoked, 615. 
 
 nor where agency was at principal's will, 616. 
 
 nor where agency was terminable on a contingency, 617. 
 but where agent is wrongfully discharged, he is eu titled to damages, 
 
 618. 
 how when terminated for agent's misconduct, 619. 
 
 what misconduct sufficient, 214, 619. 
 how when agent wrongfully discharged, 620, 
 
 what remedies agent has, 621, 
 
 the measure of damages to be recovered, 622. 
 
 agent's duty to seek other employment, 633. 
 
 what other employment he is bound to accept, 623. 
 
 when agent's right of action accrues, 624. 
 the doctrine of a present breach, 624. 
 
 no damages if agent acquiesces in discharge, 625. 
 no damages if agency revoked by principal's death, 626. 
 
 nor where revoked by principal's insanity, 627. 
 
 but principal's bankruptcy is no defense, 628. 
 how when revoked by death of agent, 629. 
 
 or by agent's insanity, 630. 
 
 or by agent's sickness or incapacity, 631. 
 how when performance abandoned by agent, 632, 633. 
 
 1. when abandonment was justifiable, 632. 
 
 2. when abandonment was unjustifiable, 633. 
 
 agent forfeits compensation by wrongful abandonment, 635. 
 
 the rule of Britton v. Turner more liberal, 636, 637. 
 brief absences no abandonment, 638. 
 condonation of abandonment, 639. 
 what will excuse abandonment, 640. 
 double agency, agent cannot recover for, 643. 
 unless fully known and assented to. 644. 
 unlawful undertakings, no recovery for, 645. 
 
 what these are, 18 et seq. 
 extra services, when recovery for, may be had, 646. 
 none when employed at regular salary, 646. 
 II. Agent's Right to Reimbursement. 
 agent must be reimbursed for proper outlays, 652. 
 
 but not for those caused by his own default or neglect, 652. 
 ni. Agent's Right to Indemnity. 
 agent must be indemnified against losses or liabilities incurred in princi- 
 pal's behalf, 653.
 
 964 INDEX. 
 
 References are to Sections. 
 
 RIGHTS OF AGENT AGAINST PRliUClF Ah— Continued. 
 
 but agent is not entitled to indemnity if act was unlawful, 654. 
 rV. Agent's Right to Protection prom Injury. 
 
 1. F¥om Risks incident to Business. 
 principal generally not liable, 656. 
 
 2. F^om Negligence of Principal. 
 
 principal responsible for his own negligence, 657. 
 
 for dangerous premises, 658. 
 
 for dangerous tools and machinery, 659. 
 
 for injuries resulting from failure to repair as agreed, 660, 661. 
 
 for employment of incompetent servants, 662. 
 
 for injuries outside of employment, 663. 
 8. For Negligence of his General Superintendent. 
 principal cannot escape responsibility by employment of general agents, 
 664. 
 
 is liable for general agent's neglect, 665. 
 
 when liable to agents of independent contractor, 666. 
 4. Far Negligence of his Fellow-servants. 
 principal in general not liable, 667. 
 who is a fellow-servant, 668. 
 volunteer assisting servant is, 669. 
 contributory negligence of servant defeats recovery, 670. 
 agreements to waive liability invalid, 761. 
 
 V. Agent's Right op Lien. 
 agent entitled to lien, 684, 
 
 is ordinarily a particular lien, 685. 
 for what sums it attaches, 686. 
 
 See Lien. 
 
 VI. Agent's Right op Stoppage in Transit. 
 agent liable for price of goods may stop them, 687. 
 
 right exercised as in other cases, 688. 
 such an agent may retain title till goods are paid for, 689. 
 RIGHTS OF AGENT AGAINST THIRD PERSONS. 
 
 right of action on agent's contract generally in principal alone, 753. 
 but agent may sue on contract made with him personally, 755. 
 or where he has a beneficial interest, 756. 
 or where the contract is under seal, 758. 
 agent's right depends on contract, 759. 
 right of assumed agent to show himself principal, 760. 
 af^ent may recover money paid by him under mistake or illegal contract, 
 °761. 
 
 what defenses open to third person, 762. 
 what damages agent may recover on contract, 768. 
 agent may recover for personal trespass, 764. 
 when agent may recover for injuries to principal's property, 765. 
 RIGHTS OF PRINCIPAL AGAINST AGENT, 
 
 See Duties and LiABiiiiTiES op Agent to PrincipaIj.
 
 INDEX. 965 
 
 References are to Sections. 
 
 RIGHTS OF PRINCIPAL AGAINST THIRD PERSONS, 
 principal may recover securities wrongfully released, 790. 
 may recover property wrongfully sold by ageni, 791. 
 principal may recover for injuries from third person's torts, 792. 
 for enticing agent away, 793. 
 
 for preventing agent from performing his duty, 794. 
 for personal injury to agent causing loss of service, 795. 
 third person not liable for agent's own torts or neglect, 796. 
 principal not bound where third person colludes with agent, 797. 
 
 nor when agent in secret employment of other party, 798. 
 principal not bound by judgment against agent to which he was not a 
 
 party, 799. 
 cannot be built up on ratification of agent's unauthorized act, 179. 
 principal entitled to enforce all rights against third persons, 767. 
 may sue on contracts made in his name, 768 
 may sue on contracts made in his behalf but in agent's name, 769. 
 except where contract was personal to the agent, 770. 
 or where it was made with agent exclusively, 771. 
 principal's right to sue superior to agent's, 772. 
 
 principal subject '•-o defenses which could have been made against agent, 
 773. 
 unless other party knew he was dealing with an agent, 774. 
 principal takes subject to defenses founded on agent's fraud or misrepre 
 
 sentations, 775. 
 third persons cannot dispute principal's title, when, 776. 
 principal may recover money wrongfully paid or used by agent, 778, 779, 
 
 788. 
 principal may follow and recover trust funds as long as they can be 
 identified, 780. 
 and it makes no difference that form has been changed, 780. 
 unless funds come into the hands of a bona fide holder without 
 
 notice, 780, 781. 
 where indorsement is restrictive third persons are charged with 
 notice, 783. 
 principal may recover property wrongfully used or disposed of by agent, 
 
 784. 
 principal's title not divested without his consent, 785. 
 mere possession of property no evidence of authority to dispose of it, 
 786. 
 but may be when coupled with indicia of ownership, 787. 
 principal may recover property appropriated to agent's use, 789. 
 RIGHTS OP THIRD PERSONS AGAINST AGENT. 
 1. In Contract. 
 agent not liable to third persons for non- feasance, 539. 
 liable for misfeasance, 540. 
 liable where he acts without authority, 542, 550. 
 
 liable where he expressly warrants his authority, 543. 
 liable where he makes false representations as to, 543.
 
 966 INDEX. 
 
 References are to Sections. 
 
 RIGHTS OF THIRD PERSONS AGAINST AQ^NT,— Continued. 
 
 liable where, while he know he has no authority, he yet contracts 
 
 as authorized, 544. 
 liable for assuming an authority he does not possess, 545. 
 but other party must have acted in good faith. 545. 
 implied warranty limited to matters of fact, 545. 
 how where he fully discloses his authority, 546. 
 how in case of public agents, 547. 
 
 contract must have been one enforceable against principal, if author 
 Ized, 548. 
 in what form of action agent is liable, 549. 
 when agent is liable on contract itself, 550. 
 liable where, though authorized, he fails to bind principal, 552. 
 liable for breach of implied warranty of authority, 553. 
 only when it depends on questions of fact, 553. 
 not liable for defect in point of law, 553 and note, 
 liable where he conceals agency, 554. 
 
 or name of his principal, 554. 
 not liable where he makes a full disclosure, 555. 
 how when agent acts for a foreign principal, 556. 
 liable where there is no responsible principal, 557. 
 liable where he contracts personally, 558. 
 not liable for money paid over to principal before notice. 561. 
 
 or where before notice his situation has been changed, 563. 
 hut is liable if agency was not known, 563. 
 liable for money illegally obtained, 564. 
 
 but not if it was voluntarily paid, 565, 
 how when agent was mere stockholder, 566. 
 when liable to third persons for mooey received for them, 567. 
 what constitutes assent in such cases, 563. 
 S. In Tort. 
 not liable for non-feasance, 569. 
 not liable to stranger for breach of duty owing to principal, 569, 570. 
 
 malicious motive is not material, 570. 
 liable for misfeasances, 571. 
 
 distinction between non-feasance and misfeasance, 573. 
 principal's knowledge or direction no defense, 573. 
 fact that agent derived no benefit no defense, 573. 
 nor that he acted in good faith, 573. 
 liability in respect to subagents, 575. 
 RIGHTS OP THIRD PERSONS AGAINST PRINCIPAL. 
 
 See Duties and Liabilities of Principal to Third Persons. 
 RISKS. 
 
 principal not liable to agent or servant for risks incident to business, 656. 
 8AFES. 
 
 agent to sell has no implied authority to warrant burglar proof, 350. 
 SALE. 
 
 unauthorized, ratified by accepting proceeds, 149.
 
 INDEX. 90 7 
 
 Beferences are to Sections. 
 BALE, — Oontinued. 
 
 I. Of liAND. 
 
 authority to sell, what is sufficient, 818. 
 terminates at principal's death, 246. 
 when authority to be exercised, 819. 
 
 authority to sell "immediately," 319. 
 authority to sell "within a short time," 319. 
 what form of execution authorized, 320. 
 
 when includes land subsequently acquired, 320. 
 implied right to convey, 321. 
 to insert usual covenants of warranty, 322. 
 does not imply power to mortgage, 323. 
 implies authority to receive so much of purchase price as is to ta paid 
 
 down, 324. 
 does not imply authority to give credit, 325. 
 except where agent is left to fix terms, 325. 
 
 when no time fixed, agent authorized to give credit, may give reason 
 able time, 825. 
 does not authorize exchange or gift of lands, 826. 
 does not authorize waste, 827. 
 
 or sale of timber separate from land, 327. 
 does not authorize changing boundaries of land, 828. 
 does not authorize partition, 329. 
 does not authorize dedication to public use, 330. 
 does not authorize conveyance in payment of agent's debts, 881. 
 does not imply power to revoke contract, 332. 
 rloes not imply power to discharge mortgages, 333 
 
 but agent having general authority to deal in land may assume mort- 
 gage as part of the purchase price, 333. 
 does not imply power to invest proceeds, 334. 
 J.I. Ok personal property. 
 authority to sell, what constitutes, 335. 
 can not be delegated to subagent, when, 186. 
 terminates with principal's death, 
 when implies authority to receive payment, 336, 
 
 authority to receive paj^ment not implied from possession of the bill, 
 837. 
 agent having possession of other indicia of ownership may receive pay- 
 ment, 338. 
 agent to sell merely or to solicit orders, without possession of the 
 
 goods, not authorized to receive payment, 339. 
 when traveling salesman may receive payment, 340. 
 how when payment to agent was part of the terms of sale, 341. 
 notice of want of authority, 342. 
 has no implied authority to sell his samples, 343. 
 purchaser from can not set off debt due from agent, 344. 
 when implies authority to hire horses, 345. 
 or authority to procure other supplies, 346.
 
 963 INDEX. 
 
 Beferences are to Sections. 
 
 SALE, — Contintui. 
 
 when implies authority to warrant quality, 347, 348, 349, 350. 
 
 when implies authority to warrant title, 851. 
 
 does not imply power to barter or exchange, 352. 
 
 does not imply power to give credit, 353. 
 
 does not authorize appropriation to agent's use, 354, 
 
 does not imply power to release principal's right or to pay his debts, 355. 
 
 does not imply authority to pledge, 356. 
 
 or to mortgage, 361. 
 does not imply authority to promise commissions on subsales, 357. 
 does not imply authority to sell at auction, 358. 
 when authority is to be executed, 359. 
 ageni to sell has no implied power to rescind sale, 860. 
 
 may fix the price and terms of sale, 362. 
 
 a. Sales by Auctioneer. 
 
 terms of sale, auctioneer may fix, 895. 
 
 not to be inconsistent with printed terms, 895. 
 acceptance of bid, auctioneer's power, 896. 
 
 can not in general refuse to accept bids, 896. 
 
 but may of incompetent or irresponsible bidder, 896. 
 price, auctioneer's power to receive, 897. 
 
 may receive price of chattels, 897. 
 
 but only deposits on sale of land, 897. 
 
 can receive nothing but money, 897. 
 delegate his authority, auctioneer may not, 899. 
 
 but may employ another to make outcry, 899. 
 
 or wield the hammer under his direction, 899. 
 credit, has no power to grant, 900, 
 
 unless justified by usage, 900. 
 rescind sale, has no power to, 901. 
 
 or to permit bidder to withdraw accepted bid, 901. 
 private sale not warranted when authorized to sell at auction, 908. 
 
 even though better terms received, 902. 
 bidding for himself, unauthorized, 903. 
 
 or to authorize another to bid for him, 903. 
 warranty of quality unaiiiborized, 904. 
 
 in absence of usage to that effect, 904. 
 cash sales, duty to make, 909. 
 
 must bear loss incurred from credit sale, 909. 
 third persons, must sell only to, 910. 
 
 sale to or for himself not binding, 910. 
 sell in person, duty to, 911. 
 
 liable for losses from delegation, 911. 
 disclosing principal, duty as to, 912. 
 
 personally liable otherwise, 912. 
 
 sale of property of A at B's sale should be announced 913. 
 
 b. Sales by Brokers. 
 
 usual and necessary powers implied, 941.
 
 INDEX. 969 
 
 Befereaces are to Sections. 
 
 SALE, — Continued. 
 
 effect of his instructions, 942. 
 acting for both parties, 943. 
 
 only with principal's consent, 943. 
 delegation of powers not generally permitted, 944. 
 
 but usage may sanction it, 944. 
 acts usually in name of principal, 945. 
 
 but usage may sanction diflorent course, 945. 
 price may be fixed by, when, 946. 
 
 must be usual or market price, 946. 
 warranty of quality may be given, when, 947. 
 
 may sell by sample, when, 947. 
 credit may be given on sales, 948. 
 
 unless there be usage to the contrary, 948. 
 payment to does not generally bind principal, 949. 
 
 is therefore at payer's risk, 949. 
 rescission by, unauthorized, 950. 
 
 cannot buy of or sell to principal, when, 953. 
 
 usage will not justify it, 952. 
 acting for both parties only allowed with consent of principal, 953. 
 
 without such consent, transaction voidable, 953. 
 instructions must be obeyed, 954. 
 
 except in case of sudden emergency, 954. 
 e. Sales by Factors. 
 factors possess the implied and incidental powers necessary to accomplish 
 
 object, 988. 
 
 provided they are not forbidden, 988. 
 usage confers what powers, 989. 
 
 factor presumed to be authorized to observe, 989. 
 
 must perform in the usual manner, 989. 
 credit sales may be made in absence of usage otherwise, 990. 
 
 factor may take note for price, 990. 
 
 and collect or discount it for principal, 990. 
 
 but if discounts for himself, makes paper his own, 990. 
 may sell in his own name, 991. 
 
 unless instructed otherwise, 991. 
 warranty of quality, factor may give when usual, 993. 
 payment may be received by factor, 992. 
 
 he may give proper receipt, 992. 
 good faith is required, 1007. 
 
 must not put himself in antagonistic position, 1007. 
 obedience to instructions is required, 1008. 
 
 advances or sudden emergency may excuse, 1008. 
 
 liable for loss occasioned by disobedience, 1008. 
 not if instructions were ambiguous, 1008. 
 
 acceptance of consignment binds factor, 1008. 
 
 damages recoverable against, 1008. 
 instructions to sell, factor's general duty to obey, 1009.
 
 970 INDEX. 
 
 Beforences are to Sections. 
 
 BALE, — Continued. 
 
 liable for loss from disobedience, 1009. 
 reimbursing himself, factor's right to sell for, 1009. 
 must not exceed the necessity of the case, 1009. 
 right to, may be waived, 1009. 
 cash, instructions to sell for, 1010. 
 
 usage can not justify violation of, 1010. 
 responsible purchaser, duty to sell only to, 1013. 
 
 factor liable as guarantor, 1013. 
 del credere commissions, effect of, 1014. 
 factor liable as principal debtor, 1014. 
 does not extend his powers or relieve him from duty, 1014. 
 undertaking of, not within statute of frauds, 1014. 
 discretion as to sales, 1016. 
 
 factor may exercise, when, 1016. 
 place of sale, what to be, 1017. 
 
 presumed to be at place where factor resides, 1017. 
 time of sale, must be reasonable, 1018. 
 
 liable if he neglects to sell within, 1018. 
 price, must sell at market, 1019. 
 
 liable for loss from under sale. 1019. 
 collection of price, duty as to, 1030. 
 liable if lost by negligence, 1020. 
 d. Bescission of, 
 
 See Rescissioit. 
 SALES FOR CASH, 
 
 authority to sell land presumed to be for cash, 325. 
 authority to sell personal property presumed to be, 353. 
 broker's sales not required to be, when, 948. 
 factor's sales not required to be, when, 990. 
 auctioneer's sales presumed to be for cash, 900. 
 instructions to sell for cash, factor must observe, when, 1010. 
 SALOON 
 
 contract, to carry on, when forbidden, void, 38. 
 SAMPLE— SALE BY. 
 
 what warranty agent may give upon, 349. 
 SAMPLES, 
 
 travellinir salesman has no implied authority to sell, 343. 
 SATISFACTION, 
 
 when agent who does not give, maybe discharged, 210. 
 SCHOOL-BOARD, 
 
 when individually liable for wages of teacher, 73. 
 SCRIVENER, 
 
 communications to, not privileged, 883. 
 SEAL, 
 
 authority to execute sealed instruments must be under seal, 93. 
 or to fill blanks in deeds, 94. 
 bow when seal on instrument was superfluous, 95.
 
 INDEX. 971 
 
 Beferenoes are to Sections. 
 
 SEAL, — Continued. 
 
 how when instrument executed in principal's presence and by his 
 
 direction, 96. 
 appointment of agent by corporation need not be under, 97. 
 even to execute deed of corporate realty, 98. 
 ratification of sealed instrument must be under seal, 137. 
 this rule re-laxed in partnership cases, 138. 
 Massachusetts rule in reference*to, 139. 
 modera rule more liberal than old one, 140. 
 superfluous seal may be disregarded, 141. 
 execution of sealed instruments, 418-430. 
 
 must purport to be made and signed in name of principal. 419. 
 not enough that agent is described as such, 431. 
 what form is sufficient, 425. 
 whether fact of agency should appear, 427-420. 
 whether parol evidence admissible to show intention, 430. 
 SEALED INSTRUMENTS, 
 
 See Seal. 
 SECRET EMPLOYMENT, 
 
 principal not bound when his agent was also in secret employment of 
 other party, 798. 
 such conduct is a fraud upon principal which entitles him to relief, 
 
 798. 
 that he was not in fact injured makes no difference, 798. 
 SECRET GRATUITIES. 
 
 given to agent to influence his conduct against his principal, render con- 
 tracts, etc., void, 798, note, 
 that agent was not in fact influenced, makes no difference, 798, note, 
 that principal was not injured makes no difference, 798. 
 See Corruption of Agknts. 
 SEDUCTION, 
 
 principal may recoup damages for, 215. 
 may discharge agent for, 315. 
 SERVANT, 
 
 how corresponds with agent, 2. 
 1. Rights against kaster. 
 master not liable to servant for risks incident to business, 656. 
 is responsible for his own negligence, 657. 
 for dangerous premises, 658. 
 for dangerous tools and machinery, 659. 
 for failure to repair as agreed, 660, 661. 
 for employment of incompetent servants, 663. 
 for employing servant outside of his employment, 663. 
 is responsible for negligence of his general superintendent, 665. 
 when liable to servants of contractor, 666. 
 not liable for negligence of fellow-servant, 667. 
 who is a fellow-servant, 668. 
 Tolunteer assisting servant, is, 669.
 
 9T2 mDEx. 
 
 Beferences are to Seotion& 
 
 SERVANT,— Con«n««d, 
 
 contributory negligence of servant defeats recovery, 670. 
 
 what constitutes, 670. 
 waiver of master's liability, invalid, 671. 
 compensation. 
 
 See Compensation op Agent. 
 
 2. Duties AKD LIABILITIES to master. 
 
 servant must be loyal to his master's interests, 454 et »eq. 
 
 must not deal with business for his own benefit, 456. 
 
 earnings of servant belong to master, 471. 
 servant must obey instructions, 473. 
 
 is liable for losses occasioned by his disobedience, 474, et teq. 
 servant must use reasonable care and diligence, 490 et seq. 
 
 is liable for injuries from his negligence, 490, et seq. 
 
 3. Rights against third persons. 
 
 servant may sue on contracts made by him, when, 753-759. 
 
 may recover money paid out by him under mistake or illegal contract, 
 
 761. 
 may recover for trespasses upon himself, 764. 
 
 may recover for injuries to master's property in servant's possession, 
 765. 
 
 4. Liabilities to thibd persons. 
 a. In contract. 
 
 servant not liable to third person for non-feasance, 539. 
 liable for misfeasance, 640. 
 Mable where he acts without authority, 542, 550. 
 
 liable where he expressly warrants his authority, 542. 
 
 liable where he makes false representations as to, 543. 
 
 liable where, while he knows he has no antljority,he yet contracu 
 as authorized, 544. 
 
 liable for assuming an authority he does not possess, 545. 
 but other party must have acted in good faith, 545. 
 implied warranty limited to matters of fact, 545. 
 
 how where he fully discloses his authority, 546. 
 liable where though authorized he fails to bind principal, 653. 
 liable for breach of implied warranty of autliority, 553. 
 liable where he conceals agency, 554. 
 not liable where he makes a full disclosure, 555. 
 liable where there is no responsible principal, 557. 
 liable where he contracts personally, 558. 
 not liable for money paid over to master before notice, 561. 
 
 or where before notice his situation has been changed, 562. 
 liable for money illegally obtained, 564. 
 
 but not if it was voluntarily paid, 565. 
 how when servant was mere stockholder, 566. 
 when liable to third persons for money received for them, 567. 
 
 what constitutes assent in such cases, 568.
 
 INDEX. 973 
 
 References are to Sections. 
 
 SERVANT, — Continued. 
 b. In Tort. 
 
 not liable for non-feasance, 569. 
 
 not liable to stranger for breach of duty owing to principal, 569, 570. 
 
 malicious motive is not material, 670. 
 liable for misfeasances, 571. 
 
 distinction between non-feasance and misfeasance, 572. 
 master's knowledge or direction no defense, 573. 
 fact that servant derived no benefit, no defense, 573. 
 nor that he acted in good faith, 573. 
 liability in respect to subagents, 575. 
 See Master. 
 SETTLE.— AUTHORITY TO, 
 
 authority to settle dispute does not authorize submission of it to arbitra. 
 
 tion, 405. 
 does not authorize assignment or pledge of demand, 406. 
 when implied, to settle claims for corporation, 86, note. 
 SET OFF, 
 
 purchaser from agent authorized to sell can not set off agent's debt, 344. 
 agent's right of, as against principal, 585. 
 may be waived by contract, 585. 
 cannot exist contrary to express trust, 585. 
 must be with principal's consent, 535. 
 third persons may avail themselves of set-off against agent in suit by 
 principal, when, 773, 774. 
 in suit brought by agent, 762. 
 broker's debt can not be set off against principal, 986. 
 factor's debt may be, when, 1043. 
 SHERIFF, 
 
 can not purchase at his own sale, 463. 
 SHIP BROKERS, 
 
 definition and functions of, 935. 
 SICKNESS, 
 
 abandonment by agent, because of, no forfeiture, 631. 
 agent entitled to compensation for services already rendered, 631. 
 rule is otherwise where sickness could have been anticipated 631 
 SLAVE, 
 
 might be an agent, 60. 
 SOCIETIES — UNINCORPORATED, 
 
 when liable for contracts of members, 72, 73, 74. 
 mere membership does not impose liability, 73, 74. 
 are not partnerships, 72. 
 SOLD NOTE, 
 
 purpose and form of, by broker, 932. 
 SPECIAL AGENT, 
 defined, 6. 
 
 how distinguished from general agent, 6, 9, 284, 286. 
 uses of this distinction, 7.
 
 974 INDEX. 
 
 Referencea are to Sections. 
 
 SPECIAL AGENT,— ConWnwcd. 
 difficulty in distinguishing, 8. 
 the true distinction, 285. 
 authority of, must be strictly pursued, 288. 
 
 binds his principal only when acting within limits of Ms authority, 288. 
 revocation of authority of, notice not required, 225. 
 STATUTE OF FRAUDS, 
 
 when agent to making contract for sale or leasing of lands must have 
 
 written authority, 89. 
 not required to be a formal or a sealed writing, 92. 
 how agent may be " lawfully authorized " under, 145. 
 necessity of maturity under, 211. 
 
 employment of broker to find purchaser, not within, 966. 
 del credere commission not within, 1014, 
 STATUTE OF LIMITATIONS, 
 
 when agent's claim barred by, 624. 
 when agent's liability barred by, 533. 
 STATION AGENT, 
 
 may contract for cars, 896. 
 
 but may not employ physician to attend injured person, 896. 
 STATUTORY AGENCY, 
 
 agency required by law not revocable at principal's will, 232. 
 agency to receive service of process for foreign insurance company only 
 revoked upon appointment of another agent, 233. 
 STOCK BROKERS, 
 
 definitions and functions of, 936. 
 mode of dealing by, 936. 
 powers, duties and liabilities of, 936. 
 STOCK GAMBLING, 
 
 contracts for void, 35. 
 STOPPAGE IN TRANSIT, 
 
 agent liable for price of goods may stop them in transit, 687. 
 but not if balance of accounts was against agent, 687. 
 nor where agent is mere surety, 687. 
 
 nor where he delivers goods to third person by principal's direction, 
 687. 
 right exercised as in other cases, 688. 
 agent may retain title till goods are paid for, 689. 
 " STREET ADVICE," 
 
 attorney not liable for error in, 497. 
 SUBAGENT, 
 
 agent has in general no power to appoint, 184-197. 
 
 when attorneys may appoint. 187. 
 
 when arbitrators may appoint, 188. 
 
 when executors etc. may appoint, 189. 
 
 when auctioneer may appoint, 899. 
 
 when broker may appoint, 944. 
 
 when factor may appoint, 998.
 
 INDEX. 975 
 
 BeferencGs are to Sections. 
 
 BTJBA.OET!iT,— Continued. 
 
 appointment justified in certain cases, 193-196. 
 
 1. when duty is mechanical or ministerial, 193. 
 
 2. when necessity requires it, 194. 
 
 8. when justified by usage or course of trade, 195. 
 4 when originally contemplated, 196. 
 general result of appointment, 197. 
 when his authority ceases with agents, 2'37. 
 when notice of revocation must be given to, 237. 
 death of principal dissolves authority, 248. 
 when death of agent dissolves authority, 253. 
 when insanity of agent dissolves authority, 363. 
 when agent liable for his acts, 197. 
 when principal may sue, 519. 
 to whom he should account, 534. 
 when responsible for his own torts, 575. 
 has recourse to agent when, 575. 
 
 how when agent concealed principal, 576. 
 when principal is liable for his compensation, 690. 
 when principal must reimburse and indemnify him, 691. 
 
 and protect him from injury, 693. 
 when entitled to lien, 693. 
 notice to, binds principal, when, 738. 
 SUBSCRIPTION LIST, 
 
 possession of, not evidence of authority to collect, 87. 
 SUBSTITUTE, See Subagent. 
 
 SUBSTITUTION, 
 
 See Delegation of authority. 
 SUIT, 
 
 bringing, based on agent's act. ratifies it, 151. 
 SUPERCARGO, 
 definition of, 14. 
 
 how differs from foreign factor, 14, note. 
 TENANTS IN COMMON, 
 
 appointment of agents by, 71. 
 all must concur, 71. 
 TITLE, 
 
 agent purchasing goods with his own money may retain title till paid for, 
 689. 
 TORTS, 
 
 may be ratified, 118. 
 
 principal's ratification of agent's tort does not discharge agent from lia 
 bility to third persons, 176—182. 
 liable for agent's wrongful acts expressly directed,733. 
 liable for agent's neglected act in course of employment, 784. 
 
 what acts are within this rule, 735, 736. 
 not liable for negligence of agent not in course of employment, 737. 
 illustrations of the rule, 738.
 
 976 INDEX. 
 
 Beferenoes areto Sections. 
 
 TORTB, — Continued. 
 
 liable for agent's fraudulent acts in course of employment, 73ft. 
 liable for agent's malicious act in course of employment, 740. 
 
 illustrations of this rule, 741. 
 liable for agent's use of excessive force, 743. 
 liable for agent's false or fraudulent representations, when, 743. 
 
 third person's remedies in such case, 744. 
 liable civilly for agent's criminal or penal act, when, 745. 
 liable criminally for agent's criminal or penal act, when, 746. 
 liable for acts of independent contractor, when, 747. 
 
 illustrations of this rule, 748. 
 effect of ratification on liability. 750. 
 measure of damage recoverable, 751. 
 
 unsatisfied judgment against agent no bar to holding principal, 752. 
 •gent not liable to third persons for non-feasance, 569. 
 
 not liable for breach of duty owing solely to principal, 569, 570. 
 
 malicious motive immaterial, 570. 
 liable for misfeasances, 571. 
 
 distinction between non-feasance and misfeasance, 572. 
 principal's knowledge or direction no defense, 573. 
 nor fact that agent derived no profit, 573. 
 nor that he acted in good faith, 573. 
 third persons liable to principal for injuries from their torts, 792. 
 for enticing agent away, 793. 
 for preventing agent from performing duty, 794. 
 for personal injury to agent causing loss of services, 795. 
 third persons liable to agent for torts upon him, 764. 
 
 or injuries to principal's property in agent's possession, 765. 
 TRAVELING AGENT, 
 
 when he may receive payment. 340. 
 
 when payment to him part of terms of sale, 341. 
 
 how notice of want of authority may be given, 342. 
 
 has no implied power to sell his samples, 343. 
 
 nor to use principal's goods to pay his own debts, 344. 
 
 may hire horses when necessary, 345. 
 
 but can not bind principal for his own board, when, 848. 
 or for keep of his horse, when, 346. 
 when may warrant quality, 347, 348, 349. 
 but can give no unusual warranty, 350. 
 when may warrant principal's title, 351. 
 may not give credit, when, 353. 
 may not appropriate goods to his own use, 354. 
 may not rescind the sale, 360. 
 may fix price and terms of sale, when, 363. 
 TREASURER, OP COUNTY, 
 
 can not purchase at his own sale, 463. 
 TROVER, 
 
 when agent liable to principal in, 476, 477.
 
 INDEX. 977 
 
 References axe to Sections. 
 
 TROYEB.,— Continued. 
 
 factor may maintain, 1041. 
 
 TRUST, 
 
 when may be established by parol, 459. 
 TRUSTEE, 
 
 cannot purchase at his own sale, 463. 
 must account for profits made, 469. 
 TRUST FUNDS, 
 
 principal may follow into hands of third person, 780, 781. 
 
 no matter that firm has been changed, 780, 781. 
 
 unless third person is bona fide holder without notice, 780, 
 UNDISCLOSED PRINCIPAL, 
 
 liable when discovered, on simple contracts, 695, 696. 
 the rule of liability stated, 696. 
 
 not liable where he has previously been misled by other party into 
 settling with agent, 697. 
 
 not liable where other party has trusted agent exclusively, 698. 
 what constitutes election to hold agent alone, 699. 
 
 taking agent's note does not, 699. 
 
 nor, charging goods to him, 699. 
 
 or sending him the bill, 699. 
 
 or filing claim against his estate, 699. 
 
 nor commencing action against him, 699. 
 election must be made within a reasonable time, 700. 
 principal may be charged, although name does not appear, 701. 
 
 or although other party supposed agent to be principal, 701. 
 
 or although contract is in writing, 701. 
 
 rule does not apply to contracts under seal, 702. 
 UNIVERSAL AGENCY, 
 defined, 6, 
 very rare, 6, 275. 
 how created, 6, 275. 
 UNLICENSED BROKER, 
 
 not entitled to commissions, 976. 
 
 rule does not apply to single sale by private person, 976 
 USAGE, 
 
 principal deals in contemplation of, when, 281. 
 to be valid, must be reasonable, 281. 
 
 and must not violate positive law, 281. 
 
 and must be general, 281. 
 principal may rebut presumption where usage is local, 281. 
 usage cannot change intrinsic character of agency, 281. 
 
 nor contravene express instructions, 281. 
 
 nor contradict express contract, 281. 
 
 nor authorize making invalid contracts, 281. 
 
 nor bind principal to take thing he did not order, 281. 
 will not justify taking commissions from both parties, 972. 
 will not justify sale on short credit when instructed to sell for cash, 1010.
 
 978 INDEX. 
 
 Heferenoes are to Sections. 
 
 VSAQJH,— Continued. 
 
 will not justify factor in shipping goods elsewhere for sale, 1017, 
 or in pledging the goods, 994. 
 USURY, 
 
 when principal responsible for, in loans made by agent, 746. 
 VOLUNTEER, 
 
 assisting servant is a fellow-servant, 669. 
 cannot recover for services rendered, 600. 
 broker must show an employment, 965. 
 VOTERS, 
 
 agreements to " work and canvass " void, 30, 31. 
 to use personal influence upon, void, 30, 31. 
 WAIVER, 
 
 of liability for negligence, invalid, 671, 
 WAR, 
 
 dissolves agency, 269. 
 WARRANTY OF AUTHORITY, 
 
 agent liable for, though made in good faith, 542. 
 a fortiori liable when known to be false, 543. 
 agent liable on implied, when he assumes to act as agent, 545. 
 a fortiori, liable when he knows he is not authorized, 544. 
 not liable on implied, when he discloses all the facts, 546, 
 warranty is of authority in fact, not in law, 545, 553, note, 
 no impKed, in case of public agent, 547. 
 contract must have been one enforceable against principal if it had been 
 
 authorized, 548. 
 when agent liable in assumpsit, 549. 
 
 when in action for the deceit, 549. 
 agent not liable on contract itself unless containing apt words to char:^:;e 
 
 him, 550. 
 remedy is for breach of express or implied warranty of authority, 550. 
 when agent warrants sufficiency of authority to execute in a certain man- 
 ner, 553. 
 warranty limited to facts only and not to law, 553, note. 
 WARRANTY OF QUALITY, 
 
 when agent may give, 347, 348, 349. 
 
 agent authorized to sell commercial paper may warrant its commercial 
 
 character, 349. 
 agent authorized to sell goods not present, may warrant quality, 349. 
 agent selling machines may warrant quality, 349. 
 
 custom or orders not to warrant immaterial unless purchaser knew 
 of it, 349. 
 agent selling machines may give privilege of return if not satisfactory, 
 349. 
 or sell on condition that machine does good work, 349. 
 or may waive return of machine, 349. 
 fact that principal furnished agent with a printed warranty does not pre- 
 cluJo oral one unless purchaser knew of it, 349.
 
 INDEX, 979 
 
 References are to Sections. 
 
 WARRANTY OF QUALITY,— Ccm^mwed. 
 
 agent may not warrant when warranty is not usually given, 850. 
 nor can he give unusual or extraordinary warranty, 350. 
 
 agent selling liquors may warrant their quality, but not that they will not 
 be seized for violation of revenue laws, 350. 
 
 agent to sell flour may not warrant that it will remain sweet during long 
 sea voyage, 350. 
 
 agent to sell safe cannot warrant it burglar proof, 350. 
 
 agent to sell horse may warrant it, when, 350. 
 
 giving of, how ratified, 151. 
 WARRANTY OF TITLE, 
 
 when agent to sell lands may give, 822. 
 
 when agent to sell personal property may give, 851. 
 WILFUL ACTS, 
 
 when principal liable for agents, 741. 
 \VITNESS, 
 
 agent competent as, to prove his authority, 103. 
 WOOD V. GOODRIDQE, 
 
 rule of, as to execution of deeds, 427-428. 
 YEARLY HIRING, 
 
 not implied from yearly salary merely, 313. 
 
 but may be implied from circumstances, 213. 
 instances of this, 212. 
 
 continuance for second year, deemed to be, and on same terms, 312.
 
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