• {hH^ iH ji:rf -. ' 1 UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY /^ ^0 n ^- /^^/^' //^ ^ ^ ^> /.^ / u^H'^. A STUDEiNTS' TEXT ON THE LAW OF PRINCIPAL AND AGENT SHERMAN STEELE Lecturer on Agency in St. Louis Universitjr School of Law CHICAGO T. H. FLOOD AND COMPANY 1909 / Copyright, 1909 BY T. H. FLOOD AND COMPANY. KTATK JOURNAL I'RINTINU COMPANY. PKINTrRH AND STlCIltOTYPtlia, MAOIHUN, WIS. -i^ TO OF ifampB 31. Olottmaa PREFACE. This book has been written with a view to its use as a class room text; and is addressed, therefore, primarily, to students. Though no attempt has been made to reduce a treatment of the law of Agency to the simplicity of a primer, yet it is believed that the rules have been stated, and the principles discussed, with sufficient clearness and conciseness to bring them within grasp of the ordinarily intelligent student of law. Sherman Steele. St. Louis, September 1. 1909. TABLE OF CONTENTS PART I THE RELATION IN GENERAL CHAPTER L DEFINITIONS. » 1. Agency, 2. Form of contract. 3. Created by law. 4. Master and servant, 5. Classifications. 6. Universal, general and special agents. 7: Del credere agent. 8. Particular designations. 9. Partners. 10. Other forms of agency. 11, Legal recognition. CHAPTER II. CAPACITY OF PARTIES. { 12. Who may be principal. 13. Joint principals. 14. Partners. 15. Voluntary associations, clubs, societies. 16. Who may not be principal. 17. Insane persons. 18. Drunken persons. 19. Aliens. 20. Married women. VI TABLE OF CONTENTS. 9 21. Infants. 22. Who may be agents. 23. Infants, insane persons, married womeiu 24. Corporations and partnerships. 25. Persons adversely interested. 26. Unlicensed agents. 27. Joint agents. 28. Public agency. CHAPTER III. DELEGATION OF AUTHORITY— ILLEGALITY OF OBJECT. I. Delegation of authority. § 29. In general. 30. Personal acts. 31. Acts required by statute to be personally performed. 32. Delegated authority can not be delegated. 33. Appointment of subagents. 34. Implied authority to appoint subagents. 35. Ministerial acts. 36. Implication of authority from nature of agency 37. The relation of the parties. II. Illegality of ohject. § 38. In general. 39. Appointment to do illegal acts. 40. Services in influencing legislation. 41. Procuring other governmental action. 42. Other contracts for services affecting the puhliQ, 43. Services contrary to fair dealings. 44. Conditions necessary to invalidate contract. CHAPTER IV. APPOINTMENT OF AGENTS. 8 45. In general. 40. Authority to execute sealed instruments. 47. Authority to fill blanks TABLE OF CONTENTS. VU 48. Authority to execute simple contracts required to be in writing. 49. Oral appointment 60. Implied appointment. (a) In general. (b) Implication from circumstances. (c) Implication from acts or conduct, (d) Relation of parties, 51. Estoppel. 52. Acceptance by agent. CHAPTER V, RATIFICATION. 53. In general. B4. What acts or contracts may be ratified, (a) In general. (b) Contracts. (c) Torts. (d) Forgery. B5. Conditions to ratiiication. (a) Assumption of agency. (b) Existence and designation of principal. 56. Who may ratify. 57. Manner of ratification. (a) In general. (b) Ratification of sealed instruments and of Con- tracts required to he in writing.. (c) Express oral ratification. 58. Implied ratification. (a) By affirmative act. (b) By silence. 59. Estoppel. 60. Knowledge of material facts. 61. Ratification in part. 62. Effect of ratification. (a) In general. (b) Intervening rights of strangers. Viii TABLE OF CONTENTS. I 63. Effect between principal and third party (a) In general. (b) Acts. (c) Contracts. 64. Effect on agent. CHAPTER VI. TERMINATION OF AGENCY. 65. In general. 66. By original agreement, 67. By act of parties. 68. Revocation of authority. (a) In general. (b) Power distinguished from right to revokai 69. How revocation is effected. (a) As against agent. (b) As against third parties. 70. Irrevocable powers. 71. Renunciation by agent. 72. Termination by law. 73. Death. (a) Of principal. (b) Of agent. (c) Power coupled with Interest. (d) Hunt V. Rousmanler. 74. Insanity. (a) Of principal. (b) Of agent. 75. Bankruptcy. (a) Of principal. (b) Of agent 76. Marriage. 77. War. TABLE OF CONTENTS. IX PART II EXISTENCE AND EXTENT OF AUTHORITY CHAPTER VII. ESTABLISHMENT OP AUTHORITY. 5 78. In general. 79. Establishment of authority (a) Agent's declarations. (b) Communications between principal and agent. (c) Oral or implied authority. (d) Ratification and estoppel. (e) Province of court and jury. 80. Written authority. 81. Ambiguous authority. 82. For principal's benefit. 83. Slight deviation. 84. Severable transaction. 85. Public officers CHAPTER Vin. CONSTRUCTION OF AUTHORITY. I 86. In general. 87. Express authority. (a) "Written authority. (b) Oral authority. 88. Implied authority. 89. Implication as to extent of authority, (a) Medium powers. (b) Power implied from usage. 90. Contrary restrictions. 91. Apparent authority. TABLE OF CONTENTS. § 92. General and special agents. 93. Notice of limitations. 94. Sximmary. CHAPTER IX. SCOPE OF PARTICULAR AGENCIES. S 95. In general. 96. Agent to sell. (a) Personalty. (b) Realty. 97. Agent to purchase. 98. Agent to receive payment. 99. Agent to execute commercial paper. 100. Agent to manage business. 101. Bank cashier. 102. Factor. 103. Broker. 104. Auctioneer. 105. Attorney-at-law. PART III RIGHTS AND LIABILITIES BETWEEN PRIN-J CIPAL AND THIRD PERSONS. CHAPTER X. FORM OF EXECUTION NECESSARY TO BIND PRINCIPAI* I lOG. In general. 107. Sealed instruments. 108. Negotiable instruments. (a) In general. (b) Parol evidence rule. (c) Cashier. TABLE OF CONTENTS. XI § 109. Other contracts. (a) Undisclosed agency, (b) Election to hold principal. (c) Settlement with agent. 110. Agent's liability. CHAPTER XI. ADMISSIONS— NOTICE— LIABILITY OP PRINCIPAL FOR TORTS AND CRIMES OF AGENT. § 111. Scope of chapter. L Admissions. 112. In general. 113. Admissions by agent. (a) In general. (b) Authorized statements. (c) Statements part of transaction, 114. Res gestae. IL Notice. 115. In general. 116. Notice to agent, (a) In general. (b) Exceptions to rule. III. PrincipaVs liability for tort of agent. 117. In general. 118. Master and servant. 119. Principal and agent. 120. Fraud. (a) In general. (b) Not for principal's benefit. IV. Principal's liaMlity for agent's crimes, 121. In general. 122. Assent of principal. (a) In general. (b) Statutory offenses. Xll TABLE OF CONTENTS. CHAPTER XII. LIABILITY OF THIRD PERSON TO PRINCIPAL. § 123. In general. 124. Sealed and negotiable instruments. 125. Other contracts. (a) Liability to undisclosed principal. (b) Principal excluded. 126. Defenses. (a) In general. (b) Estoppel. 127. Money paid through mistake, 128. Property wrongfully transferred. (a) In general. (b) Indicia of ownership. (c) Money and negotiable instruments. 129. Following trust funds. 130. Fraud. (a) In general. (b) Collusion with agent. 131. Causing loss of service. PART IV RIGHTS AND LIABILITIES BETWEEN AGENT AND THIRD PARTY CHAPTER xm. LIABILITY OF AGIONT TO THIRD PERSON— LIABILITY OF THIRD PERSON TO AGENT. I. Liability of ayent to third person, 9 132 In Ronnrnl. 133. Siniiilf contracts. (a) In general, fb) Construction. 184. Sealed Instruments. TABLE OF CONTENTS. xiii § 135. Negotiable instruments. 136. Public officers. 137. Acting without authority. (a) In general. (b) Deceit. (c) Breach of warranty. (d) Damages. 138. Liability for money received. (a) In good faith. (b) Wrongfully. 139. Money received from principal. 140. Liability for torts. (a) In general. (b) Nonfeasance. II. Liahility of third person to agent. 141. On contract. (a) In general. (b) Interest in subject matter. (c) Measure of damages. 142. Defenses. 143. Professed agent real principal. 144. Liability for money. 145. Liability for torts. PART V RIGHTS AND LIBILITIES BETWEEN PRIN- CIPAL AND AGENT. CHAPTER XIV. OBLIGATION OF AGENT TO PRINCIPAI4. 146. In general. 147. Duty to obey instructions. (a) Express instructions. (b) Implied instructions. Xiv TABLE OP CONTENTS. § 148. Justification for disobedience. (a) Emergency. (b) Illegal act. (c) Ambiguous instructions. (d) Factor's rights. 149. Duty to exercise care and diligence. (a) In general. (b) Gratuitous agent. 150. Duty to act in good faith. (a) In general. (b) Acting as agent and party. (c) Acquiring adverse interest. (d) May not deny title. (e) May not make a profit. (f) Failure to give notice. 151. Duty to account. (a) In general. (b) Duty to pay over. (c) Demand. 152. Subagents. CHAPTER XV. OBLIGATIONS OF PRINCIPAL TO AGENT. § 153. In general. 154. Compensation. (a) In general. (b) Ratification. (c) Amount of compensation. 155. When compensation is due. 156. Revocation of authority. (a) In general. (b) Revocation in violation of contract. (c) Agent's misconduct. (d) Revocation by law, 157- Renunciation by agent. (a) In general. (b) Entire and severable contracts. TABLE OF CONTENTS. XV 158. Obligation to reimburse. 159. Obligation to indemnify. (a) In general. (b) Illegal acts. 160. Lien of agent. 161. Special lien. (a) In general. (b) Requisites of lien. (c) Enforcement of lien. 162. Stoppage in transitu. THE LAAV OF AGENCY. PART T THE RELATIOI^ IIST GEI^EEAL. CHAPTER L DEFINITIONS. § 1. Agency. 2. Form of contract. 3. Created by law. 4. Master and servant. 5. Classifications. 6. Universal, general and special agents. 7. Del credere agent. 8. Particular designations. 9. Partners. 10. Other forms of agency. 11. Legal recognition. § 1. Agency. Agency is a legal relation, created by contract, whereby one party, called the agent, is author- ized to represent the other party, called the principal, in business dealings with third persons, and is usually empow- ered to bring the principal into contractual relations with such persons.^ 1 Sternaman v. Metropolitan Life Ins. Co., 170 N. Y. 13, 62 N. E. 763. Agency is the relation, created either by express or im- plied contract, or by law, whereby one party sui juris, called the 1 2 THE LAW OP AGENCY. § 2. Form of contract. The contract upon which the relation of principal and agent is founded may, with a few exceptions,^ be either verbal or written ; ^ and, as in the case of other contracts, it may also be implied from acts of the parties.* And so, a person 's conduct may have been such as to estoD him from denying the existence of the contract.^ principal, constituent, or employer, delegates the transaction of some lawful business with more or less discretionary power to another party, called the agent, attorney, proxy, or delegate, who undertakes to manage the affairs and render to him an account thereof. State v. Hubbard, 58 Kan. 797, 51 Pac. 290. The agent is the representative of the principal in the transaction of business embraced within his agency. Whatever he does lawfully in a transaction of that business is the act of the principal. First Nat. Bank v. Linn County Nat. Bank, 30 Ore. 296, 47 Pac. 614. An agent is a person duly authorized to act on behalf of another or whose unauthorized act has been duly ratified. Flesh v. Lindsay, 115 Mo. 1, 21 S. W. 907. 2 Post § 46. Authority to execute a sealed instrument must be given under seal; and so, it is provided by statute in some oi the states that authority to execute particular contracts, such a.' a contract for the sale or lease of land, must be in writing. Ban orgee v. Hovey, 5 Mass. 11; Shuetze v. Barley, 40 Mo. 69; Albert- son V. Ashton, 102 111. 50. 3 Post § 49. Webb v. Browning, 14 Mo. 354; Riley v. Minor, 29 Mo. 439; Watson v. Sherman, 84 111. 263; Long v. Hartwell, 34 N. J. Law, 116. ♦Post § 50. Graff v. Callahan, 158 Pa. St. 380, 27 Atl. 1000: Sheanon v. Pacific Mut. Life Ins. Co., 83 Wis. 507, 53 N. W. 878. 5 To create an estoppel the conduct of the party need not eon sist of affirmative acts or words, but may consist of silence or noKatlve omission to act when it was his duty to speak. Diamond V. Manheim, 61 Minn. 178, 63 N. W. 495. Hence if a person pur- posely or negligently permits another to hold himself out as his agent, he will not be heard to deny the existence of the agency FoKs-Rchnfldnr Brewing Co. v. McLaughlin, 5 Ind. App. 415, 31 N. E. 838; Gibson v. Snow Hardware Co., 94 Ala. 346, 10 South. 304; Cupjjles V. Whflan, 61 Mo. 583. DEFINITIONS. 3 § 3. Created by law. In most of the definitions it is laid down that the relation of principal and agent is either founded on contract or "created by law." The anomaly of an "agency created by law" is conjured up to explain the liability of a husband or father for necessaries fur- nished his wife or child, where he himself has refused to provide them.® The liability in question, clearly, does not depend upon the existence of a relation of principal and agent between the parties ; ^ but is rather an obligation di- rectly imposed by law out of motives of public policy. Without discussing the wisdom of this practice of attach- ing legal rules to divisions of law where accurately they do not belong, it may be stated that in this treatment of the subject we are not concerned with ' ' agency created by law, ' ' but are to deal with a relation founded on agreement of the parties. § 4. Master and servant. The relation of master and servant is somewhat analogous to that of principal and agent. Different tests have been applied to distinguish them, such as the term of employment, the mode of com- pensation, the manner of rendering service and the like.^ 6 In those cases where the law authorizes a wife to pledge her husband's credit even against his will, it creates a compulsory agency. Benjamin v. Dockham, 134 Mass. 418. 7 Thus, the husband is liable though the goods were furnished against his positive orders. He is liable, however, only for what the law deems necessaries and only for a price that the law deems reasonable. In no sense would he be bound by virtue of his wife's agreement, as he would he were she his agent. The liability arises in the absence of any agreement by the wife and hence does not depend upon existence of a relation of principal and agent between husband and wife. 8 Lang V. Simmons, 64 Wis. 525, 25 N. W. 650; Frank v. Herold, «3 N. J. Eq. 443, 52 Atl. 152; Gravatt v. State, 25 Ohio St. 182; 4 THE LAW OF AGENCY. Practically, the agent is distinguished from the servant by the purpose of his employment.® An agent acts for his principal in business dealings with third persons and brings the principal into legal relations with such persons.^*^ A servant is employed to perform acts upon or about things, and in his capacity of servant does not represent his master in business dealings with others, nor has he power to bind his master by contract. If authorized to do so, he that far ceases to be a servant and assumes the status of agent.^^ The term agent is sometimes used in statutes in a broader sense than here defined, so as to include any employee ; — as where a person is forbidden to do an act pereonally or by agent. The sense in which the tenn is used in enact- ments of this character must be determined from a con- struction of the statute.^* § 5. Classification. Different classifications of agents have been suggested, determined usually by the nature of their authority or the extent of their obligation. The most frequent classification is that of universal, general and special agents; and del credere and non del credere agents. State V. Sarlis, 135 Ind. 195, 34 N. E. 1129. An agent has more or less discretion, while a servant acts under the master's control and direction; McCroskey v. Hamilton, 108 Ga. 640, 34 S. E. 111. Turner v. Cross, 83 Tex. 218, 18 S. W. 578. '0 Wilson V. Mene-chas, 40 Kan. 648, 20 Pac. 468; Gardner v. Boston & M. R. Co., 70 Me. 181. uKlngan & Co. v. Silvers, 13 Ind. App. SO, 37 N. E. 413. No r)nw('r can be inferred from a relation of master and servant by which the latter can bind the former. Moore v. Tickle, 14 N. C. 244. isHlnderer v. Slate, 38 Ala. 415; Mitchell v. Georgia & A. R.v. Ill Ga. 700, 30 S. E. 971; Territory v. Maxwell, 2 N. M. 250; 1 Wharton Trim. Lnw, § 1022. DEFINITIONS. 5 § 6. Universal, general and special agents. (a) Universal. A universal agent would, necessarily, be one authorized to act for his principal in all possible busi- ness dealings with third persons, and empowered to bind his principal, without limit, by contract. A universal agency, like a mathematical point, has only theoretical existence. It is difficult to see how the creation of an actual universal agency would be legally possible; for no matter how broad the grant of authority, conditions might arise which were not in contemplation by the principal when he created the agency.^' (b) General. A general agent is one authorized to rep- resent his principal generally in a particular line of busi- ness, such as the manager of a store, or an agent author- ized generally to buy or sell goods for his principal.^* A person may have any number of general agents, and may combine a number of general agencies in a single agent.^' 13 A universal agency may potentially exist but it must be of the rarest occurrence, and indeed "it is difficult," says Mr. Justice Story, "to conceive of the existence of such an agency, inasmuch as it would be to make an agent the complete master, not merely dux facti, but dominus rerum, the complete disposer of all the rights and property of the principal." Wood v. McCain, 7 Ala. &00; Baldwin v. Tucker, 112 Ky. 282, 65 S. W. 841. i*Lobdell V. Baker, 1 Mete. (Mass.) 193; De Turck v. Matz. ISO Pa. St. 347, 36 Atl. 861; Fishbaugh v. Spunaugle, 118 Iowa, 337, 92 N. W. 58. A general agency exists when there is a delegation to do all acts connected with a particular business or employment. Great "Western Mining Co. v. Woodmas, 12 Colo. 46. 20 Pac. 771. A general agent of an insurance company is one who is authorized to accept risks and settle terms of insurance, and to carry them into effect by issuing and renewing- policies. Walsh v. Hartford Fire Ins. Co., 9 Hun (N. Y.) 421. i» A general authority to do an indefinite number of acts of a particular kind by no means constitutes a universal agency. Far- mers', etc.. Bank v. Butchers', etc., Bank, 16 N. Y. 125. 6 THE LAW OF AGENCY. (c) Special. A special or particular agent is one au- thorized to act for his principal in a single or particular transaction, such as in the sale of a horse or a parcel of land.^« § 7. Del credere ag^ent. A del credere agent is one who, in consideration of increased compensation, guarantees the payment of any debt arising through his agency. The term is most generally used in reference to commission mer- chants who guarantee payment for the goods they sell on commission. A non del credere agent is, of course, one who makes no such guarantee.*' § 8. Particular designations. There are a number of agents, whose duties are of a specific nature, to whom com- monly recognized designations are given, such as attorneys in fact and at law, brokers, factors, auctioneers and the like. (a) Attorneys. An agent authorized in writing to sign a deed, or other formal document, is frequently called an attorney in. fact, and his written authority is termed <'i power of attorney. An attorney in fact is, of course, to bo distinguished from an aflorncy at law, who, as such, merely represents his client in leffal matters intrusted to his charge.^' ifl First Nat. Bank v. Nelson, 38 Ga. 391; Scott v. McGrath, 7 Barb. 53; Cooley v. Perrine, 41 N. J. Law, 322; Davis v. Talbot, 137 Ind. 235, 36 N. E. 1098. A special agent is one authorized to do one or more specific acts, in pursuance of particular instruc- tions, or within restrictions necessarily implied from the act to l)e done. Pacific Biscuit Co. v. DiiRRer, 40 Ore. 362, 67 Pac. 32. 17 Loch V. Hellman, 83 N. Y. 601; Ruffner v. Hewit, 7 W. Va. .185. A del (Todere ap;rnt is primarily liable to his principal for the price of the goods sold. Lewis v. Brehme, 33 Md. 412. 18 Attorney, In English law, signifies, in its widest sense, any substitute or agent ai)pointed to act in the turn, stead or place of DEFINITIONS. 7 (b) Brokers. A broker is an agent who brings parties together to bargain, or who negotiates for them business transactions, usually the purchase or sale of property not in his possession." He is employed "to make bargains and contracts between other persons in matters of trade, com- merce and navigation for a compensation commonly called brokerage."^" A person who sells real estate, stocks or bonds on commission is a broker. (c) Factors. The term factor is the legal equivalent of the business term commission merchant. ^^ A factor dif- fers from a broker in that he has possession of the goods to be sold and usually sells them in his own name,^^ frequently guaranteeing payment; in which event he is said to sell upon del credere commission. (d) Auctioneer. An auctioneer is an agent who sells property of his principal at public sale or auction. He dif- fers from a broker in that his sales are public. Though another. In re Ricker, 66 N. H. 207, 29 Atl. 559. An attorney-at- law is merely an agent of a party, and special agent at that, in the sense that his authority extends only to the particular matter in which he is employed. Douglass v. Folsom, 21 Nev. 441, 33 Pac. 660. isHiggins v. Moore, 34 N. Y. 417; Parker v. Walker, 86 Tenn. 566, 8 S. W. 391; Douthart v. Congdon, 197 111. 349, 64 N. E. 348. A broker is a mere negotiator between other parties, and does not act in his own name, but in the name of those who employ him. Henderson v. State, 50 Ind. 234. 20 Story on Agency, § 22. 21 Mechem's Agency, § 14; Thompson v. Woodruff, 47 Tenn. 401; Duguid V. Edwards, 50 Barb. (N. Y.) 200. 22 In re Rabenau, 118 Fed. 471; State v. Thompson, 120 Mo. 12, 25 S. W. 346; Delafield v. Smith, 101 Wis. 664, 78 N. W. 170. A factor is a commercial agent transacting the mercantile affairs of other men in consideration of a fixed salary or commission, and principally, though not exclusively, in the buying and selling "•f goods. Lawrence v. Storington Bank, 6 Conn. 521 8 THE LAW OF AGENCY. primarily agent of the seller, an auctioneer becomes also the agent of the buyer when he accepts the latter 's bid and enters his name upon the memorandum of sale.^^ § 9. Partners. The formation of a partnership creates a qualified relation of agency between the partners. In the absence of express restrictions, each partner is deemed the agent of all in the transaction of such affairs as come within the scope of the partnership business.^* § 10. Other forms of agency. Certain officers of ships, such as the master ; and particular officials of corporations, such as the cashier of a bank, are agents, whose functions are more or less familiar and whose duties, to a large ex- tent, are defined by custom,-^ § 11. Legal recognition. The law gives recognition to all the foregoing familiar forms of agency; and while it is the rule that no presumptions are indulged as to the nature or extent of an agent's authority, but that the same must be established by evidence ; yet, where the duties of a par- ticular agent are well defined .By custom, it will be assumed, in the absence of express restrictions, that such an agent's 23 White V. Dahlquist Mfg. Co., 179 Mass. 427, 60 N. E. 791; Thomas v. Kerr, 3 Bush. (Ky.) 619; Randall v. Lautenberger, 16 R. I. 159, 13 Atl. 100. 2* Person v. Carter, 7 N. C. 321; Summerlot v. Hamilton, 121 Intl. 87, 22 N. B. 973. A partner may buy land for the firm if it Is needed for the firm business. Davis v. Cook, 14 Nov. 2G5; Win- ship V. Bank of U. S., 5 Pet. (U. S.) 529. 25 Porter v. Herman, 8 Cal. 619; Sturges v. Bank of Circleville, n Ohio St. l.'")3; Martin v. Webb, 110 U. S. 7. The term agent is one of wide application and includes a great many classes of per- sons to which (ii.stinctive appellations are given, as factors, brok- crH, itloriioys, «a.sliif.MS, clcrk.s, consignees, etc. Norfolk & W. R. Co. V. Cottrcll, 83 Va. 512, 3 S. E. 123. DEFINITIONS. d authority, in any particular case, extends to the perform- ance of those functions for which, according to the usages of business, he is ordinarily employed.^* 26 Post, Chap. IX. Gray v. Farmers Nat. Bank, 81 Md. 631, 32 Atl. 518; Abbot v. Jack, 136 Cal. 510, 69 Pac. 257. A cashier of a bank is held out to the public as having authority to act accord- ing to the general usage, practice and course of business con- ducted by such institutions, and his acts done in the scope of such usage, practice and course of business will, in general, bind the bank in favor of third persons possessing no other knowledge. Such an officer is.virtute officii, intrusted with the notes, securities, and other evidence of the bank, and is held out to the world by the bank as its general agent for the transaction of its affairs, within the scope of authority vested by such usage, practice, and course of business. Case v. Citizens' Bank, 100 U. S. 446. CHAPTER IL CAPACITY OF PARTIEa § 12. Who may be principal, 13. Joint principals. 14. Partners. 15. Voluntary associations, clubs, societies, 16. Who may not be principal. 17. Insane persons. 18. Drunken persons. 19. Aliens. 20. Married women. 21. Infants. 22. Who may be agents. 23. Infants, insane persons, married "women. 24. Corporations and partnerships. 25. Persons adversely interested. 26. Unlicensed agents. 27. Joint agents. 28. Public agency. § 12. Who may be principal. The relation of principal and agent, as we have seen, is founded on contract, and an iigent usually brings his principal into contractual relations with others. To appoint an agent, therefore, or to act by agent, a person must be competent to contract. Those per- sons whom the law declares incapable of entering into con- tracts generally, can not enter into the contract of agency, or contract through an agent with third parties.^ Stated conversely, the rule is that any one legally competent to con- 1 Dexter v. Hall, 15 Wall. (U. S.) 9; Armitage v. Widoe, 36 Mich. 124. As to compeleucy in general see Lawson on Contracts,. Chap. V. CAPACITY OF PARTIES. 11 tract may appoint an agent, and, with a few exceptions,^ )nay do through an agent any act which he is capable of doing in person,^ or make any contract into which he is com- petent personally to enter.* Broadly speaking, any person competent to act in his own behalf may act by agent; and anything which a person mav do himself he may do by agent.* § 13. Joint principals. Any number of persons, indi- vidually competent to contract, may unite in the appoint- ment of an agent to represent them in business dealings with others or to bind them by contract with third parties.*' Where several persons have common interests, such as joint ownership of property, it may frequently occur that they will join in the appointment of one of. their own number, or of a stranger, as agent ; or they may authorize one of their oaati number to make the appointment in behalf of all. In either event the acts of the agent, within the scope of his 2 Acts essentially of a personal nature and powers conferred be- cause of personal qualification can not be delegated; and, so, where a statutory duty or authority is required to be personally executed, it, of course, can not be delegated. Lyon v. Jerome, 26 Wend. (N. Y.) 485, 37 Am. Dec. 271; Brown v. Railway Passenger Assur. Co., 4.5 Mo. 221; Finnegan v. Lucy, 157 Mass. 439, 32 N. B. 656; Post, Chap. IIL 3 Broom's Legal Maxims: Qui facit per alium facit per se. Combes' Case, 9 Co. Rep. 75. An agent may be authorized to do any acts Which his principal might do, except those to which the latter is bound to give personal attention. Cal. Code, § 2304. * Lea V. Bringier, 19 La. Ann. 197. Capacity to contract through an agent, is coextensive with the capacity of the principal to con- tract. 6 Ferguson v. Morris, 67 Ala. 389. eHolladay v. Daily, 19 WalL (U. S.) 606; Reiman v. Hamilton, 111 Mass. 245. ik W- 12 THE LAW OF AGENCY. authority, become the acts of all the principals^ The fact, however, of the existence m several persons of a common interest does not implj'- authority in one to represent the others, nor to appoint an agent in behalf of all.® The assent of all the principals is required. Thus, the appointment of an agent by one of several joint tenants will in no way bind the others unless they give their a,ssent either at the time or subsequently by ratification.'^ § 14, Partnership. The formation of a partnership, as we have seen, creates a relation of agency between the part- ners, whereby each becomes the agent of all in the transac- tion of partnership business.^" In the absence of express restriction, therefore, the existence of a partnership im- plies authority in each member of the firm to appoint such agents as may reasonably be needed to carry on the part- nership business; and the appointment by one partner, within the limits indicated, is deemed an appointment by all." 7 Graham v. Cummings, 208 Pa. St. 516, 57 All. 943; Noe v. Christie, 51 N. Y. 270; Chouteau v. Goddins, 39 Mo. 229, 90 Am. Dec. 462. 8 Peiminter v. Kelly, 18 Ala. 716, 54 Am. Dec. 177; Sims v. Dame, 113 Ind. 127, 15 N. E. 217; Keay v. Fenwick, 1 C. P. Div. 745 (Eng.) Sewf'll V. Holland, 61 Ga. 608; Murray v. Haverty. 70 111. 318; Tipping V. Robbins, 64 Wis. 546, 25 N. W. 713; Richey y. Brown, 58 Mich. 435, 25 N. W. 386. 10 Story on Partnership, § 1; Deakin v. Underwood, 37 Minn. 98, 33 N. W. 318. 11 Paton V. Baker, 62 Iowa, 704; Harvey v. McAdams, 32 Mich. 472; Carley v. Jenkins, 46 Vt. 721; Coons v. Renick. 11 Tex. 134. CO Am. Dec. 230. To appoint an agent for a purpose not within the acopfi of the partnership business, the concunence of all the partners would be necessary. Burgan v. Lyell, 2 Mich. 102, 55 Am. Dec. 53; Durgin v. Somcrs, 117 Mass. 55. CAPACITY OF PARTIES. 13- § 15. Voluntary associations, clubs, societies. Volun tary associations, such as clubs, religious or charitable so- cieties and the like, when not incorporated, do not possess a distinct legal entity, like a corporation, which is compe- tent to appoint an agent or to enter into contracts. ^^ Neither is an association of this character a partnership ; and consequently members are not bound by one another's acts or contracts as in the case of partners. ^^ Contracts may be made in the name of members of the association, but only those are bound by such a contract who have expressly or impliedly given their assent to the same." Hence no member can be made liable for debts incurred, or be bound by any contract entered into, on behalf of such an associa- tion by its officers, or other members, unless a relation of principal and agent can be established between the mem- ber sought to be bound and those who, purporting to rep- resent the association, incurred the debt or entered- into the contract.^^ The existence of such a relation will not be in- ferred from the fact of membership, as in the case of part- ners ; but actual delegation of authority must be established izWestbrook v. Griffin, 132 Iowa, 185, 109 N. W. 608; Pearson V. Anderberg, 28 Utah, 495, 80 Pac. 307; Liggett v. Ladd, 17 Ore. 89, 21 Pac. 133. A voluntary association can not be a devisee by its association name. "White v. Howard, 46 N. Y. 144. Or ho!d real estate. Goesele v. Bimeler, 14 How. (U. S.) 589. Such an association must sue and be sued in the names of the individual members, unless otherwise provided by statute. Guild v. Allen, 28 R. I. 430, 67 Atl. 855. 13 Burt V. Lathrop, 52 Mich. 106, 17 N. W. 716; Davison v. Hol- den, 55 Conn. 103, 10 Atl. 515. 14 Ash V. Gui, 97 Pa. St. 493, 39 Am. Rep. 818; Newell v. Borden, 128 Mass. 31; Wilcox v. Arnold, 162 Mass. 577, 39 N. E. 414. 15 Lewis v. Tilton, 64 Iowa, 220. 19 N. W. 911; Castner v. Rinne, 31 Colo. 256, 72 Pac. 1052; Cheney v. Goodwin, 88 Me. 563, 34 Atl. 420; Hornberger v. Orchard, 39 Neb. 639, 58 N. W. 425. 14 THE LAW OF AGENCY. in order to create liability.^^ Thus where a number of per- sons, members of a Masonic lodge, were sought to be held liable upon a certificate of indebtedness, executed by the master and wardens, for a debt incurred in the erection of a lodge building, but there was no evidence that they had participated in the enterprise, or in any way acquiesced in the creation of the obligation, it was held that they were not bound by the same.^^ And so, where at a meeting of an unincorporated association, organized for the purpose of stimulating interest in the raising of poultry, the board of directors was authorized to give a public exhibition, and a premium list was adopted by a vote of the society, it was held, in an action, subsequently brought, to compel defend- ants, as members, to contribute their share of the expense of the exhibition, that mere membership would not create liability, and that only those members who joined in the vote to hold the exhibition, or in some way assented to be bound thereby, could be held liable for the expense in- curred.^® This actual assent, however, to be bound by majority action, or by contracts made by officers or committees, need not be expressly given but may be implied from the cir- cumstances of the case or the acts of the parties." Thus, if the constitution or by-laws of an association should pro- vide that members aic Ixnind hy a majority vote or that "McCabo V. Goodfellow, in.3 N. Y. 89, 30 N. E. 728; Lafond v. Deems. 81 N. Y. 507; Rice v. Peninsular Club, 52 Mich. 87, 17 N. W. 708; FlRuiyng v. Hector, 2 M. & W. 172. 17 Ash V. nui, 97 Pa. St. 493, 39 Am. Rep. 818. 18 Ray V. Powers, 134 Mass. 22. The rule was held to be the same where an exhibitor sued for a premium that had been awarrled him. Volger v. Ray, 131 Mass. 439. 1" Davison v. Ilolden, 55 Conn. 103, 10 Atl. 515; Heath v. Qos- lln, 80 Mo. 310, 50 Am. Rep. 505; Todd v. Emly, 7 M. & W. (Eng.) 427. CAPACITY OF PARTIES. 15 particular officers shall have authority, within prescribed limits, to bind the association by contract, acceptance of membership therein, in the face of such provisions in its constitution or laws, indicates a willingness to be bound thereby. When a person, therefore, joins an association, which is subject to laW'S or regulations of the character de- scribed, he impliedly consents to be governed by their pro- visions, and thus confers, in advance, authority upon proper officers or committees, under prescribed circumstances, to bind him by such contracts as come reasonably within the contemplation of the rules or regulations of the society.^" So, in the absence of such provisions, an implication of au- thority may arise, as in other cases of agency, from the con- duct of the parties.-^ Thus certain members of a commit- tee, having in charge a public dinner, were held liable for a share of the expense of the same, notwithstanding that they voted against it; their assent, in this case, being in- ferred from the fact that after the vote was taken they remained at the meeting and acquiesced by their silence in the ordering of the dinner." And so, there may be cases where the object for which an association is organized is so clear and the acts done so essential to the furtherance of that object, that all members will be presumptively bound without evidence of express assent.-^ aoKalbitzer v. Goodhue, 52 W. Va. 435, 44 S. E. 264; Bennett V. Lathrop, 71 Conn. 613, 42 Atl. 634; Devoss v. Gray, 22 Ohio St 169. One can not become a member of a voluntary unincorpo- rated association unless he signs or in some way assents to the constitution and by-laws. Konta v. St. Louis Stock Exchange, 189 Mo. 26, 87 S. W. 969. 21 Wilcox V. Arnold, 162 Mass. 577, 39 N. E. 414; Heath v. Gos- lin, 80 Mo. 310. 22Bichbaum v. Irons. 6 Watts & S. (Pa.) 67, 40 Am. Dec. 540; Wilcox V. Arnold, supra. 23 Persons who organize as a campaign committee on the eve I 16 THE LAW OF AGENCY. § 16. Who may not be principal, (a) In general. Those persons whom the law declares incompetent to enter into contracts can not, as we have seen, appoint agents or contract through agents. This incompetency may arise from natural incapacity, as in the case of insane or drunken persons; or it may arise — to use the stock phrase — from operation of law, as in the case of aliens, married women and infants.^* § 17. Insane persons. The law is generally declared to be that an insane person can not appoint an agent, nor. even after regaining sanity, ratify a contract made in his behalf by one who assumed to act as agent.^^ This rule, apparently, is founded upon the doctrine that contracts of insane persons are void ; -® and may be cited as an example of the failure of one branch of the law to keep pace, in a forward advance, with another. It is the modern law that the contract of an insane person, unless he is under legal guardianship,-' is voidable, at his option, but not void.^^ of an election may be supposed to know that their associates, in the name of the committee, will incur certain obvious expenses in giving public notice of political meetings, and thus they sanction such outlay by the very fact of their organization. Richmond v. Judy, 6 Mo. App. 4G.5. -* Bishop on Contracts, Chap. XXXIII, et. seq. 2r. Dexter v. Hall, IT. Wall. (IT. S.) 0; Marvin v. Tnglis. 39 How. Prac. 329; Elias v. Enterprise Building & Loan Ass'n, 46 N. C. 188, LM S. E. 102; McClun v. McClun, 176 111. :!76, .'32 N. E. 928. A deaf mute who does not understand any matter of business, can not manage his own affairs, and consequently can not appoint an ■■r^Hiii. In re rcrriiic. J 1 N. .1. E(|. 409, 5 Atl. 579. A person can ratify an act only where he would have been capable of author- izing It. Post § 5G. 20 Seavers v. T^helps, 11 Pick. (Mass.) ?,0'i; Van Deusen v. Sweet. 51 N. Y. 378. 27 PMtzhugh V. Wilcox, l? Parb. (N. Y.) -?.'>: Iluniham v. Kid- CAPACITY OF PARTIES. 17 Hence it would seem logically to follow that the appoint- ment of an agent by an insane person, not under guardian- ship, is merely voidable, and that any contract made by such agent, in behalf of his principal, could be ratified by the latter upon regaining sanity. Such, however, as we have indicated, is not generally held to be the law ; though in at least one modern case the doctrine has been squarely adopted, and in time will doubtless be accepted as the rule.^* It is a rule of the law of contracts that where an insane person enters into an agreement with another party who has no knowledge of the existence of the insanity, but deals fairly and in good faith, the contract will be deemed valid, if the same has been executed in whole or in part and the parties can not be restored to statu quo.^'^ This rule would seem still to be applicable though the contract, in question, well, 113 111. 425; Lynch v. Dodge, 130 Mass. 458; Hughes v. Jones, 116 N. Y. 67, 15 Am. St. Rep. 386. It has been held that this abso- lute disability extends only to contracts made in the state where the guardian was appointed. Gates v. Bingham, 49 Conn. 275; Contra, American Trust Co. v. Boone, 102 Ga. 202. 2s Bishop on Contracts, Chap. XXXV; Person v. Warren, 14 Barb (N. Y.) 488; Fay v. Burdett, 81 Ind. 433, 42 Am. Rep. 142. To avoid a contract, free from fraud or undue influence, on the ground of insanity of a party thereto, it must appear that by rea- son of his insanity, he had no reasonable understanding of the nature and terms of the contract. Swartwood v. Chance, 131 Iowa, 714, 109 N. W. 297. 29 Williams v. Sapieha, 94 Tex. 430, 61 S. W. 115; Post § 56. 30 Alexander v. Haslcins, 68 Iowa, 73; Hosier v. Beard, 54 Ohio St. 398, 56 Am. St. Rep. 720; Physio-Medical College v. Wilkinson. 108 Ind. 314, 9 N. E. 167; Studebaker v. Faylor, 170 Ind. 498, 83 N. E. 747; Smith's Committee v. Forsythe, 28 Ky. Law Rep. 1034, 90 S. W. 1075. It has been held, however, that the defense of in- sanity may be interposed to an action on a contract without re- storing what the insane person has received, if it can not be re- stored in specie. Rea v. Bishop, 41 Neb. 202, 59 N. W. 555. 18 THE LAW OF AGENCY. was made through an agent.'^ So, the coutract of an in- sane person made during a lucid interval is binding upon him ; '- and this rule would undoubtedly apply to contracts made through an agent.^' § 18. Drunken persons. The contract of a person so intoxicated as to be incapable of understanding his act, is voidable ; but may be ratified by the drunkard when he be- comes sober.^* There seems no reason why this rule should not apply to contracts made through an agent.^** § 19. Aliens. In the United States, aliens have full capacity to contract,^*' except during war between their country and this.^^ Hence alien friends may appoint agents and contract through agents.®^ 31 Davis V. Lane, 10 N. H. 156; MatMessen, etc. Refining Co. v. McMahon, 38 N. J. Law, 536. 32Ricketts V. Jolliff, 62 Miss. 440; In re Gangwere, 14 Pa. St. 417, 53 Am. Dec. 554; Lilly v. Waggoner, 27 111. 395. A lucid in- terval is such a full return of the mind to sanity as places the party in the possession of the powers of mind, enabling him to understand and transact his affairs as usual. Elkin v. McCrack- en, 32 Leg. Int. 405. 33 Mechem on Agency, § 48; Daily Telegraph Co. v. McLaughlin, 73 Law J. P. C. (Eng.) 95. 34 Schramm v. O'Connor, 98 111. 539; Bush v. Breinig, 113 Pa. St. 310, 57 Am. Rep. 469; Lyon v. Philips, 106 Pa. St. 57; Lawson on Contracts, § 163. 35 Tiffany on Agency, p. 101. 30 Aliens are prohibited by statute in some states from acquir- ing or holding land; otherwise the jiower of an alien friend to contract is co-extensive with that of a citizen. Taylor v. Car- penter, 3 Story, 458; Roberts v. Knights, 7 Allen (Mass.) 449; Cra.shley v. Press Pub. Co., 179 N. Y. 27, 71 N. E. 258. 37 Shotwell v. Ellis, 42 Miss. 439; Zacharie v. Godfrey, 50 111. 186, 99 Am. Dec. 506. A contract made before war, is suspended during the continuance thereof, but on the return of peace all rights thoreundcr revive. Ware v. Hylton, 3 Dall. 199. •tiUnltod Slatps v. Gro.ssmayer, 9 Wall. (U. S.) 72; New York CAPACITY OF PARTIES. 19 § 20. Married women. At common law, married women were incompetent to contract and hence could not appoint agents.'^ ]\Iarried Woman Acts have removed this disability, and today a married woman has usually the same capacity to contract as a feme sole, and hence may appoint an agent or contract through an agent.*" § 21. Infants. The law governing the right of an in- fant to appoint an agent, or to act through an agent, pre- sents the same inconsistency as that which characterizes the rule applicable to the appointment of agents by insane per- sons. In face of the general doctrine that contracts of an infant are merely voidable and susceptible of ratification,''^ the law is generally declared to be that an infant can not appoint an agent, nor, after gaining majority, ratify a con- tract made in his behalf by one who undertook to act as his agent. *- Life Ins. Co. v. Davis, 95 U. S. 425. War usually terminates an agency. Post § 77. 39 Norris v. Lantz, 18 Md. 260; Rogers v. Higgins, 48 111. 211: Parrar v. Bessey. 24 Vt. 89; Caldwell v. Walters, 18 Pa. St. 79. 55 Am Dec. 592. 40 Bishop on Contracts, § 951; Hoene v. Pollak, 118 Ala. G17, 24 South. 349; Lavassar v. Washburne, 50 Wis. 200, 6 N. W. 516; Mc Laren v. Hall, 26 Iowa, 297; Baum v. Mullen. 47 N. Y. 577; Wil liams V. Paine, 169 U. S. 55. The extent of a married woman's capacity to contract will, of course, be determined by the provis- ions of the enabling statute, which creates the power. Nash v. Mitchell, 71 N. Y. 199, 27 Am. Rep. 38. *i Bishop on Contracts, § 924; Bozeman v. Browning, 31 Ark ?M', Philpot V. Sandwich Mfg. Co.. 18 Neb. 54, 24 S. W. 428; Wat- son V. Ruderman, 79 Conn. 687, 66 Atl. 515; Damron v. Ratliff, 30 Ky. Law Rep. 67, 97 S. W. 401. A deed of an infant is not void, ' ut only voidable on his disaffirmance. Robison v. Allison. 192 Mo. 366, 91 S. W. 115. *2Armitage v. Widoe, 36 Mich. 124; Semple v. Monison, 23 Ky. 298; Sawyer v. Northan. 112 N. C. 261, 16 S. E. 1023: Holdon v. 20 THE LAW OP AGENCY. The reason for the rule has been stated as follows: "The constituting of an attorney by one whose acts are in their nature voidable, is repugnant and impossible, for it is im- parting 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 according 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 im- mediate contradiction, for to possess the right of availing himself of any of the acts, he must ratify the power of attorney, and if he ratifies the power, all that was done un- der it is confirmed. If he afBrms part of a transaction, he at once confirms the power, and thereby, against his inten- tion, affirms the whole transaction."" This reasoning is ingenious, though probably too refined. There seems no practical reason why an infant could not ratify distinct acts done by his agent without necessarily affirming the entire agency, or binding himself by all acts done there- under. The rule, in any event, has not met with unqualified ap- proval by the courts. Many decisions confine its applica- tion to powers of attorney to sell land or to confess judg- ment;** and in at least two modern cases the entire doc- Curry, 85 Wis. 504, 55 N. W. 965. Infants can not have an attor- ney In fact since they have no capacity to execute a valid power of attorney. Glass v. Glass, 70 Ala. 308; Post § 5G. *»1 Am. Lead. Gas. (Hth ed.) 247. 4*\Vliifiioy V. Diiicli, 11 Muss. 457, 7 Am. Dec. 229; Fairbanks CAPACITY OP PARTIES. 21 trine has been repudiated. ''On principle," says the court in a Minnesota case, "we think the power of attorney of an infant, and the acts and contracts made under it, shouki be considered voichible in the same manner as his personal acts and contracts are considered voidable. ' ' *^ This seems more in accord "with modern reasoning, and doubtless will be followed ; so, it may be surmised, that at no great future date the law will be that an infant may make voidable ap- pointment of an agent, and, upon attaining majority, may affirm the agency and ratify contracts made in his behalf by the agent.*" § 22. Who may be agents. Since the relation of agency is founded on contract, it would seem, at first blush, that only those persons could be agents who are capable of being principals, namely such persons only who, in law, are com- petent to contract. The primary purpose of an agency, however, is to bring the principal into contractual relations with third persons ; and this purpose may be accomplished through the mediumship of an agent who himself is incom- petent to contract.*^ Where a person, having capacity to V. Snow, 145 Mass. 153, 13 N. E. 596; Towle v. Dresser, 73 Me. 252; Hastings v. Dollarhide, 24 Cal. 195. Thus where an infant authorized an agent to indorse a note it was held that the indorse- ment was merely voidable and could be ratified by the infant. Whitney v. Dutch, supra. 4s Coursolle v. Weyerhauser, 69 Minn. 328, 72 N. W. 697; Fer- guson V. Houston, etc., R. Co., 73 Tex. 344, 11 S. W. 347. 46 Hardy v. Waters, 38 Me. 450; Coursolle v. Weyerhauser. supra; Williams v. Sapieha, 94 Tex. 430, 61 S. W. 115. *7 Lang V. Waters, 47 Ala. 624; Brown v. Hartford Ins. Co., 117 Mass. 479; Stall v. Meek, 70 Pa. St. 181. The execution of a naked authority can be attended with no manner of prejudice to per- sons under incapacities or disabilities nor to any other person who by law may claim any interest of such disabled person after death. Bacon's Abridgement. 22 THE LAW OF AGENCY. contract, appoints an agont, v.ho does not possess tliis ca- pacity, the contract of agency Between them is imperfect, and the duties and obligations usually created by such a contract, would not be binding upon the agent.*^ Thus the principal could not maintain an action for failure to obey instructions;^^ though he could sue the agent in tort/° So, where an agent is not himself competent to contract, no contractual obligation could be created between him and third parties with whom he deals; as is sometimes the case with agents legally competent. ^^ So far, however, as the principal and third parties are concerned, it matters not that the agent through whom they deal does not himself possess power to contract.®^ § 23. Infants, insane persons and married women. It is sometimes stated as the rule that an infant above the a£:e of seven may act as agent; ^^ but there seems no reason for fixing an arbitrary age limit, as a child of five might be as 48 So far as the contract of agency itself is concerned, the agent contracts in his own behalf with the principal and hence will not be bound by its terms if he does not possess contractual capacity; such a contract, like any other entered into by an in- fant would be voidable. Derocher v. Continental Mills, 58 Me. 217, 4 Am. Rep. 286; Gaffney v. Hayden, 110 Mass. 137, 14 Am. Rep. 580. 'f'Vasse V. Smith, fi Cranch. (U. S.) 226; Vent v. Osgood, 19 Pick. (Mass.) 572; Studwell v. Shapter, 54 N. Y. 249. '■'> It is, of course, the general doctrine that infants are liable for their torts. Cooley on Torts, Chap. IV; Fry v. Leslie. 87 Va. 269, 12 S. E. 671. •'•i Caswell V. Parker, 90 Me. 30, 51 All. 238; Post, Chap. XIII. '•2 A slav(>, who is, homo non civilis, a person who is little above a brute in legal rights, may act as agent for his owner or hirer. Lyon V. Kent, 45 Ala. 656. r-aLyon v. Kent, 45 Ala. 656; Talbot v. Bowen. 1 A. K. Marsh. fKy.) 436. 10 Am. Dec. 747. CAPACITY OP PARTIES. 23 competent, actually, to perform some of the simpler duties of an agent, such as delivering a message or a deed, a^s would be a child of seven. ^* As indicated in the preceding section, the contract of agency would not be binding upon the infant agent, nor could any contractual obligations arise between him and third parties with whom he deals. ^^ The rule as to infants would seem applicable to insane persons; on principle, there is no reason against their per- forming some simple duties of an agent. Bvit Story say.-^ that "an idiot, lunatic or person otherwise non compos mentis can not do any act, as an agent or attorney, binding upon the principal. " ^^ At common law, a married woman, though incompetent to contract, could act as agent either for her husband, or ior another, in dealings with third persons.^" § 24. Corporations and partnerships. AYithin the scope of its corporate powers, a corporation may act as agent for other corporations or individuals.^* So a partnership may be appointed agent; and in the absence of express restric- tion, either partner may execute the authority, in accord- 54 It would seem that neither the principal, who chose the in- fant agent, nor the third person, who voluntarily dealt with him, would be in a position to afterwards object to his incapacity. Cameron v. Ward, 22 Ga. 168; Freeman v. Great Western Ry. Co., 38 L. T. Rep. 851. 05 Vasse V. Smith, 6 Cranch. (U. S.) 226; Widrig v. Taggart, 51 Mich. 103, 16 N. W. 251. 56 Story on Agency, § 7; See, Cobb v. Judge, 43 Mich. 289, 5 N. W. 309. 5' Heney v. Sargent, 54 Cal. 396; Benjamin v. Benjamin, 15 Conn. 347, 39 Am. Dec. 384: Edgerton v. Thomas, 9 N. Y. 40; Butler V. Price, 110 Mass. 97. 58 McWilliams v. Detroit Mills Co., 31 Mich. 275. 24 THE LAW OF AGENCY, ance with the rule that within the limits of partnership business, the act of one partner is the act of all.^'' § 25. Persons adversely interested. An agent owes to liis principal disinterested service, which must be rendered in absolute good faith ; ^° and it would, consequently, dis- qualify one to act as agent for another if his interests were in the slightest degree antagonistic to those of his princi- pal.^^ An agent, therefore, can not act for both parties to a transaction without their knowledge and consent ; ®^ nor can an agent himself become a party to a transaction in which he acts as representative of another; except with the assent of the latter.^^ Thus, where the same person wrong- so Deakin v. Underwood, 37 Minn. 98, 5 Am. St. Rep. 827, 33 N. W. 318; Eggleston v. Boardman, 37 Mich. 14; Lemke v. Faust- man, 124 111. App. G24. soCondit v. Blakewell, 22 N. J. Eq. 481; Williams v. Moore- Gaunt Co., 3 Ga. App. 756, 60 S. E. 372; Thorne v. Brown, 63 W. Va. 603, 60 S. E. 614; Kilbourn v. Sunderla'-d, 130 U. S. 505, 9 Sup. Ct. 594. ci Knabe v. Ternot, 16 La. Ann. 13; Tynes v. Grimstead, 1 Tenn. Ch. 508; Prichard v. Abbott, 104 Md. 560, 65 Atl. 421; Calmon v. Saraille, 142 Gal. 638, 76 Pac. 486. The adverse interest which precludes an agent from acting for his principal must be in the subject matter of the agency. Gaty v. Sack, 19 Mo. App. 470. •;- Schwartze v. Yearly, 31 Md. 270; Young v. Hughes, 32 N. J. Eq. 372; Robison v. Jarvis, 25 Mo. App. 421. The maxim "no man shall serve two masters," does not prevent the same person from acting as agent, for certain purposes, of two or more parties to the same transaction when their interests do not conflict, and where loyalty to one is not a breach of duty to the other. Todd V. German American Ins. Co., 2 Ga. App. 789, 59 S. E. 94. 03 Swindell v. Latham, 145 N. C. 144, 58 S. E. 1010; Pegram v. Charlotte, etc., Ry. Co., 84 N. C. 696, 37 Am. Rep. 639; Dorrah v. mil, 73 .Miss. 787, 19 South. 961; Rochester v. Levering, 104 Ind. 562. 4 N. E. 203. An agent will not be allowed to deal in his own beh.'ilf with his prinfipal with reference to the subject matter of the agency unless he makes full and honest disclosure of the CAPACITY OP PARTIES. 25 fully acts as agent for both buyer and seller, either may repudiate the sale ; ^* and where an agent employed to sell property sells to himself, or one authorized to buy prop- erty, buys from himself, the transaction will not be binding upon the principal. ^^ § 26. Unlicensed agents. "Where it is required by stat- ute that a person secure a license as a condition precedent to engaging in a particular business, failure to comply therewith will preclude recovering of compensation for services rendered; though it will not invalidate a contract made by such person in behalf of his principal with third parties.^® Thus where a real estate broker did not equip himself with the required license to engage in his occupa- tion, he could not enforce a contract for commission on sales.*''' And so, a party who represented himself to be a duly authorized attorney, and, as such, was employed by another, but who, as a matter of fact, had not been licensed to practice law, could not recover for services rendered.''^ truth of the transaction. Curry v. King, 6 Cal. App. 568, 92 Pac. 662. 64 Meyers v. Hanchett, 43 Wis. 246; Rice v. Wood, 113 Mass. 133, 18 Am. Rep. 459. When a professional land agent acts aft agent for both buyer and seller, and that is known to them, the law requires the most perfect good faith on his part. Morgan v Hardy, 16 Neb. 427. 65jansen v. Williams, 36 Neb. 869, 55 N. W. 279; Burke v. Bours, 98 Cal. 171, 32 Pac. 980; Montgomery v. Hundley, 205 Mo. 138, 103 S. W. 527. Where an agent purchases property himself the fact that it brought the price at which he was authorized to sell will not validate the transaction. Tillery v. Wolverton, 46 Minn. 256, 48 N. W. 908; Rich v. Black, 173 Pa. St. 92. 33 Atl. 880. 60 Hittson V. Browne, 3 Colo. 304; Stevens v. Ewing, 87 Tenn. 46, 9 S. W. 230. 67 Stevens v. Ewing, supra; Johnson v. Hulings, 103 Pa. St. 498; Buckley v. Humason, 50 Minn. 195. 52 N. W. 385. «sTedrick v. Hiner, 61 111. 189; Ames v. Kilman, 10 Mete. 26 THE LAW OF AGENCY. § 27. Joint agents. A person may, if he see fit, create a joint agency, and the law will enforce his desire to benefit hv the combined judgment or talent of two or more agents.^® Thus where two persons are appointed jointly to manage, for a specified term, the business of the principal, and one of them becomes incapacitated, the business can not be per- formed by the other alone ; and the principal is free to dis- continue the agency, without breach of contract, before the expiration of the term.'^" So where a power is given to A and B to sell land, the same can not be executed by either of them individually; unless an intention to confer a sev- eral, as well as a joint authority, is clearly manifest.'^ And the same rule is applicable where authority is conferred upon more than two agents; all must act in the execution of the power, and unless a contrary intention appears, an intermediate number, though a majoritv of all, would have no authority to bind the principal. '- § 28. Public agency. In the case of a public agency^ such as a school board, a board of commissionei*s and the (Mass.) 239; Mclver v. Clarke, 69 Miss. 408, 10 South. 581. Where however, an attorney had been admitted to the state courts; was entitled to admission to the U. S. District Court, and did, in fact, practice therein without question, he may, in the absence ot sta- tutory provision or rule of court, prohibiting it, recover for serv- ices rendered in such court, thouj^h never formally admitted to practice therein. Harland v. Lilienthal, 53 N. Y. 438. 00 Mason v. Walkowich, 80 C. C. A. 435, 150 Fed. 099; Copeland V. Insurance Co., 6 Pick. (Mass.) 198; Commonwealth v. Commis- sioners, 9 Watts (Pa.), 470. 70 Salisbury v. Brisbane, 61 N. Y. 617. 71 Hawley v. Keeler, 53 N. Y. 114; Kiipper v. Augusta. 12 Mass. 185; Soons v. Racine, 10 Wis. 271; U. S. Fidelity & Guaranty Co. V. Ettenheimer, 70 Neb. 147, 99 N. W. 652. TzBrnnnan v. Wilson, 71 N. Y. 502; Patterson v. Leuvitt. 4 Conn. 50, 10 Am. Dec. 98; Hartford Ins. Co. v. Wilcox, 57 111. 180. CAPACITY OF PARTIES. 27 like, majority action is usually surfieient, provided all mem- bers had notice of the meeting at which such action Avas taken and opportunity to attend the same.'^^ The rule was comprehensively stated as follows, in an early IMassachu- setts case in which the validity of an assessment was ques- tioned because made by only two of three assessors : ' ' "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 attending and participating in the proceeding, it is no objection that all the members do not attend, if there be a quorum. In the present case, all three having had no- tice and an opportunity to act, the act of two is suffi- cient."'* 73 First Nat. Bank v. Mt. Tabor, 52 Vt. 87, 36 Am. Rep. 734; Downing v. Rugar, 21 Wend. (N. Y.) 178, 34 Am. Dec. 223; Cooley V. O'Connor, 12 Wall. (U. S.) 391; Martin v. Lemon, 26 Conn. 192; People V. Nichols, 52 N. Y. 478, 11 Am. Rep. 734; Louk v. Woods, 15 111. 256; Jefferson County v. Slagle, 66 Pa. St. 202. 74 Williams v. School District, 21 Pick. (Mass.) 75, 32 Am. Dec. 243. This same rule is usually applicable to a board of directors of a corporation. Unless otherwise expressly provided, a major- ity of directors constitutes a quorum, and by majority vote, may bind the corporation. McNeil v. Chamber of Commerce, 154 Mass. 277, 28 N. E. 245. CHAPTER III. DELEGATION OF AUTHORITY— ILLEGALITY OF OBJECT. I. Delegation of authority. § 29. In general. 30. Personal acts. 31. Acts required by statute to be personally performed, 32. Delegated authority can not be delegated. 33. Appointment of subagents. 34. Implied authority to appoint subagents. 35. Ministerial acts. 36. Implication of authority from nature of agency. 37. The relation of the parties. II. Illegality of object. § 38. In general. 39. Appointment to do illegal acts. 40. Services in influencing legislation. 41. Procuring other governmental action. 42. Other contracts for services affecting the public 43. Services contrary to fair dealings. 44. Conditions necessary to invalidate contract. I. Delegation of AutJiority. § 29. In general. It is the general rule that whatever a pei-son may do hiinsclf he may do by agent. This broad statement, however, must be qualified by at least two im- portant exceptions. Acts essentially of a personal nature, or tliose which are required by statute lo be personally per- formed, can not be delegated. And so, authority which has been conferred upon an agent can not, as a rule, be dele gated by liiin to a subagciit. DELEGATION OP AUTHORITY — ILLEGALITY OF OBJECT. 29 § 30. Personal acts. A few acts, from tlieir nature, re- quire personal performance. A man could not do homage by attorney ; * enter into marriage through an agent ; or au- thorize another person to make his will.- Political rights and duties, such as the right to vote, or to fill public office, can not, of course, be delegated ; ^ and, in the absence of au- thorization in charter or by-law, a stockholder of a corpora- tion can not vote by proxy.* So, where powers requiring the exercise of discretion and judgment are conferred upon an individual, he can not delegate their performance to an- other.' Thus, executors, guardians and trustees can not delegate their trusts.' § 31. Acts required by statute to be personally per- formed. Where rights, duties or powers are of statutory origin, the question whether they can be delegated must find 1 Combes' Case, 9 Coke 75. 2 Robins V. Coryell, 27 Barb. (N. Y.) 556; Chafee v. Baptist Convention, 10 Paige (N. Y.), 85. A person, however, may us- ually authorize another to affix his signature to a will in his pre- sence. In re Mullen's Estate, 110 Cal. 252, 42 Pac. 645; McMechen V. McMechen, 17 W. Va. 683, 41 Am. Rep. 682; Page on "Wills, § 174. 3 Opinion of Judges, 41 N. H. 550; People v. Blodgett, 13 Mich. 127; Lewis v. Lewis, 9 Mo. 183, 43 Am. Dec. 540; Maxwell v. Bay City Bridge Co., 41 Mich. 453; Mechem on Public Officers, § 565 et seq. Ministerial duties of a public officer may be performed by a deputy. Abrams v. Ervin, 9 Iowa. 87. * Taylor v. Griswold, 14 N. J. Law, 222, 27 Am. Dec. 33. e Singleton v. Scott, 11 Iowa, 589; Coleman v. Beach, 97 N. Y. 545; Litka v. Wilcox, 39 Mich. 94. « White V. Davidson, 8 Md. 169, 63 Am. Dec. 699; Stoughton v. Baker, 4 Mass. 522, 3 Am. Dec. 236; St. Peter v. Denison, 58 N. Y. 421. Where a discretionary power of sale is given an executor, he may delegate the execution and delivery of the deed to another, provided the negotiation of the sale and the agreement to all its details has been made by himself. Smith v. Swan, 2 Tex. Civ. App. 563, 22 S. W. 247. 30 THE LAW OP AGENCY. answer in a proper construction of the statute creating tliem/ Thus, where an act for the licensing of vessels provided for an oath of ownership by the owner, an oath, in his behalf, by an agent was held insufficient ; ® and when a commissioner to take acknowledgments in another state- is required by statute to file an impression of his seal, to- gether with his oath of office and signature, the implication is clear that the signature must be in the proper hand- writing of such commissioner." So generally, in the case of oaths, and where the clear purpose of the statute is to secure the personal signature of a party.^" Under, statutes empowering a married woman to convey her land by joint deed with her husband, it has frequently been held that a conveyance by agent was invalid, though the power of at- torney is executed by husband and Avife jointly and ac- knowledged in the manner required for a deed." Such 7 Sumner v. Conant, 10 Vt. 9; Lewis v. Coxe, 5 Har. (Del.) 401; Birdsall v. Clark, 73 N. Y. 73, 29 Am. Rep. 105. Thus under an act requiring that an acknowledgment of a debt, in order to take it out of the statute of limitations, must be signed by the parCy chargeable, it was held that the signature must be personally af- fixed; for the reason that the act in question was one of a series that distinguished between a signature by the party and a sig- nature by agent. Hyde v. Johnson, 2 Bing. (N. C.) 776 (Eng.); Swift V. Jewsbury, L. R. 9 Q. B. (Eng.) 301. 8 United States v. Bartlett. Dav. (U. S.) 9, Fed. Cas. No. 14,532. « Finnegan v. Lucy, 157 Mass. 439, 32 N. E. 656. 10 Henshaw v. Foster, 9 Pick. (Mass.) 312; In re Mcllwaine, 18 N. J. Eq. 499; Dickson v. Morgan, 7 La. Ann. 490. Under an act providing that when the signature of a person is required, he must write it or make his mark, a return of a constable signed by another, though In his presence and by his direction, is in sufTUiont. Chapman v. Limerick, 56 Me. 390. So, the power to answer interrogatories under oath can not be conferred by on person on another. Dickson v. Morgan, 7 La. Ann. 490. '■ Mott V. Smith, 16 Cal. 533; Holland v. Moon, 39 Ark. 120 McCreary v. McCorklp (Tenn. Ch.), 54 S. W. 53. DELEGATION OF AUTHORITY — ILLEGALITY OF OBJECT. 31 a strict construction of statutes of this cliaracter, however, is not approved by the Supreme Court of the United States. "Where the person is by statute allowed to do the princi- pal thing directly," says Mr. Justice Peckham, in a recent Base, * ' we think she could do it by power of attorney. The power to convey includes the power to appoint another to do the same thing. We, therefore, agree with the views expressed by some of the text writers ; — when power is given by statute to married women to convey their interest in real estate, where their husbands join in the conveyance and where the private examination is had, that in such eases the right of the wife to dispose of it by power of attorney, joined in by her husband, and where she was privately ex- amined, etc., would naturally be implied."^- So, gener- ally, where a document is required to be signed by a person, the signature, in the absence of expression, or clear impli- cation, to the contrary, may be affixed in his behalf by an agent. ^^ § 32. Delegated authority can not be delegated. The doctrine that authoritj^ delegated to an agent can not, in turn, be delegated by him, has been crystalized into a legal maxim; — Delegatus non potest delegare. .The reason for the rule is the very practical one that a person naturally wishes to exercise his own judgment in the selection of an agent, and furthermore that a man can not be obligated by a contract of agency into which he has not entered, nor be bound by the acts of an agent whom he himself did not ap- 12 Williams v. Paine, 169 U. S. 55. 13 Sanborn v. Flagler, 9 Allen (Mass.), 474; Brayley v. Kelly. 25 Minn. IGO; Wellington v. Jackson, 121 Mass. 157. Signature to a will or deed may be affixed by agent. Lord v. Lord, 58 N. H. 7 : Vernon v. Kirk, 3 OPa. St. 218; Burns v.Lynde, 6 Allen (Mass.), 305; Frott v. Deering, 21 Me. 156 32 THE LAW OF AGENCY. point, or to Avhom lie gave no authority to represent him.' ' Where, however, the principal expressly authorizes an agent to delegate a power conferred, or where such authority may reasonably be implied, the reason for the rule fails and the rule itself does not apply.^^ § 33. Appointment of snbag-ent. Tn the absence of ex- press or implied authority to do so, an agent has no power to appoint a subagent.^® Any act, therefore, which an agent, without authority, causes to be performed by a third person in behalf of his principal, is not the act of the prin- cipal, and is in no way binding upon him ; ^^ nor will such appointment of a subagent create any legal relation be- tween him and the principal.^® Thus where goods are in- trusted to a factor for sale and, without authority, he turns them over to a third person to be sold, a sale by the latter 14 Connor v. Parker, 114 Mass. 331; Harralson v. Stein, 50 Ala. 347; Wright v. Boynton, 37 N. H. 9, 72 Am. Dec. 319. If a man is to be held liable for the acts of his servants, he certainly should have the exclusive right to determine who they should be. Hal- uptzok V. Railway Co., 55 Minn. 446, 57 N. W. 144. 15 Williams v. Woods, IG Md. 220; Newell v. Smith, 40 Vt. 225; Weaver v. Carnall, 35 Ark. 198, 37 Am. Rep. 22. 18 Bond v. Hurd, 31 Mont. 314. 78 Pac. 579; Ruthven v. Insur- ance Co.. 92 Iowa. 316, 60 N. W. 663; Sayre v. Nichols, 7 Cal. 535, C8 Am. Dec. 280; Fairchild v. King. 102 Cal. 320. 36 Pac. 649. One ■who has a bare power of authority from another to do any act. must execute it himself; for this being a trust or confidence re- posed in him personally, it cMniiot be assigned to one whose integ- I'ity ()>• ability may not be known to the principal. Wright v. Boynlon, 37 N. H. 9. iTCulllnan v. Bowker. 180 N. Y. 93. 72 N. E. 911; Peterson v. Christ ensen, 26 Minn. 377. 4 N. W. 623; Waldman v. Insurance Co.. 91 Ala. 170, 8 South. 666; Brewster v. Hobart. 15 Pick. (Mass.) 302. iH Harnard v. Coffin, 141 Mass. 37, 6 N. E. :'.64 ; California Bank V. We.Mtcrn rninn Tel. Co., 52 Cal. 280. DELEGATION OF AUTHORITY — ILLEGALITY OF OBJECT. 66 would be invalid.^' So, a person authorized to sell land can not delegate the performance of the agency to another ; -'^ and an agent authorized to collect and receive money can not delegate the authority to a suhagent.-^ Where, how- ever, a principal authorizes the appointment of a subagent, he thereby confers authority upon the latter, in advance, to represent him, and consequently will be bound by his acts.-^ And authority to appoint subagents need not be expressly given, but may be implied.^^ § 34, Implied authority to appoint subagents. Ordi- narily, an agent is chosen with a view to his fitness to prop- erly perform the duties of the agency, depending generally upon his possession of judgment, honesty and skill. Where, therefore, the nature of an agency is such that performance of all its duties requires an exercise of these personal quali- fications, no authority will be implied to delegate any of them to a subagent.^* By the same token, however, the law assumes that a principal does not object to a delegation by 10 Hunt V. Douglass, 22 Vt. 128; Warner v. Martin, 11 How. (U. S.) 209, 223. 20 Tynan v. Dulling (Tex. Civ. App.), 25 S. W. 465; Bocock v. Pavey, 8 Ohio St. 270. 21 Lewis V. Ingersoll, 3 Abb. Dec. (N. Y.) 50; Fellows v. North- rup, 39 N. Y. 117. So a person authorized to accept bills of ex- change or to make promissory notes can not delegate this author- ity to another. Commercial Bank v. Norton, 1 Hill (N. Y.), 501. 22 Wicks V. Hatch, 62 N. Y. 535; Emerson v. Providence Hat Co., 12 Mass. 237, 7 Am. Dec. 66; Blowers v. Southern Railway- Co., 74 S. C. 221, 54 S. E. 368. 23Eldridge v. Holway, 18 111. 445; Grady v. Insurance Co., 60 Mo. 116; Smith v. Sublett, 28 Tex. 163; Arff v. Insurance Co., 125 N. Y. 57, 25 N. E. 1073. 24 Lynn v. Burgoyne, 52 Ky. 400; Planters', etc.. Bank v. First Nat. Bank, 75 N. C 534; Lyon. v. Jerome, 26 Wend. (N. Y.) 485, 37 Am. Dec. 271; Emerson v. Providence Hat Co., 12 Mass. 237, 7 Am. Dec. 66. 34 THE LAW OF AGENCY". his agent of minor duties, which do not require, in their per- formance, the exercise of judgment and discretion.-^ And so, the nature of an agency, or the dealings of the parties, may be such as reasonably to raise an implication of au- thority to appoint subagents -° § 35. Ministerial acts. In the absence of express re- striction, an agent has implied authority to delegate to a subagent performance of a ministerial act which does n(3t require the exercise of discretion.^'' Thus, an agent to sell land may employ another to exhibit the laud to prospective purchasers,-® and to conclude a sale upon the terms fixed ; -* an agent authorized to make a contract, after he has deter- mined the provisions thereof, may assign to another the mechanical task of reducing the contract to writing ; ^° so, an insurance agent may employ clerks to deliver poUcies and collect premiums.^^ And generally, an agent has im- plied authority to delegate the performance of clerical du ties that arise in connection with the agency.*^ 25 Williams v. Woods, 16 Md. 220; Grinnell v. Buchannan, 1 Daly (N. Y.), 538; Joor v. Sullivan, 5 La. Ann. 177. 26McConnell v. McCormick, 12 Cal. 142; Harris v. San Diego Flume Co., 87 Cal. 52G, 25 Pac. 758; Saveland v. Green, 40 Wis 431. 27 Grady v. American Central Ins. Co., 60 Mo. 116; Weaver v Carnall, 35 Ark. 198, 37 Am. Rep. 22; Sayre v. Nichols, 7 Cal. 535 68 Am. Dec. 280; Newell v. Smith, 49 Vt. 255. 2« MfKinnon v. Vollmar, 75 Wis. 82, 43 N. W. 800. 20 Ronwiok v. Bancroft, 5G Iowa, 527, 9 N. W. 367. •'•o Commercial Bank v. Norton, 1 Hill (N. Y.), 501; Sayre v. Nlcliols, 7 Cal. 535, 68 Am. Dec. 280. 81 Arff v. Insurance Co., 125 N. Y. 57, 25 N. E. 1073. 32 Norwlck University v. Denny, 47 Vt. 13; Cook v. Insurance Co., 7 Daly (N. Y.), 555. DELEGATION OF AUTHORITY — ILLEGALITY OF OBJECT. 35 § 36. Implication of authority from nature of agency. Except as to ministerial acts, authority to employ subagents is usually not implied from the fact of the existence of an agency. The nature of an agency, however, or the circum- stances of the case, may be such as reasonably to raise an implication of such authority. The controlling factor is the intention of the parties. Thus, if from previous deal- ings of a like nature, the principal has knowledge that it is the agent's practice to avail himself of the, service of sub- agents, an unrestricted appointment implies assent to tliat mode of performance.^^ So, if the character of an agency is such as to make necessary the employment of assistants, authority to do what is necessary in furtherance of the agency will be implied from the fact of its creation.^* Hence authority to prosecute an action implies authoriza- tion to employ an attorney to conduct the case.^^ Where a bank is authorized to collect a note, it has implied authority, if necessary, to employ a notary to protest it ; ^^ and, if the note is payable at a distant place, authority to employ an agent for collection at the place of payment will be im- plied.^'^ So, an agent appointed to manage generally the business of his principal, has implied authority to emplo\' 33 Johnson v. Cunningham, 1 Ala. 249; Loomis v. Simpson, 13 Iowa, 532; Warner v. Martin, 11 How. (U. S.) 223. 34 Davis V. Matthews, 8 S. D. 300, 66 N. W. 456. Authority of an agent to collect a debt implies authority to use all ordinary means for collection. Ryan v. Tudor, 31 Kan. 366, 2 Pac. 797. So a stockbroker has implied power to employ a subagent where the purchase or sale is to be made in a distant place. Rosenstock v. Tormey, 32 Md. 1G9. 35 Buckland v. Conway, 16 Mass. 396. 30 Warren Bank v. Bank, 10 Cush. (Mass.) 582; Tiernan v. Commercial Bank, 7 How. (Miss.) 648, 40 Am. Dec. 83. 87 Commercial Bank v. Martin, 1 La. Ann. 344, 45 Am. Dec. 87; Dorchester, etc.. Bank v. Bank, 1 Cush. (Mass.) 177; Appleton 36 THE LAW OF AGENCY such assistants as may be reasonably necessary to properly conduct the business.'® "We know according to tbe ordi- nary course of business," said Earl, J., in a leading New York case, ''that insurance agents frequently have clerks to assist them, and that they could not transact their busi- ness if obliged to attend to all the details in person; and these clerks can bind their principal in any way of business which they are authorized [by the agent] to transact. The act of the clerk in all such cases is the act of the agent, and binds the company just as effectually as if done by the agent in person. The maxim of Delegatus non potest dele- gare does not aj^ply in such a case."'* Following the same principle, if it is a well established usage of the business, in which an agent is engaged, to ap- point subagents, a principal will be presumed to have made the appointment v/itli a view to the existence of such usage ; and in the absence of expression to the contrary, authority' to appoint subagents will be implied.*" Thus, where it is the usage of the business for a broker, authorized to sell property, to employ another to effect a sale, authority to do so, in a given case, is implied from the existence of such usage.*^ ' ' Business to an immense amount has been trans- acted in this way," said the court in an early Pennsylvania Bank v. McGilvray, 4 Gray (Mass.), 518, 64 Am. Dec. 92; Wilson V. Bank, 187 111. 222, 58 N. E. 250. ssMfConnell v. Mackin, 22 App. Div. 537. 48 N. Y. Supp. 18; Arff V. Insurance Co., 125 N. Y. 57, 25 N. E. 1073. 8» Hodlne V. Insurance Co., 51 N. Y. 117, 10 Am. Rep. 5G6. 10 Wilson V. Smith, 3 How. (U. S.) 763; Darling v. Stanwood. 14 Allen (Mass.), 504; Smith v. Sublett, 28 Tex. 163. Such au- thority, of course, will not be Implied if the usage Is contrary to express instructions or limitation of the agent's power. Em- erson V. Providence Hat Co., 12 Mass. 237. <» I.aiissatt V. Mi)iiincott, G Serg. & R. (Pa.) 386, 9 Am. Dec. 440. DEIiEGATION OF AUTHORITY — ILLEG.^ITY OF OBJECT. 37 case, "and the usage being established, it follows 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 they had a right to consider him as in- vested with power to deal according to usage. ' ' •*- So, au- thority to employ a subagent would be implied where unfore- seen emergencies render it imperatively necessary to do so.*^ Thus, upon the sudden sickness or absence of a brakeman, the conductor of a train, if an emergency exists, would have implied authority to employ a temporary substitute.** § 37. The relation of the parties. A subagent, whether appointed in pursuance of express or implied authority, be- comes so far as third parties, with whom he deals, are con- cerned, the agent of the principal, who is bound by his act.> and contracts within the scope of the properly delegated authority.*^ A perfect relation of agency, however, is not alwaj'S created between the principal and subagent; and in some cases no rights or obligations arise between them.**' Thus where an agent undertakes the performance of a par- ticular business, such as the sale of a tract of land, he as- sumes a position somewhat analogous to that of an inde- pendent contractor, in so far as he has implied authority to appoint subagents — at least for performance of ministerial acts — but may not, ordinarily, obligate the principal for •42 Laussatt v. Lippincott, supra. 43 Story on Agency, § 201; Fox v. Railway Co., 86 Iowa, 368, 53 N. W. 259. 44 Sloan V. Railway Co., 62 Iowa, 728, 16 N. W. 331; Georgia Pac. Ry. Co. V. Propst, 83 Ala. 518, 3 South. 764. 45 Duluth Nat. Bank v. Fire Ins. Co., 85 Tenn. 76, 4 Am. St. Rep. 744; Barnard v. Coffin, 141 Mass. 37, 6 N. E. 364; Exchange Nat. Bank v. Bank, 112 U. S. 276. 46 Sexton V. Weaver, 141 Mass. 273; Commercial Bank v. Jones, 18 Tex. 811; Wyman v. Snyder, 112 111. 99. 1 N. E. 469. 38 THE LAW or AGENCY. the subagent's compensation.^" A subagent, in siicli a case, becomes in reality the agent of the original attorney, and to him he must look for compensation. And so, the origi nal attorney is responsible to the principal for misconduct or default of the subagent.** In many instances, of course, there may be direct privity of contract between the subagent and the principal. "Whether this is the case, must be de- termined from the nature of the agency, the manner of ap- pointment, or ultimately from the intention of the parties.*' Where a principal expressly authorizes the appointment of a subagent, in the absence of stipulation to the contrary, such privity of contract is usually held to exist.^° But « Russell V. Andrae, 79 Wis. 108, 48 N. W. 117; Rice v. Post, 78 Hun (N. Y.), 547, 29 N. Y. Supp. 553. Where an agent having undertaken the performance of some duty, employs, on his own account, a Subagent to assist him, the subagent must look to his immediate employer for compensation and not to the principal Houston County Oil Co. v. Bibby, 43 Tex. Civ. App. 100, 95 S. W. 562. ^sTriplett v. Jackson, 130 Iowa, 408, 106 N. W. 954; St. Louis etc., Ry. Co. v. Smith, 48 Ark. 317, 3 S. W. 364. Where a subagent is employed with the assent, or by the direction, of the principal, the superior agent will not be responsible for his acts. Thero is, in such case, privity between the subagent and principal, and the latter must seek a remedy directly against the subagent for his negligence or misconduct. Guelich v. Bank, 56 Iowa, 434, 9 N. W. 328. 40 Exchange Nat. Bank v. Bank, 112 U. S. 276; Looniis v. Simp- son, 13 Iowa, 532; National S. S. Co. v. Sheahan, 122 N. Y. 461, 2^ N. E. 858; Furnas v. Frankman, 6 Neb. 429; Davis v. King, 66 Conn. 465. 34 Atl. 107. That a principal recognized a subagent and accei)ted his services does not necessarily prove an agree- ment to pay for the services. Homan v. Brooklyn Life Ins. Co., 7 Mo. App. 22. 60 Wicks V. Hatch, 62 N. Y. 535; Eastland v. Maney, 36 Tex. Civ. App. 147, 81 S. W. 574. DELEGATION OP AUTHORITY — ILLEGALITY OF OBJECT. 39 where authority is implied, the determination is more diffi- cult. Thus where an agent is authorized to collect a note at a distant place, he has implied authority to send the note to a subagent at such place for collection; but does such subagent become the agent of the principal, or merely the agent of the original attorney. Some of the cases adopt the former alternative ; hold that the subagent is the agent of the principal, who is liable for his compensation, and that the original attorney, provided he used reasonable care in the selection, is not responsible to the principal for the subagent 's default or misconduct. ^^ Other cases hold the contrary; deem the subagent the agent of the original ap- pointee, and place upon the latter responsibility for the former 's .acts or defaults."- Under either holding, payment by the debtor to the subagent is deemed payment to the principal. ^^ 51 Dorchester, etc., Bank v. Bank, 1 Cush. (Mass.) 177; Guelich V. Bank. 56 Iowa, 434, 9 N. W. 328; Third Nat. Bank v. Bank, 61 Miss. 112, 48 Am. Rep. 78; Stacy v. Banl?, 12 Wis. G29; Irwin v. Reeves Pulley Co., 20 Ind. App. 101, 48 N. E. 601; Wilson v. Bank, 187 111. 222, 58 N. E. 250; Citizens' Bank v. Howell, 8 Md. 530, 63 Am. Dec. 714; First Nat. Bank v. Sprague, 34 Neb. 318, 51 N. W. 846. . ^'2 Exchange Nat. Bank v. Bank, 112 U. S. 276; Ayrault v. Bank, 47 N. Y. 570, 7 Am. Rep. 489; Simpson v. Waldby, 63 Mich. 439, 30 N. W. 199; Streissguth v. Bank, 43 Minn. 50, 44 N. W. 797; State Bank v. Manufacturing Co., 17 Tex. Civ. App. 214, 42 S. W. 1016. The foundation for all the differences of opinion among the courts appears to rest in the interpretation of the implied contract between the depositor and the bank at the- time the nego- tiable paper is deposited for collection. Power v. Bank, 6 Mont. 251, 12 Pac. 597. 53 Dorchester Bank v. Bank, 1 Cush. (Mass.) 177; Guelich v. Bank, 56 Iowa, 434, 9 N. W. 328; Ante § 33. 40 THE LAW OP AGENCY. II. Illegality of Object. § 38. In general. It is stated as the rule tliat author- ity can not be delegated to do an act which is illegal, im- moral or opposed to public policy.^* "What is actually done, however, can be done. Authority to do wrongful acts is frequently delegated, and the principal, who authorized the same, is responsible for them.^^ Thus a person who in- stigates the commission of a crime is criminally responsible for the act ; ^^ and one who authorizes a tort must respond in damages for the injury committed.^^ So, a person may ratify a tortious act done in his behalf, without authority. and thus assume responsibility for the same.^* What the rule imder discussion means is that where the purpose of 54 Mechem on Agency, § 19. 55 state V. Smith, 78 Me. 260, 4 Atl. 412; Palmeri v. Railway Co., 133 N. Y. 261, 30 N. E. 1001; Moir v. Hopkins, 16 111. 313, 63 Am. Dec. 312. 86 Com. V. Nichols, 10 Mete. (Mass.) 259. 43 Am. Dec. 432; Barnes v. State, 19 Conn. 398; Allyn v. State, 21 Neb. 593. 33 N. W. 212. It is immaterial that the criminal act is done through an innocent agent, such as a child incapable of criminal intent, or a grown person acting through mistake. State v. Learnard, 41 Vt. 585; Gregory v. State, 26 Ohio St. 510. So in certain statu- tory offenses, such as opening a saloon on Sunday, the employer. though innocent, is held responsible for the act of his agent. People V. Roby, 52 Mich. 577, 18 N. W. 365; State v. McCance, 110 Mo. 398, 19 S. W. 648. The doctrine involved here Is really that of principal and accessory. See McClain, Crim. Law, § 204 57 Cooley on Torts, Chap. XVIII; Maynard v. Fireman's Fund Ins. Co., 34 Cal. 48, 91 Am. Dec. 672; Griswold v. Haven, 25 N. Y 595, 82 Am. Dec. 380; Hearns v. Waterbury Hospital, 66 Conn 98, 33 Atl. 595. B8 Morehouse v. Northrup, 33 Conn. 380. 89 Am. Dec. 211; Dun V. Hartford, off., Ry. Co., 43 Conn. 434; Benton v. Beat tie. 63 V 186, 22 Atl. 422; Brown v. Webster City, 115 Iowa, 511, 88 N. W 1070. In ordor fo bind the al sent party with the rommission o*" a trespass there must be eyidence to show that he received tho DELEGATION OF AUTHORITY— ILLEGALITY OF OBJECT. 41 an agency is illegal, immoral or opposed to public policy, the contract of agency, — that is, the contract of employ- ment between principal and agent — is invalid, and its terms will not be enforced by the courts.^^ Thus if A employs B to perpetrate a fraud or commit an assault upon C, the agent, though he performs the undertaking, can not enforce his contract for compensation; nor can A, the principal, recover damages for violation of instructions, or other breach of the contract. The law will not sanction or en- force a contract of this character.®" C, the injured party, however, may recover damages against A for the wrong which he instigated.®^ The doctrine with which we are dealing is not peculiar to the law of agency. It is merely a doctrine of the law of contracts which applies to a contract of agency.®- It is the rule, then, that where the purpose of an agency, or other employment, is illegal, immoral or opposed to fair dealings or public policy, the contract of employment will not be sanctioned by the law, nor its terms enforced by process of the courts.®^ benefits thereof with guilty Ivnowledge. Holliday v. Jackson, 30 Mo. App. 263. 59 Oscanyan v. Arms Co., 103 U. S. 261; Mohr v. Miessen, 47 Minn. 228. 49 N. W. 862. 60 Evans v. Collier, 80 Ga. 130, 4 S. E. 264; Thomas v. Caulkett. 57 Mich. 392, 24 N. W. 154. An action to compel an agent to ren- der an account of his agency in buying cotton with confederate obligations given him by the principal can not be maintained. Wells V. Addison, 20 La. Ann. 295. eiCcoley on Torts, Chap. V; Moir v. Hopkins, 16 111. 313, 63 Am. Dec. 312; Maier v. Randolph, 33 Kan. 340, 6 Pac. 625. 62 Bishop on Contracts, Chap. XVIII; Sandage v. Studebaker Bros. Mfg. Co., 142 Ind. 148, 41 N. E. 380. 63 Rice V. Wood, 113 Mass. 133, 18 Am. Rep. 459; Elkhart County Lodge V. Crary, 98 Ind. 238, 49 Am. Rep. 746; Crichfield v. Ber- mudez Asphalt Co., 174 111. 466, 51 N. E. 552. 42 THE LAW OF AGENCY. § S9. Appointment to do illegal acts. It follows from the doctrine laid down in the preceding section that the ap- pointment of an agent to perform an undertaking which is contrary to law would be invalid, so far, at least, as rights and obligations inter se are concerned. Thus, an agreement to commit murder, arson or other crime ; ^* to sell liquor con- trary' to the statute ; or to perpetrate a fraud or other tort, would be invalid ; ®^ as would an undertaking to perform an act contrary to public policy or fair dealings, such as im- properly influencing governmental action,^^ or corrupting the agent of another.^^ § 40. Services in influencing legislation. It is of para- mount importance to the welfare of the state that its sources of legislation be kept pure, and that all governmental action be done with a view solely to the common weal. Hence contracts for services in influencing legislation or other gov- ernineutal action are void.''^ The most frequent example «* Atkins V. Johnson, 43 Vt. 78, 5 Am. Rep. 260; Jewett Pub. Co. V. Butler, 159 Mass. 517, 34 N. E. 1087. cr. Bixby V. Moor, 51 N. H. 402; Kelly v. Scott, 49 N. Y. 595; Gray v. McReynolds, 65 Iowa, 461, 21 N. W. 777; Fuller v. Rice. 52 Mich. 435, 18 N. W. 204. Any contract made in furtherance of a business carried on in violation of the public policy of the state is void. Thomas v. First Nat. Bank, 213 111. 2G1, 72 N. E. 801. A contract for the commission of an offense which is malum prohibitum is unenforceable just as if the offense was malum in se. Haggerty v. St. Louis Ice. Mfg. Co., 143 Mo. 238, 44 S. W. 1114. o<;Le Tourneaux v. Gilliss, 1 Cal. App. 546, 82 Pac. 627; Howard V. Murpby. 70 N. J. Law, 141. 56 Atl. 143. «7 Suiiiniors v. Carey, 09 App. Div. 428, 74 N. Y. Siipp. 980; Reod V. Johnson, 27 Wash. 42, 07 Pac. 381; Atlee v. Fink, 75 Mo. 100, 43 Am. Rep. 385. «8 Colusa County v. Welch, 122 Cal. 428, 55 Pac. 243; McDonald V. Hurkslafr. ."iC Neb. 88, 76 N. W. 476. All indirect or private methods of influencing piibllc officials in respect to public business DELEGATION OP AUTHORITY — ILLEGALITY OF OBJECT. 43 ;)f contracts of this character arc those providing for iob- i)ying services. The law views such contracts with gravest suspicion, and determines their validity from consideration of tlieir general nature and natural tendency rather than from the question whether, in pursuance of their terms, actual wrong was done or event contemplated.^® Thus, a contract based upon the consideration that one of the par- ties would give all aid in his power, and use his influence, to secure the passage of a particular law, was held invalid ; for the reason that though the parties did not necessarily stipulate for corrupt action or intend that corrupt means should be used, yet the contract tended to that end and fur- nished a temptation to resort to improper devices to influ- ence legislation.'''' And so, an agreement to prosecute and superintend, in the capacity of agent and attorney, a per- fectly legitimate claim before the legislature, was held con- trary to public policy and void, on the ground that a person could not superintend and prosecute such a claim without resorting to personal solicitation with the members.'^ All effort, however, to procure the adoption of legislation is not necessarily in contravention of public policy. Thus a person might present a petition to a legislative body, sub- intrusted to them are immoral and against public policy, and con- tracts to compensate agents or attorneys for rendering such serv- ices will not be enforced by the courts. Hayward v. Nordberg Mfg. Co., 29 C. C. A. 438, 85 Fed. 4. Gociippinger v. Hepbaugh, 5 Watts & Serg. (Pa.) 315, 40 Am. Dec. 519; Trist v. Child, 21 Wall. (U. S.) 441; Powers v. Skinner, 34 Vt. 274, 80 Am. Dec. 677; Hazelton v. Sheckels, 202 U. S. 71. 70 Mills V. Mills, 40 N. Y. 543, 100 Am. Dec. 535; Owens v. Wil- kinson, 20 App. (D. C.) 51; Veazey v. Allen, 173 N. Y. 359, 66 N. E. 103. 71 Bryan v. Reynolds, 5 Wis. 200, 68 Am. Dec. 55; Le Tourneaux V. Gilliss, 1 Cal. App. 546, 82 Pac. 627; Richardson v. Scotts Bluff founty, 59 Neb. 400, 81 N. W. 309. 44 THE LAW OP AGENCY. mit facts in support thereof, and appear before the- proper committee to make public argument; and, by the same token, might employ an agent to perform such services. The contract of employment in such case would not be in- valid.'^ ''An agreement to pay for such service," said the court iu an early Wisconsin case, "could be enforced; be- cause a public discussion could not tend to deceive or cor- rupt the legislature; while personal solicitation and influ- ence might produce that result. ' ' '^ The contract of em- ployment, however, must expressly limit the services to those of a legitimate character, or it will be void, even though in pursuance of it, legitimate services only were actually rendered.'* § 41. Procuring other govemmental action. Contracts for services in influencing action by departments of gov- ernment other than the legislative, or by officers thereof, are in like manner contrary to public policy and void.'^^ Hence compensation can not be recovered for services ren- 72 Miles V. Thorne, 38 Cal. 335, 99 Am. Dec. 384; Sedgwick v. Stanton, 14 N. Y. 289; Stroemer v. Van Orsdel, 74 Neb. 132, 103 N. \y. 1053; Dunham v. Hasting Pavement Co., 57 App. Div. 42(1. 68 N. Y. Supp. 221; Nutt v. Knut, 200 U. S. 13, 26 Sup. Ct. 216. 73 Bryan v. Reynolds, 5 Wis. 200, 68 Am. Dec. 55. 74 Sweeney v. McLeod, 15 Ore. 330, 15 Pac. 275; Spaulding y. Ewing. 149 Pa. St. 375, 24 Atl. 219; Chippewa Valley Ry. Co. r. Chicago, etc., Ry. Co., 75 Wis. 224, 44 N. W. 17. An agreement be- tween an attorney and his client for professional services to be rendered by the attorney in the procurement of Congressional legislation, which involves personal solicitation of members of Congress, will not be enforced by the courts, whether improper means are used or not In such solicitation. Owens v. Wilkinson, 20 App. (D. C.) 51. 7B Robison v. Patterson, 71 Mich. 141. 39 N. W. 21; Boyd v. Coch- rane, 18 Wash. 281, 51 Pac. 383. DELEGATION OF AUTllOHITY— LLLEGALITV OF OiiJECT. 45 dered in improperly securing a goveruinent contract ; '^ or the appointment of another to public office/'^ And so, where owners of land in a city agreed with the owner of an adjacent building that if he would offer his building to the government for use as a post-office for a nominal rental for a stated period, and use all proper persuasion to secure its acceptance, they would pay him a certain sum annually during that period, in case the government accepted the of- fer, the agreement was held invalid, and recovery according to its terms was not allowed J^ '^It is clear," said the court, "that a contract which is made for the purpose of securing the location of an important office, connected with the public service, for individua,! b'enefit, rather than for the 'public good, tends to the injury of the public service. A wholesome rule of law" is that parties should not be per- mitted to make contracts which are likely to set private in- terests in opposition to public duty or to the public wel- fare." ''' To the same effect is the reasoning in Providence Tool Co. V. Norris, where an agent sued for compensation which had been made contingent on his procuring a favor- 76 Providence Tool Co. v. Norris, 2 Wall. (U. S.) 45; Nash v. Kerr Murry Mfg. Co., 19 Mo. App. 1. Employment of an agent to sell goods to the government is valid, where such agent was not expected to, and did not, resort to improper methods. Swift v. Aspell & Co., 82 N. Y. Supp. 659. The rule under discussion ap- plies to procurement of contracts from foreign governments. Os- canyan v. Winchester Arms Co., 103 U. S. 2G1. 77Liness v. Hesing, 44 111. 113, 92 Am. Dec. 153; Edwards v. Randle, 63 Ark. 318, 38 S. W. 343; Harris v. Chamberlain, 126 Mich. 280, 85 N. W. 728. 78 Elkhart County Lodge v. Crary, 98 Ind. 238, 49 Am. Rep. 746; Woodman v. Inness, 47 Kan. 26, 27 Pac. 125. See Fearnley v. De Mainville, 5 Colo. App. 441, 39 Pac. 73, in which the rule is some- what relaxed. 79 Ellvhart County Lodge v. Crary, supra. 4G THE LAW OF AGENCY. able contract for muskets from the government. *'Tlie question, then, is this," said Mr. Justice Field, in deliver- ing the opinion of the court, "can an agreement for com- pensation to procure a contract from the government to furnish its supplies, be enforced by the courts? "We have no hesitation in answering the question in the negative. All contracts for supplies should be made with those, and those onh', who will execute them most faithfully, and at the least expense to the government. . . . Agreement.s like the one under consideration tend to introduce personal solicitation and personal influence, as elements in the pro- curement of contracts, and thus directl}'" lead to inefficiency in the public service and to unnecessaiy expenditures of the public funds. ' ' ^° § 42. Other contracts for services affecting: the public. A contract whereby one of the parties, for a personal con- sideration, agrees to use all of his influence to secure the other's election to a public office is invalid. ^^ "Its tend- ency," said the court, "is to corrupt the people upon whose integrity and intelligence the safety of the state do pends, — to lead voters to work for individual interest ; rather than the public welfare."^- So, compens 555; Livingston v. Page, 74 Vt. 356, 52 Atl. 9G5. A contract by a nindidate for office to niipoint a certain person his deputy, if elected, is contrary to public policy and void. Conner v. Canter, 15 Ind. App. 690, 44 N. E. 056. 82 0a8ton V. Drake, 14 Nev. 175, 33 Am. Rep. r>iS; Martin V. Wade, 37 Cat. 168. «« Krihben v. TT;iyrraft, 26 Mo. 396; Tiioni|)son v. Wharton, 7 DELEGATION OF AUTHORITY — ILLEGALITY OF OBJECT. 47 press evidence ; ^* or to secure dismissal of a criminal action, would be contrary to public policy and void.^^ § 43, Services contrary to fair dealings. The salutary doctrines laid down in the preceding sections apply, in the main, to dealings in private matters between private indi- viduals.®^ Thus, an agreement to secure for another a po- sition of trust by the use of personal or sinister influence would be invalid ; *^ as would an undertaking to secure a Bush. (Ky.) 563; Brown v. Young, 7 Ky. Law Rep. 664; Haines v. Lewis, 54 Iowa 307, 6 N. W. 495. A contract with an attorney that he shall endeavor to secure a pardon, and that if successful, a stipulated sum shall be paid for his services, is not in itself illegal. Moyer v. Cantieny, 41 Minn. 242, 42 N. W. 1060. 8*Gillett V. Hoard Sup'rs, Logan County, 67 111. 256; Valentine v. Stewart, 15 Cal. 387; Crisup v. Grosslight, 79 Mich. 380, 44 N. W. 621. So a contract to furnish evidence would be invalid. Laf- fm V. Brillingtou, 86 N. Y. Supp. 267; Cowles v. Rorhester Box Co., 179 N. Y. 87, 71 N. E. 468. 85 Collier v Waugh, 64 Ind. 456; Rhodes v. Neal, 64 Ga. 704, 37 Am. Rep. 93; Onnerod v. Dearman, 100 Pa. St. 561, 45 Am. Rep. 391; Weber v. Shay, 56 Ohio St. 116, 46 N. E. 377. No action will lie for compensat on for services in endeavoring to prevent an indictment, and after its finding, to induce the public authorities to dismiss it. Barron v. Tucker, 53 Vt. 388, 38 Am. Rep. 684. Re- laxation of rule. — A tendency is noticeable in some of the recent de- cisions to relax somewhat the strict application of the rules gov- erning contracts which the earlier cases hold to be against pub- lic policy. Bergen v. Frisbie, 125 Cal. 168, 57 Pac. 784; Mulligan v. Smith, 32 Colo. 404, 76 Pac. 1063; Fearnley v. DeMainville, 5. Colo. App. 441, 39 Pac. 73; Beal v. Polhemus, 67 Mich. 130, 34 N. W. 532. 86 Smith v. Humphrey, 88 Me. 345, 34 Atl. 166; Thomas v. Caul- kett, 57 Mich. 392, 24 N. W. 154; Hinnen v. Newman, 35 Kan. 709, 12 Pac. 144; McDonnell v. Rigney, 108 Mich. 276, 66 N. W. 52. Thus an agreement to locate a railway depot at a particular point has been held invalid. Marsh v. Fairbury, 64 111. 414; Williamson V. Chicago, etc., Ry. Co. 53 Iowa, 126. 4 N. W 870. 87 Woodruff V. Wentwcrth, 133 Mass. 309; Noel v. Drake, 28 Kan. 48 THE LAW OF AGENCY. contract Avith a private person or institution bj^ corrupting- one of its agents.*^ And where a real estate agent induces his principal to employ a lawyer with whom he has an agreement for division of fees, this scheme of the agent is contrary to fair and open dealings, and he can not enforce his agreement with the lawyer for division of profits.^^ So. an agreement to pay compensation for effecting a marriage, would be contrary to public policy and void ; ^^ as would a contract for services in selling tickets in a forbidden lot- tery; ^^ or engaging in other undertakings contrary to law, such as gambling in stocks.®^ § 44. Corditions necessary to invalidate contract. An agent, however, may recover for services rendered, wherf^ he did not participate in the unlawful purpose of the prin- 265, 42 Am. Rep. 1G2; Porter v. Jones, 52 Mo. 399; Aycock v. Braun, 66 Tex. 201, 18 S. W. 500. ssAtlee V. Fink, 75 Mo. 100, 43 Am. Rep. 385; Lum v. McEwen, 56 Minn. 278, 57 N. W. 662; Smythe's Estate v. Evans, 209 111. 376, 70 N. E. 906. A contract between a real estate agent acting for the vendor, and an agent acting for the vendee, to share the difference between tlie price paid by the vendee and the price received by the vendor, which contract is unknown to the vendee. is unenforceable. Howard v. Murphy, 70 N. J. Law 141, 56 Atl. 143. 80 Byrd v. Hughes, 84 111. 174, 25 Am. Rep. 442. 80 White v. Equitable Nuptial Ben. Union, 76 Ala. 251, 52 Am. Rep. 325; .Tohnson v. Hunt, 81 Ky. 321; Morrison v. Rodgers, 115 Cal. 252, 46 Pac. 1072. A promise by one desirous of marrying a certain woman, to lay a person if he would give the woman such Information concerning the promisor as would tend to induce her. to marry him can not be enforced. In re Grobe's Estate, 127 Iowa 121, 102 N. W. 804. »i Rolfe v. Delman, 7 Robt. (N. Y.) SO. t»2 Lyon V. Cull)ertson, 83 111. 33, 25 Am. Rep. 349; Blgelow v. Benedict, 70 N. Y. 202, 26 Am. Rep. .573; Stewart v. Schall, 65 Md. 299, 57 Am. Rep. 327; Harvey v. Merrill, 150 Mass. 1. 22 N. E. 49. DKL.EGATION OP AUTHORITY — ILLEGALITY OF OBJECT. 49 cipal and had no knowledge thereof.®^ TliiLs, a broker, cm- ployed to bring parties together to contract, is not pre- cluded from recovery of his commission by the fact that, without his participation, they enter into an unlawful con- tract.'* So, where an agent is employed to perform several distinct services, and the contract of employment is not en- tire, he may recover for services which are legitimate, not- withstanding that he performed others which were con- trary to public policy or unlawful.®' »«Roundtre« v. Smith, 108 TJ. S. 269; Patrick v. Llttrell, 36 Ohio St. 79; Tracy T. Talmadge, 14 N. Y. 162, 67 Am. Dec. 132. •* Irwin T. Williar, 110 U. S. 499. •« Bishop on Contracts, § 487; Powers v. Skinner, 34 Vt 274, 80 Am. Dec. 677. CHAPTER IV. APPOINTMENT OP AGENTS. S 45. In general. 46. Authority to execute sealed instruments. 47. Authority to fill blanks. 48. Authority to execute simple contracts required to be !n writing. 49. Oral appointment 50. Implied appointment. (a) In general. (b) Implication from circumstances. (c) Implication from acts or conduct. (d) Relation of parties. 51. Estoppel. 52. Acceptance by agent. § 45. In general. As has been already indicated,* the contract upon which the relation of principal and agent is founded may, with few exceptions, be either written or verbal, and, as in the case of other contracts, it may be in- ferred from acts of the parties; furthermore,, a person's conduct may have been such as to estop him to deny the contract. Reduced to more specific terms, the rule is that, except where by positive provision of law, the appointment of an agent is required to be under seal or in writing,^ such appointment may be either written or verbal,^ or may be inferred from acts or circumstances.* So, if a person's 'Ante § 2. 2 Post §§ 46, 48. •T Ivong V. Colbum, 11 Mass. 97, 6 Am. Dec. 160; Fay v. Rich- mond, 43 Vt. 2.'3; Klrklin v. Association, 107 Ga. 313, 33 S. E. 83. « Farmers', etc., Hank v. Bank, IG N. Y. 125, 69 Am. Dec. 678; APPOINTMENT OP AGENTS. 51 conduct has been such as to lead third parties reasonably to believe that another has authority to represent him as agent, such person will be estopped to deny the existence of the relation." § 46. Authority to execute sealed instruments. Where a contract or other instrument is required by law to be im- der seal,® the rule is imperative that authority to executti such an instrument in behalf of another must be conferred by a written power likewise under seal.'^ In view of the importance attached by common law to the formality of th(^ seal, it is a concession to permit delegation of power to exe- cute an instrument of this character ; and it is not surpris- ing that the concession should be made only upon condition that such authority be conferred by an instrument of equal dignity with that to be executed by the agent. Thus, a power of attorney to convey land must possess the same requisites and observe the same solemnities as are necessary in a deed directly conveying the same ; ^ where a lease for more than a year is, by statute, required to be by deed, an agent's appointment to make the same must also be by Eagle Bank v. Smith, 5 Conn. 71, 13 Am. Dec. 37; Matteson v. Blackmer, 46 Mich. 393, 9 N. W. 445; Post § 50. 5 Martin v. Webb, 110 U. S. 7; Quinn v. Dresbach, 75 Cal. 159. 16 Pac. 762; Post § 51. 8 Bishop on Contracts, Chap. IV; Lawson on Contracts, Chap. III. T Banorgee v. Hovey, 5 Mass. 11, 4 Am. Dec. 17; "Watson v. Sher- man, 84 111. 263; Smith v. Dickinson, 25 Tenn. (6 Humph.) 261, 44 Am. Dec. 306; Cadell v. Allen, 99 N. C. 542, 6 S. E. 399. 8 Clark V. Graham, 19 U. S. (6 Wheat.) 577; Butterfield v. Beall, 3 Ind. 203; Peabody v. Hoard, 46 111. 242; Elliott v. Stocks, 67 Ala. 336; Overman v., Atkinson, 102 Ga. 750, 29 S. E. 758. Thus a partner could not bind his firm by deed unless authorized under seal. Harrison v. Jackson, 7 T. R. (Eng.) 207. 52 THE LAW OF AGENCY. deed ; ® and if an indemnity bond is required by law to be under seal, it will be insufficient where executed by an agent acting under authority not under seal.^" Where, however, an instrument under seal is executed by an agent in the pres- ence of his principal and by his direction, the rule does not apply." Here, the execution is deemed the personal act of the principal, though done by the hand of another ; and in contemplation of law there has been no delegation of au- thority.^^ A sealed instrument executed by an agent under parol authority will take effect as a simple contract, where the seal is not essential to the validity of the instrument.^^ So, a deed of conveyance, ineffective because executed by an agent under parol authority, may be deemed a contract to convey, performance of which will be enforced in equity.^* « Lobdell V. Mason, 71 Miss. 937, 15 South. 44. 10 St. Louis Dairy Co. v. Sauer, 16 Mo. App. 1. So, authority to release a debt, evidenced by an instrument under seal, must be given by a power under seal. Wheeler v. Nevins, 34 Me. 54. 11 Croy v. Busenbark, 72 Ind. 48; Videau v. Griffin, 21 Cal. 389; Meyer v. King, 29 La. Ann. 567; Eggleston v. Wagner, 46 Mich. 610, 10 N. W. 37. 12 Gardner v. Gardner, 5 Cush. (Mass.) 483, 52 Am. Dec. 740. The validity of the deed can not rest upon the ground of agency If such were the case, the authority would have to be by instru- ment under seal. Clough v. Clough, 73 Me. 487, 40 Am. Rep. 386. isworrall v. Munn, 5 N. Y. 229, 55 Am. Dec. 330; Wagoner v. Watts, 44 N. J. Law, 126; Hammond v. Hannin, 21 Mich. 374, 4 Am. Rep. 490; Shuetze v. Bailey, 40 Mo. 69; Marshall v. Rugg, 6 Wyo. 270, 44 Pac. 700. i< Morrow v. Higglns, 29 Ala. 448; Jones v. Marks, 47 Cal. 242; Hersey v. Lambert, 50 Minn. 373, 52 N. W. 963; Frost v. Wolf, 77 Tex. 4r)T). 14 S. W. 440. Where a person executed a deed, leaving blanks for the name of the grantee and the price, and gave it to an agent, with instructions to fill up the blanks and deliver to a purchaser, the instrument, though inoperative as a deed, because incomplete when signed and sealed, could be enforced by the APPOINTMENT OF AGENTS. 53 § 47. Authority to fill blanks. Omission of a material part of an instrument, such as the designation of parties, or a description of subject matter, renders the same in- operative ; ^® and hence authority to an agent to supply such omissions — thus rendering the instrument operative — is equivalent to authority to execute the same. It follows, therefore, that authority to supply material omissions — to fill blanks — in an instrument under seal must, like author- ity to execute the same, be conferred by a power likewise under seal.^® The strict application of this rule is fre- quently avoided by invoking the doctrine of estoppel; it being held that where a grantor signs and seals a deed, containing unfilled blanks, and gives the same to an agent for delivery, with parol authority to fill the blanks, he will not be heard, as against an innocent grantee, to question the agent's authority.^' And so, many courts, though rec- ognizing the doctrine that authority to execute a sealed in- strument must be given under seal, repudiate its corollary, and hold that parol power is sufficient to authorize the fill- ing of blanks in a sealed instrument.^* purchaser, by way of specific performance, as a contract of sale, it having been, in legal effect, signed by the person in his name by his lawfully authorized agent. Blacknall v. Parish, 59 N. C. 70, 78 Am. Dec. 239. 1^' Bishop on Contracts, Chap. XLIV. 16 Preston v. Hull, 23 Gratt (Va.) 600, 14 Am. Rep. 153; Wun- derlin v. Cadogan, 50 Cal. 613; Burns v. Lynde, 6 Allen (Mass.), 305; Adamson v. Hartman, 40 Ark. 58. The part filled in must, of course, be material, for, if immaterial, the instrument was al- ready complete. Vose v. Dolan, 108 Mass. 155. 17 Phelps V. Sullivan, 140 Mass. 36, 2 N. E. 121; Field v. Stagg, 52 Mo. 534, 14 Am. Rep. 435; Swartz v. Ballon, 47 Iowa, 188, 29 Am. Rep. 470; Nelson v. McDonald, 80 Wis. 605, 50 N. W. 893. 18 State V. Young, 23 Minn. 551; Van Etta v. Evenson, 28 Wis. 33, 9 Am. Rep. 486; Drury v. Foster, 2 Wall. (U. S.) 24; South 54 THE LAW OF AGENCY. § 48. Authority to execute simple contracts required to be in writing. Many simple contracts are required by statute to be in writing, signed by the parties charged ; ^* and applying the theory of the doctrine applicable to sealed instruments, it might seem, at first blush, that authority to execute such contracts in behalf of another would likewise have to be written. Such, however, is not the rule. In the absence of statutorj^ provision to the contrary, authority to execute a contract, required by law to be in writing, may be conferred upon an agent orally,-" or may even be im- plied.^^ Thus an agent may be authorized verbally to sign or indorse a note for his principal ; -- to make a written con- tract for the sale or lease of land ; ^^ and authority to as- sign a mortgage, as agent for another, need not be in writ- Berwick V. Huntress, 53 Me. 89, 87 Am. Dec. 535; Garland v. Wells, 15 Neb. 298, 18 N. W. 132; Palacios v. Brasher, 18 Colo. 593, 34 Pac. 251; Allen v. Withrow, 110 U. S. 119. Seals have been abol- ished in some states, and their significance and legal effect havp been generally modified by statute or judicial decision. See, Bar- ton V. Gray, 57 Mich. 634; State v. Young, 23 Minn. 551. 19 Bishop on Contracts, Chap. XLVIII. At common law con- tracts were either specialties or parol; no distinction was madi between simple written and oral contracts, both were parol con- tracts. 20 Webb V. Browning, 14 Mo. 354; Dodge v. Hopkins, 14 "Wis f;30; Barker v. Garvey, 83 111. 184; Marshall v. Rugg, 6 Wyo. 270. 44 Pac. 700. -ii Trundy v. Farrar, 82 IW.. £,25; McDonough v. Heyman, 38 Mich. 334; Hull v. Jones, 69 Mo. 587; Shaw v. Hall, 134 Mass. 103. 22 Bank of North America v. Embury, 21 How. Prac. (N. Y.) 14; Brown v. Bookstaver, 141 111. 461, 31 N. B. 17. An act re- qiiiiing power to Indorse a note to be express and special, does not TPfniirc that the power be in writing. Peoples' Bank v. Scal/o, 127 .Mo. 164, 29 S. W. 1032. 23 Dodge V. Hopkins. 14 Wis. 630; Wagoner v. Watts, 44 N. .1 r>aw, 12G; Lake v. Campbell, 18 111. 106. APPOINTMENT OF AGENTS. 00 ing.^* The provision in statutes of frauds, requiring that certain agreements be signed by the party charged "or some other person thereunto lawfully authorized," does not, by implication, require that such other person be authorized in writing; but such authority may be orally conferred.-^ "Where, however, the statute requires that authority to exe- cute a contract for another — usually contracts for sale or lease of land — shall be written, such requirement must, of course, be complied with ; ^^ but the written authority in this case need not be of formal character.^' § 49. Oral appointment. AVhen not required to be in writing, under the rules discussed in the preceding sections, appointment of an agent may, of course, be made orally, and any form of expression is sufficient which indicates an intention to confer authority.^^ "An agency is created — • 2* Moreland v. Houghton, 94 Mich. 548, 54 N. W. 285. 25 Hawkins v. Chace, 19 Pick. (Mass.) 502; Roehl v. Haumes- ser, 114 Ind. 311, 15 N. E. 345; Wiener v. Whipple, 53 Wis. 298, 10 N. W. 433. A different construction is adopted by the court in Simpson v. Commonwealth, 89 Ky. 412, 12 S. W. 630. seChappell v..McKnight, 108 111. 570; Gerhart v.- Peck, 42 Mo. App. 644; Castner v. Richardson, 18 Colo. 496, 33 Pac. 163; Hall V. Wallace, 88 Cal. 434, 26 Pac. 360; Frahm v. Metcalf, 75 Neb. 241, 106 N. W. 227; Ramage v. Wilson, 37 Ind. App. 532, 77 N. E. 368. Such provision is found in the statutes of Alabama, Arkansas, California, Colorado, Illinois, Michigan, Missouri, Pennsylvania, and a number of other states. 27 Thus, informal authority, as directions by letter, will usually be sufficient. Smith v. Allen, 86 Mo. 178; Lyon v. Pollock, 99 TI. S. 668. See Lambert v. Gerner, 142 Cal. 399, 76 Pac. 53. 28 Geylin v. De Villeroi, 2 Houst. (Del.) 311. If one acts for and in behalf of another, it is immaterial to the question of agency, so far as third parties are concerned, whether he acts by his direction or by his permission merely. Fay v. Richmond, 43 Vt. 25. 56 THE LAW OF AGENCY. authority is actually conferred — very much as a contract is made," said Taft, J., in Central Trust Co. v. Bridges, "i. e., by an agreement between principal and agent that such a relation shall exist. The minds of the parties must meet in establishing the agency. The principal must intend that the agent shall act for him, and the agent must intend to accept the authority and act on it, and the intention of the parties must find expression either in words or conduct be- tween them. ' ' ^* § 50. Implied appointment, (a) In g-eneral. As in the case of contracts generally, the existence of a contract of agency may be implied from acts or circumstances, or from words not amounting to a direct expression of intention to create the same.'" "Where circumstances, or a person's acts, words or conduct are such as reasonably to raise an inference of intention to appoint an agent and to confer particular authority upon him, the law gives sanction and force to such inference, and holds the person to the conse- quences of his intention in the same manner as though it had foimd expression in written or spoken word.'^ The intention of the party is the controlling factor, and such intention is given efTect howsoever it may find expression. This doctrine is applicable to the contract of agency itself, considered merely as a contract of employment ; '^ but its 20 Central Trust Co. v. Bridges, 6 C. C A. 539, 57 Fed. 753. 80 Van Arman v. Byinston, 38 111. 443; Hall v. Finch, 29 Wis. 278, 9 Am. Rep. 559; McCrary v. Ruddick, 33 Iowa, 521; Central Trust Co. V. Bridges, supra. 31 Farmers & Mechanics Bank v. Bank, 16 N. Y. 125; Kent v. Tyson, 20 N. H. 123; Meader v. Page. 39 Vt. 306; Matteson v. Blackmer, 40 Mich. 393, 9 N. W. 445; Neibles v. Railway Co., 37 Minn. 151. 33 N. W. 322. 8«Wood V. Brewer. 06 Ala. 570; Weston v. Davis, 24 Me. 374; APPOINTMENT OP AGENTS. 57 broader application, and the one which concerns us most, is to the relation of agency as aifecting the rights of third parties with whom the agent has dealt in behalf of the principal. (b) Implication from circumstances. Authority to act as agent will be implied where the circumstances are such as to indicate an intention or willingness to confer the same.^^ Thus, in an action on an accident policy, where it appeared that the insured was injured at a distance from his home, was utterly helpless, and there was no relative or friend near him but his brother, who was caring for him ; it was held that authority of the brother to act for him in matters relating to the insurance policy could be implied- from the circumstances.^* "In many cases," said the court, "the existence of an agency may be implied or pre- sumed from the words or conduct of the parties, and this, too, although the creation of an agency was not within their immediate contemplation; but this agency is to be limited in its scope and operation to the reasonable and necessary requirements of the case which calls it into being. "^^ On much the same principle, it has long been held that the master of a ship has implied authority, in face of sudden emergencies, to act as the necessities of the case may require, Millar v. Cuddy, 43 Mich. 273, 5 N. W. 316; Garfield v. Peerless Car Co., 189 Mass. 395, 75 N. E. 695. Thus, where a person, knowing that services are being performed in his behalf, remains silent and receives the benefits, he impliedly consents to pay for them. Vilas y. Downer, 21 Vt. 419; Weeks v. Holmes, 12 Cush. (Mass.) 215. 33Lainhart v. Gabbard, 28 Ky. Law Rep. 105, 89 S. W. 10; Schneider v. Schneider, 125 Iowa, 1, 98 N. W. 159; Hanscom v Railway Co., 53 Minn. 119, 54 N. W. 944. 8* Steanon v. Pacific Mut. Ins. Co., 83 Wis. 507, 53 N. W. 878. 35 Sheanon v. Pacific Mut. Ins. Co., supra. 58 THE LAW OF AGENCY. though in so doing, he exceeds the powers that have been expressly given him.^^ Thus, when necessary for the prose- cution of a voyage, he may borrow money on the credit of the owner, hypothecate the ship or cargo, or sell a part of the latter; ^" and, in the opinion of Story, may even, in case of absolute necessity, sell both the ship and cargo.^^ "In the circumstances supposed something must be done, ' ' said the court in a leading English admiralty case, ''and there is nobody present who has authority to decide what is to be done. The master is invested by presumption of law with authority to give directions on this ground that the owners have no means of expressing their wishes. ' ' ^® And, it might be added, in view of the fact that unforeseen emer- gencies are liable at any time to arise, authority in the agent to act, in face of emergencies, for the best interest of the principal may reasonably be implied from the very fact of his appointment. So, where an employee of a railway company is injured in the performance of his duties, it has been held that a conductor, station master or other agent has implied authority to employ a surgeon to attend the in- jured man.*" Implied agencies of the character under dis- 3c Stearns v. Doe, 12 Gray (Mass.), 482, 74 Am. Dec. 608; Pike V. Balch, 38 Me. 302, 61 Am. Dec. 248. 37 McCready v. Thorn, 51 N. Y. 454; Pratt v. Reed, 19 How. (U. S.) 359; Gordon v. Insurance Co., 2 Pick. (Mass.) 249. 88 He may, under circumstances of great emergency, acquire a superinduced authority to dispose of it, from the very nature and necessity of the case. The character of agent is forced upon him, not by immediate act or appointment of the owner, but by the general policy of the law. Story on Agency, § 118. 30 The Hamburgh, Br. & L., (Eng.) 253. "Cincinnati, etc., Ry. Co. v. Davis, 126 Ind. 99, 25 N. E. 878; Terre Haute, etc., Ry. Co v. McMurray, 98 Ind. 358, 49 Am. Rep. 752; Toledo, etc., Ry. Co. v. Mylott, 6 Ind. App. 438, 33 N. E. 135; ArkanBas, etc., Ry. Co. v. I^oughridge, 65 Ark. 907, 45 S. W. 907. APPOINTMENT OP AGENTS. 59 eussion arc sometimes designated agencies of necessity, and will be deemed to have arisen only in exceptional cases. Thus, some of the courts hold that conductors or other sub- ordinate agents of a railway company have no implied au- thority, under any circumstances, to employ a physician to attend one of its servants injured by its cars.*^ (c) Implication from act or conduct. Implication of authority more usually arises from some act or conduct of the person sought to be bound.*^ Thus, where one, pur- porting to act as agent for another, repeatedly performs acts which have not been authorized, but the principal ac- (luiesces in their performance, his conduct naturally gives rise to the inference that he wishes the agent to perform other acts of the same kind ; and hence may be deemed evi- dence of intention to vest the agent with requisite author- ity.*' So, one who permits another to make collections for Bigham v. Railway Co., 79 Iowa, 534, 44 N. W. 805. The rule has been held not to extend to the case of passengers or trespassers. Union Pac. Ry. Co. v. Beatty, 35 Kan. 268, 10 Pac. 845; Wills v. International, etc., Ry. Co., 41 Tex. App. 58, 92 S. W. 273. *i Marquette, etc., Ry. Co. v. Taft, 28 Mich. 289; Tucker v. Rail- way Co., 54 Mo. 177. 42 Kent V. Tyson, 20 N. H. 121; Anderson v. Supreme Council, 135 N. Y. 107, 31 N. E. 1092; Columbia Mill Co. v. Bank, 52 Minn. 224, 53 N. W. 1061; Gibson v. Snow Hardware Co., 94 Ala. 346, 10 South. 304. 61. 74 THE LAW OF AGENCY. conceal crime and suppress its prosecution. '^ Little weight has been given to the first objection which is ingenious but doubtless too refined ; ^^ and, on principle, it seems the bet- ter doctrine that a person can ratify his forged signature and thus obligate himself by the instrument to which it lias been affixed, but such ratification will in no way relieve the forger from liability for his criminal act.^^ § 55. Conditions to ratification, (a) Assumption of agency. As indicated in a preceding section, an act per- formed by one person can be ratified by another only when done in his behalf.^° This rule applies with even greater force to contracts. It is elementary that a stranger to a transaction can not force himself into the position of a party thereto. If A, in his own behalf, deals with B, a third person can not, by ratification, substitute himself for A as a party to the contract. So, if A, in making the con tract, assumed to act for C, a stranger to the transaction could not ratify the same. C, however, in whose behali the contract was made, may ratify it; for the situation, then, merely becomes such as was represented to exist, and H is bound by contract with the very person with whom he thought he was dealing. It is the rule, then, that a person may ratify a contract only when the same was made in hi'-- behalf by one who assumed to act as his agent.^^ 2v Henry v. Heeb, supra. 28 Greenfield Bank v. Crafts, 4 Allen (Mass.), 447. 29 Wellington v. Jackson, 121 Mass. 157; Casco Bank v. Keenp, 53 Me. 103; Livings v. Wiler, 32 111. 387; McKenzie v. British Linen Co., 6 App. Cas. (Eng.) 82. soAnte § 54 (c). Where an agent wrongfully pledges his prin- cipal's property to secure his own debt, the transaction could not be ratified by the principal, for nothing was done in his 1 ehalf. Wycofr. Seaman & Benedict v. Davis. 127 Iowa, 399, 103 N. W. 340. «> Virgiriin, (^ic. Coal Co. v. Tvamliort. 107 Va. 3C8. 58 S. E. 561; RATIFICATION. 75 (b) Existence and designation of principal. It is but a corollary of the foregoing rule, that the principal, in whose behalf the contract was made, must have been in existence at the time the same was entered into by the assumed agent.^^ Thus, where a promoter of a proposed corpora- tion makes a contract in its behalf, the same can not be i-atified by the company after its incorporation.^^ Where, however, the corporation subsequently acts upon the con- tract and accepts its benefits, liability thereunder will usually be created, but not, strictly, on the doctrine of rati- fication, but rather on the theory of an independent implied agreement ; '* and hence liability will not relate back to the date of the original contract.^^ It is a further corollary of the rule under discussion that the principal, in whose behalf the agent assumes to deal, must, in some way, be designated; though the designation need not be specific, but must be sufficient to render the principal capable of as- certainment.^^ Thus a policy of insurance taken out on a vessel in behalf of all persons interested, may be ratified by any person who, in fact at the time had an interest in the property.^' And it would make no difference that the intended principal was unknown at the time to the agent.^* Commercial', etc., Bank v. Jones, 18 Tex. 811; Mitchell v. Min- nesota Fire Ass'n, 48 Minn. 278, 51 N. W. GOB; Fellows v. CJommis- sioners, 36 Barb. (N. Y.) 655; Ilfeld v. Zeigler, 40 Colo. 401, 91 Pac. 825. 32 Scott V. Lord Ebury L. R., 2 C. P. (Eng.) 255. 33 Abbot V. Hapgood, 150 Mass. 248, 22 N. E. 907; But, see, Oakes V. Water Co., 143 N. Y. 430, 38 N. E. 461. 84 Low V. Railway Co., 45 N. H. 370; Bell's Gap Ry. Co. v. Cristy, 79 Pa. St. 54, 21 Am. Rep. 39; Paxton Cattle Co. v. Bank, 21 Neb. 621, 33 N. W. 271. 35 McArthur v. Printing Co., 48 Minn. 319, 51 N. W. 216. 88 Watson V. Swann, 11 C. B. (N. S) (Eng.) 756. 87 Hagedorn v. Oliverson, 2 M. & S. 485. 88 Mechem on Agency § 124. 76 THE LAW OP AGENCY. § 56. Who may ratify. A person may ratify a lawful contract made, in his behalf, by one who assumed to act as his agent, provided that at the time it was entered into he possessed legal capacity to make such a contract, or to au- thorize its making ; ^^ and provided, further, that at tlic time of ratification, he still possesses such capacity.*" Rati- fication, as we have seen, relates back and becomes equiva- lent to precedent authorization, — hence the rule that in order to ratify, a person must have had capacity to author- ize. But though relating back, ratification, in reality, is the present giving of power, and necessarily presupposes a present capacity in the giver, — ^hence the rule that in order to make a contract his ovm. by ratification, a person must, at the time he ratifies it, still be capable of making, or authorizing the making, of the same. Thus, where it is held that an insane person can not authorize the making of a contract by agent, a contract so made, in his behalf, could not be ratified by him, even after restoration to san ity; *^ and the same would be true where a person, after reaching his majority, seeks to ratify a contract made in his behalf during his infancy.*^ Conversely, a contract made 39Armitage v. Widoe, 36 Mich. 124; Marsh v. Fulton Co., 10 Wall. (U. S.) 676; Ironwood Store Co. v. Harrison, 75 Mich. 197, 42 N. W. 808. 40 Tnieblood v. Trueblood, 8 Ind. 195, 65 Am. Dec. 756; Mac- Farland v. Ileim, 127 Mo. 327, 29 S. W. 1030. Thus an adminis- trator after his discharge can not ratify an act done, in behalf of the estate before his discharge. Upton v. Dennis, 133 Mich. 238, 94 N. W. 728. *i Dexter v. Hall, 15 Wall. (U. S.) 9; Lee v. Morris, 3 Bush. (Ky.) 210; Fetrow v. Wiseman, 40 Ind. 148. **Philpot V. Bingham. .GG Ala. 435; Lawrence v. McArter, 10 Ohio, 37: Armltago v. Wldoe, 36 Mich. 124. The tendency of mod- ern derisions is to hold the appointment of agents by infants anil lunatics voidable and not void. According to this doctrine a con- BATIFICATION. 77 in behalf of a person without authority, could not be ratified by him, if subsequently he becomes insane." So, a con- tract made in behalf of a married woman could not be rati- fied by her, though by subsequent enabling acts she was given power to contract;** and a municipal corporation, which is without power to issue bonds, can not validate an issue thereof by ratification, even though power to issue bonds has subsequently been granted.*' § 57. Manner of ratification, (a) In general. As in the case of precedent authorization, ratification may, with few exceptions, be either verbal or written, or it may be implied from acts or conduct. So, a person 's conduct may have been such as to estop him from denying a ratification. (b) Ratification of sealed instruments and of contracts required to be in writing. Since precedent authority to execute a sealed instrument must be given under seal,**^ and ratification relates back and becomes equivalent to such tract made in behalf of infants or lunatics could be ratified after attainment of competency. See, ante § 17 and § 21. *3 Only a party having capacity to make the contract can ratify it Bishop on Contracts, § 848; Cook v. Tullis, 18 Wall. (U. S.) 332. 44 Sellars v. Kelly, 45 Miss. 323. The execution by a husband of a lien on crops belonging to his wife being void, she can not ratify on becoming discovert. Rawlings v. NeaJ, 126 N. C. 271, 35 S. E. 597. 45 Calhoun v. Millard, 121 N. Y. 69, 24 N. E. 27. An unauthor- ized act done in behalf of a corporation may be ratified by it, provided such act was within the scope of its corporate power. Lyndeborough Glass Co. v. Glass Co., Ill Mass. 315; Kelesy v. Bank, 69 Pa. 426. So the state may ratify an unauthorized act of a public agent, provided performance of the act is within the con- stitutional power of the state. State v. Torinus, 26 Minn. 1, 49 N W. 259; State v. Buttles Ex'r, 3 Ohio St. 209. 46 Ante § 46. 78 THE LAW OF AGENCY. authority, it follows that ratification of a sealed instrument, executed in behalf of another, can be ratified only by an instrument under seal.*^ Such ratification may be effected either by an instrument in terms ratifying the deed; or by a power of attorney, prospective in terms, but dated prior to the execution by the agent of the sealed instrument sought to be ratified.*^ The rule, however, has been so far modified as to permit a parol ratification by one partner of a sealed instrument executed by another in behalf of the- firm;*'' and in Massachusetts the rule has been entirely abrogated, and it is there held that the execution of a sealed instrument may be ratified by parol.°° Where, by statute, authority to execute certain parol contracts is required to be in writing,^^ a doctrine similar to that under discussion applies, and ratification of such contracts must be written/- (c) Express oral ratification. Where not required to be under seal or in writing, as explained in the preceding *7 Blood V. Goodrich, 12 Wend. (N. Y.) 525, 27 Am. Dec. 152; Grove v. Hodges, 55 Pa. St. 504; Zimpelman v. Keating, 72 Tex 318, 12 S. W. 177; Hayes v. City of Atlanta, 1 Ga. App. 25, 57 S E. 1087. *8Millildn v. Coombs, 1 Greenl. (Me.) 343, 10 Am. Dec. 70; Rig gan v. Grain, 86 Ky. 249, 5 S. W. 5G1. •«9 Sl< inner v. Dayton, 19 Johns. (N. Y.) 513, 10 Am. Dec. 286; Peine v. Weber, 47 111. 45. 60 Holbroolt v. Chamberlain, 116 Mass. 155, 17 Am. Rep. 146; Mclntyre v. Park, 11 Gray (Mass.), 102, 71 Am. Dec. 690. As in the case of original authorization, if the seal is not necessary to the validity of the instrument it may be disregarded and parol ratification will be sufficient. Adams v. Powers, 52 Miss. 828; Wor- rail v. Miinn, 5 N. Y. 229. 81 Ante § 48. 62 Gosh v. Stevens, 32 Minn. 472, 21 N. W. 549; Kozel v. Dear- love. 144 111. 23, 32 N. E. 542; Hawlilns v. McGroarty, 110 Mo. 550. 19 S. W. 830; Contra: Hammond v. Hannin, 21 Mich. 374, 4 Am Rep. 490. RATIFICATION. 79 section, aj/ form of words that indicates willingness on the part of a supposed principal to adopt an act or contract will be sufficient evidence of a ratification thereof.'* § 58. Implied ratification, (a) By aflfirmative act. Assent to be bound by an unauthorized act or contract may be inferred from conduct.''* An act done in recognition of a transaction, with knowledge of the facts, is evidence of intention to ratify the same.^' Thus entry upon, and use of land, under an unauthorized lease ; or taking pos- ses.=;ion. under an unauthorized contract of purchase, will amount to ratification of such lease or contract.'® So, 53 Truslow V. Parkersburg Bridge Co., 61 W. Va. 628, 57 S. E. 51; Brown v. Henry, 172 Mass. 559, 52 N. E. 1073. A power of attor- ney to do future acts does not amount to a ratification of similar acts already done. Britt v. Gordon, 132 Iowa, 431, 108 N. W. 319. So, retaining a salesman after knowledge of his unauthorized act is not evidence of ratification. Deacon v. Greenfield, 141 Pa. St. 467, 21 Atl. 650. 54 Western Mfg. Co. v. Cotton, 31 Ky. Law Rep. 1130, 104 S. W. 758; Ladenburg, Thalman & Co. v. Beal-Doyle Co., 83 Ark. 440, 104 S. W. 145. 55Allin V. Williams, 97 Cal. 403, 32 Pac. 441; Welsh v. Ferd Heim Brewing Co., 47 Mo. App. 608; Brown v. Wilson, 45 S. C. 519, 23 S. E. 630. The possession by a corporation of a contract signed by its secretary, and the payment of money thereunder by such corporation, is a ratification of the contract. Wright v. Farmers' Mut. Live Stock Ins. Ass'n, 96 Iowa, 360, 65 N. W. 308. 56 Ehrmanntraut v. Robinson, 52 Minn. 333, 54 N. W. 188; Hall V. White, 123 Pa. St. 95, 16 Atl. 521; Oregon Ry. Co. v. Oregon R. & Nav. Co., 28 Fed. 505; Johnson v. Land Co., 116 N. C. 926, 21 S. E. 28. Acceptance and use of goods purchased without authority ratifies the purchase. Ketchum v. Verdell, 42 Ga. 534; Williams V. Crosby Lumber Co., 118 N. C. 928, 24 S. E. 800. The owner of a building, however, is not liable for improvements made under an unauthorized contract, because he afterwards uses them, where they are of such a character that they can not be removed. Mllla V. Berla (Tex. Civ. App.), 23 S. W. 910. 80 THE LAW OF AGENCY. where an agent, without authority, makes a sale, acceptance of proceeds ratifies the sale ; ^^ and the rule would be the same where a principal, knowingly, accepts rent under an unauthorized lease,^^ or the proceeds of an unauthorized loan or compromise.^" x\s will be explained in a subsequent section, the acts of the principal must be done with knowl- edge of the facts.^" Bringing suit based upon an unauthor ized transaction will amount to ratification of it.°^ Thus an action by the principal to enforce a contract made in his behalf, or to secure from the agent an accounting of tho proceeds thereof, will evidence an intention to ratify the contract. ^^ 67 Wallace v. Sawyer, 90 Ind. 499; Nicholson v. Doney, 37 111- App. 531; Akers v. Ray County Bank, 63 Mo. App. 316; Deering & Co. V. Bank, 81 Iowa, 222, 46 N. W. 1117; Kirkpatrick v. Pease, 202 Mo. 471, 101 S. W. 651. Appropriation by a principal of the avails of an agency amounts to a ratification of what has been done. Gaudelupo, etc., Min. Co. v. Beatty (Tenn.), 1 S. W. 348. 58 Reynolds v. Davison, 34 Md. 662; Burkhard v. Mitchell, 16 Colo. 376, 26 Pac. 657; Clark v. Hyatt, 118 N. Y. 563, 23 N. E. 891. 5s Maddux v. Bevan, 39 Md. 485; Taylor v. Ass'n, 68 Ala. 229; Miles V. Ogden. 54 Wis. 573, 12 N. W. 81; Houghton v. Dodge, 18 N. Y. Super. Ct. 326; Orvis v. Wells, Fargo Co., 19 C. C. A. 382, 73 Fed. 110. «o Post § 60. 61 Smith V. Morse, 9 Wall. (U. S.) 82: Merrill v. Wilson, 66 Mich. 232, 33 N. W. 716; Baily & Co. v. West Lumber Co., 1 Ga App. 398, 58 S. E. 120. 62Shoninger v. Peabody. 57 Conn. 42. 17 Atl. 278; Warder, BuRhnell & Gl( ssner v. Cuthbert, 99 Iowa. C81, 68 N. W. 917; Le Grande Nat. Bank v. Blum, 27 Ore. 215. 41 Pac. 659; Frank v. Jenkins. 22 Ohio St. 597. An action against an agent, authorized to purchase land, for the amount of a commission secretly paid him by the vendor, is not such a ratification of the transaction as will discharge the vendor from liability for fraud and deceit by whlfh, \vi(h assistance of the agent, the sale was induced. Baxns- dall v. O'Day. 67 C. C. A. 278, 134 Fed. 828 RATIFIC-A.TION. 81 (b) By silence. Ordinarily, an unauthorized act will not bind the person in whose behalf it was performed unless by some affirmative conduct he indicates an intention to adopt it. Hence there usually is no obligation upon a per- son to dissent from, or repudiate, an unauthorized act or contract.^^ Nevertheless, circumstances may be such that failure to dissent clearly gives rise to an inference of ac- quiescence. And, therefore, in many cases ratification may be implied from mere silence.^* Thus, where a person was informed of an unauthorized sale of his property by his agent, and knew that the purchaser was dealing with the same as his own, his failure to dissent from the transaction, within a reasonable time, raised an implication of intention to ratify it.*'^ "Subject to his right to a reasonable op- portimity to express his dissent, every additional day and hour of silence, after he became privy to the contract, operates as a tacit acquiescence, and raises the presumption of assent. " ^° So Adhere a principal was informed by his 63 Brass v. Worth, 40 Barb. (N. Y.) 648; Powell's Adm'r v. Henry, 27 Ala. 612; Burns v. Kelley, 41 Miss. 339; Deane v. Gray Bros. Stone Co., 109 Cal. 433, 42 Pac. 443. Mere failure to dis- avow an agent's act instantly on being apprised thereof is not ipso facto a ratification. Miller v. Stone Co., 1 111. App. 273. 64 Union Gold Min. Co. v. Rocky Mt. Nat. Bank, 96 U. S. 640, 2 Colo. 248; Breed v. First Nat. Bank, 4 Colo. 481; Morse v. Die- bold, 2 Mo. App. 163; Garland v. Wells, 15 Neb. 298, 18 N. W. 132; Shinn v. Hicks, 68 Tex. 277, 4 S. W. 486; Wheeler v. Citizens' Bank, 32 Ky. Law Rep. 939, 107 S. W. 316. Failure to repudiate an unauthorized act of an agent usually amounts to ratification thereof. Lorie v. Railway Co., 32 Fed. 270. «5 Hall V. Harper, 17 111. 82; Alexander v. Jones, 64 Iowa, 207, 19 N. W. 913. 66 Bigg V. Stone, 3 Sm. & Gif. (Eng.) 592; Lynch v, Smyth, 25 Colo. 103, 54 Pac. 634; Reid v. Alaska Packing Co., 47 Ore. 215, 83 Pac. 139. What is a reasonable time to disaffirm an unauthorized sale is a question of fact; a delay of five months in disaffirming 6 82 THE LAW OF AGENCY. agent that the latter, in his behalf, had institnted suit against a debtor, causing him to be arrested and detained in prison, and the principal made no inquiry as to the ground of arrest and gave no directions for the debtor's discharge, it was held that his inaction in the premises amounted to a ratification.^^ It is sometimes stated as the rule that where the relation of principal and agent already exists, failure, after knowl- edge, to repudiate an act of the agent, done in excess of his authority, will be evidence of ratification,^^ while no such implication can arise from failure to dissent from an un- authorized act of a stranger.^" ''In general," said the court, in an Illinois case, "where an agent is authorized 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 in- formed 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 implication; but where a stranger, in the name of an- other, does an unauthorized act, the latter need take no no- tice of it, although informed of the act thus done in his name, and he shall only be bound by af^rmativo ratifica- tion. "^° No such hard and fast rule, however, can be adopted. Circumstances may be such that mere silence will justify an inference of intention to ratify the unauthor- the sale of a car load of flour would be unreasonable. Holloway. V. Arkansas City Milling Co., 77 Kan. 76, 93 Pac. 577. 07 Forbes v. Hagman, 75 Va. 168; Pollock v. Gantt, 69 Ala. 373, 44 Am. Rep. 519. 08 Ward v. Williams, 26 111. 447, 79 Am. Dec. 385. 08 Searing v. Butler, 69 111. 575. Should a stranger, without authority, assume to act as agent for another, it would be in- tolerable If such other would be bound to compensate the inter- loper for his services unless he gave notice of his dissent Kelly y. PhHps, 57 Wis. 425, 15 N. W. 385. TO Ward v. Williams, supra. RATIFICATION. 83 ized act of a stranger;''^ though, of course, as said by Story, "the presumption is far less strong, and the mere fact of acquiescence may be deemed far less cogent, where no relation of agency exists at the time between the par- ties." ■'^ The intention of the person is the controlling fac- tor, and any conduct, at the best, is but evidence of thi^ intention. The relation of the parties affects merely the weight of the evidence."^ § 59. Estoppel. IMany of the cases of implied ratifica- tion might be based on the doctrine of estoppel; for if a person by his act or conduct, knowingly or negligently, leads another to believe, and to act upon the belief, that he had authorized a particular act, such person will be estopped to deny such authorization.'* In many instances, however, implied ratification might be established, where all the con- ditions necessai-y to constitute an estoppel would not be present. The former doctrine, therefore, is not merely an application of the latter." 71 Heyn v. O'Hagen, 60 Micli. 150, 26 N. W. 861; Robbins v. Blandins, 87 Minn. 246, 91 N. W. 844; Savelaud v. Green, 40 Wis. 431. >2 Story on Agency, § 256. 73 Ladd V. Hindebrant, 27 Wis. 135, 9 Am. Rep. 445. The prior relations of the parties lend great importance to the fact of silence, but it is a mistake to make the competency of the fact depend on those relations. It is one thing to say that the law will not imply a ratification from silence, and a very different thing to say that silence is a circumstance from which, with others, a jury may not imply it. Philadelphia, etc., R. Co. v. Cowell, 28 Pa. St. 329, 70 Am. Dec. 128. 7-1 Vicksburg & M. R. Co. v. Ragdale, 54 Miss. 200; Smith v. Flet- cher, 75 Minn. 189, 77 N. W. 800. 75 Thus, a person could probably set up a ratification who has not been prejudiced by delay in disaffirming an unauthorized act. 84 THE LAW OF AGENCY. § 60. Knowledge of material facts. Ratification is but the giving of assent to an unauthorized act or contract, and since it would be impossible to assent to facts of the exist- ence of which one had no knowledge, the rule is established that a person will not be bound by an apparent ratification of an unauthorized transaction, unless he adopts the same with knowledge of all the material facts connected there- with.'^^ So, acts or conduct will give rise to an inference of intention to ratify, only when inconsistent with the exist- ence of a contrary intention. Thus, where a principal au- thorized the sale of shares of stock, for a stated sum, but in- structed his agent to reserve the right to a dividend, and these instructions were violated, acceptance of payment, without knowledge of the fact, would not amount to ratifica- tion of unauthorized assignment of the dividend.'^'' Such ac- ceptance is not inconsistent with an intention not to ratify. So, ratification of an unauthorized execution of a note will not bind the principal by an unknown stipulation to pay at- torney fees ; '^^ and where property has been sold by an agent with an unauthorized warranty, acceptance by the owner of proceeds of the sale, without knowledge of the warranty, "'i Owings V. Hull, 9 Pet. (U. S.) GOT; Craighead v. Peterson^ 72 N. Y. 279; Aetna Ins. Co. v. Iron Co., 21 Wis. 458; Sill v. Pate, 230 111. 39, 82 N. E. 356; Daley v. Iselin, 218 Pa. St. 515, 67 Atl. 837; Case v. Hammond Packing Co., 105 Mo. App. 168, 79 S. W. 732. Acceptance of a deed by grantees is not a ratification of fraudulent acts of a notary in procuring execution thereof, where it was not shown that the grantees had knowledge of such fraud. Cason V. Cason, 116 Tenn. 173, 93 S. W. 89. 77 Wheeler v. Sleigh Co., 39 Fed. 347. 78 Brown v. Bramherger, 110 Ala. 342, 20 South. 114. But where a. principal receives and retains a note, he is bound by nnauthor- i/.od stipulations therein. Wheeler & Wilson Mfg. Co. v. Aughey, 144 Pfi. Sr. :!ftX, 22 Atl. 667. RATIFICATION. 85 will not necessarily amount to a ratification tliereof.'^' So generally, ratification can never be inferred from acts or declarations, if at the time of doing the acts or making the declarations, the principal had no knowledge that the agent had performed the acts claimed to have been ratified.^** In concluding this branch of the subject, it may be stated that where circumstances indicate an intention to adopt an unauthorized act, regardless of the material facts, the prin- cipal will be boiuad by his reckless ratification.*^ He can not escape liability by purposely closing his eyes. Thus where a principal enters into possession under an unauthor- ized lease, deliberately refraining from ascertaining its terms, he undoubtedly would be bound by all its reasonable provisions.®^ "Where, however, the contract was such as the agent had authority to make, and there was no reason to suppose that he had departed from his instructions, accept- ance of its benefits would not indicate an intention to ratify unauthorized terms. ®^ Ordinary negligence or omission 79 Richmond Trading Co. v. Farquar, 8 Blackf. (Ind.) 89; Smith V. Tracy, 36 N. Y. 79. But see Phillips-Buttorff Mfg. Co. V. Wild Bros., 144 Ala. 545, 39 South 359. 80 Coombs V. Scott, 12 Allen (Mass.), 493; Davis v. Talbot, 137 Ind. 235, 36 N. E. 1098; Munroe v. Fette, 1 Cal. App. 333, 82 Pac. 206; Cowan v. Sargent Mfg. Co., 141 Mich. 87, 104 N W. 377. There can be no ratification of a contract by a party who had no knowledge of its existence. Wood v. Palmer, 151 Mich. 30, 115 N. W. 242. 81 Jewell Nursery Co. v. State, 5 S. D. 623, 59 N. W. 1025; Lynch V. Smyth, 25 Colo. 103, 54 Pac. 634; Heinzerling v. Agen, 46 Wash. 390. 90 Pac. 262. Where a principal ratifies an act of his agent, knowing that he is ignorant of essential facts, he assumes the risk. Swisher v. Palmer, 106 111. App. 432. 82 Ehrmanntraut v. Robinson, 52 Minn. 333, 54 N. W. 188. 83 Roberts v. Rumley, 58 Iowa, 301, 12 N. W. 323; Clement v. Young-Shea Amusement Co., 70 N. J. Eq. 677, 67 Atl. 82. A prin- 86 THE LAW OF AGENCY. will not, of itself, raise an implication of intention to ratify regardless of facts; such implication arises only in excep- tional cases.^* § 61. Ratification in part. It is fundamental that an unauthorized act or contract of an agent can not be affirmed in part and disaffirmed in part.^° A principal can not adopt just so much of an agent's unauthorized act as would be beneficial to him.^^ Thus where an agent, without au- thority, borrowed money for his principal and executed a mortgage to secure the loan, the principal could not ratify the loan and repudiate the mortgage ; *^ so where an agent, by a single contract, agreed to the sale of a mill and articles used in connection therewith, the principal could not affirm the contract, and at the same time assert that the agent had authority to sell only the mill.^*' The rule applies, of course, cipal may usually assume that his agent has obeyed instructions. In re Johnson, 102 Minn. 8. 112 N. W. 894. 84 Murray v. Lumber Co., 143 Mass. 250, 9 N. E. 634; Valley Bank v. Brown, 9 Ariz. 311, 83 Pac. 362. The principal is not thargp.able with information which by diligence he could have ac- quired, if not wilfully ignorant. Shepard & Morse Lumber Co. v. Eldriclge, 171 Mass. 516, 51 N. E. 9. 85 Warren v. Hayes, 74 N. H. 355, 68 Atl. 193; Shinn v. Guyton & Herrington Mule Co., 109 Mo. App. 557, 83 S. W. 1015; McChire Bros. V. Briggs, 58 Vt. 82, 2 Atl. 583. 86 Stark V. Starr, 94 U. S. 477; McLeod v. Despain. 49 Ore. 536, 92 Pac. 1088. Where the principal takes the benefits of an un- authorized bargain of his agent, he must adopt the contract as made. Singer Mfg. Co. v. Christian, 211 Pa. St. 534, 60 Atl. 1087. 87 Krider v. Western College, 31 Iowa, 547. So, a party can not retain the benefits of his agent's fraudulent conduct without being chargf'd with the Instrunienlalities employed to effect the purpose. McKf'ighan v. Ilopkins, 19 Neb. 33, 26 N. W. 614. «« Elizabethtown M. & C. Co. v. Elizabethtown Milling Co., 13 Ky. Law Rfp. 96. RATIFICATION. 87 only Avhere the transaction was single or the contract entire. Thus where the o^\^ler of lots reserved the right to pass upoii sales thereof by an agent, his adoption of a number of sales does not prevent his rejecting others.^^ § 62. Effect of ratification, (a) In general. A ratifi- cation once made is irrevocable, and binds the principal as effectually as though he had given precedent authority.®" On the theory that ratification relates • back, — the doctrine of relation as it is termed — the principal and agent are in- vested with the same rights and obligations as would have existed had the act ratified been precedently authorized.^^ The doctrine of relation is not pushed so far as to affect intervening rights of strangers,®^ and, so the situation of third parties with whom the unauthorized agent dealt is not in all cases rendered the same by ratification as it would have been had the agent, in dealing with them, been acting with authority.®^ (b) Intervening rights of strangers. Rights of strangers which have accrued between the act of the agent and its ratification will not be defeated by application of the doctrine of relation.®* Thus, by ratification of a prior unauthorized sale, a principal could not defeat a subse- 89 Burlington, etc., Ry. Co. v. Sherwood, 62 Iowa, 309, 17 N. W. 564. 90 Johnson v. Hoover, 72 Ind. 395; Coffin v. Gephart, 18 Iowa, 256; Andrews v. Aetna Life las. Co., 92 N. Y. 596; Russ v. Tel- fener, 57 Fed. 973. 91 Post § 64. 92 Post § 62 (b). 93 Post § 63. 94 Cook V. Tullis, 18 Wall. (U. S.) 332; Fisk v. Holmes, 41 Me. 441; Norton v. Alabaj_a Nat Bank, 102 Ala. 420, 14 South. 872. 88 THE LAW OF AGENCY. quent valid sale of the property,'" nor intervening incum- brances that have attached thereto.^* § 63. Effect between principal and third party, (a) In general. From the time of ratification the principal be- comes the responsible party and is subject to the same obli- gations as would have arisen had the unauthorized act or contract been precedently authorized.®^ Conversely, how- ever, it has been held that the other party to the transac- tion can not be bound, against his will, by a ratification, unless he has assented to the same.®* (b) Acts. Ratification, as we have seen, may be of an act or of a contract. In the former case, where the unau- thorized act of an agent was of such a nature that it would, if authorized, have entitled the principal to have some act performed by a third person, liability for nonperformance can not be created against such third person by ratifica- tion.®® Thus an unauthorized notice to quit can not be made binding upon a tenant by subsequent ratification ; ^°° 96 Parmelee v. Simpson, 5 Wall. (U. S.) 81; McDonald v. McCoy, 121 Cal. 55, 53 Pac. 421. seWood V. McClain, 7 Ala. 806, 42 Am. Dec. 612; Pollock v. Cohen, 32 Ohio St. 514. Thus, where an agent to collect takes a deed in payment, without authority, and the land is later attached by another creditor, the latter's right will not be defeated by a subsequent ratification of the deed. Kempner v. Rosenthal, 81 Tex. 12, 16 S. W. 639. 07 Conro V. Port Henry Iron Co., 12 Barb. (N. Y.) 27; United States Express Co. v. Rawson, 106 Ind. 215, 6 N. E. 337. 98 Dodge V. Hopldns, 14 Wis. 630. »» Story on Agency, § 246. looBrahn v. Forge Co., 38 N. J. Law, 74; PIckard v. Perley, 45 N. H. 188. 80 Am. Dec. 153. The tenant is entitled to such notice as he could act upon with certainty at the time It was given, and is not hound to submit himself to the hazard whether the landlord win ratify or not. Right v. Cuthell, 5 East (Eng.), 491- RATIFICATION. 89 SO an unauthorized demand, though subsequently ratified, will not be sufficient to support a suit in which demand is necessary ; ^°^ and the unauthorized bringing of a suit, usually, can not be ratified.^"- In these cases it would man- ifestly be unjust to give to ratification the effect of previous authority, since the third person, not knowing whether the act will be ratified, would have to perform at his own risk, and would be without protection were the act of the agent disavowed by the principal. ^°^ (c) Contracts. Without, apparently, so much reason, the rule has been extended to executory contracts ; and ac- cording to accepted authority, a principal can not, by rati- fication of an executory contract, build up affirmative rights against the other party unless the latter acquiesce in the ratification.^"* The obligation of a contract, it is contended, must be mutual, — both parties must be bound or neither. "Where an agent acts without authority the principal is not bound, and neither, as a consequence, is the third party. The principal, it is true, by ratification may give his as- sent to the contract, but this should not operate to bind the other party until he, too, assents. ''The principal may, by his subsequent assent, bind himself; but if the contract be executory, he can not bind the other party. The latter 101 story on Agency, § 247. It has been held, however, that bringing suit on an unauthorized demand will ratify it unless au- thority to make it had been questioned at the time by the person upon whom it was made. Ham v. Boody, 20 N. H. 411, 51 Am. Dec. 235. 102 Dingley v. McDonald, 124 Cal. 682, 57 Pac. 574. But, see. Persons v. McKibben, 5 Ind. 261, 61 Am. Dec. 85. 103 Tiffany on Agency, p. 18. 104 Dodge V. Hopkins, 14 Wis. 630; Atlee v. Bartholomew, 69 Wis. 43, 33 N. W. 110; Wilkinson v. Heavenrich, 58 Mich. 574; Cowan V. Curran, 216 111. 598, 75 N. E. 322. 90 THE LAW OF AGENCY. may, if he choose, avail himself of such assent, as against the principal; wliich if he does, the contract, by virtue of such mutual ratification, becomes mutually obligatory. ' ' ^°^ A contrary doctrine would in many instances give unfair advantage to a principal, as in a case where he is induced to ratify an unauthorized sale solely because the property has subsequently been destroyed. On principle, however, it would seem that a ratification should bind the third party ; for by entering into the contract with the agent, under be- lief that the principal is the real party, such third person gives his assent in advance to be bound, and ratification makes the assent mutual, on much the same theory that ac- ceptance of an offer creates mutuality of agreement. And after all, so far as the third person is concerned, ratifica- tion merely brings into existence a state of facts which he believed to exist at the time he dealt with the agent and en- tered into the supposed contract. This view of the doctrine has support of some authority.^"® § 64. Effect on agent. Ratification of an unauthorized act vests the agent with the same rights that would have existed had the act been authorized.^°^ He may look to the principal for compensation,^"® and is absolved from re- 105 Dodge V Hopkins, 14 Wis. 630. IOC Hammond v. Hannin, 21 Mich. 374, 4 Am. Rep. 490; McClin- tock V. Oil Co., 14G Pa. St. 144, 23 Atl. 211. See Rogers v. Knee- land, 10 Wend. (N. Y.) 218; Bellinger v. Collins, 117 Iowa, 173, 90 N. W. 009; Hill v. McMunn, 232 111. 488, S3 N. E. 963. 107 Wilson V. Dame, 58 N. H. 392; Goss v. Stevens, 32 Minn. 472, 21 N. W. 549. 108 u. S. Mortgage Co. v. Henderson, 111 Ind. 24, 12 N. E. 88. Where a real estate agent exceeds his authority in making a sale, upon ratification, the compensation fixed in the original contract of frnployment fontrols. Celntt v. Ridge, 117 Mo. r>r>?,. 23 S. W. 882. RATIFICATION. 91 sponsibility for the unauthorized transaction.^"" Where, however, a principal ratifies an act, done in violation of instructions, merely to avoid or reduce a loss therefrom, the agent would scarcely be heard to claim the benefit of an application of the doctrine of relation. ^^*' Where an agent acts in behalf of another, he warrants his authority to third persons with whom he deals, and if he has no au- thority would be liable in damages for breach of this war- ranty. ^^^ Ratification, being equivalent to precedent au- thorization, would relieve the agent from such liability.^^- 109 Pickett V. Pearson, 17 Vt. 470; Hanks v. Drake, 49 Barb. (N. Y.) 186; Menkens v. Watson, 27 Mo. 163. Where an agent sells goods for less than the authorized price, ratification relieves him of liability for the difference. Hollaway v. Arkansas City M.lling Co., 77 Kan. 76, 93 Pac. 577, iioTriggs V. Jones, 46 Minn. 277, 48 N, W. 1113; Walker v. Walker, 5 Heisk. (Tenn.) 425. 111 Post § 137. 112 Bergen's Appeal, 96 Pa. St. 443. If the unauthorized act was a tort, ratification does not relieve the agent of joint liability. Richardson v. Kimball, 28 Me. 463. CHAPTER VI. TERMINATION OP AGENCY. 8 65. In general. 66. By original agreement. 67. By act of parties. 68. Revocation of authority. (a) In general. (b) Power distinguished from right to revoke, 69. How revocation is effected. (a) As against agent. (b) As against third parties. 70. Irrevocable powers. 71. Renunciation by agent. 72. Termination by law. 73. Death. (a) Of principal. (b) Of agent. (c) Power coupled with Interest. (d) Hunt V. Rousmanler. 74. Insanity. (a) Of principal. (b) Of agent. 75. Bankruptcy. (a) Of principal. (b) Of agent. 76. Marriage. 77. War. § 65. In general. An agency, as we have seen, can be created only by act of the parties, as by appointment and dcccptance, rfxtification, or conduct of the principal which givea rise to an estoppel. The relation may be terminated by voluntary act of either party, or in pursuance of th(> oiiginal agreement between them; and so, upon the occiii TERMINATION OF AGENCY. 93 Tcnce of certain conditions, such as the death or insanity of either principal or agent, the relation terminates by operation of law. Stated in general terms, an agency may be terminated : 1, By original agreement ; 2, By act of the parties ; 3, By operation of law. § 66. By original agreement. Where under the express or implied terms of appointment, an agency is to endure only for a stated time, or until the happening of a stated event, the expiration of such time, or the happening of such event, will, of course, terminate the relation.^ Thus, where an agent is appointed for the period of one j^ear, the agency will terminate at the expiration of the year ; - and where a person, about to depart on a voyage, appoints an agent to act for him during his absence, the agency terminates upon return of the principal.^ So, where an agent is employed for the performance of a particular act, accomplishment of the purpose of the agency necessarily terminates the rela- tion; * and the effect would be the same where the principal himself performed the act or caused it otherwise to be per- formed.^ Thus, where an agent to sell land, in good faith 1 Oregon Mortgage Co. v. American Mortgage Co., 35 -Fed. 22; Gundlach v. Fischer, 59 111. 172. 2 Clements v. Maclieboeuf, 92 U. S. 418. 3 Danby v. Coutts, L. R. 29 Ch. Div. 500. * People V. Manistee County Com'rs, 40 Mich. 585; Greening v. Steele, 122 Mo. 287, 26 S. W. 971. After completion of a transac- tion, a declaration of an agent is not binding on the principal. Atlanta Sav. Bank v. Spencer, 107 Ga. 629, 33 S. E. 878. 5 Ahern v. Baker, 34 Minn. 98, 24 N. "W. 341; Gilbert v. Holmes, 64 111. 548; Kelly v. Brennan, 55 N. J. Eq. 423, 37 Atl. 137. Where the treasurer of a town was authorized to borrow money to ad- just a tax and the same was adjusted before he acted, his au- thority ceased. Benoit v. Inhabitants of Conway, 10 Allen (Mass.), 528. 9-1 THE LAW OF AGENCY. effected the sale thereof, he was not precluded shortly there- after from himself purchasing the land, since he no longer occupied the relation of agent to the original owner ; ^ and so, where an agent, authorized to sell land, effected a sale, but in the meantime the principal, through another agent, had conveyed the land to a different person, the sale by the first agent was without effect and an action thereunder for breach of contract could not be sustained/ The rule would be the same where the subject matter became extinct, as in the case of the destruction of a ship which an agent had been authorized to sell; for clearly, unless a contrary inten tion is manifested, a condition is to be implied that the au thority shall continue only so long as the ship continues to exist.* § 67. By act of the parties. Except where a power is given for a valuable consideration, a condition to be sep- arately discussed,'* the principal may, at will, revoke author- ity vested in an agent and thus terminate the relation ; and the same effect may be accomplished by renunciation of the agency by an agent. § 68. Revocation of authority, (a) In general. It is elementary that one man can not bind another by act or contract without that other's assent; and such assent, in order to be effective, must exist at the moment the act is perfomed or the contract is entered into. Plence, though authority has been given an agent to perform an act or make a contract in behalf of a principal, the act or contract 8 Monro v. Hlone. 40 Iowa, 259; Short v. Millard, 68 111. 292. TAhorn v. Balier, 31 Minn. 9S. 24 N. W. 341. • Story on Agency, § 499. • Post § 70. TERMINATION OF AGENCY. 95 will not bind the principal if the authority has been with- drawn before its exiecution ; for in such a case, assent to be bound would not exist at the moment the act was done or the contract was entered into. At any time before its exe- cution, a principal may revoke authority. The law will not force him against his will into what is essentially a volun- tary transaction merely because at a prior time he had in- licated a willingness to enter into the same by appointing an agent to represent him. Subject to an exception, to be separately noted,^° it is the rule, then, that at any time be- fore its execution, a principal may revoke authority vested in an agent and thus terminate the relation ; even though he may have contracted with the agent for its longer con- tinuance.^^ Thus, authority of an auctioneer, or of a broker, may be revoked at any time before the goods are sold,^^ nnd a subsequent sale will not be binding on the principal.^^ Where money is given an agent to pay a debt due a third person, the same may be recalled at any time before it reaches the hand of the creditor ; ^^ and, so, until acceptance by the principal's creditors of an arrangement whereby an f'gent is to sell the principal's goods and apply the proceeds 10 Post § 70. iiBlackstone v. Buttermore, 53 Pa. St. 266; Willcox & Gibbs Sewing Mach. Co. v. Ewing, 141 U. S. 627; Strong v. Buffalo Land r.o., 203 U. S. 582; McMahan v. Burns, 216 Pa. St. 448, 65 Atl. 806; Phillips V. Howell, 60 Ga. 411. 12 Manser v. Back, 6 Hare (Eng.), 443; Hoover v. Perkins Wind- mill Co., 41 Minn. 143, 42 N. W. 806. 18 Brown v. Pforr, 38 Cal. 550; Story on Agency, § 465. 1* Howard College v. Pace, 15 Ga. 486; Simonton v. First Nat. Bank, 24 Minn. 216; Flaherty v. O'Connor, 24 R. I. 587, 54 Atl. 376. One who has intrusted an agent with a sum of money to settle a law suit between two others, has the power of revocation until the settlement is complete. Phillips v. Howell, 60 Ga. 411. 96 THE LAW OF AGENCY. in payment of certain debts, the authority given the agent is subject to revocation. ^^ (b) Power distinguished from right to revoke. Where an agent is employed for a stated term, or is given exclusive right to perform an act, revocation of authority may amount to breach of the contract subsisting between principal and agent; and to meet this situation, the authorities distin- guish between what they term the po^ver to revoke and the right to revoke.^^ This seems an unnecessary, and may prove a confusing, distinction of words. All that it merns is, that though a principal has the power or the right to re- voke an authority, such power does not carry with it the right to break, with impunity, a contract with his agent. Hence if a revocation of authority incidentally involves, or results in, the breach of a contract of employment, the prin- cipal is liable in damages to his agent for such breach of contract.^'^ AVhether or not in a particular instance revoca- tion of authority, or discharge of an agent, violates a con- tract of employment must be determined from construction of such contract ; and this phase of the case will be governed by the law of contracts, rather than by rules peculiar to the law of agency." § 69. How revocation is effected, (a) As against agent. The law docs not take cognizance of a man's intentions until they have l)ecn given expression. Hence revocation of an "Comley v. Dazian, 114 N. Y. IGl, 21 N. E. 135. i« Mechem on Agency, § 209. 17 Kilpatrick v. Wiley, m Mo. 123, 95 S. W. 213; Standard Oil Co. V. Clilhert, 84 Ga. 714, 11 S. E. 491; CofTin v. Land;.,, 46 Pa. St. 420. 1" IJishop on Contracts, § 838. An employment is deemed to be at will unless the contract expressly or by clear Implication pro- vides for a fixed term; and so the principal may discharge an TERMINATION OF AGENCY. 97 agent's authority is not effective against him until notice of revocation is in some way communicated to him.^® Any form of words that indicates an intention to revoke will be sufficient. -° Thus, the words ''I am verj' sorry to have to ask you to resign your position" would be a sufficient form of revocation.^^ So, authority conferred by deed may be revoked by parol.^^ Kevocation of authority may also be implied from acts or circumstances.^^ Thus, where a second appointment would be clearly incompatible with continu- ance of the first, a grant of power to another agent to do the same act would amount to revocation of the former agent's authority.-* So, disposition by the principal of the subject matter of the agency would impliedly revoke the same, as where he himself sells property which the agent was au- thorized to seU.^^ And authority to represent a partner- ship, or the joint owners of land, would be impliedly re- agent -without liability for misconduct or incompetency. See, Mechem on Agency, § 211. 19 Jones V. Hodgkins, 61 Me. 480; Robertson v. Cloud, 47 Miss. 208; Best v. Gunther, 125 Wis. 518, 104 N. Vv^. 82. 20 Kelly V. Brennan, 55 N. J. Eq. 425, 37 Atl. 137. Where an agent to buy wool telegraphed his principal in regard to the pur- chase of a certain lot, a reply that he had better not take it, re- voked his authority to buy. First Nat. Bank v. Hall, 8 Mont. 341, 20 Pac. 638. 21 Jones V. Graham, etc., Transp. Co., 51 Mich. 539. 22 Brookshire v. Brookshire, 30 N. C. 74. 47 Am. Dec. 341. 23 Copeland v. Insurance Co., 6 Pick. (Mass.) 198; Chenault v. Quisenberry (Ky), 57 S. W. 234. Where a person assigned a claim for personal injuries and executed a pov>er to release the same, such power was impliedly revoked by the grantor subse- quently commencing suit on the claim. Flynn v. Butler, 189 Mass. 377, 75 N. E. 730. 2iDavol v. Quimby, 11 Allen (Mass.) 208; Enright v. Beau- mond, 68 Vt. 249, 35 Atl. 57. 25 Gilbert v. Holmes. 64 111. 548; Walker v. Denison. 86 111. 142, 98 THE LAW OF AGENCY, voked by dissolution of the partnership, or severance of the joint interest. -^ (b) As against third persons. Revocation of authority, from the moment of its communication to the agent, termi- nates the relation between him and the principal, but such revocation will not be effective against third parties, to whom the agent has been held out as having authority, until notice of revocation has been communicated to them.-^ This rule rests on the doctrine of estoppel and is applicable only where the elements of estoppel exist. Hence after revoca- tion a principal will be liable only to such persons who having knowledge of the agent 's authority dealt with him in good faith upon assumption of its continued existence, and without reasonable cause to believe that the authority- had been revoked.^^ Except in states where, by statute, revocation of a power to sell land must, like the power itself, be recorded,-'' any form of notice, express or implied, that puts third persons on their guard will be sufficient.^" AYhere an agent has been held out generally to the public 2«Rowe V. Rand, 111 Ind. 206, 12 N. E. 377; Callanan v. Van Vleck, 36 Barb. (.N. Y.) 324; Schlater v. Winpenny, 75 Pa. St. 321. Change of a firm's name does not revoke an agency confer- red upon the same persons under a different name.. Billingsley v. Dawson, 27 Iowa, 210. 27 Southern Life Ins. Co. v. McCain, 96 U. S. 84; Wheeler v. McGuire, 80 Ala. 308, 5 South. 190; Springfield Engine, etc., Co. V. Kennedy, 7 Ind. App. 502, 34 N. E. 856. A conveyance by virtue of a power of attorney would be good notwithstanding prior re vocation of the power where the vendee had no notice of such revocation. Hancock v. Byrne, 35 Ky. 513. zsClafln V. Lenhelm. 60 N. Y. 301; Packer v. Hinckley Loco- motive Works, 122 Mass. 484. ■■■■nGratz v. Improvement Co., 27 C. C. A. 305, 82 Fed. 381. 30 Clafln V. Lenhelm, 66 N. Y. 301; Tier t. Lampson, 35 Vt. 170, 82 Am nee. 634 TERMINATION OP AGENCY. 99 as having author-ity, public notice of its revocation might be necessary to protect the principal ^' but where the hold- ing out has been less general, only those persons who from ])ersonal knowledge of the agent's authority, or from previ- ous dealings with him, would be likely to act on the assump- tion that such authority still existed, would be entitled to no- tice of its revocation.'- So, where an agent has been au- thorized merely to do a particular act, no dutj^ is incumbent upon the principal to give notice of revocation, except, pos- sibly, to a person with whom the agent, to the principal's knowledge, has actually opened negotiations.^' § 70. Irrevocable povirers. As has been already stated, a principal can revoke the authority of an agent notwith- standing that such revocation involves the breach of a con- tract of employment.^'* The right to continue in the per- formance of an agency, though secured by a valid contract of employment, is not a vested right of which a person can not be deprived, but merely one for violation of which dam- ages are given by law. Where, however, a man secures, for a valuable consideration, either the property of another, the right to control such property, or to exercise a power incidental to ownership, his interest is vested, and can not be divested by an attempted renunciation of the transaction l\y other parties thereto. So, generally, ^vhere a man in 31 Braswell v. American Ins. Co., 75 N. C. 8; Fellows v. Hart- ford, etc., Co., 38 Conn. 197; McNeilly v. Insurance Co., 66 N. Y. 23. 32Lamothe v. St. Louis Dock Co., 17 Mo. 204; Hatch v. Cod- dington, 95 U. S. 48; Wheeler v. McGuire, 86 Ala. 398. 5 South. 190. S3 Watts V. Kavanaugh, 35 Vt. 34; Strachan v. Muxlow, 24 Wis. 21. 34 Ante § 68. 100 THE LAW OF AGENCY. order to secure a benefit, other than mere compensation as agent, pays valuable consideration for the right to exercise powers belonging to another, such right becomes vested in liim, and is not subject to revocation by the donor.^^ It is the rule, then, that a power given for a valuable considera- tion to secure a benefit independent of mere compensation as agent, vests in the. donee a legal interest in the exercise of the power, and the same can not be revoked at the will of the donor.^® Thus, where a man in order to secure a loan gives another power, in event of default, to sell prop- erty belonging to him and to collect the debt from proceeds of the sale, such power could no more be revoked by the donor than could a mortgage given to secure a loan ; ^^ and the rule would be the same w^here an agent is given author- ity to collect a debt and out of the proceeds to reimburse himself for money advanced to the principal.^* So, gen- erally, an authority can not be revoked by the grantor where it is given as security,^'' or to indemnify a surety against loss.*" Nor is it necessary, to render an authority irrevo- 35 As will be seen in the course of our discussion many powers though irrevocable by the grantor will not survive his death. Post § 73 (c). 3eBlackstone v. Buttermore, 53 Pa. St. 266; Hartley's Appeal, 53 Pa. 212, 91 Am. Dec. 207; Frink v. Roe, 70 Cal. 296, 11 Pac. 820; Terwilliger v. Ontario, etc., Ry. Co., 149 N. Y. 86, 43 N. E. 432. A power to enter upon and sell land given for a considera- tion of five dollars, has been held irrevocable. Montague v. Mc- Carroll, 15 Utah, 318, 4y Pac. 418. •■'7 Hunt v. Rousinanier, 8 Wheat. (U. S.) 174; Allen v. Davis. 13 Ark. 28. 38Marl/,oii V. Pioche, 8 Cal. 522; Hutchins v. Hebliard, 34 N. Y. 27; Terwlllinger v. Railway Co., 149 N. Y. 80, 43 N. E. 432. "c Beecht-r v. Bennett, 11 Barb. (N. Y.) 380; Evans v. Fearno. n; Ala. 689, 50 Am. Dec. 197; American Loan & Trust Co. v. Bil lingB, 58 Minn. 187, 59 N. W. 998. 1" iryr.soii V Nol.iiul. i4 Ark. 710. TERMINATION OF AGENCif. 101 cable that the interest be vested in Ihe person who is to ex- ercise the power; but the beneficiary may be a third per- son.*^ Thus, where a debtor authorizes an agent to sell property and out of the proceeds to pay a debt due a third person, the power becomes irrevocable upon the creditor's acceptance of the security.*^ IMere interest in the execution of an agency, as by way of compensation, is not sufficient. Thus, the fact that an agent to sell land, or to collect money, is to have a percentage of the proceeds as commission does not secure his authority against revocation,*^ even though by the terms of his contract of employment it is provided ill at the authority shall be irrevocable." § 71. Renunciation by agent. Just as the principal has [tower to revoke authority, so an agent, at will, may termi- nate the relation by renunciation ; *^ subject, as in the case of a principal, to liability for damages if the renunciation involves breach of a contract of employment.** The prin- cipal is entitled to reasonable notice of renunciation, and may recover damages for any loss sustained through failure *i Kindig v. March, 15 Ind. 248. 42 American Loan & Tisust Co. v. Billings, 58 Minn. 187, 59 N. W. 998. 43Blacl\stone v. Buttermore, 53 Pa. St. 26G; Frink v. Roe. 70 €al. 296, 11 Pac. 820; Ballard v. Insurance Co., 119 N. C. 187, 25 S. E. 956; McMahan v. Burns, 216 Pa. 448, 65 Atl. 806. The fat-t that an agent was entitled to commissions on rents collected would not make his authority irrevocable. Farmers' Loan & Trust Co. V. Wilson, 139 N. Y. 284, 34 N. E. 784. 44 Walker v. Denison, 86 111. 142; Flanagan v. Brown, 70 Cal. 254, 11 Pac. 706; Woods v. Hart, 50 Neb. 497, 70 N. W. 53. 4^ Barrows v. Cushway, 37 Mich. 481; Security Trust & Life Ins. Co. V. Ellsworth, 129 Wis. 349, 109 N. W. 125. 4c United States v. Jarvis, 2 Ware. 278, Fed. Cas. No. 15,468; Cannon Coal Co. v. Taggart, 1 Colo. App. 60, 27 Pac. 238. 102 THE LAW OF AGENCY. to give such notice.'*'' If the conduct of an agent is such as to raise an implication of renunciation, as where he aban- dons performance of the agency, the principal may act upon the inference thus raised and treat the agency as termi- nated.** § 72. Termination by law. Subject to certain exceptions that will be properly noted, an agency is terminated by operation of law upon the death, insanity or bankruptcy of either party ; by marriage of a principal, where the power is one to sell land; and by the outbreak of war between countries in which the principal and agent respectively re- side. These various conditions that operate to terminate an agency will be separately discussed in the succeeding sec- tions. § 73. Death, (a) Of principal. Except where a power is coupled with an interest, an exception to be separately noted,*® the death of a principal instantly revokes all au- thority vested in an agent.^° An agent is but the repre- sentative of another, and all acts done, in the capacity of agent,' are necessarily done in the name and bolialf of an- other. Upon the death of that other the agent no longer *T The agent can not withdraw himself from his engagement wantonly and without reasonable notice, without responsibility for consequences. United States v. Jarvis, supra. ■•a Stoddard v. Key, 62 How. Prac. (N. Y.) 137; Case v. Jen- nings, 17 Tex. 6C1. "Post § 73 (c). f-o Harper v. Little, 2 Greenl. (Me.) 14. 11 Am. Dec. 25; Dari' v. Darr, 59 Iowa. 81, 12 N. W. 7C5; Mills v. Smith, 193 Mass. 11, 78 N. E. 7G5. Authority is terminated by death of one of several joint prin(ii)als, or by doalh of one partner where an agent rei)re- Konts (he firm. Rowe V. Rand, 111 Ind. 206, 12 N. E. 377; Griggs V. Swift, 82 Ca. 392, 9 S. E. 1062. TERMINATION OF AGENCY. 103 has a constituent, and acts done in behalf of a non-existent principal are mere nullities. It makes no difference that the death was unknown to the agent and third parties with whom he has dealt ; for if at the time of their dealings the principal was actually dead, their lack of knowledge of the fact can not give validity to the transaction.'^ Some of the eases do not follow the rule in its strictest application.'^ Thus, it has been held that payment of money to the agent of a dead principal, Avithout knowledge of his death, would be binding on his estate ; '^ and Story has support of judicial authority in saying that the rule does not apply to acts which need not be done in the name of the principal.'* But however harsh the rule in strict application may be, it is impossible to escape the logic of the proposition that one man can not act in behalf of another after that other man is dead ; and that to involuntarily sub- stitute as principal the heirs of the deceased is to violate the basic principle of agency that one man can not repre- sent another without that other's assent. The rule, there- fore, in its strictest application, would seem on principle the better law." 51 Long V. Thayer, 150 U. S. 520; Lewis v. Kerr, 17 Iowa, 73; Farmers' Loan & Trust Co. v. Wilson, 139 N. Y. 284, 34 N. E. 784. 52 isti V. Crane, 8 Ohio St. 520; Meinhardt v. Newman, 71 Neb. 532, 99 N. W. 261. 53 Dewesse v. Muff, 57 Neb. 17, 77 N. W. 361; Cassiday v. McKen- zie, 4 Watts & Serg. (Pa.) 282. 54 Story on Agency, § 496; Dick Ex'r v. Page, 17 Mo. 234. Some of the cases seem to hold that acceptance of payment is not an act done in the name of the principal, but this is disregarding the le- gal significance of the phrase "in the name of " The doctrine had better be based, as impliedly is done in one case, upon broad grounds of public policy or business necessity. See Meinhardt v. Newman. 71 Neb. 532, 99 N. W. 261. 55 Weber v. Bridgman, 113 N. Y. 600. 21 N. E. 985; Fanners' 104 THE LAW OF AGENCY. (b) Of agent. The death of an agent terminates the relation, ""^ and the powers given him can not be exercised by his heirs or administrator unless it be a power coupled with an interest.^' (c) Power coupled with an interest. We saw in a pre- ceding section that a power given for a valuable considera- tion can not be revoked by the donor.^^ Such a power, however, can not survive the death of the donor unless it be accompanied by the grant of such an interest or estate in the subject matter of the power as to admit of its exer- cise by the donee in his own name and behalf. Clearly, where a donee has no interest in the subject matter of a power, but merely an interest in its execution, he necessarily would have to exercise it in the name, and by the authority, of the donor. But this would be legally impossible after the donor's deatli.^^ "Where, however, the power is accom- Loan & Trust Co. v. Wilson, 139 N. Y. 287, 34 N. E. 784; Long v. Thayer, 150 U. S. 520. "The instant the constituent dies the estate belongs to his heirs, or devisees, or creditors; and their rights can not be divested or impaired by any act performed by the attorney after the death has happened; the attorney then being a stranger to them and having no control over their property." Harper. v. Little, 2 Greenl. (Me.) 14, 11 Am. Dec. 25. Failure to promptly notify an agent of the principal's death might, of course, estop the legal representatives to set up the revocation of authority. 06 In re Merrick's Estate, 8 Watts & Serg. (Pa.) 402; Adriancp V. Rutherford, 57 Mich. 170, 23 N. W. 718; Ryder v. Johnston, 15?, Ala. 482, 45 South. 181. So, a joint agency is revoked by death of one of the agents. Hartford Ins. Co. v. Wilcox, 57 111 180; Rowe v. Rand, 111 Ind. 206, 12 N. E. 377; Ante § 27. 67 Collins V. Hopkins, 7 Iowa, 463; Merrwin v. Lewis, 90 111. 505 88 Ante § 70. no "The Intei-fst or titlo in Iho 11iing hniiig vested In the person who gives the power, remains in him, unless it be conveyed with the power; ami can pass out of him only by a regular act in his own name. The act of the substitute, therefore, which in such a TERMINATION OF AGENCY. 105 panied by an interest or estate of such a character as to en- able the donee to exercise it in his own name, then the ne- cessity of pronouncing it revoked by death of the donor does not exist, and the courts protect it and permit its ex- ercise after as well as before his death.^° Thus, where a ]nortgage is held to pass legal title, a power of sale therein may be exercised after death of the mortgagor ; ®^ but such power usually can not be exercised in those states where a mortgage is deemed a mere security passing no legal title.®' So, indorsement and delivery of a note for collection passes title in trust, and hence the agent may collect the same after death of the principal.''^ But a power to sell prop- erty, though given to secure a loan, is revoked by death of the donor unless accompanied by a conveyance or as- signment of title. "^ (d) Hunt V. Eousmanier. The distinction laid dowTi in the foregoing subdivision between powers irrevocable case is the act of the principal, to be legally effectual, must be in his name, and must be such an act as the principal himself would be capable of performing. Such a power necessarily ceases with the life of the person making it." Marshall, C. J. in Hunt v. Rous- manier. 60 Hunt V. Rousmanier, 8 Wheat. (U. S.) 174; Houghtaling v. Marvin, 7 Barb. (N. Y.) 412; State v. Walker, 125 U. S. 339; Frink V. Roe, 70 Cal. 296, 11 Pac. 820. 61 Varnum v. Meserve, 8 Allen (Mass.), 158; Berry v. Skinner, 30 Md. 567; Hudgins v. Morrow, 47 Ark. 515, 2 S. W. 104; Harvey V. Smith, 179 Mass. 592, 61 N. E. 217. 62 Wilkins v. McGehee, 86 Ga. 764, 13 S. E. 84; Johnson v. John- son. 27 S. C. 309, 3 S. E. 606. But see Reilly v. Phillips, 4 S. D. 604, 57 N. W. 780. 63 Moore v. Hall, 48 Mich. 143; Boyd v. Corbitt, 37 Mich. 52. 64 Hunt V. Rousmanier, 8 Wheat. (U. S.) 174; Fisher v. South- ern Loan & Trust Co., 138 N. C. 90, 50 S. E. 592; Prink v. Roe, 70 Cal. 296, 11 Pac. 820; Taylor v. Burns, 203 U. S. 120. Thus, power, on default of payment of a loan, to sell debtor's slaves, was held revoked by death. McGriff v. Portor. 5 Fla. 373. 106 THE LAW OF AGENCY. by act of the donor and powers irrevocable by deatli, was drawTi by Chief Justice ]\Iarshall in the leading case of Hunt V. Eousmanier, w^here a power of sale, given to secure a loan, was declared to be irrevocable by act of the donor, but revoked by his death, where unaccompanied by an as- signment of title, and hence not a power ''coupled with an interest. " *® " "We hold it clear, ' ' said the great Chief Jus- tice, "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. * * * A power coupled with an interest is a power w^hieh accompanies, or is connected with, an interest." Hunt v. Rousmanier is still the leading authority in this country and its reasoning has been gen- * erally followed. Some confusion has arisen from the fact that here and there authorities apply a single designation to a power irrevocable by the donor and to a power irrevocable by death, calling both indiscriminately, — a power "coupled with an interest." ®® And, so, where the term is used in the restricted sense adopted by Chief Justice Marshall, there is some conflict as to what constitutes a power "coupled with ;in interest," as the term is defined in Hunt v. Rousmanier. Thus, in a leading New York case it was held that where a power of sale given as security is accompanied by deliver^' of possession of the property to be sold, it may be deemed a power "coupled with an interest" as the term is defined by Marshall.'^ So it has been held, in apparent conflict 85 Hunt V. Rousmanier. 8 Wheat. (U. S.) 174. •••oDiK Four WilrainKton Coal Co. v. Wren, 115 III. App. 331; Shepard v. McNail, 122 Mo. App. 418, 99 S. W. 494. See Terwil- lip:er V. Railway Co.. 149 N. Y. 86, 43 N. E. 432. «T "As the possession of the property was delivered in connec- tion with fills power to dispose of it for security, the power tO' TERMINATION OF AGENCY. 107 with Hunt V. liousmanicr, that power to sell goods, or to collect accounts, and apply the proceeds in payment of a debt, is a power "coupled with an interest" and will not be revoked by death of the donor.®^ In concluding the subject, it may be said that unless the pOAver is "coupled with an interest," as the term is used in Hunt v. Bousmanier, it could not be exercised in accord- ance with its terms after death of the donor, for the reason that its exercise would have to be in the name of the donor. But, nevertheless, where such a power is given as a security, the donee acquires a right analogous to an equitable lien which undoubtedly would be protected by the courts, and enforced by appropriate remedy against the estate of the donor." § 74. InsBJiity. (a) Of principal. Insanity of a prin- cipal, sufficient to incapacitate him from performing legal acts in his own behalf, will, of course, terminate an agency, since a person can do through agent only such acts as he is competent personally to perform."" It is the rule, hovr- ever, that the contract of an insane person will be valid where made with a person who dealt in good faith and without knowledge of the insanity, provided the contract lias been executed, and the parties can not be restored to statu quo?'^ This rule would seem applicable to a contract sell was coupled witli an interest in the property thus pledged, and survived." Knapp v. Alvord, 10 Paige (N. Y.), 205, 40 Am. Dec. 241. 68 Merry v. Lynch, 68 Me. 94; Shepard v. McNail, 122 Mo. App. 418, 99 S. W. 494; Kelly v. Bowerman, 113 Mich. 446, 71 N. W. 836. G9 Knapp V. Alvord, 10 Paige (N. Y.), 205, 40 Am. Dec. 241; Am- erican Loan & Trust Co. v. Billings. 58 Minn. 187, 59 N. W. 998. 70 Davis V. Lane, 10 N. H. 156; Hill v. Day, 34 N. J. Law, 150; Matthiessen, etc., Co. v. McMahon, 38 N. J. Law, 536. " Ante § 17. 108 THE LxUV OP AGENCY. made by agent in behalf of a principal who, after creation of the agency, becomes insane.'- Where a power is coupled with an interest, so that it can be exercised by the grantee in his o^vn behalf, insanity of the grantor will not revoke the power/^ (b) Of agent. Where authority vested in an agent is of a character to imply exercise of sane judgment and dis- cretion — and this practically includes all authority — in- sanity of an agent would undoubtedly terminate an agency^* § 75. Bankruptcy, (a) Of principal. Bankruptcy of a principal revokes authority which relates to property of which the principal is divested by the bankruptcy.'^^ This would not include authority coupled with an interest nor a naked power given as a security.'^ (b) Of agent. Since solvency of an agent is usually a factor taken into consideration by a principal in making the appointment, bankruptcy of an agent terminates his author- ity in all financial matter ; ' ^ though not necessarily as to mere formal acts.'^ 72 Drew V. Niinn, 4 Q. B. Div. (Eng.) 661; Matthiessen, etc., Refining Oo. v. McMahon, 38 N. J. Law, 536; Davis v. Lane, 10 N. H. 156; Ante § 17. 73 Hill's Ex'r V. Day, 34 N. J. Eq. 150; Davis v. Lane, supra. 74 "The exercise of sound judgment and discretion would seem to be required in all cases as preliminaries to the due execution of authority." Story on Agency, § 487. " Wilson V. Harris, 21 Mont. 374, 54 Pac. 46. 71 Hall V. miss, 118 Mass. 554, 19 Am. Rep. 476. Where the owner of shares of stock in a banlc delivered his certificate, to- gether with a power of attorney to transfer the same, to secure a note, the powei- was not revoked by bankruptcy. Dickinson T. Bank, 129 Mass. 279. 37 Am. Rep. 351. '■ .\udenrled v. Retteley, 8 Alien (Mass.), 302. 7» Story on Agency, § 486. TERMINATION OF AGENCY. 109 § 76. Marriage. At common law a married woman could not appoint an agent, and hence marriage of a feme sole revoked authority of an agent previously appointed by her.''® This rule would not apply where disabilities of mar- ried women have been removed by statute. Where, how- ever, a deed of conversance by a married woman must be joined in by her husband, marriage of a feme sole will, of course, revoke a power of attorney to sell land. By mar- riage, both husband and wife acquire an interest in land of the other, which can be divested only by voluntary convey- ance. Hence marriage of either a man or woman revokes a power of attorney to the extent of this interest; ^^ if, in- deed, it does not amount to entire revocation.^^ § 77. War. Outbreak of war between coimtries in which the principal and agent respectively reside usually terminates an agency.*- An exception exists in the case of an agency to collect debts, where the agent and debtor are in the same country, and the parties assent to the contin- uance of the agency ; ®^ and it has been held by the Supreme Court of the United States that a power of attorney to sell TsJudson V. Sierra, 22 Tex. 365; Wamtole v. Foote, 2 Dak. 1, 2 N. W. 239. 80 Joseph V. Fisher, 122 Ind. 399, 23 N E. 856. 81 Henderson v. Ford, 46 Tex. 627. The power given before mar riage is to convey the entire estate free from any dower right. Since, by marriage the principal loses this power, it would seem, on principle, that the authority given the agent would thereby be revoked in toto. S2 New York Life Ins. Co. v. Davis, 95 U. S. 425; Ward v. Smith. 7 Wall. (U. S.) 447. 83 Kershaw v. Kelsey, 100 Mass. 561; Montgomery v. United States, 15 Wall. (U. S.) 395. But the money must not be paid with a view to its transmission to the principal during contin uance of hostilities. Kershaw v. Kelsey. supra. ] 10 THE LAW OF AGENCIES. land was not revoked by war, since it was not an agency of a character to involve active or continuous business rela- tions between the parties residing in the belligerent coun- tries. "The mere fact of the breaking out of war," said the court, "does not necessarily and as a matter of law re- voke every agency; whether it is revoked or not depends upon the circumstances surrounding the case and the nature and character of the agency. ' ' ** »* Williams v. Paine, 169 U, S. 55. PART II. EXISTEI^OE Al^D EXTENT OF AUTHORITY. CHAPTER VII. ESTABLISHMENT OF AUTHORITY. S 78. In general. 79. Establishment of authority. (a) Agent's declarations. (b) Communications between principal and agent. (c) Oral or implied authority. (d) Ratification and estoppel. (e) Province of court and jury. 80. Written authority. 81. Ambiguous authority. 82. For principal's benefit. 83. Slight deviation. 84. Severable transaction. 85. Public officers. § 78. In general. As we have already seen, it is a fun- damental principle of the law of agency that one man can- not bind another by act or contract without that other's assent. Hence, in order to establish the fact of the exist- ence of an agency, or of authority in an agent to bind his principal by a particular act or contract, it is necessary to prove that what the agent did was done with the principal's n.ssent, either precedently or subsequently given, expressly 112 THE LAW OF AGENCY. or impliedly; or that the principal's conduct has been such as to estop him to deny the agent's authority. The law in- dulges no presumptions as to the existence in one man of authority to bind another, except such as reasonably arise from such other's acts or conduct. In short, where one person seeks to hold another by virtue of dealings with the latter 's agent, the burden is upon him to establish existence of the agent's authority.^ § 79. Establishment of authority, (a) Agent's declara- tions. Existence of authority in an agent can be estab- lished only by proof of express or implied assent to its exer eise by the principal.^ An agent, naturally, cannot confer authorit}^ upon himself. Hence declarations of an agent, ordinarily, are not admissible to prove existence of his au- thority.^ Nor can his authority be established by proof that he acted as agent and claimed, or was reputed, to have the power which he assumed to exercise.* In practice, it would seem, such evidence of necessity must fi-equently be iBeal V. Merriam, 11 Mete. (Mass.) 470; Clark v. Dillman. 108 Mich. 625, 66 N. W. 570; Schmidt v. Shaver, 196 111. 108, 63 N. E. 655. The burden of showing the existence of an agency Is upon the party who alleges it. Jahn v. Kelly, 58 111. App. 570. 2 Graves v. Horton, 38 Minn. C6. 35 N. W. 568; Green v. Hinck- ley, 52 Iowa, 633, 3 N. W. G88; Wheeler v. McGuire, 86 Ala. 398, 5 South. 190. 3MfC>ine V. Badger, 126 Wis. 186, 105 N. W. 667; Peck v. Rit- chey, 66 Mo. 114; Grant v. Humerick, 123 Iowa, 571. 94 N. W. 510; Snook V. Lord, 56 N. Y. 605; Malla,nphy Bank v. Schoot, 135 111. 655, 26 N. E. 640. So, one assuming to act as subagent can not establish his right to lepresent the principal by his own testi- mony. Lucas v. Rader, 29 Ind. App. 287, 64 N. E. 488. 4 Trowbridge v. Wheeler, 1 Allen (Mass), 162; Perkins v Steb- bins. 29 Barb. (X. Y.) 523; North v. Metz. 57 Mich. 612, 24 N. W. 759: Edwards v. Dooley, 120 N. Y. 540. 24 N. E. 827; Eaton v. Granite Statf^ .Ass'n, 89 Me. 58, 35 Atl. 1015. ESTABLISHMENT OF AUTHORITY. 113 relied upon to establish the existence of an agency, and un- der certain circumstances it is competent for that purpose. Thus, declarations of an agent might be admissible ^vhen taken in connection with ratification of his acts by the prin- cipal; ^ and where an agency has otherwise been prima facie established, declarations of an agent would be admissible as corroborative evidence.^ So, where the agent's acts or declarations have been so long continued, or so open and no- torious, that they must have come to the notice of the prin- cipal, the latter 's failure to repudiate them gives rise to an inference of assent to the agent's assumption of authority; and as evidence from which the jury might infer such as- sent, the acts or declarations of the agent, taken in connec- tion with the principal's apparent acquiescence, would be admissible in evidence.'^ The agent, of course, may always be called as a witness to testif}'- to the fact of his agency, and where the power was not delegated in writing, may testify as to its nature and extent.* ''It is competent," said the court in a Kansas case, "to prove a parol agency and its nature and scope by the testimony of the person who claims to be the agent. s Robert Buist Co. v. Lancaster Mercantile Co., 73 S. C. 48, 52 S. E. 789. c Singer, etc., Stone Co. v. Hutchinson, 184 111. 169, 56 N. E. 353; Foste V. Standard Ins. Co., 34 Ore. 125, 54 Pac. 811; Eagle Iron Co. V. Baugh, 147 Ala. 613, 41 South. 663. 7 Bragg V. Boston, etc., Ry. Corp., 9 Allen (Mass.), 54; Best v. Krey, 83 Minn. 32, 85 N. W. 822; Daggett v. Champlain Mfg. Co., 71 Vt. 370, .45 Atl. 755; Black Lick Lumber Co. v. Camp Const. Co., 63 W. Va. 477, 60 S. E. 409. 8 Van Sickle v. Keith, 88 Iowa, 9, 55 N. W. 42; Gould v. Nor- folk Lead Co., 9 Cush. (Mass.) 338, 57 Am. Dec. 50: State v. Hen- derson, 86 Mo. App. 482; Lawall v. Groman. 180 Pa. St. 532, 37 Atl. 98; Liddell v. Sahline, 55 Ark. 627, 17 S. W. 705; Reeves v. Bruening, 13 N. D. 157, 100 N. W. 241. 114 THE LAW OF AGENCY. But it is not competent to prove the supposed authority of an. agent, for the purpose of binding his principal, by prov- ing what the supposed agent has said at some previous time."* (b) Commimications between principal and agent. Following the same doctrine, it is clear that communications between principal and agent in which the latter 's authority is expressly or impliedly admitted by the principal, would be competent evidence of the existence of such authority/'' Thus a letter from principal to agent, or conversations had between them, bearing upon the fact or scope of the agency. would be admissible in evidence.'^^ (c) Oral and implied authority. Except in special cases,^^ the existence of an agency may be proved by parol.^^ Where authority was orally given, the fact of its existence may be established by any one who heard the words of the principal." If these are disputed, or their meaning am- biguous, the fact and effect of their utterance would be a question for the jury in solution of the ultimate problem as to what was the intention of the principal.^" The agent, 9 Howe Maxih. Co. v. Clark, 15 Kan. 492. 10 Arthur v. Card, 3 Colo. App. 133, 32 Pac. 343. 11 Rowlands v. Huggins, 28 Conn. 122. Slonecker v. Garrett. 48 Pa. St. 415; Bergtholdt v. Porter Bros. Co., 114 Cal. 681, 46 Pac. 738; Schilling v. Rosenheim, 30 111. App. 81. 12 Post § 80. If Lyon V. Thompson, 16 Iowa, 62; Bryer v. Watson, 16 Me. 2G1; Ilamm v. Drew, 83 Tex. 77, 18 S. W. 434. i^Rcam V. McEhone, 50 Kan. 409. 31 Par. 1075; Moffet v. Mof fet, 90 Iowa, 442. 57 N. W. 954; Bartlett v. Spaikman, 95 Mo. 136, 8 S. W. 406; Campbell v. Hough (N. J. Eq.), 68 Atl. 759. If ex- press oral authority is not satisfactorily shown, authoiity may be Implied from facts and circumstances. Anglo-California Bank v. Cerf, 149 Cal. 393, 81 Pac. 1081. 1" Dickinson County v. Mississippi Valley Ins. Co., 41 Iowa. ESTABLISHMENT OP AUTHORITY. 115 as we have seen, may testify as to the fact of the agency ; *• and, so, declarations or admissions of the principal, to whomsoever made, which tend to establish the fact of the agency may be introduced in evidence for that purpose.^^ Where authority' is sought to be established by implica- tion, primary proof must be made of acts, conduct or cir- cumstances sufficient to give rise to an inference of its dele- gation.^* Though wide latitude is allowed in the introduc- tion of any evidence that tends to prove an agency, yet it must be remembered that in the end, authority will be deemed established only where the fact of its existence is a legitimate conclusion from the evidence presented.^'' Proof of facts that might raise an inference of authority to sell a hors3 would not necessarily be sufficient evidence of authority to sell a house. Thus, evidence that one acted 286: Hyman v. Waas, 79 Conn. 251, 64 Atl. 354; Luckie v. John- ston, 89 Ga. 321, 15 S. E. 459; Hawks v. Davis, 185 Mass. 119, 69 N. E. 1072. iG Armour v. Ross. 110 Ga. 403, 35 S. E. 787; O'Leary v. German American Ins. Co., 100 Iowa, 390, 69 N. W. 686. IT Horner v. Beasley, 105 Md. 193, 65 Atl. 820; Haughton v. Maurer, 55 Mich. 323, 21 N. W. 426; Morse v. Diebold, 2 Mo. App. 163; Grain v. Jacksonville National Bank, 114 111. 516. 2 N. E. 48i".. IS Indiana, etc., Ry. Co. v. Adamson, 114 Ind. 282, 15 N. E. 5; Stewart v, Cowles, 67 Minn. 184, 69 N. W. 694; Plumb v. Curtis. 66 Conn. 154, 33 Atl. 998; Sheanon v. Pacific Mut. Life Ins. Co.. 83 Wis. 507, 53 N. W. 878. isMcNamara v. McNamara. 62 Ga. 200; Bickford v. Menier, 107 N. Y. 409; Washington Bank v. Lewis. 22 Pick. (Mass.) 24; Stratton v. Todd, 82 Me. 149, 19 Atl. 111. The evidence necessary to prove an implied agency is very different from that required to prove an express agency. In the former case greater latitude must necessarily be allowed in the admission of testimony tend- ing to prove facts and circumstances from which the existence of an agency may be legitimately inferred. Patterson v. Van Loon, 186 Pa. St. 367, 40 Atl. 495. 116 THE LAW OF AGENCY. as agent for another in a single transaction would not sup- port a finding that he had authority to bind the principal in other transactions ; -° unless the prior authority of the agent was of such comprehensive and continuous charac- ter as to place his power to do similar acts beyond ques- tion.-^ So, as we have seen,^^ mere possession of an account is not, in itself, proof of authority to collect the same ; ^* nor can authority be established by proof of prior exercise of like powers, where it does not appear that the principal had knowledge of the same, though he may have accepted its benefits.-* And, so, while relationship of the partis? is a circumstance that may go to the jur}^ yet the ex- istence of relationship between them does not of itself prove authority in one to represent the other.^® But on the other hand proof that one for a long time openly acted as agent for another, with the latter 's apparent consent, would be strong evidence in favor of his authority.^® So, 20 Green v. Hinkley, 52 Iowa, 633, 3 N. W. 688; Collins & Toole V. Crews, 3 Ga. App. 238, 59 S. E. 727; Hackett v. Van Frank, 105 Mo. App. 384, 79 S. W. 1013. Evidence of an isolated transaction occurring a year subsequent to the one in controversy, unaccom- panied by evidence of similar acts in the meantime, is too remote and should be excluded. Bartley v. Rhodes (Tex. Civ. App.), 33 S. W. 604. 21 Graves v. Horton, 38 Minn. 66, 35 N. W. 568. Where the au- thority of an agent is in question, proof of the exercise by him, with knowledge of the principal, of similar authority in like transactions may be material. Wilber First National Bank v. Ridpath, 47 Neb. 96, 66 N. W. 37. 22 Ante § 50 (c). 23 Butcher v. Beckwith, 45 111. 460, 92 Am. Dec. 232; Antram v. Thorndell, 74 Pa. St. 442. 2* Cobb v. Hall, 49 Iowa, 366. 28 Price V. Seydel, 46 Iowa, 696; Crawford v. Redus, 54 Miss. 700; Broadstreet v. MfKamey, 41 Ind. App. 472, 83 N. E. 773. 28Kerslake v. Schoonmaker, 1 Hun (N. Y.), 436; Walsh v. Pierce, 12 Vt. 130; Hoge v. Turner, 96 Va. 624. 32 S. E. 291; Wil- ESTABLISIIMENT OF AUTHORITY. 117 it would be competent to show that the principal had au- thorized the alleged agent to perform similar acts, or enter into like transactions, with other parties ; -^ or that the agent was habitually in charge of the principal's property and dealt therewith to the latter 's knowledge.'^ And so, generally, evidence of a previous course of dealing between principal and agent, that tends to establish the latter 's au- thority, may properly go to the jury.-^ (d) Ratification and estoppel. AVhat has beeu said in the preceding subdivision as to proof of precedent author- ity, will apply to the establishment of a ratification.^" In order to establish ratification of an unauthorized act or contract, proof nuist be luade of written or spoken words which reasonably express an intention to adopt the same ; ^^ or facts must be shown from which an inference of such in- tention necessarily arises.^- Thus, as we have seen,?^ proof liams V. Mitchell, 17 Mass. 98. Where an agency has been estab- lished, it will be presumed to have continued for a reasonable time. Hensel v. Maas, 94 Mich. 563, 54 N. W. 381; Bergner v. Bergner, 219 Pa. St. 113, 67 Atl. 999. 27Barnett v. Gluting, 3 Ind. App. 415, 29 N. E. 927; Fishbaugh V. Spunaugle, 118 Iowa, 337, 92 N. W. 58; Lough v. Davis, 35 Wash. 449, 77 Pac. 732. 28 Kent V. Tyson, 20 N. H. 121; White v. Leighton. 15 Neb. 424. 19 N. W. 478. 29 Doan V. Duncan, 17 111. 272; Continental Tobacco Co. v. Camp- bell, 25 Ky. Law Rep. 569, 76 S. W. 125; Dexter v. Berge, 76 Minn. 216, 78 N. W. 1111. 30 Burr v. Howard, 58 Ga. 564. The question of what is a rea- sonable time in which a principal must object to acts of his agent, or be bound thereby, is one of fact for the jury. Minnesota Lin- seed Oil Co. v. Montague, 59 Iowa, 448, 13 N. W. 438. 31 Stokes V. Mackay, 140 N. Y. 640, 35 N. E. 786; Fisher v. Stevens, 16 111. 397. 32 Lawrence v. Lewis, 133 Mass. 561; HeCfron v. Armsby, 61 Mich. 505. 28 N. W. 672. 38 Ante § 58. 118 THE LAW OF .\G'5NCY. of acceptance of the benefits of an unauthorized transac- tion raises an inference of intention to ratify,^* provided such acceptance was with knowledge of material facts, and lience inconsistent with an intention not to ratify. ^° Thus, proof that a principal recognized and acted upon an un- authorized transaction of his agent would constitute evi- dence of a ratification.^^ So, in establishing ratification of the imauthorized compromise of a law suit, it would be com- petent to show that shortly thereafter the principal had abandoned the suit;^^ and ratification of an unauthorized purchase of property may be inferred from the fact that the principal retained the property and used it for some time.^' So, of course, where an estoppel is relied upon, proof must be made of acts or conduct which were suiificient to justify a belief that an agent possessed the authority which he claimed to exercise.^® Thus, it may be shown that a per- son placed another in charge of this property with all ap- pearances of having authority' to deal therewith ; *''' < v that 34Rei(i V. Hibbard. 6 Wis. 175; Smith v. Barnard, 148 N. Y. 420, 42 N. E. 1054; Dunn v. Ry., 43 Conn. 434. 35 Owings V. Hull, 9 Pet. (U. S.) COT; Benecke v. Insurance Co.. 105 U. S. 355; Coombs v. Scott, 12 Allen (Mass.), 493; Hunt v. Agricultural Works, 69 Minn. 539, 72 N. W. 813. 30 Cooper v. Schwartz, 40 Wis. 54; Searing v. Butler, 69 111. 575; Barnes v. Boardman, 149 Mass. 106, 21 N. E. 308. 3T Hoit V. Cooper, 41 N. H. 111. 38 Blood V. La Serena Land Co., 113 Cal. 221, 41 Pac. 1017; Du- zan V. Meserve, 24 Ore. 523, 34 Pac. 548; Fintel v. Cook, 88 Wis. 485, 60 N. W. 788. 30 Walker v. Hannibal, etc., Ry., 121 Mo. 575, 26 S. W. 3G0; Northwest Thresher Co. v. Eddyville, 80 Neb. 377, 114 N. W. 291; Gibson V. Snow Hardware Co., 94 Ala. 346. 10 South. 304. to purchase a stated amount of property, orders more than directed, the principal will be liable for the amount which he authorized/® So, the unauthorized affixing of a seal to a contract, not required to be under seal, may be disre- garded and the agreement stand as the authorized simple contract.'' § 85. Public officers. The authority of a public officer to act in a particular transaction could be established only by showing that power to do the act, or make the contract, was expressly, or by necessary implication, conferred by law." Here, the authority is a matter of public record, and all persons are bound to take notice whether it exists iit all and if so, what is its nature and extent.'*^ 76 Gano V. Chicago, etc., Ry., 49 Wis. 57, 5 N. W. 45. 77 Morrow v. Higgins, 29 Ala. 448; Baum v. Dubois, 43 Pa. St. 260; Long v. Hartwell, 34 N. J. Law, 116; Worrall v. Munn, 5 N. Y. 229, 55 Am. Dec. 330. 78 Whiteside v. United States, 93 U. S. 247; Mayor of Baltimore V. Eschbach, 18 Md. 282. 79 state V. Hastings, 10 Wis. 518; Hull v. Marshall County, 12 Iowa, 270; State v. Hays, 52 Mo. 578; Delafield v. State of Illi- nois, 26 Wend. (N. Y.) 192. CHAPTER Vm. CONSTRUCTION OF AUTHORITY. § 86. In general. 87. Express authority. (a) Written authority. (b) Oral authority, 88. Implied authority. 89. Implication as to extent of authority. (a) Medium powers. (b) Power implied from usage. 90. Contrary restrictions. 91. Apparent authority. 92. General and special agents. 93. Notice of limitations. 94. Summary. § 86. In general. As explained in the preceding chap- ter, the existence of an agency may be established by evi- dence of an express written or oral appointment ; or by proof of facts from Avhieh such appointment is necessarily inferred. So, acts or conduct may be sliown sufficient t(i estop the alleged principal to deny aulliority of the agent Where the fact of an agency — the existence of the main autliority — has been established, in any of the ways indi- cated, the question then arises as to the extent of the agent's power imder the grant of authority shown to have been given. Wa.s it broad enough, for instance, to include per- formance of some collateral act or the making of some in- cidental agreement? In short, once the existence of an agency has been established, the necessity arises of con- slniing tlie grant of autborily — -be it express or implied — CONSTRUCTION OF AUTHORITY. 127 SO as to determine the exact extent or limitation of the agent's power. Just as the fact of an agency — the exist- ence of the main power — may be evidenced by express ap- pointment, or may be implied from facts which raise an inference of its existence, so, as we shall now see, the ex- tent of the agent's authority may be expressly prescribed and limited by his principal ; or it may be implied from the nature of the agency, or the facts and circumstances of the case. § 87. Express authority. (a) Written authority. Where authority of an agent is required by law to be in Avritiug, or the person dealing with him knows that he aet.s under written instructions, proof of existence of the agency, as we have seen, can be made only by production of the writing.^ So, the extent of the agent's authority can be determined only from a construction of the written power.- To bring an act within the scope of the agent's authority, it must appear from a fair construction of the writing that the authority is to be found within the four comers of the instrument, either by express terms or necessary implica- tion.^ In construing the instrument, the object of the parties will be kept in view, and hence, if its language per- mits, the law will imply authority in the agent to perform lAnte § 80. zBissell V. Terry, 69 111. 184; Equitable Life Assur. Soc. v. Poe, '3 Md. 28; DeRutte v. Miildrow, 16 Cal. 505.^ The aiUhoritj^ given by a power of attorney is not to be extended beyond the meaning 3f the terms in which it is expressed. Brantley v. Southern Life Ins. Co., 53 Ala. 554. 3 Wood V. Goodridge, 6 Cush. (Mass.) 117. 52 Am. Dec. 771; Jeffrey v. Hursh, 49 Mich. 31, 12 N. W. 898; Gilbert v. How, 45 Minn. 121, 47 N. W. 643; Penfold v. Warner, 96 Mich. 179, 55 N. W. '680. A power of attorney merely to sell land implies a sale for cash. Dyer v. Duffy, 39 W. Va. 148, 19 S. E. 540. 128 THE LAW OF AGENCY. such acts as are reasonably necessary to tlie execution of the main power given ; * and, so, evidence of a well estab- lished usage would be admissible for the single purpose of aiding the court in a correct interpretation of the instru- ment.^ Where, however, authority of the agent is clearly defined, and its mode of performance definitely prescribed, there exists no occasion for inference or implication.® (b) Oral authority. Where an agency is established by proof of express oral appointment, the extent of the agent's authority will, as in the case of written authority, be lim- ited by express restrictions imposed on him by the princi- pal ; ' and if these amount to explicit directions as to the mode of performance, the extent of the agent's authority will not be broadened by implication.^ Although, as we shall presently see, lack of knowledge of such limitations may save the rights of third persons with whom the agent has dealt.'' •« Holladay v. Daily, 19 Wall. (U. S.) 606; Marr v. Given, 23 Me. 55. 39 Am. Dec. 600; American Bonding Co. v. Ensey, 105 Md. 211, 65 Atl. 921; Posner v. Bayless, 59 Md. 56. Authority delega- ted by formal instrument will not be extended beyond what is necessary to carry into effect the power expressly conferred. Craighead v. Peterson, 72 N. Y. 279, 28 Am. Rep. 150. •'■Heath v. Nutter, 50 Me. 378; Peters v. Farnsworth, 15 Vt. 155, 40 Am. Dec. 071 ; Silverman v. Bullock. 98 111. 11. c Usage may be admissible to e.\i)lain what is doubtful but never to contradict what is plain. Gibney v. Curtis, 61 Md. 192. 7 Baxter v. Linicnt, 60 111. 237; Siebold v. Davis, 67 Iowa, 560, 25 N. W. 778; Thornton v. Boyden, 31 111. 200. sMcChing v. Spotswood, 19 Ala. 165; Kane v. Barstow. 42 Kan. 465, 22.Pac. 5S8; Atchison, etc., Ry. v. Watson, 71 Kan. 696, 81 Pac. 499; Monson v. Kill, 144 111. 248, 33 N. E. 43; Cruzan v. Smith. 41 Ind. 288. Post § 91. CONSTRUCTION OP AUTHORITY. 121) § 88. Implied authority. Where existence of the agency itself is implied, tlie extent of the agent's authority is, of course, left entirely to implication. But just as the fact of the agency is inferred only when the evidence pro- duced reasonably gives rise to that inference,^" so, only such implication, as to the extent of the authority, will be indulged as the nature of the implied agency clearly war- rants. ^^ Thus, the fact that an agency to lease a house is established by implication, would not justify an inference of authority in the agent to agree to an unusual or unrea- sonable covenant in the lease; though authority would be implied to make reasonable agreements, such as one for payment of monthly rent in advance, especially if such mode of payment were shown to be a customary practice. ^^ § 89. Implication as to extent of authority, (a) Me- dium powers. AVhere existence of an agency has been es- tablished by proof of either express or implied appoint- ment ; in the absence of express limitations to the contrary, the law will imply authority in the agent to perform such collateral acts, or to make such incidental agreements, as are reasonably necessary to the proper execution of the power shown to have been given. ^^ Though we say that 10 Ante § 79 (b). 11 Geyiin v. DeVilleroi, 2 Houst. (Del.) 311; McAlpine v. Cas- sidy, 17 Tex. 449; Wilcox v. Railway. 24 Minn. 269; Aldrich V. Wilmarth, 3 S. D. 525, 54 N. W. 811; Graves v. Horton, 38 Minn 66, 35 N. W. 5G8. 12 Post § 89. 13 Sprague v. Glllett ,9 Mete. (Mass.) 91; Williams v. Getty, 31 Pa. St. 461, 72 Am. Dec. 757; Hardee v. Hall, 12 Bush. (Ky.) 327; Barnes v. Hannibal, 71 Mo. 449; Dunwoody v. Saunders, 50 Fla. 202, 39 South. 965; Daniel v. Atlantic Coast Line Ry. Co., 136 N. C. 517, 48 S. E. 816; First Nat. Bank v. Dutcher, 128 Iowa, 413, 104 N. W. 497. 9 130 THE LAW OF AGENCY. the law will imply the existence of these medium powers, such implication is not a conclusion of law, but rather a presumption of fact, or an inference of intention ; for where a person confers authority upon an agent, without restric- tion, the inference is most natural that he intends the agent to exercise some discretion and to perform such acts as are reasonably necessary to the accomplishment of the pur- pose of the agency.^* What is reasonably necessary would be a question of fact, depending on the purpose of the agency, and the circumstances of the particular case.^^ Thus, where an agent was authorized to secure the imme- diate possession of a store room, the jury might be justified in finding that he had implied power to pay a reasonable bonus for possession, if the same could not otherwise be se- cured ; ^* so, an agent authorized to hurry forward goods and to see that there is no delay in shipping them, would undoubtedly have implied power to pay wharfage, due on the goods, to release them from a lien under which they could be held ; ^"^ and an agent authorized to travel about 1* Benjamin v. Benjamin, 15 Conn. 347, 39 Am. Dec. 384; LeRoy V. Beard, 8 How. (U. S.) 451. 15 Gilchrist v. Pearson, 70 Miss. 351, 12 South. 333; Broclvway V. MuUin, 46 N. J. Law, 448, 50 Am. Rep. 442; Harvey v. Mason City, etc.. Ry., 126 Iowa, 4G5, 105 N. W. 958; Providence Mach. Co. V. Browning, 72 S. C. 424, 52 S. E. 117; St. Louis Gunning Adv. Co. V. Wanamaker & Brown, 115 Mo. App. 270, 90 S. W. 737; Niel- sen V. Northeastern Siberian Co., 40 Wash. 194, 82 Pac. 292. The authority to contract so as to bind the principal is limited to th? usual and ordinary means of accomplishing the business intrusted to the agnnt. Williams v. Getty, 31 Pa. St. 461, 72 Am. Dec. 757. 16 Provided Iho principal knew at the time of appointment that such bonus would probably be demanded. Shackman v. Little, 87 Ind. 181. 17 Robison V. Iron Co., 39 ITun (N. Y.), 634. An agent selling furnaces for specific use, to be shipped by vendor In detached parts, has Implied authority to contract for putting them to- CONSTRUCTION OF AUTHORITY. 131 the coimtiy to sell goods, would ordinarily be held to have implied authority to hire a horee to enable him to go from place to place." Power to collect money might be of such a general character as to warrant an inference of author- ity to sue upon a claim and cause execution to issue ; ^® and power to bring suit would imply authority to employ counsel to conduct the same.^*> An agent authorized to receive and sell certain goods and to pay himself a debt from the proceeds would have implied authority to bring an action against a person wrongfully withholding pos- session ; -^ and an attorney authorized by one of the parties to an arbitration to pay the amount awarded against him, and to do what is necessary in the matter, would have im- plied power to execute a release required by the award."" So, an agent authorized to secure subscriptions to a stock company, formed for the purpose of controlling certain land, would have implied power to make representations as to the location and value of the laud ; -^ and an agent gether and placing them in the building where thej- are to be used. Boynton Furnace Co. v. Clark, 42 Minn. 335, 44 N. W. 121. 18 Huntley v. Mathias, 90 N. C. 101, 47 Am. Rep. 51G. isMcMinn v. Richtmyer, 3 Hill (N. Y.), 236; Bush v. Miller, 13 Barb. (N. Y.) 481; Davis v. Waterman, 10 Vt. 526, 33 Am. Dec. 216; Moore v. Hall, 48 Mich. 145, 11 N. Wi. 844. 20 Buckland v. Conway, 16 Mass. 396. 21 Curtis V. Barclay, 7 D. & R. (Eng.) 539, 5 B. & C. 141; Arden V. Soileau, 16 La. 28. 22 Dawson v. Lawley, 4 Esp. (Eng.) 65. Authority of an agent to settle a claim does not imply authority to submit the same to arbitration. Huber v. Zimmerman, 21 Ala. 488, 56 Am. Dec. 255. Nor will authority to submit to arbitration imply power to con- firm the award. Bullitt v. Musgrave, 3 Gill. (Md.) 31. 23Sandford v. Handy, 23 Wend. (N. Y.) 260. So, an agent em- powered to employ a real estate broker to sell land, is authorized to give the broker a description of it Griswold v. Gebbie, 126 Pa. St. 353, 17 Atl. 673. 132 THE LAW OF AGENCY. empowered to enter into a contract, clearly, has authority to sign a memorandum to satisfy the statute of frauds.^^ Further examples of medium or incidental powers, implied from the nature of the agency, will be given in a succeeding chapter.-^ (b) Power implied from usage. Just as authority to exercise medium powers is implied from the fact of unre- stricted appointment, so, in the absence of direction to the contrary, an implication arises of authority in an agent to act in accordance with well established usages of the busi- ness for which he was engaged.-^ If the usage is estab- lished, the principal may be presumed to know of it,^^ and his failure to instruct the agent otherwise, implies consent to abide by the same.^^ Thus a broker emploj^ecl to trans- act business in a particular place, has implied authority to act in accordance with the business usages of that place ;^^ and if a member of a stock exchange, he has im- plied authority to buy and sell in accordance with the rules or usages of such exchange.^" So, an agent to sell prop- 24 Johnson v. Dodge, 17 111. 433; Keim v. Lindley (N. J. Eq.). 30 Atl. 10C3. 25 Post, Chap. IX. 20 Upton V. County Mills, 11 Cush. (Mass.) 589, 59 Am. Dec. 163; Sumner v. Stewart, 69 Pa. St. 321; Kraft v. Fancher, 44 Md. 204; Corbett v. Underwood, 83 111. 324, 25 Am. Rep. 392; Pickert v. Marston, 68 Wis. 4C5, 32 N. W. 550. 27 Guesnard v. Railway Co., 76 Ala. 453; Bailey v. Bensley, 87 ni. 556; Hibbard v. Peek, 75 Wis. 619, 44 N. W. 641; Milwaukee, 3tc., Inv. Co. V. Johnston, 35 Neb. 554, 53 N. W. 475. If the usage was a local and particular one, the principal may show that he did not know of it. Walls v. Bailey, 49 N. Y. 464; Barnard v. Kel- logg, 10 Wall. (U. S.) 383. 28 Story on Agency, § 96. 20 Bailey v. HonKloy, 87 111. 556; White v. Fuller, C7 Barb. (N. T.) 207; Sniytlif v. Parsons. 37 Kan. 79, 14 Pac. 444. CONSTRUCTION OP AUTHORITY. 138 erly has implied power to make such warranties as are usually and ordinarily made in' sales of like character at the same time and place.^^ Thus, where it was an estab- lished usage of the New York stock exchange that a war- ranty of commercial character should accompany sales of promissory notes, an agent authorized to sell such paper, was held to have implied authority to make such war- ranty ;*2 and where it was the custom in ordering goods, not present for inspection, to require a warranty of their quality, an agent authorized to make a sale, would have implied power to bind his principal by such warranty."'' So, where sales of machines or implements are usually ac- companied by warranty of fitness, an agent authorized to make such sales, has implied authority to give the usual warranty ; ^* and he may also bind his principal by an agreement to sell upon trial, with privilege of returning if unsatisfactory, where implements of like character ar^' customarily sold upon such conditions.'^^ § 90. Contrary restrictions. Where the principal has expressly imposed restrictions to the contrary, no implica- tion could arise of authority to exercise medium powers. soAhern v. Goodspeed, 72 N. Y. 108; Bibb v. Allen, 149 U. S. 481, 13 Sup. Ct. 950; Skiff v. Stoddard, 63 Conn. 198, 26 Atl. 874. 31 Smith V. Tracy, 36 N. Y. 82; Herring v. Skaggs, 62 Ala. 180. 34 Am. Rep. 4; Pickert v. Marston, 68 Wis. 465, 32 N. W. 550; Decker v. Fredericks, 47 N. J. Law, 469; Morris V. Bowen, 52 N. H. 416; Applegate v. Moffitt, 60 Ind. 104. 32 Ahern v. Goodspeed, 72 N. Y. 108. 33Talmadge v. Bierhause, 103 Ind. 270, 2 N. E. 716. 34McCormick v. Kelly, 28 Minn. 135, 9 N. W. 675. 35 Deering v. Thorn, 29 Minn. 120; Oster v. Mickley, 35 Minn. 245. Having sold upon condition that if the machine does not prove satisfactory, the purchaser shall return it, the agent may waive such return. Pitsinowsky v. Beardsley, 37 Iowa, 9. 134 THE LAW OF AGENCY. or to execute the agenc}' in accordance with even well es- tablished usage. There can be no implication of author- ity contrary to express limitations.^^ Where, however, such express restrictions are not known to a third person with whom the agent deals, he ordinarily may assume that the agent has such authority as is usually possessed by agents of like character, and may bind the principal accordingly. In such case the agent is said to have acted within the scope of his apparent authority.*^ § 91. Apparent autharity. The doctrine of apparent authority may be said to be based on that of estoppel, though eases might arise in which the doctrine would be applied where, strictly, all the elements of estoppel did not concur.^^ Where a person holds another out as his agent, the inference, as we have seen, arises that such agent has authority to act in accordance with well established usage. 36 Towle V. Leavitt, 23 N. H. 360, 55 Am. Dec. 195; Stainback v. Read, 11 Grat. (Va.) 281, 62 Am. Dec. 648; Bryant v. Moore, 26 Me. 84, 45 Am. Dec. 96; Wood, etc., Mach. Co. v. Crow, 70 Iowa. 340, 30 N. W. 609. 37 Browning v. McNear, 145 Cal. 272, 78 Pac. 722. If a prin- cipal holds out his agent as having a greater than his real au- thority, third persons dealing with him, under this mistaken belief, can hold the principal to the extent of the apparent au- thority. Dodge V. McDonnell, 14 Wis. 553; Post § 91. .-18 Thus, the third paity need not show that at the time of deal- ing with an agent he knew of the existence of the usage; and hence could not be said to have to establish that he relied on the agent's authority to act in accordance therewith. So, the prin- cipars representation of his agent's actual authority need not have come to the third party's notice; the latter may take a chance as to the existence of the agency and still hold the prin- cipal to acts wilhin the ajiparent scope of the agent's authority, if it turns out that there really was an agency. The doctrine of ajiparont authority, therefore, is not merely an application of tcrhnicfil cstopficl. CONSTRUCTION OF AUTHORITY/ 135 and to perform such acts as are necessary to the accom- plishment of the agency.^^ - This inference, of course, could not be said to arise in the face of contrary instructions. Nevertheless, it will be indulged in favor of third persons who dealt in good faith with the agent without knowledge of the limitation upon his power ; or rather, as against such persons, the principal will be estopped to set up such un- disclosed limitation.*" "Where a man, therefore, appoints an agent and fails to disclose unusual restrictions upon his authority, innocent third persons, dealing with him, may assume that the agent has such power as is ordinarily pos- sessed by agents of like character, and which would have been possessed by this particular agent in the absence of such unusual restrictions.*^ Within the scope of this, his apparent authority, the agent may bind the principal; and the scope of his apparent authority will be coextensive with what would have been the scope of his actual implied 39 Ante § 89. ioAldrich v. Wilmarth, 3 S. D. 525, 54 N. W. 811; Putnam v. French, 53 Vt. 402, 38 Am. Rep. 682; Byrne v. Packing Co., 137 Mass. 313; Rathburn v. Snow, 123 N. Y. 343, 25 N. E. 379; Trainer V. Morison, 78 Me. 160, 3 Atl. 185; Lister v. Allen, 31 Md, 543, 100 Am. Dec. 78; Wheeler v. McGuire, 86 Ala. 398, 5 South. 190; Fat- man V. Leet, 41 Ind. 133; Baker v. Produce Co., 113 Mich. 533, 71 N. W. 866; Reynolds v. Chicago, etc., Ry. Co., 114 Mo. App. 670, 90 S. W. 100. 41 Brooke v. New York, etc., Ry. Co., 108 Pa. St. 529, 1 Atl. 206; Law V. Stokes, 32 N. J. Law, 249. 90 Am. Dec. 655; Williams v. Getty, 31 Pa. St. 461, 72 Am. Dec. 757; Bently v. Doggett, 51 Wis. 224, 8 N. W. 155; Oberne v. Burke, 30 Neb. 581, 46 N. W. 838; Hay- ward Lumber Co. v. Cox (Tex. Civ. App.), 104 S. W. 403; Grand Rapids Electric Co. v. Walsh Mfg. Co., 142 Mich. 4, 105 N. W. 1. The apparent authority of an agent which will bind his principal is such authority as the agent appears to have by reason of the actual authority which he possesses. Brown v. Eno, 48 Neb. 538, ('7 N. W. 434. 136 THE LAW OF AGENCY. authority had there been an absence of contrary limita- tions. "Every agency," said the court in a Minnesota ease, "carries with it, or includes in it, the authority to do whatever is usual and necessary to carry into effect the main power ; and the principal can not restrict his liability for acts of the agent within the apparent scope of his au- thority by private instructions not communicated to those with whom he deals. "*^ Thus, a principal is bound by a warranty given by an agent, authorized to make a sale, notwithstanding contrary instructions, where the warranty was a customary one, and the buyer was unaware of the unusual limitation on the agent's power.*' So, where an agent was authorized to travel about the country to sell goods, he would have im- plied power to hire a conveyance to go from place to place, and hence the principal would be liable to a liveiyman who furnished a conveyance, although, unknown to the livery- man, the agent had been provided with money for this purpose and forbidden to pledge his principal's credit.*^ "From the nature of the business required to be done by their agent," said the court, "the defendants held out to those who might have occasion to deal witli him that he had the right to contract for use of teams and carriages neces- sary and convenient for doing such business, in the name of the principals, if he saw fit, in the way such service is "2 Watts V. Howard, 70 Minn. 122, 72 N. W. 840. The creation of an agency clothes the agent with such authority as is proper and necessary to effectuate its purpose. Kearns v. Nickse, 80 Conn. 23. 66 Atl. 779. ^ailayncr v. Churchill, 29 Mo. App. 076; Boothby v. Scales, 27 Wis. 636; Stewart v. Cowles, 67 Minn. 184, 69 N. W. 695; Furneaux V. Esterly, 36 Kan. 539, 13 Pac. 824. <«BenUey v. Do^gett, 51 Wis. 224, 8 N. W. 155; Huntley v. Mathi;iH. 00 N. C. lOl. 17 Am. Rep. 516. CONSTRUCTION OP AUTUOKITY. 137 usually contracted for."** And so, where an agent was authorized to sell goods on commission, and it was a usual mcident to such power to fix the terms of sale, including the mode of delivery, and the time and manner of payment ; and the agent contrary to instructions sold goods on credit, which were expressed by the principal to the buyer marked (J. 0. D., the expressman, having no knowledge of the agent 's want of authority, was held to be justified in releas- ing the goods, upon the agent's order, without payment. ' ' The agent, ' ' said the court, ' ' was apparently clothed with authority to sell the plaintiff's goods, for cash or on credit, as he might think proper; and this being so, he must be regarded, in respect to third persons, as the plaintiff's gen- eral agent whose authority would not be limited by instruc- tions not brought to the notice of such third persons. As the agent, then, in respect to third persons, had power to sell on credit, the authority to control the delivery would necessarily come within the scope of his agency; and we think his order to the defendant would justify a delivery of the goods without payment, unless he had notice of the agent's want of authority. As to him the agent's apparent authority was real authority. " ^° § 92. General and special agents. Liability of a princi- pal for acts done within the apparent, though beyond the actual, scope of his agent's authority, is so far based upon the doctrine of estoppel as to arise only where third per- sons were justified in relying upon the agent's apparent authority, and where responsibility for the creation of such appearance of authority can be traced ultimately to some « Bentley v. Doggett, supra. 46 Daylight Burner Co. v. Odlin, 51 N. H. 56. 12 Am. Rep. 45. 138 THE LAW OF AGENCY. act or omission of the principal.*' If third persons have not been misled b}^ conduct of the principal; or if they knew, or ought to have known, of limitations upon the agent's powers, they can not bind the principal by acts done beyond the actual scope of the agent's authority.*^ In application of this principle, many authorities have been led to lay down the broad proposition that the doctrine of apparent authority can arise only in the case of a general agent; since, it is maintained, when a man appoints a spe- cial agent he holds him out merely as possessing such power as has been actually and specifically given ; and hence there is no ground for inference as to the nature or extent of that 47 Kane v. Barstow, 42 Kan. 465, 22 Pac. 588; Aldrich v. Wil- marth, 3 S. D. 525, 54 N. W. 811; Brockway v. Mullin, 46 N. J. Law, 448, 50 Am. Rep. 442; Briggs v. Taylor, 35 Vt. 57; Fred W. Wolf Co. V. Galbraitli, 39 Tex. Civ. App. 351, 87 S. W. 390. A pur- chase of goods from, and payment to, one who had formerly been authorized by the owner to solicit orders, but never held out as authorized to sell, confers no right on the purchaser. Abrahams V. Weiller, 87 111. 179. The principal is liable only where he has clothed the agent with the appearance of authority to act in the particular case. Wilcox v. Routh, 17 Miss. 476. An agent pur- suing the method in which he usually transacts business for the principal may be deemed clothed with necessary authority. Brooke v. New Yoik, etc., Ry. Co., 108 Pa. St. 529, 1 Atl. 206, 48 Daylight Burner Co. v. Odlin, 51 N. H. 56, 12 Am. Rep. 45; Johnson v. Jones, 4 Barb. (N. Y.) 3G9; Higgins v. Armstrong, 9 Colo. 38, 10 Pac. 232; Bank of Morgantown v. Hay, 143 N. C. 326, 55 S. E. 811; Hutsoh v. Prudential Ins. Co., 122 Ga. 847, 50 S. E. 1000; Hastings Nat. Bank v. Farmers' Bank, 56 Neb. 149, 76 N. W. 430. Where authority of an agent is limited, the principal is not lialile to third persons, having notice of such limitations, for acts done in violation thereof. Marvin v. Universal Life Ins. Co., 85 N. Y. 278, 39 Am. Rep. 657. "Baxter v. Lamont, CO 111. 237; Siebold v. Davis, 67 Iowa, 560, 25 N. W. 778; Lovett, Hart & Phipps Co. v. Sullivan, 189 Ma«s. CONSTRUCTION OF AUTHORITY. 139 pOM'er.'"' Such a hard and fast rule, it is believed, can not be adopted, unless a very limited meaning be given to the term special agent. ^° A broker authorized to make a single sale is clearly a special agent, yet he is held out by the principal as having power to act in accordance with usage, and could, undoubtedly, bind the principal within the scope of his usual or apparent authority.^^ "We think," says a learned author, "that the distinction between a general ;igency and a special agent useful, and sufficiently 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. No agent has authority to be in all respects, and for all pur- poses, an alter ego of his principal, binding him by what- ever the agent may do in reference to any subject whatever. 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 distinction, and the rules founded upon it, as alto- gether subordinate to that principle, which may be called the foundation of the law of agencj^ namely, that a prin- cipal is responsible, either when he has given to an agent 535, 75 N. E. 738; Dowden v. Cryder, 55 N. J. Law 329, 26 Atl. 941. A general agent is one authorized to do all acts connected with the particular trade, business or employment. Columbus Show Case Co. v. Brinson, 128 Ga. 487, 57 S. E. 871. eoFishbaugh v. Spunaugle, 118 Iowa, 337, 92 N. W. 58; Watts v. Howard, 70 Minn. 122, 72 N. W. 840; Keith v. Herschberg Optical Co., 48 Ark. 138, 2 S. W. 777. The fact that authority of an agent is limited to a particular business does not make his agency spe- cial; it may be general in regard to that business. Cruzan v. Smith, 41 Ind. 288. BiLobdell V. Baker, 1 Mete. (Mass.) 193, 35 Am. Dec. 358; New- man V. Lee, 87 App. Div. 116, 84 N. Y. Supp. 106. 140 THE LAW OF AGENCY. sufficient authority, or, when he justifies a party dealing with his agent in believing that he has given to the agent tliis authority. ' ' ^^ In the case of a general agency there is, of course, wider ground for inference as to the possession of incidental or customary powers than in the case of a special agent em- ploj'ed for a single transaction ; ^^ and, so, too, implication of authority to act in accordance with a particular usage might arise in the case of a professional agent, such as a broker or factor, where it would not arise if the agency were performed by a non-professional agent. ^* Nevertheless, any agency carries with it implied power to do what is usual and necessary to the execution of the main authority; and where contrary limitations are imposed, but not disclosed to innocent third persons, this implied power becomes the ineasure of the scope of the agent's apparent authority.^^ 52 Parson on Contracts, Vol. I, p. 43; Mechanics' Bank v. New York, etc., Ry., 13 N. Y. 632. While acting upon the matter oT his agency, a special agent binds his principal as effectually ass can a general agent. Morton v. Scull, 23 Ark. 289. 53 Blackwell v. Ketcham, 53 Ind. 184; Gilbert v. Deshon, 107 N. Y. 324, 14 N. E. 318; Cleveland, C. C. & St. L. Ry. v. Moore, 170 Ind. 328, 82 N. E. 52. A special agent possesses no implied author- ity beyond what is indispensable to the exercise of the power ex- pressly given, and must keep within the limits of his commission. Bowles V. Rice, 107 Va. 51, 57 S. B. 575. 54 This distinction is illustrated by three English cases: A horse dealer authorized to sell has implied authority to warrant where a warranty on the part of horse dealers is usual. Howard V. Sheward, L. R. 2 C. P. 148. But a person not a horse dealer would not have such implied authority where authorized to sell privately. Brady v. Todd, 9 C. B. 592. Implication of such au- thority would arise where a person, not a horse dealer, was author- ized to sell at a fail-, if a warranty by a seller at a fair Is the usual course of business. Brooks v. llassell, 49 L. T. 569. 5-- Walls V. Howard, 70 Minn. 122, 72 N. W. 840; Oberne v Burke, 30 Neb. 581, 46 N. W. 838; Bently v. Doggett, 51 Wis. 2:>}. CONSTRUCTION OF AUTHORITY 141 § 93. Notice of limitations. The rules to be stated berein are corollary to the doctrine laid down in the fore- going subdivision. As was there indicated, third persons can not bind a principal by acts done within the apparent scope of his agent's authority, where such persons knew, or ought to have known, of contrary limitations.^^ Thus, where the authority of an agent is required by law to be in writing, third persons dealing with him are conclusively presumed to know that he acts under written instructions, and are bound absolutely by their nature and scope.^^ So, if a third person knows, or has reason to believe, that an agent's powers have been reduced to writing, he must, at peril, learn the tenor of the instrument under which the agent acts.^^ So generally, if a third person has knowledge, actual or constructive, of limitations upon the power of an agent, he will be bound thereby.^® In dealing with a gen- 8 N. W. 155; Mars v. Mars, 27 S. C. 132, 3 S. E. 60; Authors & Newspaper Ass'n v. O'Gorman Co., 147 P"'ed. 616. The question is not what authority was given, but what authority were third per- sons justified, from the acts of the principal, in believing had been given. Aldrich v. Wilmarth, 3 S. D. 525, 54 N. W. 811. 56 Ware v. Morgan, 67 Ala. 461, Trustees, etc., Ins. Corp. v. Bow- ling, 2 Kan. App. 770, 44 Pac. 42; Marvin v. Universal Ins. Co., 85 N. Y. 278; Rogers v. Halden, 142 Mass. 196. 7 N. E. 768. BTPeabody v. Hoard, 46 111. 242; Weise's Appeal, 72 Pa. St. 351; Nat. Iron Armor Co. v. Bruner, 19 N. J. Eq. 331; Reese v. Med- lock, 27 Tex. 120, 84 Am. Dec. 611; Frahm vi. Metcalf, 75 Neb. 241, 106 N. W. 227; Davis v. Trachsler, 3 Cal. App. 554, 86 Pac. 610. Purchasers of negotiable paper issued by an agent, the nature and extent of whose authority must by law appear upon the public records, are chargeable with notice of whatever appears upon those records. Lewis v. Bourbon County Com'rs, 12 Kan. 186. esQuinlan v. Insurance Co., 133 N. Y. 356, 31 N. E. 31; Rawson V. Curtis, 19 111. 456; Finch v. Causey, 107 Va. 124, 57 S. E. 562; Luckie v. Johnston, 89 Ga. 321, 15 S. E. 459; Chaison v. Beau- champ, 12 Tex. Ciy. App. 109, 34 S. W. 303. "Lucas v. Rader, 29 Ind. App. 287, 64 N. E. 488; Hodge v. 1-12 THE LAW OF AGExNCY. eral agent, third persons, in the absence of circumstances sufficient to put a reasonable man on his guard, may assume that the agent possesses the power ordinarily conferred upon agents of like character; and no duty is upon them to make special inquiry as to limitations upon his author- ity.^" But on the other hand, it is frequently stated as the rule that one who deals with a special agent deals at peril, and must acquaint himself with the exact scope of the agent's authority.®^ Here again, the rule can be literally accepted only if a limited meaning be given to the term special agent ; for it probably would not apply in the case of a recognized professional agent, such as a broker.''- Combs, 66 U. S. 192; Jonathan Mills Mfg, Co. v. Whitehurt, 19 C. C. A. 130, 72 Fed. 496; Perry v. Smith., 29 N. J. Law, 74; Rail v City Nat. Bank, 3 Tex. Civ. App. 557. 22 G. W. 865; Padley v. Neill, 134 Mo. 364, 35 S. W. 997; Gilbert v. Deshon, 107 N. V. 324. 14 N. E. 318; Fritz v. Chicago Grain Co., 136 Iowa, 699, 114 N. W. 193. The question is usually one of fact for the jury. Glen v. Savage, 14 Ore. 567, 13 Pac. 442; Daylight Burner v. Odlin, 51 N H. 56, 12 Am. Rep. 45. 00 Saxonia Mining, etc., Co. v. Cook. 7 Colo. 569, 4 Pac. 1111; Banks v. Everest, 35 Kan. 687, 12 Pac. 141; All is v. Voigt, 90 Mich. 125, 51. N. W. 190; Harrison v. Kansas City, etc.. Ry., 5' Mo. App. 332; Grand Pacific Hotel Co. v. Pinkerton, 217 111. 01 75 N. E. 427. Where a firm doing business in one place takes charge, under a chattel mortgage, of the business of an insolvent debtor in another place, ani leaves him to carry it on in their name, it is not negligence for others to sell to the agent without Inquiring as to the extent of his authority. Banner Tobacco Co. v. .Jenlson, 48 Mich. 459, 12 N. W. 655. 81 Wells v. Michigan Mut. Life Ins. Co., 41 W. Va. 131, 23 S. E. 527; Hayes v. Campbell, 63 Cal. 143; First Nat. Bank v. Hall, 8 Mont. 341, 20 Pac. 638; Galveston, etc., Ry. Co. v. Allen, 42 Tex. Civ. App. 576. 94 S. W. 417; Reid v. Alaska Packing Co., 47 Ore. 215. 83 Pac. 139. "2 Lobdell v. Baker. 1 Mctc. (Mass.) 193, 35 Am. Dec. 358. An agfnt to soil has authority to warrant, if warranty be customary, and private rostriclions upon tlie customary power can not, where CONSTRUCTION OP AUTHORITY. 143 Usually, however, where an agent is employed to do a sin- gle act, the person with whom he deals must at peril ascer- tain the terms of the agent's authority.®' Thus, where an agent was authorized to buy cotton of a designated person at a certain place, he was held not to have apparent au- thority to buy of a different person at a different place."* Here, clearly, the principal has done nothing to create the appearance of such authority. But if the agent had pur- chased the cotton of the proper person, it may be doubted whether such person would have been bound at peril to ascertain the existence of limitations upon powers which otherwise would have been implied as incidental to the au- thority given. ®^ § 94.' Summary. In closing this discussion, it may be well to again remind the student that the law indulges no presumption as to the existence in one man of authority to represent another, except such as legitimately arises from Llie other's act or conduct ; and that in order to bind a man, by virtue of dealings with his agent, authority of the agent, in all particulars, must be traced back to its source, — the assenting mind of the principal. The burden is upon him who seeks to bind the principal to establish the existence unknown to a purchaser, affect his rights. Hayner v. Churchill, 29 Mo. App. 676. C3 Johnson v. Alabama Gas, etc., Co., 90 Ala. 505, 8 South. 101; Siebold v. Davis. G7 Iowa, 500, 25 N. W. 778; Bohart v. Oberne, 36 Kan. 284, 13 Pac. 388. A person buying real estate of an agent must at his peril, ascertain the extent of the agent's authority. Milne v. Kleb, 44 N. J. Eq. 378, 14 Atl. 646. 6* Robinson Mercantile Co. v. Thompson, 74 Miss. 847, 21 South. 794. 88 A special agent who acts within his apparent authority binds his principal. Howell v. Graff, 25 Neb. 130. 41 N. W. 142. Sae Wheeler v. McGuire, 86 Ala. 398, 5 South. 190. 144 THE LAW OF AGENCY. of the agenc}", and its nature and scope. The existence of an agency may be established by proof of express or implied appointment ; and having been established, the law will in- fer authority in the agent to exercise medium powers and to act in accordance with known usage. This inference can not arise in face of express restrictions to the contrary ; but it will be indulged in favor of those who did not know of such restrictions, or, who, in view of the character of the agency, were not bound to ascertain their existence. CHAPTER IX. SCOPE OF PARTICULAR AGENCIES. § 95. In general. 96. Agent to sell. (a) Personalty. (b) Realty. 97. Agent to purchase. 98. Agent to receive payment. 99. Agent to execute commercial paper. 100. Agent to manage business, 101. Bank cashier. 102. Factor. 103. Broker. 104. Auctioneer. 105. Attorney-at-law. § 95, In general. As we have seen in the preceding chapter, unless the principal has indicated a contrary in- tention, an agent is held to have implied authority to do what is reasonably necessary to the accomplishment of the purpose of his agency, and to act in accordance with the usages and customs of the business for which he was en- gaged.^ Furthermore, though the existence of such im- plied power is precluded by reason of contrary limitations, yet, as against third persons, who had neither actual or constructive notice of them, the agent is held to have ap- parent authority coextensive in scope with the real author- ity which he would have had, in the absence of such un- disclosed limitations ; and within the scope of this appar- ent authority he may bind the principal.^ So, we saw at 1 Ante § 89. 2 Ante § 91. 10 146 THE LAW OP AGENCY. the very outset of this treatment of our subject, that there were a number of well established forms of agency to which the law gave recognition ; and that where the duties of a particular agent are well defined by custom, the law as- sumes, in the absence of express restrictions, that the au- thority of such an agent, in any particular case, extends to the performance of those functions for which he ordinarily is employed.^ This chapter shall be devoted to examples of practical application of the doctrines in question. § 96. Agent to sell, (a) Personalty. Authority to sell personal property may be expressly given or may be im- plied from acts or conduct.* Implication of such authority does not arise from mere possession of property ; ^ but in- trusting another with possession, under circumstances suf- ficient to create a clear appearance of a right to sell, may estop the real owner to assert his title,^ as where he sends his goods to an auction room ; "^ or invests the person, in- trusted with possession, with documentary evidence of title."* An agent authorized to sell, has implied power to fix a rea- sonable price, and to agree upon usual terms of sale ; ^ but •Ante § 11. * Ante § 50. sSaltus V. Everett, 20 Wend. (N. Y.) 267, 32 Am. Dec. 541; Levi V. Booth, 58 Md. 305, 42 Am. Rep. 332; Oilman Linseed \ Co. V. Norton, 89 Iowa, 434, 56 N. W. 6G3. Barnard v. Campbell, 55 N. Y. 45G, 14 Am. Rep. 289; Smith v. Clews, 105 N. Y. 283. 11 N. E. 632. 7 Pickering v. Bush, 15 East, 38; Nixon v. Brown, 57 N. H. 31; Hoath V. Stoddard, 91 Me. 499. 40 Atl. 547. 8 McNeill V. Tenth Nat. Bank, 46 N. Y. 325, 7 Am. Rep. 341; Walker v. Railway Co., 47 Mich. 338, 11 N. W. 187. Putnam v. French, 53 Vt. 402, 38 Am. Rep. 682; Tollorton & Warneld Co. v. Gilruth. 21 S. D. 320, 112 N. W. 842. Authority to sell docs not imply power to compromise differences as to the goods ? SCOPE OP PARTICULAR AGENCIES. 147 not to sell on credit, unless in pursuance of a well estab- lished usage; ^° nor to exchange or barter; ^^ nor to pledge or mortgage.^- An agent to sell, -who is intrusted with pos- session of the goods, has implied power to receive pay- ment; ^^ but an agent authorized merely to solicit orders has no such power.^* So, if the sale is one usually accom- panied by a warranty, the agent will have implied power to make such customary warranty/" In any of the cases cited, contrary limitations upon the implied power of an agent will not affect third persons who had no actual or constructive notice of them.^^ (b) Realty. Since the sale of real estate can be ef- fected only by the execution of a deed, power to sell realty being of the represented standard. Scarritt-Comstock Furniture Co. V. Hudpeth, 19 Old. 429, 91 Pac. 843. 10 Payne v. Potter, 9 Iowa, 549; Graul v. Strutzel, 53 Iowa, 715, 6 N. W. 119; Daylight Burner Co. v. Odlin, 51 N. H. 56, 12 Am. Rep. 45; Burks v. Hubbard, 69 Ala. 379. iiTrudo V. Anderson, 10 Mich. 357, 81 Am. Dec. 795; Taylor v. Starkley, 59 N. H. 142. 12 Voss V. Robertson, 46 Ala. 483; Switzer v. Wilvers, 24 Kan. 384, 36 Am. Rep. 259. 13 Butler V. Dorma.n, 68 Mo. 298, 30 Am. Rep. 795; Higgins v. Moore, 34 N. Y. 417; Goodenow v. Tyler, 7 Mass. 36, 5 Am. Dec. 22. 14 Janney v. Boyd, 30 Minn. 319, 15 N. W. 308; Clark v. Smith, 88 111. 298; Law v. Stokes, 32 N. J. Law, 249, 90 Am. Dec. 655; Brown V. Lalley, 79 Minn. 38, 81 N. W. 538. Agency to sell does not necessarily carry with it power to collect. Toole v. Crews, 3 Ga. App. 238, 59 S. E. 727. ispickert v. Marston, 68 Wis. 465, 32 N. W. 550; Talmadge v. Bierhause, 103 Ind. 270, 2 N. E. 716; McAlpine v. Cassidy, 17 Tex. 449; Randall v. Kehlor, 60 Me. 37, 11 Am. Rep. 169; Second Nat. Bank v. Adams, 29 Ky. Law Rep. 566, 93 S. W. 671. The question as to what is usual in such a case is ordinarily one for the jury. Herring v. Skagg, 62 Ala. 180, 34 Am. Rep. 4. 16 Putnam v. French, 53 Vt. 402, 38 Am. Rep. 682; Luckie v. 1-lS THE LAW OF AGENCY. must be given under seal ; ^'^ though, as we have seen, a deed executed by an agent under parol authority may take ef- fect as a contract to convey.^* An agent authorized merely to enter into a contract of sale has no implied power to re- ceive the purchase price ; ^^ and, though authorized to exe- cute a conveyance, would have implied power to receive only so much of the purchase price as was payable at the time of conveyance.^" Power to sell land does not imply authority to sell on credit ;^^ or to mortgage ;^^ although it would seem to carry with it implied power to insert in the conveyance usual covenants of general warranty."' Any implication of authority must arise from a proper con- struction of the written power under which the agent acts, and as his instructions are known to be in writing, there would be practically no occasion for operation of the doc- trine of apparent authority. § 97. Agent to purchase. Authority to buy does not imply power to buy on credit,^* unless the agent has not Johnston, 89 Ga. 321, 15 S. E. 459; Trainer v. Morison, 78 Me. 160, 3 All. 185. 17 Ante § 46. 18 Id. 10 Mann v. Robinson, 19 W. Va. 49, 42 Am. Rep. 771; Alexander V. Jones, 64 Iowa, 207, 19 N. W. 913. 20 Johnson v. McCnider, 15 Mo. 365; Carson v. Smith, 5 Minn. 78; Dyer v. Duffy, :!!t W. Va. 148, 19 S. E. 540; Johnson v. Craig. 21 Ark. 533. 21 Lumpkin v. Wilson, 5 Heisk. (Tenn.) 555; "Winders v. Hill, 141 N. C. 694, 54 S. E. 440. An agent to sell land can not bind his principal by acceptance of a check in part payment. Ormsby v. Graham, 123 Iowa, 202, 98 N. W. 724. 22jc'ffrey v. Ilursh, 49 Mich. 31; Wood v. Goodridge, 6 Cush. (Mass.) 117, 52 Am. Dec. 771; Ferry v. Lalble, 31 N. J. Eq. 566. 23 Peters v. Farnsworth, 15 Vt. 155, 40 Am. Dec. 071; LeRoy v Beard. 8 How. (U. S.) 451; Rackman v. Charlestown, 42 N. H. 125. 2* Rerry v. Barnes, 23 Ark. 411. SCOPE OF PARTICULAR AGENCIES. 149 been supplied with funds, -^ or it is an established custom cf the trade to buy on credit.^* Neither may he, as a rule, execute negotiable paper in payment.^'^ An agent to buy has implied power to fix the price and terms of sale, pro- vided they are reasonable and usual.^^ But he may not buy goods of a different kind or amount than authorized ; ^^ pay a higher price, ^"^ or buy from persons other than those Avith whom he is directed to dcal.^' Where, how^ever, the agency was of such a character as to create an appear- ance of authority to exercise discretion in these particulars, the principal will be bound by acts within the apoarent scope of the agent's authority .^^ § 98. Agent to receive payment. Authority to collect does not imply power to receive payment in anything but 25 Spra&ue v. Gillett, 9 Mete. (Mass.) 91. An agent, author- ized to buy goods, where no funds are advanced him, has implied power to buy on credit. Swindell v. Latham, 145 N. C. 144, 58 S. n 1010. 26 Jaques v. Todd, 3 Wend. (N. Y.) 83; Temple v. Pomroy, 4 Gray (Mass.), 128; Wheeler v. McGuire, 86 Ala. 398, 5 South. 190; Komorowski v. Krumdick, 56 Wis. 23, 13 N. W. 881. 27 Taber v. Cannon, 8 Mete. (Mass.) 456; Webber v. Williams College, 23 Pick. (Mass.) 302; Bickford v. Menier, 107 N. Y. 490. 14 N. E. 438; Post § 99. 28 Owen V. Brockschmidt. 54 Mo. 285; Wishard v. McNeill, 85 rowa, 474, 52 N. W. 474; Bryant v. Moore, 26 Me. 84, 45 Am. Dec. 96. »Davies v. Lyon, 36 Minn. 427, 31 N. W. 688; Olyphant V. Mc- Nalr, 41 Barb. (N. Y.) 446. «o Bryant v. Moore, 26 Me. 84, 45 Am. Dec. 96. •iPeckham v. Lyon, 4 McLean (U. S.) 45; Robinson Mercantile Co. V. Thompson, 74 Miss. 847, 21 South. 794; Eckart v. Roehm. 43 Minn. 27, 45 N. W. 443. »» Butler V. Maples, 9 Wall. (U. S.) 766; Hill v. Miller, 76 N. Y. 32; Hubbard v. Tenbrook, 124 Pa. St. 291, 16 Atl. 817; Liddell v. Sahline, 55 Ark. 627, 17 S. W. 705. 150 THE LAW OF AGENCY. money ; ^ and if authority to receive paper be given, power i? not implied to indorse the same.^* An agent may receive part pa3"2nent ; ^^ but has no implied authority to compro- mise a debt, or extend the time of its payment.^^ Authority to receive payment will be implied where it is a necessary incident to the business for which an agent is engaged ; ^" but authorty to collect a note is not implied from the fact of its possession ; ^^ nor will an inference of power to collect money, due under a contract, arise from the fact that the agent negotiated the same.^^ "Where, however, an agent who negotiated the making of a loan was permitted to keep possession of the note and mortgage, after the same was due, and this was known to the debtor, the creditor was held to be estopped to deny the agent's authority to receive 83 Robinson v. Anderson, 106 Ind. 152, 6 N. E. 12; Padfield v. Green, 85 111. 529; Hurley v. Watson, 68 Mich. 531, 36 N. W. 726; "Wees V. Page, 47 Wash. 213, 91 Pac. 766. An agent to sell land can not bind his principal by acceptance of a check in part pay- ment. Ormsby v. Graham, 123 Iowa, 202, 98 N. W. 724. 34 Jackson v. Bank, 92 Tenn. 154, 20 S. W. 820; National Fence Mach. Co. V. Hlghleyman, 71 Kan. 347, 80 Pac. 568; Hamilton Nat. Bank v. Nye, 37 Ind. App. 464, 77 N. E. 295. 36 Whelan v. Reilly, 61 Mo. 565. 30 Herring v. Hottendorf, 74 N. C. 588; McHany v. Schenck, 88 111. 357; John Gund Brewing Co. v. Peterson, 130 Iowa, 301, 106 N/W. 741; Ritch v. Smith, 82 N. Y. 627. ^/sTQuinn v. Dresbach, 75 Cal. 159, 16 Pac. 762; Ladd v. Aetna Indemnity Co., 128 Fed. 298. Authority to sell goods and collect the price does not imply power to open a bank account for the principal nor to borrow money. Case v. Hammond Packing Co., 105 Mo. App. 168, 79 S. W. 732. 38 Dou])]eday v. Kress, 50 N. Y. 410, 10 Am. Rep. 502. Author- ity to collect interest on a note Implies no power to collect the principal. Iligky v. Dennis, 40 Tex. Civ. App. 133. 88 S. W. 400. 88 Thompson v. Elliott, 73 111. 221; Ortmeier v. Ivory, 208 111. 577, 70 N. E. 665. SCOPE OF PARTICULAR AGENCIES. 151 payment.*" A general authority to collect will imply power to bring suit and engage counsel/^ or to employ a subagent at the place of payment.*^ § 99. Agent to execute commercial paper. Authority to execute or indorse commercial paper is seldom implied ; *^ and when expressly given, is strictly construed.** As was said in an early Massachusetts case : ' ' The power of binding by promissory negotiable notes can be conferred only by direct authority of the party to be bound, with the single exception where, by necessary implication, the duties to be performed can not be discharged Mathout the exercise of such power. "*° Thus, an agent authorized to "accom- plish a complete adjustment" of his principal's affairs in a particular state was held not to have power to execute a promissory note ; *^ nor will authority to sign the princi- pal 's name in the general transaction of business include power to sign a promissory note.*" So, authority to pay for goods, does not include power to give the principal's note in payment, or to accept a bill of exchange drawn for *o Crane v. Gruenewald, 120 N. Y. 274, 24 N. B. 456; Bautz v. Adams. 131 Wis. 152, 111 N. W. 69. 41 Davis V. Waterman, 10 Vt. 526, 33 Am. Dec. 216; Scott v. El- mendorf, 12 Johns. (N. Y.) 317; Merricli v. Wagner, 44 111. 266; Moore v. Hall, 48 Mich. 145, 11 N. W. 844; Ryan v. Tudor, 31 Kan. 366, 2 Pac. 797. 42 Dorchester & Milton Bank v. Bank, 1 Cush. (Mass.) 177; Ante § 36. 43 Webber v. Williams College. 23 Pick. (Mass.) 302; Exchange Bank v. Thower, 118 Ga. 433, 45 S. E. 316. 44 Tate V. Evans, 7 Mo. 419; Batty v. Carswell, 2 Johns. (N. Y.) 48; King v. Sparks, 77 Ga. 285, 1 S. E. 266. 45 Paige V. Stone, 10 Mete. (Mass.) 160, 43 Am. Dec. 420. 4«Rossiter v. Rossiter, 8 Wend. (N. Y.) 494, 24 Am. Dec. 62. « Brantley v. Southern Life Ins. Co., 53 Ala. 554. 152 THE LAW OF AGENCY. the amount.*^ "Where expressly given, the agent must keep strictly within the limit of his power ; *' and parties deal- ing with him must ascertain his authority.^" Thus power to execute a note for a given purpose does not include power to execute for a different purpose,^^ or for other than the authorized amount.^^ So, authority to make a note does not include power to give a renewal ; ^^ nor to make the note payable at a different date than that authorized.^* Power to execute or indorse commercial paper will be im- plied only when a necessary incident to the business for which the agent was engaged.''* § 100. Agent to manage business. The doctrine of im- plied and apparent authority, naturally, finds wide appli- cation in the case of an agent employed to manage generally 48 Taber v. Cannon, 8 Mete. (Mass.) 456; Morris v. Bowen, 52 N. H. 416. ■49 Nixon V. Palmer, 8 N. Y. 398; Gulick v. Grover, 33 N. J. Law, 463, 97 Am. Dec. 728. 60 Blackwell v. Ketcham, 53 Ind. 184; Craighead v. Peterson, 72 N. Y. 279. But a principal who delivers to an agent negotiable paper signed in blank will be liable to innocent third persons not- withstanding that the agent violated instructions in filling out the paper. Davis v. Lee, 26 Miss. 505; Snyder v. Van Doran, 46 Wisi. 610; Bank v. Neal, 22 How. (U. S.) 107. SI Nixon V. Palmer, 8 N. Y. 398; Gulick v. Grover, 33 N. J. Law, 46a, 97 Am. Dec. 728. '•2 Blackwell v. Ketcham, 53 Ind. 184; King v. Sparks, 77 Ga. 285, 1 S. E. 260. 08 Ward V. Bank, 7 T. B. Mon. (Ky.) 93. 84 Batty V. Carswell, 2 Johns. (N. Y.) 48; Tate v. Eva,ns, 7 Mo. 419; New York Iron Mine Co. v. Bank, 44 Mich. 344, 6 N. W. 823. »5 Merchants' Banls v. Bank, 1 Ga. 418, 44 Am. Dec. 665; Man- hattan Liquor Co. v. Mangus. 43 Tex. Civ. App. 463, 94 S. W. 1117. Power to oxfcute negotiable Instruments Is Implied as an incident to an agency only when I he purpose of the same can not other- wise 1)0 acfomi)llKlKHl. Temple v. Pomroy. 4 Gray (Mass.), 128; Jackson v. Bank, 92 Tenn. 154, 20 S. W. 802. SCOPE OF PARTICULAR AGENCIES. 153 some business of his principal. In the absence of express restrictions, such an agent has implied power to do what- ever is reasonably necessary to carry on the business in the usual and customary manner ; '* and contrary limitations, unless disclosed, will not be binding on third persons who deal with the agent in reliance upon his apparent author- ity.^^ Thus, the manager of a store, hotel, farm or mine has implied authority to buy on credit whatever goods are needed in the conduct of the business ; '*' or to make what- ever contracts are necessary thereto.^® He has implied power to sell whatever is necessary or usual to sell in the conduct of the business ; ^^ but not to sell the business."^ laortgage property,®^ or engaged in a different business."^ 66 German Fire Ins. Co. v. Grunert, 112 111. 68, 1 N. E. 113; Roche V. Pennington, 90 Wis. 107, 62 N. W. 946; King v. Seaboard, etc., Ry. Co., 140 N. C. 433, 53 S. E. 237. Where it is necessary to the operation of a mine that provisions be furnished to the keep- er of a boarding house, where miners live, the superintendent may bind the operator for such supplies. Heald v. Hendy, 89 Cal. 632, 27 Pac. 67. 67 Harrison v. Missouri Pac. Ry., 74 Mo. 364, 41 Am. Rep. 318. 88 Banner Tobacco Co. v. Jenison, 48 Mich. 459; Cummings v. Sargent, 9 Mete. (Mass.) 172; Taylor v. Labeaume, 17 Mo. 338. The burden is on plaintiff to show that the goods were such as the nature of the business justified purchasing. Wallis Toliacco Co. V. Jackson, 99 Ala. 460, 13 South. 120. 59 Heald v. Hendy, 89 Cal. 632, 27 Pac. 67; King v. Seaboard, etc., Ry., 140 N. C..433, 53 S. E. 237. The manager of a hotel has implied authority to bind his principal by contract for advertis- ing the hotel.. Calhoon v. Buhre, 75 N. J. Law, 439, 67 Atl. 10G8. 60 Scudder v. Anderson, 54 Mich. 122, 19 N. W. 775; Johnson V. Investment Co., 46 Neb. 480. 64 N. W. 1100. 61 Holbrook v. Oberne. 56 Iowa, 324, 9 N. W. 291; Vescelius v. Martin, 11 Colo. 391, 18 Pac. 338. 62 Despatch Line v. Manufacturing Co.. 12 N. H. 205, 37 Am. Dec. 203. «3 Campbell v. Hastings, 29 Ark. 512; Hazeltine v. Miller, 44 Me. 177. 154 THE LAW OF AGENCY. ' ' If, ' ' as was said in a New York case, ' ' tlie transaction of business absolutely required the exercise of power to bor- row money in order to carry it on, then that power was impliedly conferred as an incident to the employment. ' ' '* § 101. Bank cashier. The scope of a bank cashier's im- plied authority, and hence of his apparent authority, is large. "Ordinarily, the cashier, being the ostensible ex- ecutive officer of a bank, is presumed to have, in the ab- sence of positive restrictions, all the powers necessary for such an officer in the transaction of the legitimate business of banking. " ^^ "\\'ithin the scope of authority usually con- ferred upon cashiers, he may bind the bank, notwithstand- ing unusual restrictions, in dealings with third persons who relied upon his apparent authority.®^ Thus, if a cashier, contrary to instructions, certifies a check, the bank is liable thereon to the person to whom it was issued, pro- vided such person was without notice that the cashier was forbidden to certify.®^ By virtue of his position, a cashier has implied power to collect debts due the bank ; ^^ to draw checks upon funds of the bank deposited elsewhere ; ®^ t< buy and sell bills of exchange; '° to indorse negotiable pa eiBickford v. Menier, 107 N. Y. 490, 14 N. E. 438. But the in ference will not arise unless the power to borrow is practically indispensable to execution of the agency. 0^ West St. Louis Sav. Bank v. Bank, 95 U. S. 557. «e Case v. Citizens' Bank, 100 U. S. 446. «7 Merchants' Nat. Bank v. Bank, 10 Wall. (U. S.) 604; Cooke v Bank. r,2 N. Y. 96, 11 Am. Rep. 667. es Badger v. Bank. 26 Me. 428. •8 Merchants' Nat. Bank v. Ban):, 10 Wall. (U. S.) 604. TOFleckner v. Bank, 8 Wheat (U. S.), 338. SCOPE OF PARTICULAR AGENCIES. 155 per; '^ and generally, to perform such functions as are usual •ind customary in the conduct of banking business.''^ § 102. Factor. A factor, as we have seen, is an agent to sell goods of which, ordinarily, he has possession. When he guarantees payment, he is called a del credere agent.''^ In the absence of contrary restrictions, a factor has implied authority to sell in his own name,"* to fix prices,''^ give credit,'^^ and to receive payment;"' so in pursuance of es- tablished usage, he may make warranties. '^^ A factor has neither implied nor apparent authority to pledge the prin- cipal 's goods for his own debt ; ^^ though he may pledge them for payment of charges against the goods themselves, as for duties levied upon them.^° Neither has a factor im- ' City Bank v. Perkins, 29 N. Y. 554, 86 Am. Dec. 332. '2 West St. Louis Sav. Bank v. Bank, 95 U. S. 557; Case v. Bank, 100 U. S. 446; Clarke Nat. Bank v. Bank, 52 Barb. (N. Y.) 592. T« i^.nte § 8. 74 Graham v. Duckwall, 8 Bush. (KJ^) 12. ■"• Smart v. Sanders, 3 C. B. (Eng.) 380; Putnam v. French, 53 Vt 402. 76 Van Alen v. Vanderpool, 6 Johns. (N. Y.) 69; Goodenow v. Tyler, 7 Mass. 36, 5 Am. Dec. 22; Burton v. Goodspeed, 69 111 238; Pinkham v. Crocker, 77 Me. 563. TTRice V. Groffmann, 56 Mo. 434. 78 Randall v. Kehlor, 60 Me. 37; Argersinger v. Macnaughton, 114 N. Y. 535, 21 N. E. 1022; (Limiting rule). 79 Wright V. Solomon, 19 Cal. 64. 79 Am. Dec. 196; Thurston v. Blanchard, 22 Pick (Mass.) 20, 33 Am. Dec. 700; Allen v. St. Louis Bank, 120 U. S. 20, 7 Sup. Ct. 460; Benny v. Pegram, 18 Mo. 191, 59 Am. Dec. 298. Factors' acts in a number of states protect the rights of innocent parties who have dealt with a factor in the belief that he was owner of the goods. Stimson, Am. Stat. Law, § 4381. •0 Evans v. Potter, 2 Gall. (U. S.), 2. Or to meet a draft drawn by the principal against proceeds before sale. Boyce y. Commerce Bank, 22 Fed. 53. 156 THE LAW OF AGENCY. plied power to barter goods ; ^^ nor to delegate his author- ity,^^ unless the employment of subagents is justified by usage of the trade, or the course of dealings between the factor and his principal. ^■^ A factor has no implied author- ity to bind the principal by negotiable paper.^* § 103. Broker. A broker has implied power to perform such acts as are necessarily incident to the accomplishment of his agency and to follow established usages of his busi- ness.^^ He may usually fix a reasonable price,^^ agree to terms of sale,^*^ and give such warranties as are justified by custom.*^ His authority, as a rule, does not include power to receive payment for goods sold ; ®® or to delegate to an- other the duties intrusted to him.''° Within the scope of authority ordinarily possessed by brokers, he may bind his 81 Wing V. Neal (Me.), 2 Atl. 881; Wheeler & Wilson Mfg. Co. V. Givan, 65 Mo. 89. 82 Warner v. Martin. 11 How. (U. S.) 209; Loomis v. Simpson, 13 Iowa, 532; Ante § 33. «3Laussatt v. Lippincott, 6 Serg. & R. (Pa.) 368. 9 Am. Dec. 440. 84 Emerson v. Providence Mfg. Co., 12 Mass. 237, 7 Am. Dec 66; Ante § 99. 85 Ante § 89. 8« Putnam v. French, 53 Vt. 402, 38 Am. Rep. 682; Daylight Burner Co. v. Odlin, 51 N. H. 56, 12 Am. Rep. 45; Bigelow v. Walker, 24 Vt. 149. 58 Am. Dec. 156. 87 Benjamin v. Benjamin, 15 Conn. 347, 39 Am. Dec. 384; Shack- man V. Little, 87 Ind. 181; Ante § 89. 88 Pickert v. Marston, 68 Wis. 465, 32 N. W. 550; Smith v. Tracy, 36 N. Y. 82; Schuchardt v. Aliens, 1 Wall. (U. S.) 359. But see Dood V. Farlow, 11 Allen (Mass.), 426, 87 Am. Dec. 726. «oSaladin v. Mitchell, 45 111. 79; Graham v. Duckwall, 8 Bush. (Ky.) 12; Iliggins v. Moore, 34 N. Y. 417. 90 Unless power can he implied from usage as in the case of other agents. Ghcen v. Johnson, 90 Pa. St. 38; Rosenstock v. Tormey, 32 Md. 169, 3 Am. Rep. 125. SCOPE OF PARTICULAR AGENCIES. 157 principal in favor of innocent third persons, notwithstand- ing undisclosed restrictions upon his authority.^^ § 104. Auctioneer. The implied powers of an auc- tioneer are very limited.^^ He can not sell at private sale or on credit ; ®^ nor can he accept anything but money in payment for goods sold ; ^* deliver the same without pay- ment ; ^° give a warranty ; ^^ or delegate his authority.**" So, it has been held that a sale for less than the price fixed by the principal would not be binding, even in favor of one who relied upon the apparent authority of the auctioneer to determine the sale price.^* § 105. Attorney-at-law. An attomey-at-law is said to have implied power "to do all acts, in or out of court, necessary or incidental to the prosecution or management of the suit, and which affect the remedy only, and not the cause of action."^® He may make such affidavits as are necessary in the progress of the cause; ^°° serve, or accept service, of all necessary processes ; ^°^ stipulate as to the issues to be tried ; ^"- make admissions of fact for purpose siLobdell v. Baker, 1 Mete. (Mass.) 193, 35 Am. Dec. 358; Ante § 91. 92 Williams v. Poor, 3 Cranch,(U. S.) 251; Bush v. Cole, 28 N. Y. 261, 84 Am. Dec. 343. 83 Marsh v. Jelf, 3 P. & F. (Eng.) 234; Williams v. Evans, L. R. 1 Q. B. (Eng.) 352. o*Broughton v. Silloway, 114 Mass. 71, 19 Am. Rep. 312. 85 Broughton v. Silloway, supra; Brown v. Staton, 2 Chit. (Eng.) 353. »6 Blood V. French, 9 Gray (Mass.), 197. 97 Com. V. Harnden, 19 Pick. (Mass.) 482. 98 Bush V. Cole, 28 N. Y. 261, 84 Am. Dec. 343. 99 Moulton V. Bowker, 115 Mass. 36, 15 Am. Rep. 72. 100 Wright V. Parks, 10 Iowa, 342; Manley v. Headley, 10 Kan. 88. 101 Anderson v. Watson, 3 C. & P. (Eng.) 214; Hefferman v. Burt, 7 Iowa, 320, 71 Am. Dec. 445. 102 Bingham v. Supervisors, 6 Minn. 136 158 THE LAW OF AGENCY, of trial ; ^"^ submit a cause to arbitration ; ^''* order print- ing of necessary briefs ; ^°^ release an attachment or lien ; ^""^ dismiss an action, or agree to a nonsuit ; ^°^ and bring a new action, after a nonsuit.^°^ But on the other hand, such at- torney has no implied authority to confess judgment ; ^°^ release the cause of action ;^^° compromise the claim; ^^^ release property from the lien of a judgment or execu- tion ; ^^^ or in any way prejudice the substantial rights of his client."' 103 Starke v. Kenan, 11 Ala. 819; Lewis v. Sumner, 13 Mete. (Mass.) 269. Admissions must be distinct and formal and mad for purpose of dispensing with proof. Treadway v. Sioux City, etc. Ry., 40 Iowa, 526. i04Sargeant v. Clark, 108 Pa. 588; Holker v, Parker, 7 Cranch. (U. S.) 436; Brooks v. New Durham, 55 N. H. 559; Haskell v. ' Whitney, 12 Masa 47; Connett v. Chicago, 114 111. 233. losweisse v. New Orleans, 10 La. Ann. 46; Williamson, etc.. Paper Co. v. Bosbyshell, 14 Mo. App. 534. lOG Provided the release be made before judgment. Benson v. Carr, 73 Me. 76. 107 Barrett v. Railway Co., 45 N. Y. 628; McLeran v. McNamara. 55 Cal. 508; Rogers v. Greenwood, 14 Minn. 333. 108 Scott V. Elemendorf, 12 Johns. (N. Y.) 317. loowadhams v. Gray, 73 111. 415; Pfister v. Wade, 69 Cal. 133 10 Pac. 369. 110 Mandeville v. Reynolds, 68 N. Y. 528; Gilliland v. Gasqui'. 6 S. C. 406; Wadhams v. Gray, 73 111. 415. 111 Fritchey v. Bosley, 56 Md. 96; Jones v. Inniss, 32 Kan. 177, 4 Pac. 95; Maddux v. Bevans, 39 Md. 485; Watt v. Brookover, 3' W. Va. 323, 13 S. E. 1007; Danziger v. Pittsfield Shoe Co., 204 111. 145. 68 N. E. 534. 112 Phillips V. Dobbins, 56 Ga. 617; Horsey v. Chew, 65 Md. 565; Benedif^t v. Smith, 10 Paige (N. Y.), 126. iisHalliday v. Stuart, 151 U. S. 229, 14 Sup. Ct. 302; Lambert V. Sanford, 2 Blarkf. (Ind.) 137, 18 Am. Dec. 149; Marbourg v. Smith, 11 Kan. 554. Whatever the attorney does in the prosecu- tion of the remedy will usually be binding on the client though it results to his disadvantage. Beck v. Bellamy, 93 N. C. 129; Foster V. Wiley, 27 Mich. 244; Moulton v. Bowkcr. 115 Mass. 36, 15 Am. Rep. 72. PART III. EIGHTS AE'D LIABILITIES BETWEEN PEINOIPAL AI^D THIKD PEESOJ^S. CHAPTER X. FORM OF EXECUTION NECESSARY TO BIND PRINCIPAL. § 106. In general. 107. Sealed instruments. 108. Negotiable instruments. (a) In general. (b) Parol evidence rule. (c) Cashier. 109. Other contracts. (a) Undisclosed agency. (b) Election to hold principaL (c) Settlement with agent. 110. Agent's liability. § 106. In general. Where an agent, acting within the scope of his authority, real or apparent, enters into a con- tract on behalf of his principal, the latter is bound thereby as effectually as though he had contracted in person. This statement of law involves the conception of the double con- dition that the contract was within the scope of the agent's authority, and that it was entered into by the agent on be- half of the principal. Clearly, an agent authorized to pur- chase a horse does not bind his principal by a bargain not 160 THE LAW OF AGENCY. made in tlie principal's behalf. Thus far in our discus- sion we have been concerned chiefly with the question of authority,- — the manner of its bestowal, and the mode of establishing proof of its existence. In the present chapter we are to deal more particularly with the manner of exe- cuting authority, and the mode of establishing the condition that its execution was for, and in behalf of, the principal. § 107. Sealed instruments. A sealed instrument, 1 hough executed by an agent within the scope of his au- thority, will not be binding upon the principal unless it appears upon the face of the instrument that the same was executed in behalf of the principal, and that he, clearly, is the party thereto.^ In determining this condition, ex- traneous evidence will not be considered, but the instru- ment alone is relied upon ; ^ and in construing the instru- ment, for the purpose of its determination, strict and tech- nical rules are observed.^ Broadly stated, a principal can not be made liable upon a sealed instrument executed for him by his agent unless he appears as the party thereto, and Ihe grant or covenant purports to be his, and the instrument is signed and sealed by or for him.* It is not sufficient to bind the principal that his agent in executing an instrument, describes himself as such. Na 1 Stinchfield V. Little, 1 Greenl. (Me.) 231, 10 Am. Dec. 65; FuUman v. Westbrookfield, 9 Allen (Mass.), 1; Vance v. Ander- son. 39 Iowa, 426; Cadell v. Allen, 99 N. C. 542, 6 S. E. 399; Van Dyke v. Van Dyke, 123 Ga. 686, 51 S. E. 582. 2 Spencer v. Field, 10 Wend. (N. Y.) 88; Briggs v. Partridge, 64 N. Y. 357. 21 Am. Rep. 017; Hypes v. Criinu, 89 111. 134, 31 Am. Rep. 71- 3 McClure v. Herring, 70 Mo. 18, 35 Am. Rep. 404; Hunlngton ▼. Knox, 7 Cush. (Mass.) 371. * Prather v. Ross, 17 Ind. 495; Coiuh v. Ingersoll, 2 Pick. (Mass.) 292; Calell v. Allen, 99 N. C. 542, S. E. 399. FORM OF EXECUTION. 161 legal effect is given to mere descriptio personae. Thus, where a bond was executed by persons who described them- selves as "Trustees of the Baptist Society of the Town of Richfield," the court held that it was not the bond of the Baptist Church.^ So, it is not sufficient to bind the prin- cipal that the instrument recites that the agent acts as his attorney, or by virtue of power by him beetowed ; for a con- tract, under strict rules of construction, applicable to sealed instruments, is not necessarily the personal obliga- tion of a party merely because of some indication that it was made at his behest or for his benefit. Thus, in an early Massachusetts case, one Joiiathan Elwell duly au- thorized Joshua Elwell to execute a conveyance of land; and the latter set forth in a deed his power of attorney from Jonathan, and followed its recital, in substance, with the words : ' ' Now know ye, that I, the said Joshua, by virtue of the power aforesaid, do hereby grant and con- vey, etc. And I do covenant that the said Jonathan at the time of executing said power was, and now is, law- fully seized of the premises and that he will warrant and defend the same, etc. In testimony whereof, I have here- unto set the name and seal of the said Jonathan." The instrument was signed "Joshua Elwell" (L. S.). This was not the deed of the principal, Jonathan Elwell; for clearly, neither in the body, nor in the execution, of the instrument does the principal appear as grantor.*' So, in another case, a deed, purporting to be made by "The New sTaft V. Brewster, 9 Johns. (N. V.) 334, 6 Am. Dec. 280; Lutz V. Linthicum, 8 Pet. (U. S.) 165; Quigley v. De Haas, 82 Pa. St. 2G7; Dayton v. Warne, 43 N. J. Law, 659; Pratt v. Beaupre, la Minn. 187. 6 Elwell V. Shaw, 16 Mass. 42, 8 Am. Dec. 126; Stinchfield v. Little, 1 Greenl. (Me.) 231, 10 Am. Dec. 65. 11 162 THE LAW OF AGENCY. England Silk Company, a corporation, by Christopher Colt, their treasurer," was attested: "In witness whereof, I, the said Christopher Colt, in behalf of said company, and as their treasurer, have hereunto set my hand and seal;" and was signed "Christopher Colt, Treasurer, New England ■ Silk Company ;" and acknowled;: 3d as the free act and deed of Christopher Colt, Treasurer, etc. The instrument was held not to be the deed of the corporation, for the reason that it was not executed in the name of the company.'^ As was said in another case : ' ' However clearly the body of the deed may show an intent that it shall be the act of the prin- cipal, 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." * "Where a deed is properly executed in the name of the principal, the courts incline to greater indulgence with in- accuracies in the body of the instrument.® Thus, where a party to a lease was described as "Edward P. Lawrence, President of the Northwestern Distilling Company," but the instrument was signed "Northwestern Distilling Com- pan}^ (L. S.) By Edward F. Lawrence, President; " it was lield to be the lease of the company.^" So, in a Missouri case, llie deed in substance read: "I, Thomas W, Hawkins, for myself and as attorney for Leo Tarlton and Augusta Tarl- 7 Brinley v. Mann, 2 Cush. (Mass.) 337. 48 Am. Dec. 669. He should have executed the deed in the name of the company, should also have affixed the seal of the company, and acknowl- edged the instrument to be the deed of the company. «Clarko v. Courtney. ."5 Pet. (U. S.) 319; Mussey v. Scott, 7 Cush. (Mass.) 216, 54 Am. Dec. 719; Fowler v. Shearer, 7 Mass. 14. Shanks v. Lancaster, 5 Gratt. (Va.) 110, 50 Am. Dec. 108; Hale V. Woods, 10 N. H. 470, 34 Am. Dec. 176; Butterfield v. Beall, 3 Ind. 203. 10 Northwestern Distilling Co. V. Brant, 69 111. 658, 10 Am. Rep 631. FOItM OF EXECUTION. 163 ton, by their letters of attorneA% in consideration, etc., to us paid, do sell and convey, etc. And we, the said Leo Tarlton and Augusta Tarlton, do covenant, etc. In witness whereof, T. Thomas W. Hawkins, in my own right have hereunto set ;ny hand and seal, and as attorney for Leo Tarlton and Augusta Tarlton, have hereunto set their hands and seals." The deed was signed: "Thomas W. TLiAvldns (L. S.), Leo Tarlton (L. S.), Augusta Tarlton (L. S.), By Thomas W. Hawkins, their attorney in fact." This instrument was held good against the principals. ^^ "The manner in which the deed was executed," said the court, "the covenants en- tered into by Tarlton and his wife that they would warrant the title; the declaration in the deed that Hawkins is acting for the principals, naming them, by virtue of their power of attorney, the acknowledgment of the receipt of the money by 'us,' unmistakably show that it was the deed of the prin- cipals; and as this all appears clearly in the instrument, the precise form or arrangement of the words does not seem to be essential." ^^ The usual and approved form of executing a deed by at- torney is to write the principal's name and add "By A. B., his attorney." But, as has frequently been held, this is not the only form.^^ Thus, where a lease, purporting to be made by one Mussey, was signed "John Hammond for B. B. 11 McClure v. Herring, 70 Mo. 18, 35 Am. Rep. 404. 12 McClure v. Herring, siipra. i3Wilburn v. Larkin, 3 Blackf. (Ind.) 55; Hutchins v. Byrnes, 9 Gray (Mass.), 367; Whitehead v. Reddick, 34 N. C. 95; Hale v. Woods, 10 N. H. 470, 34 Am. Dec. 176. The form of signature em- ployed by an agent is unimportant, so that it appears that the contract is in the name of the principal. Lazarus v. Shearer, 2 Ala. 718. It is not necessary that it appears upon the face of the instrument that it is executed by an attorney. First Nat. Bank V. Loyhed, 28 Minn. 396, 10 N. W. 421. 164 THE LAW OF AGENCY. Mussey, " tlie execution was deemed sufficient to bind the principal." Though, the ruling might have been different had the instrument been signed : ' ' Jolm Hammond, Agent of, ' ' or even ' ' Agent for, Mussey ; ' ' since such designation might have been mere descriptio personae}^ Application of the rules under discussion naturally leads to some dis- cord in the decisions. An instrument that one court might construe as sufficiently executed to bind the principal might be held insufficient by another court ; but all make impera- tive the condition that in order to bind the principal it niiLst clearly appear upon the face of the instrument that he is the party thereto, and that the same, beyond question, has been executed for him.^® § 108. Negotiable instruments, (a) In general. As in the case of sealed instruments, a principal will not be bound by a negotiable instrument, though executed by an agent within the scope of his authority, unless he is named therein as a party thereto. ^^ In construing such an instrument, 14 Mussey v. Scott, 7 Cush. (Mass.) 216, 54 Am. Deo. 719. Where an instrument shows on its face the names of the contracting par- ties, the agent maj^ sign his own name first, adding "agent for" his principal. Smith v. Morse, 9 Wall. (U. S.) 76. 15 Parks V. L. & S. Turnpike Road Co., 27 Ky. 456; Spencer v. Field, 10 Wend. (N. Y.) 87; Bryson v. Lucas, 84 N. C. 680, 37 Am. Rep. 634; Tucker Mfg. Co. v. Fairbanks, 98 Mass. 101. icTobin v. Larkin, 183 Mass. 389, 67 N. E. 340. There is a general disposition to relax the rigid rules of the common law in regard to conveyances, and to effectuate the intention of the par- ties, where that can certainly be ascertained from the deed. Mc- Clure V. Herring, 70 Mo. 18; Avery v. Dougherty, 102 Ind. 443, 2 N. E. 123. 17 Bank of British North America v. Hooper, 5 Gray (Mass.) T)^l, 66 Am. Dec. 390; Fowler v. Atkinson, 6 Minn. 578; Cragin v. lyjvell, 109 U. S. 104. 3 Sup. Ct. 13?; Anderson v. Pearce, 36 Ark. 29:5. 38 Am. Rep. 39; Sthison v. Lee, 68 Miss. 113, 8 South. 272. FORM OF EXECUTION. 165 for the purpose of determining whether it is executed in behalf of a principal, greater liberality may be indulged than in the construction of sealed instruments. But on principle, the requirements are identical, and unless it ap- pears upon the face of the instrument that the same was executed in behalf of the principal, he will not be bound thereby ; ^^ though, as we shall presently see, a modifying doctrine has been adopted in some of the states.^^ Thus, where a note read. ' ' We the trustees of the Seventh Presby- terian Church promise to pay, etc.," and was signed by individual names followed by the designation, "Trustees," it was held that the church was not bound.^" Said the court: "Although the words, 'the trustees of the Seventh Presbyterian Church' appear in the body of the note, and the word 'trustees' is appended to the signatures, there are no words used imphnng an undertaking on the part of the •corporation."-^ So, a note by which "I, John Franklin. President of the Mechanic Fire Insurance Company" prom- ised to pay a sum of money, was held not to be the note of the company ;^^ and a note signed: "John I. Eldridge, Trustee of Sullivan Railroad," was held the personal ob- ligation of Eldridge. ^^ On the other hand, a note signed: "Joseph Talbot agent ispentz V. Stanton, 10 Wend. (N. Y.) 271, 25 Am. Dec. 558; Anderton v. Shoup, 17 Ohio St. 125; Williams v. Robbins, 16 Gray (Mass.) 77, 77 Am. Dec. 39G; Ranger v. Thalman, 178 N. Y. 574, 70 N. E. 1108. i»Post, § 108 (b). 20 Powers v. Briggs, 79 111. 493, 22 Am. Rep. 175; Bradlee v. Boston Glass Co., 16 Pick. (Mass.) 347; Barlow v. Congregational Society, 8 Allen (Mass.) 460; Pack v. White, 78 Ky. 243. ti Powers V. Briggs, 79 111. 493, 22 Am. Rep. 175. "Barker v. Mechanic Fire Ins. Co., 3 Wend. (N. Y.) 94. «Fiske V. Eldridge, 12 Gray (Mass.), 474; Foster v. Fuller, 6 Mass. 58. 166 THE LAW OF AGENCY. for David Perry " was held the note of Perry.=* In dia- cussing this holding, in another case, the court said: ''The variation between the words 'for' and 'of seems at first view slight; but in the connection in which they are used in signatures of this kind the difference is substantial. 'Agent of or 'President of a corporation named, simply designates a personal relation of the individual to the cor- poration. 'Agent for' a particular person or corporation, may designate either the general relation which the person signing holds to another party, or that the particular act in question is done in behalf of and as the contract of that other; and the court, if such is manifestly the intention of the parties, may construe the words in the latter sense. "^^ But even "agent for" has been held under some circum- stances a mere descriptio personae of the agent, as where a paper was signed "Robert Eastman, Agent for Ward 6. Lowell, Mass."" As stated by Story, however, "if it can. upon the whole instrument, be collected that the true object and intent of it are to bind the principal, and not to bind the agent, courts of justice will adopt that construction of it, however informally it may be expressed." ^^ And in ascertaining the true intention of the parties, many court-s. as already stated, construe a negotiable instrument with 24 Ballou V. Talbot, 16 Mass. 4G1. 25 Tucker Mfg. Co. v. Fairbanks. 98 Mass. 101. 28Shattuck V. Eastman, 12 Allen (Mass.), 3G9; Tannatt V. Rocky Mt. Nat. Bank, 1 Colo. 278, 9 Am. Rep. 15G; Exchange Bank V. Lewis County, 28 W. Va. 273. Thus, a note signed "D. H., agent for the Curchman" (a newspaper conducted by the agent on be- half of his principal) was held not to bind the principal. Dewltt V. Walton, 5 Selden (9 N. Y.), 571. So the Insertion of "for" or " In behalf of" a principal, in the body of the note has been he'd not sufficient to bind the principal. Barlow v. Society, 8 Alb^ ' (Mass.), 460; Bradlce v. Boston Glass Co., 16 Pick. (Mass.) S47 »T Story on Promissory Notes, § 68. FOKM OF EXECUTION. 167 greater liberality than -would prevail in the case of sealed instruments.^^ Thus where a note was signed: "G. A. Colby, Prest. Pac. Peat Coal Co., D. K. Tripp, Sec.," and was indorsed by Colby and four others, the court held that, read as a whole, it was apparent that the note was the note of the company, indorsed by individuals.-^ So, a note read- ing: ''We, as the trustees of the Methodist Church, promise to pay, etc.," was held the note of the church, though signed merely by individual names followed by the word " trus- tees. "^^ A note signed by an individual as "Secretary," but im- pressed with the seal of a corporation, of which the indi- vidual was secretary, was held the note of the corporation ; ^^ and so it was held that a check, having the words "Aetna ]\rills" printed in the margin, and signed "J. D. Farns- worth, Treasurer," was the check of the Aetna Mills, exe- cuted by Farnsworth as their treasurer and in their be- half.^^ Other cases will be found, of course, in which com- mercial paper having the name of a corporation printed in the mar-in, and signed by the maker as agent, has been held not binding on the corporation.^^ As was said in a Massa- chusetts ease, "the difficulty is not in ascertaining the gen- 28Liebsclier v. Kraus, 74 Wis. 387, 43 N. W. 166; Blanchard v. Kaull, 44 Cal. 440; Andrews v. Estes, 11 Me. 267, 26 Am. Dec. 521; New Market Sav. Bank v. Gillett, 100 111. 254, 39 Am. Rep. 39; Franklin v. Johnson, 147 111. 520, 35 N. E. 480. 29 Farmers' & Mechanics' Bank v. Colby, 64 Cal. 352. so Leach v. Blow, 8 Smedes & M. (Miss.) 221; Mann v. Chandler, 9 Mass. 335; Blanchard v. Kaull, 44 Cal. 440. 81 Means v. Swormstedt, 32 Ind. 87, 2 Am. Rep. 330; Guthrie V. Imbrie, 12 Ore, 182, 6 Pac. 664; Scanlan v. Keith, 102 111. 634, 40 Am. Rep. 624. 32 Carpenter v. Farnsworth, 106 Mass. 561, 8 Am. Rep. 360; Hitchcock V. Buchanan, 105 U. S. 416. 33 Casco Nat. Bank v. Clark, 139 N. Y. 307, 34 N. E. 908. 168 THE LA.W OP AGENCY eral principles which must govern cases of this nature, but in applying them to the different forms and shades of ex- pression in particular instruments. A mere description of the general relation or office which the person signing the paper holds to another person, or to a corporation, without indicating that the particular signature is made in the exe- cution of the office and agency, is not sufficient to chargo the principal or to exempt the agent from personal lia- bility."^* But where a note read, "We, the undersigned, committee for the First School District, promise in behalf of said school district," and was signed by the individual members, with the word "Committee" opposite their names. it was held that the note was properly executed to bind the principal. ^^ (b) Parol evidence rule. The rule discussed in the pre- ceding subdivision has been modified in a number of states to the extent that where, upon the face of a negotiable in- strument, there appears reasonable indication that the maker did not intend to bind himself, but was seeking to execute the same in behalf of another, parol evidence maj- be introduced to clear up the ambiguity and to show who was intended to be bound by the instrument.^^ Thus, where a signature in form was: "John Kean, President 8* Tucker Mfg. Co. v. Fairbanks, 98 Mass. 101; Olcott v. Tioga Ry. Co., 27 N. Y. 546, 84 Am. Dec. 298; Robinson v. Kanawha Val- ley Bank, 44 Ohio St. 441; MoClellan v. Robe, 93 Ind. 298. 35 Andrews v. Estes, 11 Me. 267, 26 Am. Dec. 521; Mann v. Chan- dler, 9 Mass. 335; Mott v. Hicks, 1 Cow. (N. Y.) 513, 13 Am. Dec. 550. 3« Ilager v. Rice, 4 Colo. 90, 34 Am. Rep. 68; Bean v. Pioneer Mining Co., 66 Cal. 451, 6 Pac. 86; Mechanics' Bank v. Bank, 5 Wheat. (U. S.) 326; Second Nat. Bank v. Steel Co., 155 Ind. 581, 58 N. E. 833; Kline v. Bank, 50 Kan. 91, 31 Pac. 688; Laflin & Rand Power Co. v. Slnsheimcr, 48 Md. 411. 30 Am. Rep. 472. FORM OF EXECUTION. 169 Elizabethtown R. R. Co.," it was held that parol evidence was properly admitted to show that Kean contracted in behalf of the company.'^ In answer to the objection that the effect of such evidence was to vary the terms of the written instrument, the court said: ''It is at best, upon the face of the instrument, doubtful by whom it was executed. It is not clear who was the contracting party. * * * The evidence is not adduced to discharge the agent from a personal liability, which he has assumed, but to prove thai in fact he never incurred that liability. Not to aid in the construction of the instrument, but to prove whose instru- ment it is. ' ' ^^ So, where the makers of a note designated themselves ''Trustees of the First Baptist Soeiet}^ of the Village of Broekport," it was held that though prima facie the individual obligation of the makers, yet parol evidence could be introduced to show that the intention of the par- ties was to bind the Society.^^ "Where a note read "I prom- ise to pay" a stated sum of money "for building a school house in District No. 3," and was signed "P. T. Reynolds, Local Director," the court held that it might be shown by parol that the note was intended to be that of the district.*" And like rulings have been made in a number of cases.*^ Even though the name of a principal does not appear 37 Kean v. Davis, 21 N. J. Law, 683, 47 Am. Dec. 182; Hovey v. Magill, 2 Conn. 680; Contra, Robinson v. Kanawlaa Valley Bank, 44 Oliio St. 441, 8 N. E. 583; Hypes v. Griffin, 89 III. 134, 31 Am. Rep. 71. P 38 Kean v. Davis, supra. 30 Broclvvv'ay v. Allen, 17 Wend. (N. Y.) 40; Newman v. GreefF, 101 N. Y. 663. 5 N. E. 335. *oMcClellan v. Reynolds, 49 Mo. 312. *i Martin v. Smith, 65 Miss. 1, 3 South. 33; Keidan v. Winegar, 95 Mich. 430, 54 N. W. 901; Miller v. Way, 5 S. D. 468, 59 N. W. 467; Case Mfg. Co. v. Saxman, 138 U. S. 431, 11 Sup. Ct. 360. 170 THE LAW OF AGENCY. upon the face of an instrument, but the maker merely des- ignates himself ''agent," it has been held that, at least be- tween the original parties, parol evidence may be adduced to show that it was not their intention to bind the agent, but that he was dealt w^ith in his representative character.^- Said the Supreme Court of the United States: "The ordi- narj^ rule undoubtedly is that if a person merely adds to the signature of his name the Avord 'agent,' 'trustee,' 'treas- urer,' etc., without disclosing his principal, he is personally bound. The appendix is regarded as a mere descriptio personae. But if he be in fact a mere agent, trustee or officer of some principal, and is in the habit of expressing in that Avay 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 use of such designations alone, without disclosure of a principal, would not charge third persons, into whose hands an instrument caine, with knowledge of the representative character of the signer, and hence probably would not render the principal liable to them.** Though, were it shown that such third person had actual knowledge of the agency, and took the instrument in reliance upon it, his rights, it would seem, should be the same as those of the original holder." 42 Lacy V. Dubuque Lumber Co., 43 Iowa, 510; Sayre v. Nichols, 7 Cal. 535, C8 Am. Dec. 280; Burkhalter v. Perry & Brown, 127 Ga. 438, 56 S. E. C31. <3Mf 14 Northwestern Packet Co. v. Clough, 20 Wall. (U. S.) 528; Fort Smith Oil Co. v. Slover, 58 Ark. 168, 24 S. W. 106; Ruschen- berg V. Southern Electric Ry. Co., 161 Mo. 70, 61 S. W. 626; Vicks- burg Ry. Co. v. O'Brien, 119 U. S. 99. Thus, a conversation be- tween agents of a railway company, concerning a past transac- tion, Is clearly inadmissible against the company. Union Pac. Ry. Co. V. Fray, 35 Kan. 700; Erie, etc.. Ry. Co. v. Smith, 125 Pa. St. 259. !•' Ricketts v. Birmingham St. Ry. Co., 85 Ala. 600; Goetz v. Bank, 119 U. S. 551. 10 United States v. Gooding, 12 Wheat. (U. S.) 460; 1 Greenl. Evidence, § 113. 17 .Tones on Evidence, Chap. II. ADMISSION NOTICE — LIABILITY OP PRINCIPAL. 183 doctrine to the question of the admissibility of agents' statements, many of the courts reason that, the authority of an agent to perform an act, or to negotiate a contract, being established statements made by the agent, in the course of the performance of his agency, and in relation thereto, constitute part of such performance; and since what the agent did, is admissible in evidence, what he said while doing it, may also be introduced if it elucidates the act, is contemporaneous with it, is part, in short, of the act itself." Basing the admissibility of an agent's statements upon the rule of res gestae is less satisfactory than resting it squarely upon the doctrine that where an agent is author- ized to negotiate a transaction, he acts within the scope of his authority in making statements connected therewith, and in furtherance thereof, and hence binds his principal by them. It also tends to confusion. In many cases, dec- larations of an agent or employee are admissible against the principal on the ground of res gestae, where the fact of his being an agent is immaterial, and the same statements would be admissible though made by a stranger. Thus, in the case of a railway accident, declarations by a trainman, made spontaneously, immediately thereafter, as to the cause of the accident, would be admissible against the company; not because of the relation existing between him and the company, nor because of any authority to speak in behalf of the company, but because the declarations were part of the res gestae}^ Like declarations by a passenger, who was 18 Texas & P. Ry. Co. v. Lester, 75 Tex. 56, 12 S. W. 955; Keyser V. Chicago, etc., Ry. Co., 66 Mich. 390, 33 N. W. 867; Story on Agency, § 134. i» Ohio, etc., Ry. Co. v. Stein, 133 Ind. 243, 31 N. E. 180, 19 L. R. A. 733. "If the declarations were part of the res gestae, they 184 THE LAW OF AGENCY. injured, though they were beneficial to himself, would, on the same ground, be admissible in an action brought by him against the company.-" It is clear that the statements of a vendor's agent, for instance, made during negotiation of a sale, are admissible on essentially different grounds from those justifying the introduction of the declarations of the trainman or the passenger in the cases last cited. In the one case the admissibility depends on existence of author- ity in an agent to bind his principal by acts and words; in the other cases, agency is not involved, but under the rules of e\adence the declarations, by whomsoever made, are o4- missible because they constitute part of the concurrence in controversy^ It only leads to confusion to say that in all three cases, the declarations, in question, are admitted upon the same ground, namely because part of the res gestae. Hence, we have stated the rules, governing admission of agents' statements, in the terms of agency, and have based their admissibility against the principal on the ground that being made within the scope of the agent's authority they are binding upon the principal because in legal effect his statements. II. Notice. \ § 115. In general. It is, in brief, a doctrine of equity jurisprudence that a person who acquires a title or interest in a given subject matter, which is already affected by an equitable claim or interest in favor of another, will take subject to the same, provided, that at the time he had notice, were competent, no matter by whom they were made." Elliott, C.J. 20 In an action by an administrator against a railway company for damages for decedent's death, declarations of decedent, made Immediately after he was injured, and while he was being extri- cated from iindnr the whoels of the car, were admissible against ADMISSION — NOTICE — LIABILITY OP PRINCIPAL. 185 actual or constructive, of such adverse claim or interest.^^ The question with which we are here concerned is whether notice to an agent may be imputed to his principal, so as to affect the latter 's rights the same as they would have been affected had he himself had notice. § 116. Notice to agent, (a) In general. Where notice of an adverse interest or claim is acquired by an agent dur- ing negotiation, for his principal, of the transaction affected by the notice, there can be no doubt but that such notice will be imputed to the principal ; ^- either upon the broad ground of the legal identity of principal and agent ; -' or upon the theory of the agent's duty to communicate to his principal knowledge of facts which affect the transaction.-* Where, however, notice had been acquired by the agent in a previous or different transaction, some of the cases the defendant, as part of the res gestae. Louisville, etc., Ry. CJo. V. Buck, 116 Ind. 566, 19 N. E. 453, 2 L. R. A. 520. 21 Pomeroy on Equity-, § 591. 22 Suit V. Woodhall, 113 Mass. 391; Campau v. Konan, 39 Mich. 362; Pacific Lumber Co. v. Wilson, 6 Cal. App. 561, 92 Pac. 654; Connelly's Ex'r v. Beckett, 32 Ky. Law Rep. 356, 105 S. W. 446; Jacquith v. Davenport, 191 Mass. 415, 78 N. B. 93. Notice to an agent, who purchases a note that is tainted with usury is notice to his principal. Haynes v. Gay, 37 Wash. 230, 79 Pac. 794. 23 Irvine v. Grady, 85 Tex. 120, 19 S. W. 1028; Advertiser Tribune Co., v. Detroit, 43 Mich. 116. 24 The Distilled Spirits, 11 Wall. (U. S.) 356; Pringle v. Modern Woodmen of America, 76 Neb. 384, 107 N. W. 756. It is pre- sumed that agents will communicate to their principals facts ma- terial to the principal's interests; and their knowledge, therefore, becomes the knowledge of the principal. Traders' & Truckers' Bank v. Black, 108 Va. 59, 60 S. E. 743. 25 Houseman v. Association, 81 Pa. St. 256; Barbour v. Wiehle, 116 Pa. St. 308, 9 Atl. 520; McCormick v. Joseph. 83 Ala. 401, 3 South. 796. 186 THE LAW OF AGENCY. have held that such notice could not be imputed to the principal; since notice acquired before the relation existed would amount to no more than notice acquired after it had ceased.^' It seems now the accepted rule that actual infor- mation acquired by an agent prior to the agency, but pres- ent in his mind while acting for the principal, and material to the business delegated, will be deemed notice to the prin- cipal.^^ It would be necessary to establish, by at least pre- sumptive evidence, that the information acquired by the agent in a preAnous transaction was present to his mind and memoiy while engaged in the subsequent business for his prineipal.^^ (b) Exceptions to rule. Two exceptions to the doc- trine imder discussion are to be noted. It is generally held that knowledge possessed by an agent will not be im- puted to his principal, where it was acquired by the former, confidentially, as attorney for another, so that its disclosure would involve a breach of professional secrecy.-^ So, where an agent in the course of liis employment, for his own bene- fit, perpetrates a fraud upon the principal, and such fraud 20 The Distilled Spirits, 11 Wall. (U. S.) 356; Fairfield Sav. Bank v. Chase, 72 IVfe. 226, 39 Am. Rep. 319; Constant v. Uni- versity, 111 N. Y. 604, 19 N. E. 631; Schwind v. Boyce, 94 Md. 510, 51 Atl. 45; Henry v. Omaha Packing Co. (Neb.), 115 N. W. 777; Vulran Detinning Co. v. American Can Co. (N. J. Eq.), 67 Atl. 339. 27 St. Paul Fire, etc., Ins. Co. v. Parsons, 47 Minn. 352, 50 N. W. 240; Constant v. University, 111 N. Y. 604, 19 N. E. 631; Yerger v. Barz, 56 Iowa, 77, 8 N. W. 769; Merchants' Nat. Bank v. Nichols, 223 111. 41, 79 N. E. 38. It would be sufficient to show that the information was acquired so recently as necessarily to raise the inference that it remained fixed in the agent's memory. Chouteau V. Allen, 70 Mo. 290; Brothers v. Bank, 84 Wis. 381, 54 N. W. 78G. 28 The Distilled Spirits, 11 Wall. (U. S.) 367; Abell v. Howe, 43" Vt. 403; McCormifk v. Wheeler, 36 111. 114, 85 Am. Deo. 388; Haven v. Snow, 14 Pick. (Mass.) 28; Constant v. University, 111 N. Y. 004. 19 N. E. 631 ADMISSION — NOTICE — LIABILITY OF PRINCIPAL. 187 involves the necessity of concealing facts from him, notice of the facts, thus fraudulently concealed, will not be im- puted to the principal. ^'^ III. Principal's Liahility for Tort of Agent. § 117. In general. A person is liable in damages for his torts whether committed personally or by the hand of an agent ;^° and, as we have seen, this liability may arise from ratification, as well as from precedent authorization, of a wrongful act done by one person in behalf of another.^^ So, even in cases where authorization of a wrongful act can not be sho^^^l, liability may arise, within prescribed lim- its, from the existence between two persons of such a relation as to make one responsible for the acts of the other.^^ § 118. Master and servant. Broadly stated, a master is liable not only for such torts of his servant as he may be said to have authorized, but also for wrongful acts, unau- 29 Innerarity v. Merchants' Nat. Bank, 139 Mass. 332, 1 N. E. 282; American Surety Co. v. Pauly, 170 U. S. 133; Allen v. Rail- way Co., 150 Mass. 200, 22 N. E. 917; Traders' & Truckers' Bank V. Black, 108 Va. 59, 60 S. E. 743; Sebald v. Citizens' Bank, 31 Ky. Law Rep. 1244, 105 S. W. 130. Notice to an agent is not imputed to his principal, where the presumption that the agent will communicate his knowledge is rebutted by the fact of his adverse interest. Booker v. Booker, 208 111. 529, 70 N. E. 709. 30 Cooley on Torts, Chap. XVIII. 31 Dempsey v. Chambers, 154 Mass. 330, 28 N. E. 279; Ante § 54 (c). 32 Hearns v. Waterbury Hospital, 66 Conn. 98, 33 Atl. 595. "The rule is obviously founded on the great principle of social duty, that every man in the management of his own affairs, whether by himself or his agents or servants, shall so conduct them as not to injure another; and if he does not, and another thereby sus- tains damage, he shall answer for it." Farwell v. Railroad Corp., 4 Mete. (Mass.) 49, 38 Am. Dec. 339. 188 THE LAW OF AGENCY. thorized, or even expressly forbidden, but committed by the servant within the scope of his employment and in fur- therance of it.^^ Thus, if a servant, employed to drive a wagon, is guilty of negligence in driving at a high rate of speed, the master would be liable, notwithstanding that he had ordered the servant to drive slowly, provided, of course, that at the time, the servant, in a general way, was engaged in the master's business."* § 119. Principal and agent. The liability of a prinei pal for his agent's torts is deemed, on principle, the same as that of a master for his servant 's wrongs ; but in most of the cases cited to establish a principal's liability, the relation existing is really that of master and servant."' The scope of an agent's authority is necessarily so very narrow, compared to the scope of a servant's employment, fhat even though the liability be the same, a principal much less frequently can be deemed responsible for his agent's wrongful acts than can a master for the torts of his serv- ant.^^ Where a principal authorizes the commission of a 33 Railway Co. v. Hackett, 58 Ark. 381, 24 S. W. 881; Potulni v Saunders, 37 Minn. 517, 35 N. W. 379. 84 Staples V. Schniid, 18 R. I. 224, 26 Atl. 193; Ritchie v. Waller, 63 Conn. 155, 28 Atl. 29; Harriman v. Railway Co., 45 Ohio St. 11. 12 N. E. 451. 3s Singer Mfg. Co. v. Rahn. 132 U. S. 518, 10 Sup. Ct. 175; Mul- vehill V. Bates, 31 Minn. 364, 17 N. W. 959; Owensl)oro Wagon Co. V. Doling, 32 Ky. Law Rep. 816, 107 S. W. 2G4; Barree v. Cape Girardeau, 197 Mo. 382, 95 S. W. 330. 80 Using the term in its strictest sense, an agent Is employed to bring his principal Into business or contractual relations with others; few tortious acts would come within the scope of such employment. Frofpiontly an agent's duties broaden into those of a Rfrvant, as wh(M'e a person oniployod to sell goods is intnistf';' wiHi a w;ij;oii to drive fioin house to house. Here (he oiiiployer'.-, ADMISSION — NOTICE — LIABH^ITY OF PRINCJriVL. 189 fraud or other tort by his agent, or ratifies the same after commission, the wrongful act is his, and he clearly is liable therefor.^^ So, if in the performance of an agency, and in furtherance thereof, a tort is committed, incident to such performance, the wrong may be deemed the act of the prin- cipal.^* Thus, where a clerk in a store negligently dis- charges a gun, which he is selling, the principal would be liable for resulting damages.^^ Where it was part <3f the duty of a ticket agent, in a general passenger office, to post notices pertaining to business therein conducted, and such agent posted an extract from a newspaper, which consti- tuted a libel upon a neighboring ticket broker, it was held that the company was liable.*" And the ruling was the same where a ticket agent, believing that a spurious bill had been passed upon him in exchange for a ticket and good money in change, wrongfully caused the purchaser's arrest.*^ So, where an attorney in the conduct of a suit liability broadens correspondingly. See Singer Mfg. Co. v. Rahn, 132 U. S. 518. 3T State V. Smith, 78 Me. 260, 57 Am. Rep. 802; Harrington v. Hall (Del.), 63 Atl. 875; Dempsey v. Chambers, 154 Mass. 330, 28 N. E. 279. 38 Allen V. Publishing Co., 81 Wis. 120, 50 N. W. 1093; Turner v. Insurance Co., 55 Mich. 236, 21 N. W. 326; Grand Rapids, etc., Ry. Co. V. King, 41 Ind. App. 701, 83 N. E. 778; Lewis v. Amorous, 3 Ga. App. 50, 59 S. E. 338. Where a mortgagee directs an agent to make seizure of property under a chattel mortgage, he is liable for misconduct of the agent in making the seizure. Williams v. Tolbert, 76 S. C. 211, 56 S. E. 908. 39 Garretzen v. Duenkel, 50 Mo. 104, 11 Am. Rep. 405. 40 Fogg V. Railway, 148 Mass. 513, 20 N. E. 109. See Pennsyl- vania Iron Works v. Henry Voght Mach. Co., 29 Ky. Law Rep. ^61, 96 S. W. 551; Hoboken Printing Co. v. Kahn. 59 N. J. Law, ns, 35 Atl. 1053; Singer Mfg. Co. v. Taylor, 150 Ala. 574, 43 South. 210. *i Palmeri v. Railway Co., 133 N. Y. 261, 30 N. E. 1001. But, if 190 THE LAW OF AGENCY. wrongfully causes a seizure of property, the client would be liable in damages.*^ § 120. Fraud, (a) In general. Since tlie purpose of most agencies is to bring the principal into contractual re- lations with third persons, the liability of a principal for tort of an agent usually arises in cases where the agent practiced fraud in negotiating a contract. It is clear that where a principal authorizes the fraud, as where he directs his agent to make false representations, the fraud is his. and he is liable. But the liability will arise, though th;^ principal be innocent, where the agent, in practicing the fraud, acted within the scope of his employment, and in furtherance of it. or, to use terms of agency, where he acted within the scope of his authority, real or apparent.*^ Thus, where an agent authorized to sell property makes false rep- resentations concerning the same, for the purpose of induc- ing a person to buy, (lie principal is liable for the fraud. ^^ the agent, from a sense of public duty, accepts what he believes to be counterfeit money in order to cause the arrest, he is not acting in furtherance of his employment, and the company is not liable. Mulligan v. Railway, 120 N. Y. 506, 29 N. E. 952. See Larson v. Association, 71 Minn. lOl, 73 N. W. 711. *2 Foster v. Wiley, 27 Mich. 245, 15 Am. Rep. 185. "A client who puts his claim into the hands of an attorney for suit is pre- sumed to authorize such action as the latter in his superior knowledge of law may decide to be legal." Cooley, J. 43Griswold V. Plaven, 25 N. Y. 595, 82 Am. Dec. 380; Yeoman v. McClenahan, 190 N. Y. 121, 82 N. E. 108G; Griswold v. Gebbie, 126 Pa. St. 353, 17 Atl. 073; Gate v. Blodgett, 70 N. H. 316, 48 Atl. 281. "Jeffrey v. Bigelow, 13 Wend. (N. Y.) 518, 28 Am. Dec. 476; Haskell v. Starbird, 152 Mass. 117, 25 N. E. 14; Kendrlck v. Col- yar, 143 Ala. 597, 42 South. 110; Millard v. Smith, 119 Mo. App. 701. 95 S. W. 940; Tlojjkins v. Insurance Co., 57 Iowa. 203, 10 N. W. 605. Some of the cases hold that an action for deceit will not lie against an Innocont prlnripal. Kennedy v. McKay. 45 N. J. ADMISSION — NOTICE — LIABILITY OP PRINCIPAL. 191 The agent is presumed to possess authority to make such epresentations as usually accompany such transactions as !hat in which he is engaged;*^ and, furthermore, having given an agent authority, "the principal is responsible for the fraudulent, as well as the fair, means used by the agent, if they are in the Hue of accomplishing the object of the agency. " ** (b) Not for principal's benefit. Where an agent uses his position as such, to perpetrate an independent fraud for his own benefit, the wrongful act clearly is not in fur- therance of the agency, and hence, it would seem, should in no way be imputed to the principal. On this proposi- tion there is conflict of authority.*^ Thus, where a freight agent, authorized to issue bills of lading, upon receipt of goods for shipment, fraudulently issues such a bill, where no goods have been received, and the same comes into the hands of a ho)ia fide purchaser, it has been held by the Supreme Court of the United States that the railway com- pany would not be liable.*^ "The fraud," said the court, Law, 288; Keefe v. Sholl, 181 Pa. St. 90, 37 Atl. IIG. But the fraud always will constitute a defense to the contract. 45 Hartford Ins. Co. v. Sherman, 223 111. 329, 78 N. B. 923; Mayer v. Dean, 115 N. Y. 556, 22 N. E. 261. An owner of land is bound by representations of his agent in negotiating a lease thereof. Finch v. Causey, 107 Va, 124, 57 S. E. 562. *6 Wolfe V. Pugh, 101 Ind. 293. See Western Cottage Piano Co. V. Anderson, 45 Tex. Civ. App. 513, 101 S. W. 1061. 47 National Bank of Commerce v. Railway, 44 Minn. 224, 46 N. W. 342; Dean v. King, 22 Ohio St. 118; Louisiana Nat. Bank v. Laveille, 52 Mo. 380; Bank of Batavia v. Railway Co., 106 N. Y. 195, 12 N. E. 433; Brooke v. Railway Co., 108 Pa. St. 529, 1 AU. 206; Keyser v. Hinkle, 127 Mo. App. 62. 106 S. W. 98. 48 Freidlander v. Railway Co., 130 U. S. 416; The Freeman v. Buckingham, 18 How. (U. S.) 182; National Bank of Commerce V. Railway Co., 44 Minn. 224, 46 N. W. 342. 192 THE LAW OF AGENCY. "was within the scope of the agent's employment or outside of it. It was not within it, for bills of lading could only be issued for merchandise delivered ; and being without it, the company, which derived no benefit from the unau- thorized and fraudulent act, can not be made responsi- ble."*^ By invoking the doctrine of estoppel, however, other courts, in analogous cases, hold the principal to lia- bility. ^° Thus, where the secretary of a corporation, who was also its agent for the transfer of stock, and was author- ized to countersign and issue stock, when signed by the president, forged the latter 's name and fraudulently issued a certificate to a confederate, it was held that the corpora- tion was liable in damages to a bona fide purchaser.^^ To like effect was the ruling in an earlier case, where the officer of a corporation, authorized to issue stock, fraudulently, and for his own benefit, issued certificates in excess of the amount which the corporation was authorized to issue, and caused them to be sold by the transferee to a bona fide pur- chaser." Said the court : "Where the principal has clothed his a-gent with power to do an act, resting upon 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 per- son dealing with such agent in entire good faith, pursuant to the apparent authority, may rely upon the representa- tion, and the principal is estopped from denying its truth ■•!' Fioidlander v. Railway Co., supra. f'O Hank of Halavia v. Railway Co., 106 N. Y. 19-5, 12 N. E. 433; Brooke v. Railway Co., 108 Pa. St. 529, 1 Atl. 206; Savings Bank V. Railway Co., 20 Kan,, 519. 61 Fifth Ave. Bank v. Railway Co., 137 N. Y. 231, 33 N. E. 378. "New York, etc., Ry. Co. v. Schuyler, 34 N. Y. 30. ADMISSION — NOTICE — LIABILITY OF PRINCIPAL. 193 to his prejudice. " ^^ In short, when one of two innocent persons must suffer by the act of a third, he who has enabled the third person to occasion the loss should sustain it. Thus, where the agent of a telegraph company sent a forged mes- sage, by which a person was defrauded, the company was held liable." IV. Principal's Liability for Agent's Crimes. § 121. In general. Since existence of criminal intent is necessary to constitute liability for criminal acts, neither a master, nor a principal, can be held criminally liable for crimes of a servant, or agent, unless he precedently author- ized or assented to the act.^^ For the same reason, crimi- nal liability can not arise from ratification.^^ If the agent be innocent, the principal alone is liable for crimes which he instigates ; ^^ but if both are guilty, the relation becomes that of principal and accessory, and the liability is joint.^* 53 New York, etc., Ry. Co. v. Schuyler, supra. An estoppel would not arise in favor of one who purchased directly from the agent. Bank of New York, etc., Ass'n V;. Trust Co., 143 N. Y. 559, 38 N. E. 713. Nor would it arise unless the agent was acting within an apparent authority; thus, where surrendered certifi- cates were delivered for cancellation to the manager of a corpo- ration who transferred them to a purchaser, the corporation was not liable. Knox v. American Co., 148 N. Tl. 441, 42 N. E. 988. B4 McCord V. Telegraph Co., 39 Minn. 181, 39 N. W. 315. 55 Com. V. Nichols, 10 Mete. (Mass.) 259, 43 Am. Dec. 432; Com. V. Briant, 142 Mass. 463, 8 N. E. 338; State v. Bacon, 40 Vt. 456; State V. James, 63 Mo. 570. Knowledge of the act will not render the principal liable, if it was done without his consent. Com. v. Putnam, 4 Gray (Mass.), 16. 68 Morse v. State, 6 Conn. 9; Ante, § 54 (c). 57 Com V. Hill, 11 Mass. 135; State v. Learned, 41 Vt. 585; Gregory v. State, 26 Ohio St. 510; State v. Wyckoff, 31 N. J. Law. 65. As where a person puts poison into the hand of a child and. directs him to administer it. 58 People V. Lyon, 99 N. Y. 210; McClain Crim. Law, § 204. 13 194' THE LAW OF AGENCY. § 122. Assent of principal, (a) In general Assent of the principal must be actually shown, and can not be in- ferred from the fact of employment to conduct a lawful business.^® In cases of sale of libelous books, or commis- sion of criminal nuisances, where the nuisance is the natural consequences of the business engaged in, prior assent may be presumed.®" And, so, frequently in cases of sale of liquor without license.®^ (b) Statutory offenses. In cases of certain police regu- lations, punishment may be imposed irrespective of intent to violate them ; on the theory that they impose an absolute duty upon particular persons to see that prohibited acts are not committed.®^ Thus, where a statute forbids the opening of saloons on Sunday, its penalty is usually held to be denounced against the person whose saloon is open, and may be enforced against him, notwithstanding that the saloon was kept open by an agent without his assent.®* 69 Hipp V. State, 5 Blackf. (Ind.) 149; Sloan v. State, 8 Ind. 312; State v. Smith, 10 R. I. 258. 60 Com. V. Morgan, 107 Mass. 199; State v. Mason, 26 Ore. 273. 38 Pac. 130; Com. v. Gray, 150 Mass. 327, 23 N. E. 47; Hipes v. State, 73 Ind. 39; Reg. v. Stepehen L. R., 1 Q. B. (Eng.) 702. 81 Com. V. Nichols, 10 Mete. (Mass.) 259, 43 Am. Dec. 432; State V. Wentworth, 65 Me. 234; State v. O'Connor, 58 Minn. 193, 59 N. W. 999. The presumption is prima facie only and may be rebut ted. Com. v. Park, 1 Gray (Mass.) 553; People v. Parks, 49 Mich 333; Com. v. Joslin. 158 Mass. 482, 33 N. E. 653. 62 Carroll v. State, 63 Md. 551, 3 Atl. 29; State v. Denoon, 31 W. Va. 122, 5 S. E. 315; State v. Kittelle, 110 N. C. 560, 15 S. E. 103; McClain Crim. Law, § 189. 63 State V. Roby, 52 Mich. 577, 18 N. W. 365; Com. v. Kelly, 140 Mass. 441, 5 N. E. 834. Statutes frequently make punishable a sale by any person, his servant or agent. State v. Stewart, 81 Me. 515; State v. McCance, 110 Mo. 398, 19 S. W. 648. CHAPTER XII. LIABILITY OF THIRD PERSON TO PRINCIPAL. § 123. In general. 124. Sealed and negotiable instruments. 125. Other contracts. (a) Liability to undisclosed principal. (b) Principal excluded. 126. Defenses. (a) In general. (b) EstOFpel. 127. Money paid through mistake. 128. Property wrongfully transferred. (a) .In general. (b) Indicia of ownership. (c) Money and negotiable instruments. 129. Following trust funds. 130. Fraud. (a) In general. (b) Collusion with agent. 131. Causing loss of service. § 123. In general. Obligations of contract are always reciprocal. Hence, where a principal is bound by contract, made through an agent, with a third person, the latter, of course, is reciprocally bound. In those cases where an agent, acting within the scope of his authority, properly executes a contract in the name of the principal, the prin- cipal alone is bound by such contract to the third per- son, and the third person in turn is liable thereon to the principal and to no one else.^ The situation is' the same as 1 Sharp V. Jones, 18 Ind. 314, 81 Am. Dec. 359; Lamson & Good" now Mfg. Co. V. Russell, 112 Mass. 387. 196 THE LAW OF AGENCY. it would have been had the principal acted in person. Hence liability on such a contract is subject to such de- fenses as could have been made had the principal dealt in person. Thus, if the contract had been induced by fraud of the agent, the third party may defend on that ground.^ And so, as we have seen, notice to an agent of adverse rights, affecting the transaction, may usually be imputed to the principal.' § 124. Sealed and negotiable instruments. As was: fully explained in an earlier chapter, a principal is not bound by a sealed or negotiable instrument, though ex- ecuted for him by his agent, unless he appears upon the face of such instrument as the party thereto.* Where the principal is not boimd to the third person by virtue of such an instrument, the third person, of course, is not bound thereby to the principal.^ § 125. Other contracts, (a) Liability to undisclosed principal. As we have already seen, where an agent exe- cutes a simple contract, other than a negotiable instrument, in his own name, but in behalf of an undisclosed principal, the third person, upon discovery of the latter 's existence. may, at his option, elect to hold such principal.® This zSandford v. Handy, 23 Wend. (N. Y.) 260; Mundorfl v. Wick- ersham, 63 Pa. 87, 3 Am. Rep. 531; Union Trust Co. v. Phillips. 7 S. D. 225, 63 N. W. 903; Ante § 120. 3 Ante § 116. ♦ Ante § 107. B Spencer v. Field, 10 Wend. (N. Y.) 88; Ilenricus v. Englert. 137 N. Y. 488, 33 N. E. 550. A person not a party to a sealed con tract can not show that the party thereto acted as agent for him Elliott V. Brady, 192 N. Y. 221, 85 N. E. 69. e Ante § 109. LIABILITY OF THIRD PERSON TO PRINCIl'AL. 197 right, again, involves a reciprocal obligation. The princi- pal, in turn, may disclose himself, assume the position of the real party to the contract, and enforce against such third person the obligations thereof/ Before such disclo- sure, the third person may, v^ith safety, deal with the agent as the real party to the contract ; but after notice of a priu- cipal's existence, settlement with the agent would be made at peril.* Until appearance of the principal, the agent may enforce the contract, but his right is subservient to that of the principal who, even after suit has been started by the agent, may intervene and assert his superior position as the real party to the contract.® (b) Principal excluded. As is evident from our dis- cussion, a person who enters into a simple contract, other than a negotiable instrument, takes the chance of ultimately finding himself bound by the same to a person other than the one with whom he dealt; for the latter may prove merely the agent of an undisclosed principal. This possi- bility may, of course, be forestalled by so terming the con- tract as to exclude parties other than the one in whose name it is made, as where the latter specifies that he, personally, is the owner of property that forms the subject matter of the agreement.^" So, the nature of an obligation may be 7 Huntington v. Knox, 7 Cush. (Mass.) 371; Ames v. Railway Co., 12 Minn. 413; Foster v. Graliam, 166 Mass. 202, 44 N. E. 129; Elkins V. Railway Co., 19 N. H. 337, 51 Am. Dec. 184; Great Lake Towing Co. V. Mills Transp. Co., 83 C. C. A. 607, 155 Fed. 11; Noel Const. Co. V. Atlas Portland Cement Co., 103 Md. 209, 63 Atl. 384. 8 Dubois V. Perkin, 21 Ore. 189, 27 Pac. 1044; Pitts v. Mower, 18 Me. 361, 36 Am. Dec. 727. 9 Colburn v. Phillips, 13 Gray (Mass.) 64; Alsop v. Caines, 10 Johns. (N. Y.) 396; Sadler v. Leigh, 4 Camp. (Eng.) 195. 10 Winchester v. Howard, 97 Mass. 303, 93 Am. Dec. 93. See King V. Batterson, 13 R. I. 117, 43 Am. Rep. 13; Boston Ice Co. ▼. 19S THE LAW OF AGENCY. such as tc imply personal performtince, as in the case of contracts for services, where the character or skill of the person dealt with is an essential element of the agreement.^^ Thus, where a particular lawyer is retained to try a case, some other lawyer — though he might be a better one — could not assert a right to perform the service, on the ground that he was the undisclosed principal of the man employed,^^ He might, however, recover a fee due the agent for performance, by the latter, of the services^^ § 126, Defenses, (a) In general. Before disclosure of a principal, or notice, actual or constructive, of a princi- pal's existence, a third person is clearly justified in dealing upon the assumption that the agent is the real and only party to the transaction ; and his rights will be protected accordingly.^* Payment to the agent before notice of ex- istence of an undisclosed principal, discharges the third Potter, 123 Mass. 28, 25 Am. Rep. 9; Moore v. Vulcanite Cement Co., 106 N. Y. Supp. 393. Where exclusive credit is given the agent in his own name, an undisclosed principal can not sue on the contract. Cowan v. Curran, 216 111. 598, 75 N. E. 322. "Boston Ice Co. v. Potter, 123 Mass. 28, 25 Am. Rep. 9; Keliy V. Thuey, 102 Mo. 522, 15 S. W. G2; Kelly v. Thuey, 143 Mo. 422. 45 S. W. 301. So, generally where the agreement involves ele- ments of personal trust and confidence in the person acting as ostensible principal. Birmingham Matinee Club v. McCa.rty, 152 Ala. 571, 44 South. 042. 12 Eggleston V. Boardman, 37 Mich. 14. "Warder V. White, 14 111. App. 50; Sullivan v. Shailor, 70 Conn. 733, 40 Atl. 1054. '* Shine v. Kinealy, 102 111. App. 473. Where a person deal? ■with another, believing him to be the principal, an undisclosed principal, if he seeks to enforce the contract, must take it as the agent and the other party made it; — must suffer its burdens, and lake payments as the agent agreed to take them. Hook v. Crowo„ 100 Mo. 200. 01 Atl. 1080. LLVBILITY OF THIRD PERSON TO PRINCIPAL. 199 person from further liability." So, the third party may set off a debt due him from the agent, though the same arose after the transaction, but before notice of the agency .^^ And, generally, any defense that Avould have been good against the agent will be available against the undisclosed principal, provided the same arose before notice of the principal's existence." "Wliere the third person knows, or has reason to believe, that he is dealing with an agent, he will not be protected because the identity of the princi- pal was unknown.^^ (b) Estoppel. The rules laid down in the preceding subdivision are simply an application of the equitable doc- trine of estoppel. "Where a principal authorizes his agent to act as ostensible principal, he will not be permitted to assert the agency to the disadvantage of one who relied in good faith upon what appeared to be a different state of facts. ^® And though the agent violated instructions, and acted wrongfully, in not disclosing the fact that he was merely an agent, the principal may still be estopped to as- sert his rights, where he clearly put it within the power of the agent to deceive third persons. Thus, it is generally held in cases where an agent to sell is intrusted with pos- 15 Dubois V. Perkins, 21 Ore. 189, 27 Pac. 1044; Rice & Bullen Malting Co. v. Bank, 185 111. 422, 56 N. E. 1063. 16 Gardner v. Allen, 6 Ala. 187, 41 Am. Dec. 45; Frame v. Coal Co., 97 Pa. 309; Baxter v. Sherman, 73 Minn. 434, 76 N. W. 211. 17 Though an undisclosed principal may sue on a contract made with his agent, yet the other party will be entitled to set off any claim he may have against the agent. Durant Lumber Co. v. Sin-i Clair Lumber Co., 2 Ga. App. 209, 58 S. E. 485. isilsley V. Merriam, 7 Cush. (Mass.) 242. 54 Am. Dec. 721; Traub v. Milliken, 57 Me. 67, 2 Am. Rep. 14; Rosser v. Darden, 82 Ga. 219, 7 S. E. 919. « Baxter v. Sherman, 73 Minn. 434, 76 N. W. 211. 20Belfield v. Supply Co., 189 Pa. St. 189, 42 Atl. 131. 200 TtlE LAW OF AGENCY. session of the goods, and sells the same without disclosing the agency, that defenses good against the agent may be set up against the principal.^" "Where the defense consists merely of payment to the agent, it could also be predicated upon the ground that an agent to sell, when intrusted with possession, has implied, or apparent, authority to receive payments.^^ ■ But where an agent, not intrusted with possession, nor otherwise held out as owner of goods, which he is authorized to sell, makes a sale without disclosing the agency, the prin- cipal would not be bound by payment to the agent, nor could the buyer set off a debt due him from the agent.-- So, even though the agent is intrusted with possession, or otherwise held out as apparent owner, a third person deal- ing with him can not ignore facts which would put a rea- sonably prudent man on inquiry; and if he does ignore such facts and neglects to make such inquiry he is charged with constructive notice of the agency.-^ § 127. Money paid through mistake. Where money is paid, or property transferred, by an agent to a third party 21 Ante § 96. 22McLachlin v. Brett, 105 N. Y. 391, 12 N. E. 17. "The fact that the agent had not possession of the property he was selling was sufficient to require of defendant that, before payment, he should ascertain to whom payment was due." Crosby v. Hill, 39 Ohio St. 100. 23 Miller v. Lea, 35 Md. 396, 6 Am. Dec. 417; Baxter v. Sherman, 73 Minn. 436, 7G N. W. 211; Hook v. Crowe, 100 Me. 399, 61 Atl. 1080. Thus, where a cotton broker, Intrusted with possession, sold in his own name, but the buyer knew that he sometimes sold la his own name when merely acting as broker, and in this case the buyer had no belief either way, he was not permitted to set off against the principal a debt due from the broker. Cook v. Eshelby, 12 App. Cas. (Eng.) 271. LLVBILITY OF THIRD PERbON TO PRINCIPAL. 201 through mistake, or under other circumstances which would justify recovery had the principal himself paid the money or made the transfer, the third party will be liable to the principal for the return of such money or other property.^* So, money illegally exacted from an agent, or lost by him in gambling, may be recovered by the principal.^' § 128. Property wrongfully transferred, (a) In gen- eral. Where an agent without authority, transfers the property of his principal to a third person, no title passes ; and the principal may recover such property from any one holding the same.^® Thus, where an agent having posses- sion of property of his principal, but not for purpose of sale, fraudulently sells the same even to an innocent person, such person no more acquires title than he would have if lie had purchased from a thief ; and the owTier may recover the property from him.^^ As we saw in an earlier chapter, the conduct of the prin- cipal may have been such as to estop him to deny want of authority in the agent to sell.^^ Ordinarily, mere posses- sion of goods does not imply authority to sell them, but under certain circumstances, intrusting an agent with pos- session may be sufficient to estop the principal either from denying that the agent was empowered to sell, or from de- 2* United States v, Bartlett, 2 Ware. (U. S.) 17. 25 Holman v. Frost, 26 S. C. 290; Mason v. Waite, 17 Mass. 560; Burnham v. Fisher, 25 Vt. 514. 26 Levi V. Booth, 58 Md. 308, 42 Am. Rep. 332; Manning v. Keen- an, 73 N. Y. 45; Gilman Linseed Oil Co. v. Norton, 89 Iowa, 434, 56 N. W. 663. 27 Thompson v. Barnum, 49 Iowa, 392; Bertholf v. Quinlan, 68 111. 297; Grubel v. Busche, 75 Kan. 820, 91 Pac. 73. *8 Ante § 51. 202 THE LAW OF AGENCY. nying ownership in the agent.^^ "Two things," said the court in a New York ease, "must concur to create an es- toppel by which an owner may be deprived of his property, by the act of a third person, without his assent: 1. The owner must clothe the person assuming to dispose of the property with the apparent title to, or authority to dispose of, it; and 2. The person alleging the estoppel must have acted and parted with value, upon the faith of such ap- parent ownership or authority, so that he will be the loser if the appearances to which he trusted are not reaL"*° Thus, if a man voluntarily places his property in the hands of another whose business it is to sell such property as ageni for others, in the absence of circumstances indicating a contrary intention, the inference arises that such agent has authority to sell the property, and innocent third persons may safely act upon such inference.^^ As was said in an English case : " 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 good:: to an auction room, can it be supposed that he sent them thither merely for safe keeping ?"^^ Mere possession will not imply authority to sell unless it is inconsistent with any other inference ; ^^ and unless 29 Ante § 90. 30 Barnard v. Campbell, 55 N. Y. 456, 14 Am. Rep. 289; s. c, 58 N. Y. 73, 17 Am. Rep. 208. 31 Smith V. Clews, 105 N. Y. 283, 59 Am. Rep. 502, 11 N. E. 632; Ihalh V. Stoddard, 91 Me. 499, 40 Atl. 547; Towle v. Leavitt, 23 N. H. 3C0, 55 Am. Dec. 195. It is not enough to create an estoppel that the person intrusted with possession is a dealer in that class of goods. Levi v. Booth, 58 Md. 305, 42 Am. Rep. 332. 32 Pickering v. Bu.sl<, 15 East. 38. 33 Covin V. ITlll, 4 Donlo (N. Y.), 323; McNeil v. Tenth Nat I'.ank. AC N. Y. 325, 7 Am. Rep. 341. LIABILITY OP THIRD PEUSON TO PRINCIPAL. 203 possession is acquired M'itli the owner's consent.'''* "If it were otherwise, ' ' to quote an English 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." ^^ Neither would it be safe to intrust goods to an. agent for storage or transportation ; and a person could be divested of title by an agent wrongfully securing possession of goods and selling them to another. But in none of these cases could the agent pass title.^® (b) Indicia of ownership. Where, however, the owner of property not only intrusts the agent with possession, but also invests him with written evidence or indicia of owner- ship, he will be estopped, as against an innocent purchaser, to deny the agent's title.^^ Thus, w^here the owner of bank shares delivered the same to a broker, indorsed with an as- signment and a power of transfer signed and sealed by him- self, and the broker wa^ongfuUy disposed of the same for his own benefit, the principal was held estopped to assert his title against a bona fide holder.^^ So, where an agent purchased a horse for his principal, but took the bill of sale in his own name, and the principal, with knowledge of that fact, allowed the agent, in order to train it, to keep pos- session of the horse and also of the bill of sale, he was es- topped to set up his title against an innocent person to 34Saltus V. Everett, 20 Wend. (N. Y.) 267, 32 Am. Dec. 541. 35 Wilkinson v. King, 2 Camp. 335. 36McMalion v. Sloan, 12 Pa. St. 229, 51 Am. Dec. 602; Gussner V. Hawks (N. D.), 101 N. W. 898. 37 Nixon V. Brown, 57 N. H. 34; Walker v. Railway Co., 47 Mich. 338, 11 N. W. 187; Moore v. Metropolitan Bank, 55 N. Y. 41, 14 Am. Rep. 173. 38 McNeil V. Tenth Nat. Bank, 46 N. Y. 325, 7 Am. Rep. 341. 20-1 THE LAW OF AGENCr. ' whom the agent, in fraud of his principal, subsequently sold the horse.^^ And, generally, any conduct of an owner of property which unequivocably creates appearance of ownership in another may be shown for the purpose of es- topping such o■^^^ler to set up title in himself.*" (c) Money and negotiable instruments. The rules dis cussed in the two preceding subdivisions have, in the main no application to the transfer of money, or of negotiabl instruments payable to bearer or indorsed in blank. It i the policy of the law, induced by business necessity, t( permit money, and such negotiable paper as is transferable by delivery, to pass freely from hand to hand unaffected by limitations not appearing on its face. "Where a persoji linds, or even steals, either money or negotiable paper pa> able to bearer or indorsed in blank, and pays out such money, or delivers, before maturity, such negotiable paper to an innocent person for value, the transferee acquires titb- good against even the original owner.*^ It follows, of course, that where an agent acquires, either rightly or tor- tiously, possession of money or negotiable paper of the char- acter described, belonging to his principal, he can, under like conditions, vest good title in an innocent transferee.*- 39 Nixon V. Brown, 57 N. H. 34. *o Calais Steamboat Co. v. Van Pelt. 2 Black. (U. S.) 372; Bart- lett V. Board, 59 111. 371. In order to estop the true owner, the purchaser must have parted with value, in good faith, and in r&- liance upon the appeaiance of ownership or authority in the agent. Barnard v. Campbell, 55 N. Y. 456, 14 Am. Rep. 289; s. c, on motion for rehearing. 58 N. Y. 73, 17 Am. Rep. 208. *i Tiedeman on Bills and Notes, § 93. After maturity a bill or note loses Its peculiar character of a negotiable instrument. "Burnham v. Ilolt, 14 N. H. 3C7; Smith v. Farmers', etc.. Bank, 2 Cal. A pp. 377, 84 Pac. 348. If the paper were payable to the prlncijial, hut not indorsed, its possession would be no evidence of LIABILITY OF THIRD PERSON TO PRINCIPAL. 205 § 129. Following trust funds. Where an agent \vrong- fully converts property of his principal into some other form, as where he purcliases property with funds belonging to his principal, he will be deemed to hold the same as trus- tee for the principal, whose equitable right in all proceeds of such wrongful transaction attaches, no matter through how many transmutations of form the property may have passed.*' "Where, however, an agent wrongfully using his principal's funds, purchases property and then transfers the same for value to an innocent purchaser, the trust in favor of the principal can not be enforced against such l>07ia fide holder.^* The principal's right or title in the property is merely equitable and can not defeat a legal title acquired for value and without notice.*^ § 130. Fraud, (a) In general. Where a third person in dealing with an agent is guilty of fraud, as where he in- duces the making of a contract by false representations, his liability to the principal is the same as it would have been had the principal dealt in person.^^ So, where a pub- lie officer made a false record, and a person suffered loss by title in the agent. Gibson V. Miller, 29 Mich. 355; Lancaster Nat Bank V. Taylor, 100 Mass. IS, 97 Am. Dec. 70. 43 Farmers' & Mechanics' Bank v. King, 57 Pa. St. 202, 98 Am. Dec. 215; Central National Bank v. Insurance Co., 104 U. S. 54; Third Nat. Bank v. Gas Co., 36 Minn. 75, 30 N. W. 440; Baker v. New York Nat. Bank, 100 N. Y. 31, 53 Am. Rep. 150. *4 Fifth Nat. Bank v. Hyde Park, 101 111. 595, 40 Am. Rep. 218; Roca V. Byrne, 145 N. Y. 182, 39 N. E. 812. The principal may reclaim property from a mere volunteer or purchaser with notice. Riehl v. Association, 104 Ind. 70, 3 N. E. 633; Smith v. Bank, 2 Cal. App. 377, 84 Pac. 348. *5 Pomeroy on Equity, § 591; Twohy Mercantile Co. v. Melhye, 78 Minn. 357, 81 N. W. 20. 46 Tuckwell V. Lamhert, 5 Cush. (Mass.) 23. 206 THE LAW OF AGENCY. reason of the fact that his agent, engaged in his business, was deceived by such record, the officer was held liable to the principal.*^ (b) Collusion with agent. An agent is required to ex- ercise in the performance of his duties the highest good faith, and can not be permitted, without the principal's full knowledge and consent, to represent the other party in a transaction.*® If, therefore, such other party colludes with the agent, or seeks in any way to influence his action adversely to the principal's interest, as by giving him a gratuity, such conduct constitutes a fraud upon the prin- cipal, who may rescind the contract upon that ground ; *^ or maintain an action against both agent and third pei'son for the wrong.^" § 131. Causing loss of service. Where a person mali- ciously induces an agent to break a contract of employ- ment and abandon his agency, it is usually held that such person would be liable in damages to the principal.^^ So, an action may be maintained against a third person for personal injury committed by him upon an agent which prevented the latter from performing some stipulated serv- 47 Perkins v. Evans, 61 Iowa, 35, 15 N. W. 584 «Ante § 25; Post § 150. 230 Farmers Co-Op. Trust Co. v. Floyd, 47 Ohio St. 525, 26 N. E. 110 217 Farmers etc., Bank v. Butchers, etc.. Bank, 16 N. Y. 125.. 5, 50, 56, 59 Fanners, etc., Bank v. Logan, 74 N. Y. 508 262 Farmers Loan & Trust Co. v. Wilson, 139 N. Y. 284, 34 N. E. 784 101, 103 Farmers & Mechanics Bank v. King, 57 Pa. St. 202, 98 Am. Dec. 215 205 Farmers & Mechanics Bank v. Colby, 64 Cal. 352 167 T-VBLE OF CASES CITED. 281 References are to pages. Farrar v. Besey, 24 Vt. 89 19 Farwell v. Railroad Corp., 4 Mete. (Mass.) 49, 38 Am. Dec. 339 187 Fatman v. Leet, 41 Ind. 133 135 Fay V. Burdett, 81 Ind. 433, 42 Am. Rep. 142 17 Fay V. Richmond, 43 Vt. 25 50, 55 Fearnley v. DeMainville, 5 Colo. App. 441, 39 Pac. 73 . 45, 47 Feiner v. Boynton, 73 N. J. Law 136, 62 Atl. 420 63 Fellows V. Commissioners, 36 Barb. (N. Y.) 655 75 Fellows V. Hartford, etc., Ry. Co., 38 Conn. 197 99 Fellows V. Northrup, 39 N. H. 117 33 Felt V. School District, 24 Vt. 297 232 Feltus V. Swan, 62 Miss. 415 220 Ferguson v. Hamilton, 35 Barb. (N. Y.) 427 178 Ferguson v. Houston, etc., Ry. Co., 73 Tex. 344, 11 S. W. 347 21 Ferguson v. Morris, 67 Ala. 389 11 Ferry v. Laible, 31 N. J. Eq. 506 148 Fetrow v. Wiseman, 40 Ind. 148 70 Field V. Stagg, 52 Mo. 534, 14 Am. Rep. 435 53 Fifth Ave. Bank v. Ry. Co., 137 N. Y. 231, 33 N. E. 378 192 Fifth Nat. Bank v. Hyde Park, 101 111. 595, 40 Am. Rep. 282 205 Finch V. Causey, 107 Va. 124, 57 S. E. 562 141, 191 Findlay v. Pertz, 13 C C. A. 559, 66 Fed. 427 206 Finn v. Railroad Corp., 112 Mass. 524, 17 Am. Rep. 128 222 Finnegan v. Lucy, 157 Mass. 439, 32 N. E. 656 11, 30 Fintel v. Cook, 88 Wis. 485, 60 N. W. 788 118 First Nat. Bank v. Dutcher, 128 Iowa 413, 104 N. W. 497. . . 129 First Nat. Bank v. Fourth Nat. Bank, 77 N. Y. 320, 33 Am. Rep. 618 231 First Nat. Bank v. Free, 67 Iowa 11, 24 N. W. 566 67 First Nat. Bank v. Hall, 8 Mont. 341, 20 Pac. 638 97, 142 First Nat. Bank v. Kilbourne, 127 111. 573, 20 N. E. 681 241 First Nat. Bank v. Linn Co. Nat. Bank, 30 Ore. 296, 47 Pac. 614 • 2 First Nat. Bank v. Loyhed, 28 Minn. 396, 10 N. W. 421 163 First Nat. Bank v. Nelson, 38 Ga. 391 6 First. Nat. Bank v. Mt. Tabor, 52 Vt. 87, 36 Am. Rep. 734.. 27 First Nat. Bank v. Sprague, 34 Neb. 318, 51 N. W. 846 39 Fish V. Kelly, 17 C. B. (N. S.) 194 (Eng.) 234 Fishbaugh v. Spunagle, 118 Iowa 337, 92 N. W. 58 5, 117, 139 Fisher v. Bush, 133 Ind. 315, 32 N. E. 924 235 282 TABLE OF CASES CITED. References are to pages. Fisher v. So. Loan & Trust Co., 138 N. C 90, 50 S. E. 592. .. . 105 Fisher v. Stevens, 16 111. 397 117 Fisk V. Holmes, 41 Me. 441 87 Fiske V. Eldridge, 12 Gray ( Mass. ) 474 165, 213 Fitzgerald Oil Co. v. Farmers Supply Co., 3 Ga. App. 212, 59 S. E. 713 119 Fitzhugh V. Wilcox, 12 Barb. (N. Y.) 235 16 Flaherty v. O'Connor, 24 R. I. 587, 54 Atl. 376 95 Flannagan v. Brown, 70 Cal. 254, 11 Pac. 706 101 Fleckner v. Bank, 8 Wheat. (U. S.) 338 69, 154 Flemyng v. Hector, 2 M. & W. 172 14 Flesh V. Lindsay, 115 Mo. 1, 21 S. W. 907 2 Fletcher v. Railway Co., 109 Mich. 363, 67 N. W. 330 181 Florida etc. Ry. Co. v. Varnedoe, 81 Ga. 175, 7 S. E. 129. . 60, 118 Fluker v. Ry. Co., 81 Ga. 461, 8 S E. 529 207 Flynn v. Butler, 189 Mass. 377, 75 N. E. 730 97 Fog V. Railway, 148 Mass. 513, 20 N. E. 109 189 Fogg V. Pew, 10 Gray (Mass.) 409, 71 Am. Dec. 662 179 Forbes v. Hagman, 75 Va. 168 82 Forlaw v. Augusta Naval Stores Co., 124 Ga. 261, 52 S. E. 898 239 Forrestier v. Boardman, 1 Story (U. S.) 43 240 Forth Smith Oil Co. v. Slover, 58 Ark. 168, 24 S. W. 106 182 Foss-Schneider Brw. Co. v. McLaughlin, 5 Ind. App. 415, 31 N. E. S28 2 Foste V. Standard Ins. Co., 34 Ore. 125, 54 Pac. 811 113 Foster v. Fuller, 6 Mass. 58 165 Foster v. Graham, 166 Mass. 202, 44 N. E. 129 197 Foster v. Preston, 8 Cow. (N. Y.) 198 227 Foster v. Smith, 2 Cold. (Tenn.) 474, 88 Am. Dec. 604 229 Foster v. Wiley, 27 Mich. 245, 15 Am. Rep. 185 158, 190 Fountaine Crossing Co. v. Ranch, 117 Mich. 401, 75 N. W. 1063 119 Fowler v. Atkinson, 6 Minn. 578 164 Fowler v. Shearer, 7 Mass. 14 162 Fox v. McGregor, 11 Barb. (N. Y.) 41 261 Fox V. Railway Co., 86 Iowa, 368, 58 N. W. 259 37 Fox v. Zimmerman, 77 Wis. 414, 46 N. W. 533 237 Fradley v. Hyland, 37 Fed. 49 175 Frahm v. Metcalf , 75 Neb. 241, 106 N. W. 227 55, 141 Frambach v. Frank, 33 Colo. 529, 81 Pac. 247 211 Frame v. Tnal Co., 97 Pa. St. 309 199 TABLE OF CASES CITED. 283 References are to pages. Francis V. Kerker, 85 111. 190 235 Francis v. Reeves, 137 N. C. 269, 49 S. E. 213 62 Frank v. Herrold, 63 N. J. Eq. 443, 52 Atl. 152 3 Frank v. Jenkins, 22 Ohio St. 597 80 Franklin v. Johnson, 147 111. 520, 35 N. E. 480 167 Franklin Ins. Co. v. Sears, 21 Fed. 290 227 Franklin Mining Co. v. Harris, 24 Mich. 115 254 Fraternal Army of Amer. v. Evans, 215 111. 629, 74 N. E. 689 64 Fred W. Wolf Co. v. Galbraith, 39 Tex. Civ. App. 351, 87 S. W. 390 138 Frederickson v. Locomobile Co., 78 Neb. 775, 111 N. W. 845. . 24S Freeman v. Great Western Ry. Co., 38 L. T. Rep. 851 23 Freeman the v. Buckingham, 18 How. (U. S.) 182 191 Freeman v. Otis, 9 Mass. 272, 2 Am. Dec. 66 214 Freidlander v. Ry. Co., 130 U. S. 416 191, 192 French v. Price, 24 Pick. (Mass.) 13 174 Frick & Co. v. Larned, 50 Kan. 776, 32 Pac. 383 231 Frink v. Roe, 70 Cal. 296, 11 Pac. 820 100, 101, 105, 122 Fritchey v. Bosley, 56 Md. 96 158 Fritz V. Chicago Grain Co., 136 Iowa 699, 114 N. W. 193 142 Frost V. Deering, 21 Me. 156 31 Frost V. Wolf, 77 Tex. 455, 14 S. W. 440 52 Frothingham v. Everton, 12 N. H. 239 262 Fry V. Leslie, 87 Va. 2G9, 12 S. E. 671 22 Fuller V. Ellis, 39 Vt. 345, 94 Am. Dec. 327 226 Fuller V. Rice, 52 Mich. 435, IS N. W. 204 42 Fullman v. West Brookfield, 9 Allen (Mass.) 1 160, 213 Furnas v. Frankman, 6 Neb. 429 38 Fumeaux v. Esterly, 36 Kan. 539, 13 Pac. 824 136 G. Gaffney v. Hayden, 110 Mass. 137, 14 Am. Rep. 580 22 Galveston, etc., Ry. Co. v. Allen, 42 Tex. Civ. App. 576, 94 S. W. 417 142 Gangwere, in re, 14 Pa. St. 417, 53 Am. Dec. 554 18 Gano V. Chicago, etc., Ry. Co., 49 Wis. 57, 5 N. W. 45 125 Gardner v. Allen, 6 Ala. 187, 41 Am. Dec. 45 199 Gardner v. Boston & M. Ry. Co., 70 Me. 181 4 Gardner v. Gardner, 5 Cush. (Mass.) 483, 52 Am. Dec. 740.. 52 Gardner v. Ogden, 22 N. Y. 327, 78 Am. Dec. 192 236 284: TABLE OF CASES CITED. References are to pages Garfield v. Peerless Car Co., 189 Mass. 395, 75 N. E. 695 57 Garland v. Wells, 15 Neb. 298, IS N. W. 132 54, 81 Garretsen v. Dunkel, 50 Mo. 104, 11 Am. Rep. 405 189 Garrey v. Stadler, 67 Wis. 512, 30 N. W. 787 , 246 Gaston v. Drake, 14 Nev. 175, 33 Am. Rep. 548 46 Gates V. Bingham, 49 Conn. 275 17 Gates V. Brower, 9 N. Y. 205, 59 Am. Dec. 530 63 Gaty V. Sack, 19 Mo. App. 470 24 Gay V. Paige, 150 Mich. 463, 114 N. W. 217 240 Gelatt V. Ridge, 117 Mo. 553, 23 b. W. 882 90, 247 George N. Pierce Co. v. Beers, 190 Mass. 199, 76 N. E. 603. . 235 George O. Richardson Mach. Co. v. Swartzel, 70 Kan. 773, 79 Pac. 660 250 George v. Sandell, 18 La. Ann. 535 67 Georgia Pac. Ry. Co. v. Propst, 83 Ala. 518, 3 South. 764 37 Gerhardt v. Boatmens Sav. Inst., 38 Mo. 60, 90 Am. Dec. 407 243 Gerhart v. Peck, 42 Mo. App. 644 55 German Fire Ins. Co. v. Grunert, 112 111. 68, 1 N, E. 113 153 Geisinger v. Beyl, 80 Wis. 443, 50 N. W. 501 237 Geylin v. DeVilleroi, 2 Houst. (Del.) 311 55, 129 Gheen v. Johnson, 90 Pa. St. 38 156 Gibney v. Curtis, 61 Md. 192 128 Gibson v. Miller, 29 Mich. 355 205 Gibson v. Snow Hdw. Co., 94 Ala. 346, 10 South. 304... 2, 59, 118 Gilbert v. Deshon, 107 N. Y. 324, 14 N. E. 318 140, 142 Gilbert v. How, 45 Minn. 121, 47 N. \v . G43 127 Gilbert v. Holmes, 64 111. 548 93, 97 Gilbraith v. Lineberger, 69 N. C. 145 64 Gilchrist v. Pearson, 70 Miss. 351, 12 South. 333 130 Gill V. Middleton, 105 Mass. 477, 7 Am. Rep. 548 233, 234 Gillett V. Board of Suprs. Logan Co., 67 111. 256 47 Gilliland v. Gasque, 6 S. C. 406 158 Gilman v. Brown, 1 Mason (U. S.) 191, Fed. Cas. No. 5,441.. 261 Gilman Linseed Oil Co. v. Norton, 89 Iowa 434, 56 N. W. 663 146, 201 Glass V. Glass, 76 Ala. 3G8 20 Glen V. Savage, 14 Ore. 567, 13 Pac. 442 119, 142 Goesle v. Binicler, 14 How. (U. S.) 589 13 Gootz V. Bank, 119 U. S. 551 182 Golin.ski v. Allison, 114 Cal. 458, 46 Pac. 295 121 Gonzalla v. Bartlesman, 143 111. 634, 32 N. E. 532 2:;7 TABLE OP CASES CITED. 285 References are to pages. Goodenough v. Thayer, 132 Mass. 152 211 Goodeno-w v. Tyler, 7 Mass. 36, 5 Am. Dec. 22 147, 155 Goodman v. Meixel, 65 Ind. 32 257 Goodwin v. Bowden, 54 Me. 424 219 Gordon v. Insurance Co., 2 Pick. (Mass.) 249 58 Goss V. Stevens, 32 Minn. 472, 21 N. W. 549 78, 90, 247 Gould V. Norfolk Lead Co., 9 Cush. (Mass.) 338, 57 Am. Dec. 50 113 Gower v. Andrews, 159 Cal. 119, 43 Am. Rep. 242 23? Grady v. Inslrance Co., 60 Mo. 116 33, 34 Graff V. Callahan, 158 Pa. St. 380, 27 Atl. 1009 2, 63 Graham v. Cummings, 208 Pa. St. 516, 57 Atl. 943 12, 239 Graham v. Duckwall, 8 Bush. (Ky.) 12 155, 156, 223 Grand Pac. Hotel Co.. v. Pinkerton, 217 111. 61, 75 N. E. 427. . 142 Grand Rapids Elec. Co. v. Walsh Mfg. Co., 142 Mich. 4, 105 N. W. 1 135 Grand Rapids, etc., Ry. Co. v. King, 101 Ind. App. 701, 83 N. E. 778 189 Grant v. Humerick, 123 Iowa 571, 94 N. W. 510 112 Grant v. Ludlow, 8 Ohio St. 1 233 Gratz V. Improvement Co., 27 C. C. A. 305, 82 Fed. 381 98 Graul V. Strutzel, 53 Iowa 715, 6 N. W. 119 147 Grauman v. Reese, 13 Ky. Law Rep. 683 260 Gravatt v. State, 25 Ohio St. 162 ?. Graves v. Horton, 38 Minn. 66, 35 N. W. 568 69, 112, 116, 129 Gray v. Farmers Nat. Bank, 81 Md. 631, 32 Atl. 518 9 Gray v. McReynolds, 65 Iowa 461, 21 N. W. 777.' 42 Great Lake Towing Co. v. Mills Transp. Co., 83 C. C. A. 607, 155 Fed. 11 197 Great Western Mining Co. v. Woodmas, 12 Colo. 46, 20 Pac. 771 5 Greeley v. Barlett, 1 Greenl. (Me.) 172, 10 Am. Dec. 54 231 Green v. Hinkley, 52 Iowa 633, 3 N. W. 688 59, 112, 116 Greenberg v. Palmieri, 71 N. J. Law 83, 58 Atl. 297 174 Greene v. Goodard, 9 Mete. (Mass.) 212 258 Greenfield Bank v. Crafts, 4 Allen (Mass.) 447 74 Greenleaf v. Moody, 13 Allen (Mass.) 363 229 Greening v. Steele, 122 Mo. 287, 26 S. W. 971 93 Gregory v. State, 26 Ohio St. 510 40, 193 Griggs V. Swift, 82 Ga. 392, 9 S. E. 1062 102 Grinell V. Buchannan, 1 Daly (N. Y.) 538 34 286 TABLE OF CASES CITED. References are to pages. Griswold v. Gebbie, 126 Pa. St. 353, 17 Atl. 673 131, 190 Griswold v. Haven, 25 N. Y. 595, 82 Am. Dec. 380 40, 70, 190 Grove's Estate, In re, 127 Iowa 121, 102 N. W. 804 4S Grosscup V. Downey, 105 Md. 273, 65 Atl. 930 121 Grove v. Hodges, 55 Pa. St. 504 7S Groover v. Warfield, 50 Ga. 644 223 Grubel v. Busche, 75 Kan. 820, 91 Pac. 73 201 Grumley v. Webb, 44 Mo. 444, 100 Am. Dec. 304 237 Guadelupo, etc., Mining Co. v. Beatty (Tenn.) 1 S. W. 348.. 80 Guelich v. Bank, 56 Iowa 434, 9 N. W. 328 38, 39, 243 Guesnard v. Railway Co., 76 Ala. 453 132 Guest v. Burlington Opera House Co., 74 Iowa 457, 38 N. W. 158 174 Guild V. Allen, 28 R. I. 430, 67 Atl. 855 13 Gulick V. Grover, 38 N. J. Law 463, 97 Am. Dec. 728 124, 152 Gundlach v. Fisher, 59 111. 172 93 Gussner v. Hawks (N. D.) 101 N. W, 898 203 Guthrie v. Imbrie, 12 Ore. 182, 6 Pac. 664 167 H. Haas V. Damon, 9 Iowa 589 242 Haas V. Malto-Grapo Co., 148 Mich. 358, 111 N. W. 1059 247 Hackett v. Van Frank, 105 Mo. App. 384, 79 S. W. 1013 116 Haebler v. Luttgen, 61 Minn. 315, 63 N. W. 720 261 Hagedorn v. Oliverson, 2 M. & S. 485 75 Hager v. Rice, 4 Colo. 90, 34 Am. Rep. 68 168 Haggerty v. St. Louis Ice Mfg. Co., 143 Mo. 238, 44 S. W. 1114 42 Hahl V. Kellogg, 42 Tex. Civ. App. 636, 94 S. W. 389 253 Haines v. Lewis, 54 Iowa 307, 6 N. W. 495 47 Hale V. Woods, 10 N. H. 470, 34 Am. Dec. 176 162, 163 Hall v. Bliss, 118 Mass. 554, 19 Am. Rep. 476 108 Hall V. Crandall, 29 Cal. 567, 89 Am. Dec. 64 215 Hall v. Finch. 29 Wis. 278, 9 Am. Rep. 559 56 Hall V.Hall, 44 N. H. 293 240 Hall v. Harper. 17 111. 82 81 Hall v. Lauderdale, 46 N. Y. 72 216 Hall v. Wallace, 88 Cal. 434, 26 Pac. 360 55 Hall v. White, J23 Pa. St. 95, 16 Atl. 521 70 Halllday v. Stuart, 151 U. S. 229, 14 Sup. Ct. 302 15S H.iluptzok V. Railway Co., 55 Minn. 446, 57 N. W. 144 32 TABLE OF CASES CITED. 287 References are to pages. Ham V. Boody, 20 N. H. 411, 51 Am. Dec. 435 89 Hamburg, The, Br. & L. 253 (Eng.) 58 Hamilton Buggy Co. v. Iowa Buggy Co., 88 Iowa 364 181 Hamilton v. Love, 152 Ind. 641, 53 N. E. 181 251 Hamilton Nat. Bank v. Nye, 37 Ind. App. 464, 77 N. E. 295.. 150 Hamilton v. Frothingham, 59 Mich. 253 247 Hamm v. Drew, 83 Tex. 77, 18 S. W. 434 114 Hammatt v. Emerson, 27 Me. 308, 14 Am. Dec. 598 181 Hammett v. Brown, 60 Ala. 498 242 Hammond v. Hannin, 21 Mich. 374, 4 Am. Rep. 490 52, 78, 90 Hammond v. Hussey, 51 N. H. 40, 12 Am. Rep. 41 233 Hancock v. Byrne, 35 Ky. 513 98 Hankinson v. Lombard, 25 111. 468, 79 Am. Dec. 384 119 Hanks v. Drake, 49 Barb. (N. Y.) 186 91 Hanscom v. Railway Co., 53 Minn. 119, 54 N. W. 944 57 Hansen v. Erickson, 28 111. 257 255 Hardee v. Hall, 12 Bush. (Ky.) 327 129 Hardy v. Waters, 38 Me. 450 21 Harlan v. Ely, 68 Cal. 52^, 9 Pac. 947 228 Harland v. Lilienthal, 53 N. Y. 438 26 Harper v. Bank, 54 Ohio St.. 425, 44 N. E. 97 174 Harper v. Little, 2 Greenl. (Me.) 14, 11 Am. Dec. 25 102, 104 Harralson v. Stein, 50 Ala.. 347 32 Harriman v. Railway Co., 45 Ohio St. 11, 12 N. E. 451 188 Harrington v. Gies, 45 Mich. 374 251 Harrington v. Hall, (Del.) 63 Atl. 875 189 Harris v. Chamberlain, 126 Mich. 280, 85 N. W. 728 45 Harris v. San Diego Flume Co., 87 Cal. 526, 25 Pac. 758.... 34 Harrison v. Jackson, 7 T. R. 207 (Eng.) 51 Harrison v. Kansas City, etc. Ry. Co., 50 Mo. App. 332 142 Harrison v. McHenry, 9 Ga. 164, 52 Am. Dec. 435 70, 71 Harrison v. Mo. Pac. Ry. Co., 74 Mo. 264, 41 Am. Rep. 318.. 153 Hart V. TenEyck, 2 Johns. Ch. (N. Y.) 62 241 Hartford Ins. Co. v. Sherman, 223 111. 329, 78 N. E. 923. . 178, 191 Hartford Ins. Co. v. Wilcox, 57 111. 180 26, 104, 120, 122 Hartley's Appeal, 53 Pa. St. 212, 91 Am. Dec. 207 100 Harvey v. McAdams. 32 Mich. 472 12 Harvey v. Mason City, etc. Ry., 126 Iowa 465, 105 N. W. 958 . 130 Harvey v. Merill, 150 Mass. 1, 22 N. E. 49 48 Harvey v. Smith, 179 Mass. 592, 61 N. E. 217 105 Harvey v. Turner, 4 Rawle, (Pa.) 222 240 288 Ti^LE OF CASES CITED. References are to pages. Haskell t. Starbard, 152 Mass. 117, 25 N. E. 14 190 Haskell v. Whitney, 12 Mass. 47 158 Haskins v. ^oyster, 70 N. C. 601, 16 Am. Rep. 780 206 Hastings v. Dollarhide, 24 Cal. 195 21 Hastings Nat. Bank v. Farmers Bank, 56 Neb. 149, 76 N. W. 430 138 Hatch V. Coddington, 95 U. S. 48 65, 99 Hathaway v. Moran, 44 Me. 67 71 Haughton v. Maurer, 55 Mich. 323, 21 N. W. 426 115 Haven v. Snow, 14 Pick. (Mass.) 28 186 Hawkins V. Chace, 19 Pick. (Mass.) 502 55 Hawkins v. McGroarty, 110 Mo. 550, 19 S. W. 830 78 Hawks V. Davis, 185 Mass. 119, 69 N. E. 1072 115 Hawley v. Keeler, 53 N. Y. 114 26 Hayes v. Campbell, 63 Cal. 143 142 Hayes v. City of Atlanta, 1 Ga. App. 25, 57 S. E. 1087 78 Hayner v. Churchill, 29 Mo. App. 676 136, 143 Hajmes v. Gay, 37 Wash. 230, 79 Pac. 794 185 Hayward v. Nordberg Mfg. Co., 29 C. C. A. 438, 85 Fed. 4 43 Hayward Lbr. Co. v. Cox (Tex. Civ. App.) 104 S. W 403 135 Hazletine v. Miller; 44 Me. 177 153 Hazleton v. Sheckels, 202 U. S. 71 43 Heald v. Handy, 89 Cal. 032, 27 Pac. 67 153 Hearns v. Waterbury Hosp., 6 Conn. 98, 33 Atl. 595 40, 187 Heath v. Goslin, 80 Mo. 310., 50 Am. Rep. 505 14, 15 Heath v. Nutter, 50 Me. 378 ^ 128 Heath v. Stoddard, 91 Me. 499, 40 Atl. 547 146, 202 Heddens v. Younglove, 46 Ind. 212 242 Hedden v. Griffin, 136 Mass. 229, 49 Am. Rep. 25 210 Hedin v. Institution, 62 Minn. 146, 64 N. W. 158 219 Hefferman v. Buit, 7 Iowa 320, 71 Am. Dec. 445 157 Heff ron v. Armsby, 01 Mich. 505, 28 N. W. 072 11 " Haggenmyer v. Marks, 37 Minn. 0, 32 N. W. 785 '• . 230 Heineman v. Heard, 50 N. Y. 35 230 Heinzerling v. Agen, 46 Wash. 300, 90 I'ac. 2G2 85 Henderson v. Ford, 46 Tex. 627 100 Henderson v. State, 50 Ind. 234 T Heney v. Sargent, 54 Cal. 396 23 Honricus v. Englcrt, 137 N. Y. 488, 33 N. E. 550 190 Henry Amos Packing Co. V. Tucker, 8 Mo. App. 95 170 TABLE OF CASES CITED. 289 References are to pages. Henry Christian B. & L. Assn. v. Walton, 181 Pa. St. 201, 37 Atl. 261 73 Henry v. Heeb, 114 Ind. 275, 16 N. E. 606 73, 74 Henry v. Lane, 62 C. C. A. 625, 128 Fed. 243 120 Henry v. Omaha Packing Co. (Neb.) 115 N. W. 777 186 Hensel v. Mass, 94 Mich. 563, 54 N. W. 381 59, 117 Henshaw v. Foster, 9 Pick. (Mass.) 312 30 Herring v. Hottendorf, 74 N. C. 588 150 Herring v, Skaggs, 62 Ala. 180, 34 Am. Rep. 4 133, 147 Hersey v. Lambert, 50 Minn. 373, 52 N. W. 963 52 Heyn v. O'Hagen, 60 Mich. 150, 26 N. W. 861 83 Hibbard v. Peek, 75 Wis. 619, 44 N. W. 641 132 Higgins V. Armstrong, 9 Colo. 38, 10 Pac. 232 138 Higgins V. Bellinger, 22 Mo. 397 172 Higgins V. Moore, 34 N. Y. 417 7, 147, 156 Higgins V. Senior, 8 M, & W. 834 (Eng.) 173, 210 Higley v. Dennis, 40 Tex. Civ. App. 133, 88 S. W. 400 150 Hildreth v. Ayer & Lord Tie Co., 32 Ky. Law. Rep. 1212, 108 S. W. 255 242 Hill V. Cavely, 7 N. H. 215, 26 Am. Dec. 735 220 Hill V. Day, 34 N. J. Law, 150 107, 108 Hill V. Hill, 121 Ind. 255, 23 N. E. 37 246 Hill V. McMunn, 232 111. 488, 83 N. W. 963 90 Hill V. Miller, 76 N. Y. 32 149 Hill V. Williams, 59 N. C. 242 246 Hillman v. Hulett, 149 Mich. 289, 112 N. W. 918 172 Hilton V. Vanderbilt, 82 N. Y. 591 262 Hinderer v. State, 38 Ala. 415 4 Hindle v. Holcomb, 34 Wash. 336, 75 Pac. 873 239 Hinds V. Henry, 36 N. J. Law, 328 248, 249 Hinnon v. Newman, 35 Kan. 709, 12 Pac. 144 47 Hipes V. State, 73 Ind. 39 194 Hipp V State, 5 Blackf, (Ind.) 149 194 Hitchcock V. Buchannan, 105 U. S. 416 167 Hittson V. Browne, 3 Colo. 304 25 Hoboken Printing Co. v. Kahn, 59 N. J. Law, 218, 35 Atl. 1053 189 Hobson V. Hassett, 76 Cal. 203, 18 Pac. 320 213 Hodge V. Coombs, 66 U. S. 192 141 Hoene v. Pollak, 118 Ala. 617, 24 South 349 19 Hoge V. Turner, 96 Va. 624, 32 S. E. 291 116 Hogg V. Snaith, 1 Taunt 347 (Eng.) 122. 19 290 TABLE OF CASES CITED, Refp.rences are to pages. Hoit V. Cooper, 41 N. H. Ill 118 Holbrook v. Chamberlain, 116 Mass. 155, 17 Am. Rep. 146. . . . 78 Holbrook v. Oberne, 56 Iowa 324, 9 N. W. 291 153 Holden v. Ry. Co., 73 Vt. 317, 50 Atl. 1096 223 Holden v. Starks, 159 Mass. 503, 34 N. E. 1069 24S Holding V. Elliot, 5 H. & N. 117 (Eng.) 210 Holdon V. Curry, 85 Wis. 504, 55 N. W. 965 19 Holker v. Parker, 7 Crancli (U. S.) 436 158 Holladay v. Daily, 19 Wall (U. S.) 606 11, 122, 128 Holland v. Moon, 39 Ark. 120 30 Holliday v. Jackson. 30 Mo. App. 263 41, 72 Hollway v. Ark. City Mill Co., 77 Kan. 76, 93 Pac. 577 82, 91 Holmau v. Frost, 26 S. C. 290 201 Homan v. Brooklyn Life Ins. Co., 7 Mo. App. 22 38 Hook V. Crowe, 100 Me. 399, 61 Atl. 1080 198, 200 Hoover v. Perkins Wind Mill Co., 41 Minn. 143, 42 N. W. 866 95 Hopkins v. Ins. Co., 57 Iowa 203, 10 N. W. 605 190 Home V. Ingraham, 125 111. 198, 16 N. E. 868 121 Horn V. Western Land Assn., 22 Minn. 233 251 Hornberger v. Orchard, 39 Neb. 639, 58 N. W. 425 13 Horner v. Beasley, 105 Md. 193, 65 Atl. 820 115 Horsey v. Chew, 65 Md. 555 15S Hosier v. Beard, 54 Ohio St. 405, 56 Am. St. Rep. 720 IT Houghtaling v. Marvin, 7 Barb. (N. Y) 412 105 Houghton V. Bank, 26 Wis. 663, 7 Am. Rep. 707 214 Houghton V. Dodge, 18 N. Y. Super. Ct. 326 80 Houseman v. Assn., 81 Pa. St. 256 185 Houston County Oil Co. v. Bibby, 43 Tex. Civ. App. 100, 95 S. W. 562 38 Hovey v. Magill, 2 Conn. 680 160 Howard College v. Pace, 15 Ga. 486 9."i Howard v. Daily, 61 N. Y. 362, 19 Am. Rep. 285 250, 251 Howard v. Murphy, 70 N. J. Law 141, 56 Atl. 143 42, 4S Howard v. Sheward, L. R. 2 C. P. 148 14i) Howe v. Ry. Co., 37 N. Y. 297 25S Howe Mch. Co. v. Clark, 15 Kan. 492 114 Howell V. Graff, 25 Neb. 130, 41 N. W. 142 143 Hubbard v. TenBrook, 124 Pa. St. 291, 16 Atl. 817 149, 172 Huber v. Zimmerman, 21 Ala. 488, 56 Am. Dec. 255 131 Hugglns V. Morrow, 47 Ark. 516, 2 S. W. 104 105 TABLE OF CASES CITED. 291 References are to pages. Hughes V. Jones, 116 N. Y. 67, 15 Am. St. Rep. 38G 17 Hughes V. Washington, 72 111. 84 235 Hull V. Jones, 69 Mo. 587 54 Hull V. Marshall County, 12 Iowa 270 125 Hunt V. Agricultural Wks., 69 Minn. 539, 72 N. W; 813. .... . 118 Hunt V. Crane, 33 Miss. 669, 69 Am. Dec. 381 251 Hunt V. Douglass, 22 Vt. 128 33 Hunt V. Rousmanier, 8 Wheat (U. S.) 174 100, 105, lOG Huntington v. Kuox, 7 Cush. (Mass.) 371 160, 197 Huntley v. Mathias, 90 N. C. 101, 47 Am. Rep. 516.. 124, 131, 136 Hurlburt v. Brigham, 56 Vt. 368 260 Hurley v. Watson, 68 Mich. 531, 36 N. W. 726 150 Hutchins v. Byrnes, 9 Gray (Mass.) 367 163 Hutchins v. Hebbard, 34 N. Y. 27 100 Hutchins v. Olcutt, 4 Vt. 549, 24 Am. Dec. 634 261 Hutson V. Prudential Ins. Co., 122 Ga. 847, 50 S. E.'lOOO.... 138 Hyde v. Johnson, 2 Bing. (N. C.) 776 30 Hyde v. Wolf, 4 La. 234, 23 Am. Dec. 484 175 Hyman v. Gray, 49 N. C. 155 242 Hyman v. Waas, 79 Conn. 251, 64 Atl. 354 115 Hynson y. Noland, 14 Ark. 710 100 Hypes V. Griffin, 89 111. 134, 31 Am. Rep. 71 160, 169, 171, 214 I. Idaho For. Co. v. Ins. Co., 8 Utah 41, 29 Pac. 826 181 Ilfleld V. Zeigler, 40 Colo. 401, 91 Pac. 825 75 111. Linen Co. v. Hough, 91 111. 63 24o Ilsley V. Merriam, 7 Cush. (Mass.) 242, 54 Am. Dec. 721 199 Ind., etc. Ry. Co. v. Adamson, 114 Ind. 282, 15 N. E. 5 115 Innerarity v. Merchants Nat. Bank, 139 Mass. 332, 1 N. B. 282 187 Irby V. Lawshee, 62 Ga. 216 248 Ironwood Store Co. v. Harrison, 75 Mich. 197, 42 N. W. 808. . 76 Irvin V. Reeves Pulley Co., 20 Ind. App. 101, 48 N. E. 601.. 39 Irvine v. Grady, 85 Tex. 120, 19 S. W. 1028 185 Irvine v. Watson, 5 Q. B. Div. 102 (Eng.) 175 Irwin V. Williar, 110 U. S. 499 49, 259 Isham V. Parker, 3 Wash. St. 755, 29 Pac. 835 230 Isham V. Post, 141 N. Y. 100, 35 N. E. 1084 233 Ish V. Crane, 8 Ohio St. 520 103 292 TABLE OF CASES CITED. Beferences are to pages. J. Jackson ▼. Bank, 92 Tenn. 154, 20 S. W. 820 150, 152 Jacquin v. Boutard, 157 N. Y. 686, 51 N. E. 1091 249 Jacquith v. Davenport, 191 Mass. 415, 78 N. E, 93 185 Jahn V. Kelly, 58 111. App. 570 112 James v. Allen County, 44 Ohio St. 226, 6 N. E. 246 250 James v. Bixby, 11 Mass. 34 246 Jamison v. Weaver, 81 Iowa 212, 46 N. W. 996 232 Janney v. Boyd, 30 Minn. 319, 15 N. W. 308 147 Jansen v. Williams, 36 Neb. 869, 55 N. W. 279 25 Jaques V. Todd, 3 Wend. (N. Y.) 83 149 Jarvis v. Hoyt, 2 Hun. (N. Y.) 637 229 Jarvis v. Rogers, 15 Mass. 389 261 Jefferson County v. Slagle, 66 Pa. St. 202 27 Jeffrey v. Bigelow, 13 Wend. (N. Y.) 518, 28 Am. Dec. 476.. 190 Jeffrey v. Hurst, 49 Mich. 31, 12 N. W. 898 121, 127, 148 Jefts V. York, 10 Cush. (Mass.) 392 217 Jett V. Hempstead, 25 Ark. 463 242 Jewell Nursery Co. v. State, 5 S. D. 623, 59 N. W. 1025 85 Jewett Pub. Co. v. Butler, 159 Mass. 597, 34 N. E. 1087 42 John Gund Brewing Co. v. Peterson, 130 Iowa 301, 106 N. W. 741 150 Johnson v. Ala. Gas Co., 90 Ala. 505, 8 South. 101 143 Johnson v. Clark, 20 Ind. App. 247, 50 N. E. 762 259 Johnson v. Craig, 21 Ark. 533 148 Johnson v. Cunningham, 1 Ala. 249 35 Johnson v. Dodge, 17 111. 433 132 Johnson v. Hoover, 72 Ind. 395 87 Johnson v. Hulings, 103 Pa. St. 498 25 Johnson v. Hunt, 81 Ky. 321 48 Johnson v. Hurley, 115 Mo. 513, 22 S. W. 492 64 Johnson, In re, 102 Minn. 8, 112 N. W. 894 SO Johnson v. Investment Co., 40 Neb. 480, 64 N. AV. 1100 64, 153 Johnson v. Johnson, 27 S. C. 309, 3 S. E. 606 105 Johnson v. Jones, 4 Barb. (N. Y) 369 13s Johnson v. Land Co., IIG N. C. 926, 21 S. E. 28 79 Johnson v. McGruder, 15 Mo. 365 148 Johnson v. N. Y. Central Transp. Co., 33 N. Y. 610, 88 Am, Dec. 416 227 .Johnson v. Smith, 21 Conn. C27 21& TABLE OF CASES CITED, 293 References are to pages. Jonathan Mills Co. v. Whitehurt, 19 C. C. A. 130, 72 Fed. 496 142 Jones V. Adler, 34 Md. 440 248, 252 Jones V. Graham, etc. Transp. Co., 51 Mich. 539 97 Jones V. Hodgkins, 61 Me. 480 97 Jones V. Inniss, 32 Kan. 177, 4 Pac. 95 158 Jones V. Marks, 47 Cal. 242 52 Joor V. Sullivan, 5 I a. Ann. 177 34 Jordan v. Greig, 33 Colo. 360, 80 Pac. 1045 64, 119 Joseph V. Fisher, 122 Ind. 399, 23 N. E. 856 109 Judson V. Sierra, 22 Tex. 365 109 K. Kalbitzer v. Goodhue, 52 W. Va. 435, 44 S. E. 264 15 Kane v. Barstow, 42 Kan. 465, 22 Pac. 588 128, 137 Kane v. Sholars, 41 Tex. Civ. App. 154, 90 S. W. 937 124 Karns v. Olney, 80 Cal. 90, 22 Pac. 57 119 Kean v. Davis, 21 N. J. Law 683, 47 Am. Dec. 182 169 Kean v. Landrum, 72 S. C. 556, 52 S. E. 421 124 Kearney v. Clutten, 101 Mich. 106. 59 N. W. 419 219 Kearns v. Nickse, 80 Conn. 23, 66 Atl. 779 13G Keating v. Hyde, 23 Mo. App. 555 46 Keay V. Fenwick, 1 C. P. Div. 745 (Eng.) .' 12 Keefe v. Sholl, 181 Pa. St. 90, 37 Atl. 116 191 Keidan v. Winegar, 95 Mich. 430, 54 N. W. 901 169, 170 Keighler v. Mfg. Co., 12 Md. 383, 71 Am. Dec. 600 240 Keim v. Lindley (N. J. Eq.), 30 Atl. 1063 132 Keim v. O'Reilly, 54 N. J. Law 418, 34 Atl. 1073 73 Keith V. Herschberg Optical Co., 48 Ark. 138, 2 S. W. 777.. 139 Kelly V. Bowerman, 113 Mich. 446, 71 N. W. 836 107 Kelly V. Brennan, 55 N. J. Eq. 423, 37 Atl. 137 93, 97 Kelly V. Munson, 7 Mass. 318 223 Kelly V Phelps, 57 Wis. 425, 15 N. W. 385 82 Kelly V. Scott, 49 N. Y. 595 42 Kelly V. Thuey, 102 Mo. 522, 15 S. W. 62, 143 Mo. 422, 45 S. W. 301 19S Kelsey v. Bank, 69 Pa. St. 426 7" Kempher v. Rosenthal, 81 Tex. 12, 16 S. W. 639 88 Kendrick v. Colyar, 143 Ala. 597, 42 South, 110 190 Kennedy v, McKay, 45 N, J, Law 288 190 294 TABLE OF CASES CITED. References are to pages. Kennesaw Guano Co. v. Wappo Mills, 119 Ga. 776, 47 S. E. 205 240 Kent V. Addicks, 60 C. C. A. 660, 126 Fed. 112 217 Kent V. Tyson, 20 N. H. 123 56, 59. 117 Kent V. Bornstein, 12 Allen (Mass.) 342 224 Kepler v. Jessup, 11 Ind. App. 241, 37 N. E. G55 232 Kerr v. Cotton, 23 Tex. 411 227 Kersaw v. Kelsey, 100 Mass. 561 109 Kerslake v. Shoonmaker, 1 Hun. (N. Y. ) 436 116 Ketchum v. Verdell, 42 Ga. 534 79 Kevanne v. Miller, 4 Cal. App. 598, 88 Pac. 643 239 Keyes v. Bradley, 73 Iowa 589, 35 N. W. 656 239 Keyes v. Westford, 17 Pick. (Mass.) 273 257 Keyser v. Hinkle, 127 Mo. App. 62, 106 S. W. 98 191 Keyser v. Ry. Co., 66 Mich. 390, 33 N. W. 867 180, 183 Kiewart v. Rindskorf, 46 Wis. 481, 1 N. W. 163 238 Kilbourn v. Sunderland, 130 U. S. 505 24 Kilpatrick v. Wiley, 197 Mo. 123, 95 S. W. 213 96 Kindig v. March, 15 Ind. 248 101 Kinggan & Co. v. Silvers, 30 Ind. App. 80, 37 N. E. 413 4 King V. Patterson, 13 R. I. 117, 43 Am. Rep. 13 197 King V. Seaboard, etc., Ry. Co., 140 N. C. 443, 53 S. E. 237. . . 153 Kings V. Sparks, 77 Ga. 285, 1 S. E. 266 151, 152 Kinsley v. Davis, 104 Mass. 178 173 Kinsley v. Siebrecht, 92 Me. 23, 42 Atl. 249 172 Kirk V. Hamilton, 102 U. S. 68 64 Kirklin v. Assn., 107 Ga. 313, 33 S. E. 83 50 Kirkpatrick v. Pease, 202 Mo. 471, 101 S. W. 651 80 Kirkstall Brewing Co. v. Furness Ry. Co. L. R. 9 Q. B. 468 (Eng) ISO Kirschbon v. Bonzel, 67 Wis. 178, 29 N. W. 907 172 Kline v. Bank, 50 Kan. 91, 31 Pac. 688 168 Knabe v. Ternot, 16 La. Ann. 13 24 Knapp V. Alvord, 10 Paige (N. Y.) 205, 40 Am. Dec. 241. . 107, 259 Knickerbocker v. Wilcox, 83 Mich. 200, 47 N. W. 123 212 Knox V. American Co., 148 N. Y. 441, 42 N. E. 988 193 Komorowski v. Krumdrick, 56 Wis. 23, 13 N. W. 881 149 Konta V. St. Louis Stock Exchange, 189 Mo. 36, 87 S. W. S69 15 Kozolm V. Dcarlove, 144 111. 23, 32 N. E. 542 78 Kraft V. Fancher, 44 Md. 204 132 Kramer v. Winslow, 154 Pa. St. G37. 25 Atl. 766 239 TAELE OF CASES CITED. 295 References are to pages, Kroeger v. Pitcairn, 101 Pa. St. 311, 47 Am. Rep. 718 216 Kribben v. Haycraf t, 26 Mo. 396 46 Krider v. Western College, 31 Iowa 547 86 Krolik V. Curry, 148 Micb. 214, 111 N. W. 761 72 Krutz V. Fisher, 8 Kan. 90 237 Kupper V. Augusta, 12 Mass. 185 26 L. Labadie v. Hawley, 61 Tex. 177, 48 Am. Rep. 278 220 Lacy V. Dubuque Lum. Co., 43 Iowa 510 170 Ladd V. Aetna Ind. Co., 128 Fed. 298 150 Ladd V. Grand Isle, 67 Vt. 172, 31 Atl. 34 64 Ladd V. Hindebrant, 27 Wis. 135, 9 Am. Rep. 445 85 Ladenburg Thalraan Co. v. Beal-Doyle Co., 83 Ark, 440, 104 S. W 78 Laffin V. Brillington, 86 N. Y. Supp. 267 47 Laflin & Rand Power Co. v. Sincheimer, 48 Md. 411, 30 Am. Rep. 472 168 Lafond v. Deems, 81 N. Y. 507 14 Lainhart v. Gabbard, 28 Ky. Law Rep. 105, 89 S. W. 10 57 Laike v. Campbell, 18 111. 106 54 Lake Shore & M. S. Ry. Co. v. Hutchins, 37 Ohio St. 282 70 Lamb v. Thompson, 31 Neb. 448, 48 N. W. 58 172 Lambert v. Gerner, 142 Cal. 399, 70 Pac. 53 55 Lambert v. Sanford, 2 Blackf. (Ind.) 137, 18 Am, Dec. 149., 158 Lamothe v, St. Louis Dock Co., 17 Mo. 204 99 Lamson & Goodnow Mfg. Co. v. Russell, 112 Mass. 387 195, 204, 222 Lancaster Nat. Bank v. Taylor, 100 Mass. 18, 97 Am. Dec. 70 205 Landa v. Traders Bank, 118 Mo. App. 356, 94 S. W. 770 243 Lane v. Carr, 156 Pa. St. 250, 25 Atl. 830 216 Lane v. Railway Co., 112 Mass. 455 179 Lang V. Simmons, 64 Wis. 525, 25 N. W. 650 3 Lang V. Waters, 47 Ala. 624 21 Langdon v. Potter, 13 Mass. 319 228 Lange v. Kaiser, 34 Mich. 318 246 Largey v. Leggat, 30 Mont. 148, 75 Pac. 950 209 Larson v. Association, 71 Minn. 101, 73 N. W. 711 190 Lattman v. Barrett, 62 Mo. 159 221 Laussatt v. Lippincott, 6 Serg. & R. (Pa.) 386, 9 Am. Dec. 440 36, 37, 156 296 TABLE OF CASES CITED. References are to pages. Lavassar v. "Wasliburne, 50 Wis. 200, 6 N. W. 516 19 Laverty v. Snethen, 68 N. Y. 523, 23 Am. Rep. 184 228 Law V. Stokes, 32 N. J. Law 249, 90 Am. Dec. 655 135, 147 Lawall V. Groman, 180 Pa. St. 532, 37 Atl, 98 113 Lawrence v. Gullifer, 38 Mo. 532 , 253 Lawrence v. Lewis, 133 Mass. 561 117 Lawrence v. McArter, 10 Ohio St 37 76 Lawrence v. Storington Bank, 6 Conn. 521 7 Lazarus v. Shearrer, 2 Ala. 718 163 Lea V. Bringier, 19 La. Ann. 197 11 Leach V. Blow, 8 Smedes & M. (Miss.) 221 167 Leake v. Sutherland, 25 Ark. 219 241 Le Count v. Greenly, 6 N. Y. S. Rep. 91 62 Lee V. Morris, 3 Bush. (Ky.) 210 76 Le Grande Nat. Bank v. Blum, 27 Ore. 215, 41 Pac. 659 80 Lehman v. Pritchett. 84 Ala. 512, 4 South. 601 227 Leigh V. American Brake Beam Co., 205 111. 147, 68 N. E. 713 235 Leighton v. Sargent, 27 N. H. 460, 59 Am. Dec. 388 230, 232 Lemke v. Faustman, 124 111. App. 624 24 Leman v. Little (S. D.) 114 N. W. 1001 253 Leonard v. Poole, 114 N. Y. 371, 21 N. E. 707 238 Lerned v. Johns, 9 Allen (Mass.) 419 172 Le Roy v. Beard, 8 How. (U. S.) 451 130, 148 Lester v. Snyder, 12 Colo. App. 351, 55 Pac. 613 119 Le Toumeaux v. Gilliss, 1 Cal. App. 546, 82 Pac. 627 42, 43, 71 Leuthold v. Fairchild, 35 Minn. 99, 27 N. W. 503 219 Levi V. Booth, 58 Md. 305, 42 Am. Rep. 332 146, 201, 202 Lewis V. Amorous, 3 Ga. App. 50, 59 S. E. 338 189 Lewis V. Atlas Ins. Co., 61 Mo. 534 254 Lewis V. Bourbon Co. Com'rs., 12 Kan. 186 141 Lewis V. Brehme, 33 Md. 412, 3 Am. Rep. 190 6, 230 Lewis V. Coxe, 5 Har. (Del.) 401 30 Lewis V. Ingersoll, 3 Abb. Dec. (N. Y.) 50 33 Lewis V. Kerr, 17 Iowa 73 103 Lewis V. Lewis, 9 Mo. 183, 43 Am. Dec. 540 29 Lewis V. Sumner, 13 Meta. ( Mass. ) 269 15S I^wls V. Tilton, 64 Iowa 220, 19 N. W. 911 13 Lewis V. Trickoy, 20 Barb. (N. Y.) 387 245 Liddell v. Sahlino, 55 Ark. 627, 17 S. W. 705 113, 149 Liebseher v. Kraus, 74 Wis. 387, 43 N. W. 166 167 Liggett V. Ladd, 17 Ore. 89, 21 Pac. 133 13 TABLE OF CASES CITED. 297 References are to pages. Lillie V. Hoyt, 5 Hill (N. Y.) 395, 40 Am. Dec. 360 241, 242 Lilly V. Waggoner, 27 111. 359 18 Lincoln v. McClatchie, 36 Conn. 136 250 Lindquist v. Dickson, 98 Minn. 369, 107 N. W. 958 174 Liness v. Hesing, 44 111. 113, 92 Am. Dec. 153 45 Lister v. Allen, 31 Md. 513, 100 Am. Dec. 78 135 Litka V. Wilcox, 39 Mich. 94 29 Livings v. Wiler, 32 111. 387 74 Livingston v. Page, 74 Vt. 356, 52 Atl. 965 46 Lobdell V. Baker, 42 Mass. (1 Mete.) 193, 35 Am. Dec. 358 5, 139, 142, 157 Lobdell V. Mason, 71 Miss. 937, 15 South. 44 52 Loeb V. Hellman, 83 N. Y. 601 6 Long V. Colburn, 11 Mass. 97, 6 Am. Dec. 160 50 Long V. Hartwell, 34 N. J. Law 116 2, 125 Long V. Jennings, 137 Ala. 190, 33 South. 857 122 Long V. Osborn, 91 Iowa 160, 59 N. W. 14 69 Long V. Thayer, 150 U. S. 520 103, 104 Loomis V. Ry. Co., 159* Mass. 39, 34 N. E. 82 181 Loomis V. Simpson, 13 Iowa 532 35, 38, 156 Lord V. Lord, 58 N. H. 7 31 Lorie v. Railway Co., 32 Fed. 270 81 Lough V. Davis, 30 Wash. 204, 70 Pac. 491, 35 Wash. 449, 77 Pac. 732 117, 221 Lolk V. Woods, 15 111. 256 27 Louisville, etc. Ry. Co. v. Buck, 116 Ind. 566, 19 N. E. 453.. 185 Louisville Nat. Bank v. Laveille, 52 Mo. 380 191 Love v. Miller, 53 Ind. 294, 21 Am. Rep. 192 249 Lovett, Hart & Phipps Co. v. Sullivan, 189 Mass. 535, 75 N. E. 738 138 Lk)w v. Railway Co., 45 N. H. 370 75 Lowry v. Harris, 12 Minn. 255 69 Luby V. Railway Co., 17 N. Y. 131 181 Lucas v. Rader, 29 Ind. App. 287, 64 N. E. 488 112, 141 Luclde V. Johnston, 89 Ga. 321, 15 S. E. 459 115, 141. 147 Ludwig v. Gillispie, 105 N. Y. 653, 11 N. E. 835 223 Lum V. McEwen, 56 Minn. 278, 57 N. W. 662 48 Lumpkin V. Wilson, 5 Heisk. (Tenn.) 555 148 Lutz V. Linthicum, 8 Pet. (U.S.) 165... 161 Lynch v. Dodge, 130 Mass. 458 17 Lynch v. Smyth, 25 Colo. 103, 54 Pac. 634 81, 85 298 TABLE OF CASES CITED. References are to pages. Lyndeborougli Glass Co. v. Glass Co., Ill .Mass. 315 77 Lynn v. Burgoyne, 52 Ky. 400 33 Lyon V. Cnlbertson, 83 III. 33, 25 Am. Rep. 349 48 Lyon V. Jerome, 26 Wend. (N. Y.) 485, 37 Am. Dec. 271.. 11, 33 Lyon V. Kent, 45 Ala. 656 22 Lyon V. Phillips, 106 Pa. St. 57 18 Lyon V. Pollock, 99 U. S. 668 55 Lyon V. Thompson, 16 Iowa 62 114 M. Madden V. Cheshire (Kan.) 94 Pac. 793 236 Maddux v. Bevan, 39 Md. 485 80, 158 Magill V. Stoddard, 70 Wis. 75, 35 N. W. 346 120 Maier v. Randolph, 33 Kan. 340, 6 Pac. 625 4i Maitland v. Martin, 86 Pa. St. 120 257 Malburn v. Schreiner, 49 111. 69 60 Mandeville v. Reynolds, 68 N. Y. 528 158 Mangum v. Ball, 43 Miss. 288, 5 Am. Rep. 488 245 Manhattan Liquor Co. v. Mangus, 43 Tex. Civ. App 4G3, 94 S. W. 1117 152 Manley v. Headley, 10 Kan. 88 157 Mann v. Chandler, 9 Mass. 335 167, 168 Mann v. Robinson, 19 W. Va. 49, 42 Am. Rep. 771 148 Manning v. Keenan, 73 N. Y. 45 201 Manser v. Back, 6 Hare 443 ( Eng. ) 95 Maple V. Ry. Co., 40 Ohio St. 313, 48 Am. Rep. 685 174 Marbourg v. Smith, 11 Kan. 554 158 Marizou v. Pioche, 8 Cal. 522 100 Marquette, etc, Ry. Co. v. Taf t, 28 Mich. 289 59 Marr v. Given, 23 Me. 55, 39 Am. Dec. 600 128 Mars V. Mars, 27 S. C. 132, 3 S. E. 60 141 Marsh v. Fairbury, 64 111. 414 47 Marsh v. Fulton Co., 10 Wall. (U. S.) 676 76 Marsh v. Jeff, 3 F. & F. 234 (Eng.) 157 Marsh V. Whitmore, 21 Wall. (U.S.) 178 232 Maishall v. Haney, 4 Md. 498, 59 Am. Dec. 92 179 Marshall v. Rugg, G Wyo. 270, 44 Pac. 700 52, 54 Martin v. Brown, 75 Ala. 442 119 Martin v. Lemon, 26 Conn. 192 27 Martin v. Smith, r,', Miss. 1. 3 South. 33 169 TABLE OF CASES CITED. 299 References are to pages. Martin v. Wade, 37 Cal. 168 46 Martin v. Webb, 110 U. S. 7 8, 51, 64 Marvin v. Elwood, 11 Paige (N. Y.) 365 238 Marvin v. Inglis, 39 How. Prac. 329 16 Marvin v. Universal Life Ins. Co., 85 N. Y. 278, 39 Am. Rep. 657 138, 141 Maryland Fire Ins. v. Dalrymple, 25 Md. 242, 89 Am, Dec. 779 235 Mason v. Waite, 17 Mass. 560 201 Mason v. Walkowich, 80 C. C A. 435, 150 Fed. 699 26 Mason v. Whitthorne, 2 Cold. (Tenn.) 242 241 Massey v Taylor, 5 Cold. ( Tenn. ) 447 253 Mast. V. Easton, 33 Minn. 161, 22 N. W. 253 241 Matteson v. Blackmer, 46 Mich. 393, 9 N. W 445 51, 56, 60 Matthews v. Jenkins, 80 Va. 463 212 Mathiessen etc. Refin. Co. v. McMahon, 38 N. J. Law 536 18, 107, 108 Mattocks V. Young, 66 Me. 459 73 Maxwell v. Bay City Bridge Co., 41 Mich 453 29 Mayer v. Building Co., 104 Ala. 611, 16 South. 620 221 Mayer v. Dean, 115 N. Y. 556, 22 N. E. 261 191 Maynard v. Fireman's Fund Ins. Co., 34 Cal. 48, 91 Am. Dec 672 40 Mayor of Baltimore v. Eschbach, 18 Md. 282 125 McAlpine v. Cassidy, 17 Tex. 449 129, 147 McArthur v. Printing Co., 48 Minn. 319, 51 N. W. 216 75 McCabe v. Goodfellow, 133 N. Y. 89, 30 N. E. 728 14 McClay v. Hedge, 18 Iowa 66, 252, 256 McClellan v. Robe, 93 Ind. 298 163 McClellan v. Reynolds, 49 Mo. 312 169 McClintock v. Oil Co., 146 Pa. St. 144, 23 Atl. 211 90 McClun V. McClun, 176 111. 376, 52 N. E. 928 16- McClung V. Spotswood, 19 Ala. 165'. 120, 128 McClure v. Herring, 70 Mo. 18, 35 Am. Rep. 404 160, 163, 164 McClure Bros. v. Briggs, 58 Vt. 82, 2 Atl. 583 86 McCollough Iron Co. v. Carpenter, 67 Md. 554, 11 Atl. 176.. 24S McConnell v. McCormick, 12 Cal. 142 34 McConnell v. Mackin, 22 App. Div. 537, 48 N. Y. Supp. 18. . . . 36 McCord V. Telegraph Co., 39 Minn. 181, 39 N. W. 315 193 McCormick v. Joseph, 83 Ala. 401, 3 South. 796 185 McCormick v. Kelly, 28 Minn. 135, 9 N. W. 675 133 300 TABL.E OF CASES CITED. References are to pages. McC'ormick v. Wheeler, 36 111. 114, 85 Am. Dec. 388 186 McCracken v. San Francisco, 16 Cal. 591 70 McCrary v. Ruddick, 33 Iowa 521 56, 246, 247 McCready v. Thorn, 51 N. Y. 454 58 McCreary V. McCorkle (Tenn.), 54 S. W. 53 30 McCrosky v. Hamilton, 108 Ga. 640, 34 S. E. Ill 4 McCune v. Badger. 126 Wis. 186, 105 N. W. 667 112 McDonald v. Band, 195 111. 122, 62 N. E. 881 212 McDonald V. McCoy, 121 Cal. 55, 53 Pac. 421 73, 88 McDonald v. Buckstaff, 56 Neb. 88, 76 N. W. 476 42 McDonnell v. Rigney, 108 Mich. 276, 66 N. W. 52 47 McDonough v. Heyman, 38 Mich. 334 54 McFarland v. Heim, 127 Mo. 327, 29 S. W. 1030 70, 76 McFarland v. McClees (Pa. St.), 5 Atl. 50 231 McFarland v. Wheeler, 26 Wend. (N. Y.) 467 260 McGoldrick v. Willitts, 52 N. Y. 612 69 McGraf t v. Rugee, 60 Wis. 406, 19 N. W. 530 259 McGriff V. Porter, 5 Fla. 373 105 McHany v. Schenk, 88 111. 357 150 McHenry v. Ridgley, 2 Scam. (111.), 309, 35 Am. Dec. 110. .. . 171 Mcllwaine, In re, 18 N. J. Eq. 499 30 Mclntyre v. Park, 11 Gray (Mass) 102, 71 Am. Dec. 690.... 78 Mclver v. Clark, 69 Miss. 408, 10 South. 581 26 McKay v. Williams, 67 Mich. 547, 35 N. W. 159 235 McKee v. Cunningham, 2 Cal. App. 684, 84 Pac. 260 J . . . 174 McKeighan v. Hopkins, 19 Neb. 33, 26 N. W. 614 86 McKenzie v. British Linen Co., 6 App. Cas (Eng) 82 74 McKenzie v. Nebins, 22 Me. 138, 38 Am. Dec. 291 200 McKinnon v. VoUmar, 75 Wis. 82, 43 N. W. 800 34 McLachlin v. Brett, 105 N. Y. 391, 12 N. E. 17 200 McLaren v. Hall, 26 Iowa 297 19 McLaughlin v. Wheeler, 1 S. D. 497, 47 N. W. 816 121 McLeod V. Despain, 49 Ore. 536, 92 Pac. 1088 .' 86 McLearn v. McNamara, 55 Cal. 508 158 McMahan v. Burns, 216 Pa. St. 448, 65 Atl. 806 95, 101 McMahon v. Sloan, 12 Pa. St. 229, 51 Am. Dec. 206 203 McMechen v. McMechcn, 17 W. Va. 683, 41 Am. Rep. 682 29 McMinn v. Richtmeyer, 3 Hill (N. Y.) 236 131 McNamara v. McNamara, 62 Ga. 200 61, 115 McNeil V. Chamber oC Commerce, 154 Mass. 277, 28 N. E. 245 27 TABLE OF CASES CITED. 301 References are to pages. McNeil V. Tenth Nat. Bank, 46 N. Y. 325. 7 -Am. Rep. 341 146, 202, 203 McNeily v Ins. Co., 66 N. Y. 23 99 McNevins v. Lowe, 40 111. 209 233 McPherrin v. Jenings, 66 Iowa 622, 24 N. W. 242 179, 260 McPheters v. Page, 83 Me. 234, 22 Atl. 101 219 McWilliams v. Detroit Mills, 31 Mich. 275 23 Mead Plumbing Co. v. Irwin, 77 Neb. 358, 109 N. W. 391 211 Meader v. Page, 39 Vt. 306 50 Means v. Swormstedt, 32 Ind. 87, 2 Am. Rep. 330 167 Mechanics Bank v. New York etc. Ry. Co., 13 N. Y. 632 140 Mechanics Bank v. Bank, 5 Wheat. (U. S.) 326 16S Mechanics & T. Bank v. Bank, 60 N. Y. 40 224 Meinhardt v. Newman, 71 Neb 532, 99 N. W. 261 103 Melchoir v. McCarty, 31 Wis. 252 71 Menkens v. Watson, 27 Mo. 163 91 Merchants Bank v. Bank, 1 Ga. 418, 44 Am. Dec. 665 152 Merchants Nat. Bank v. Bank, 10 Wall (U. S) 604 154 Merchants Nat. Bank v. Goodman, 109 Pa. St. 422, 2 Atl. 687, . 243 Merchants Nat. Bank v. Nichols. 223 111. 41, 79 N. E. 38 186 Merrick v. Wagner, 44 111. 266 151 Mericks Estate in re, 8 Watts & Serg. (Pa.) 402 104 Merrill v. Kenyon, 48 Conn. 314, 40 Am. Rep. 174 173, 174 Merrell v. Wilson, 66 Mich. 232, 33 N. W. 716 80 Merrwin v. Lewis, 90 111. 505 104 Merry v. Lynch, 68 Me. 94 107 Merryman v. David, 31 111. 404 329 Metcalf V. Williams, 104 U. S. 93 170, 214 Meyer v. Hanchett, 43 Wis. 246 25 Meyers v. Ins. Co., 104 Cal. 381, 38 Pac. 82 180 Meyer y. King, 29 La. Ann. 567 53 Michael v. Jones, 84 Mo. 578 216 Michoud V. Girod', 4 How. (U. S.) 503 235 Miles V. Ogden, 54 Wis. 573, 12 N. W. 81 80 Miles V. Thorne, 38 Cal. 335, 99 Am. Dec. 384 44 Milford V. Water Co., 124 Pa. St. 610, 17 Atl. 185 71 Mill V. Hawker, L. R. 10 Ex. 92 (Eng.) 219 Millar v. Cuddy, 43 Mich. 273, 5 N. W. 316 57, 247 Millard v. Smith, 119 Mo. App. 701, 95 S. W. 940 190 Miller v. Goodard, 24 Me. 102, 56 Am. Dec. 638 250, 254 Miller v. Lea, 35 Me. 396, 6 Am. Dec. 417 20O 502 TABLE OP CASES CITED. References are to pages. Miller v. Smith, 112 Mass. 470 248 Miller v. Stone Co., 1 111. App. 273 81 Miller v. Way, 5 S. D. 468, 59 N W. 467 169 Milliken v. Coombs, 1 Greenl. (Me.) 343, 10 Am. Dec. 70 78 Milligan v. Davis, 49 Iowa 126 69 Mills V. Berla (Tex. Civ. App.), 23 S. W. 910 79 Mills V. Mills, 40 N. Y. 543, 100 Am. Dec. 535 43 Mills V. Smith, 193 Mass. 11, 78 N. E. 765 102 Milne v. Kleb, 44 N. J. Eq. 378, 14 Atl. 646 143 Milwaukee etc. Inv. Co. v. Johnston, 35 Neb. 554, 53 N. W. 475 132 Minn. Lin. Oil Co. v. Montague, 59 Iowa 448, 13 N. W. 438 117, 123, 230 Minn. Stoneware Co. v. McCrossen, 110 Wis. 316, 85 N. W. 1019 .■ 120 Minturn v. Main, 7 N. Y. 220 223 Missouri Pac. Ry. Co. v. Stults, 31 Kan. 752, 3 Pac 522 180 Mitchell V. Finnell, 101 Cal. 614, 36 Pac. 123 179 Mitchell V. Georgia & A. Ry., Ill Ga. 760, 36 S. E. 971 4 Mitchell V. Minnesota Fire Assn., 48 Minn. 278, 51 N. W. 608 75 Moffet V. Moffet, 90 Iowa 442, 57 N. W. 954 . , 114 Mohr V. Miessen, 47 Minn. 228, 49 N. W. 862 41, 259 Moir V. Hopkins, 16 111. 313, 63 Am. Dec. 312 40, 41 Monson v. Kill, 144 111. 248, 33 N. E. 43 128 Montague v. McCarroll, 15 Utah 318, 49 Pac. 418 100 Montgomery v. Hundley, 205 Mo. 138, 103 S. W. 527 25 Montgomery v. U. S., 15 Wall. (U. S.) 395 109 Mooney v. Elder, 56 N. Y. 238 249 Moore v. Appleton, 26 Ala. 633 258, 259 Moore V. Hall, 48 Mich. 143, 11 N. W. 844 105, 131, 151 Moore V. Metropolitan Bank, 55 N. Y. 41, 14 Am. Rep. 173.. 203 Moore v. Shields, 121 Ind. 2G7, 23 N. E. 89 218 Moore v. Stone, 40 Iowa 259 94 Moore v. Thompson, 32 Me. 477 124 Moore v. Ticlile, 14 N. C. 244 4 Moore v. Vulcanite Cement Co., 106 N. Y. Supp. 393 198 Moors V. Kidder, 106 N. Y. 32, 12 N. E. 818 262 Moran v. Dunphy, 177 Mass. 485, 59 N. E. 125 224 Morehouse v. Northrup, 33 Conn. 380. 89 Am. Dec. 211 40, 72 Morcland v. Houghton. 94 Mich. 548, 54 N. W. 285 55 TABLE OP CASES CITED. 303 References are to pages. Morgan v. Aldrich, 114 Mo. App. 700, 91 S. W. 1024 239 Morgan v. Hardy, 16 Neb. 427 25 Morgan v. Richardson, 13 Allen (Mass.) 410 231 Morris v. Barnes, 35 Mo. 412 246 Morris v. Bowen, 52 N. H. 416 133, 152 Morrison v. Hazard (Tex. Civ. App. ) , 88 S. W. 385 217 Morrison v. Holt, 42 N. H. 478, 80 Am. Dec. 120 62 Morrison v. Rogers, 115 C'al. 252, 46 Pac. 1072 48 Morrow v. Higgings, 29 Ala. 448 52, 125 Morrow v. Tunkhannock Ice Co., 211 Pa. St, 445, 60 Atl. 1004 249 Morse v. Diebold, 2 Mo. App. 163 81, 115 Morse v. Railway Co., 6 Gray (Mass.) 450 179 Morse v. State, 6 Conn. 9 73, 193 Morton v, J. I. Case Macli. Co., 99 Mo. App. 630, 77 S. W. 434 250 Morton v. Rainey, 82 111. 215, 25 Am. Rep. 311 246 Morton v. Skull, 23 Ark. 289 140 Mott V. Hicks, 1 Cow. (N. Y.) 513, 13 Am. Dec. 550 168 Mott V. Smith, 16 Cal 533 30 Moulton V. Bowker, 115 Mass. 36, 15 Am. Rep. 72 157, 158 Mount Morris Bank v. Gorhan, 169 Mass. 519, 48 N. E. 341. . 64 Mowatt V. McLean, 1 Wend. (N. Y.) 173 217 Moyer v. Cantieuy, 41 Minn. 242, 42 N. W. 1060 47 Mueller v. Bethesda Springs Co., 88 Mich. 390, 50 N. W. 319. . 67 Mullanphy Bank v. Shott, 135 111. 655, 26 N. E. 640 112 Mullen, In re, 110 Cal. 252, 42 Pac. 645 29 Muller V. Pondir, 55 N. Y. 325, 14 Am. Rep. 259 261 Mulligan v. Railway Co., 129 N. Y. 506, 29 N. E. 952 190 Mulligan v. Smith, 32 Colo. 404, 76 Pac. 1063 47 Mulvehill v. Bates, 31 Minn. 364, 17 N. W. 959 188 Mundorff v. Wickersham, 63 Pa. St. 87, 3 Am. Rep. 531 196 Munroe v. Fette, 1 Cal. App. 333, 82 Pac. 206 85 Murdock v. Millner, 84 Mo. 96 237 Murray V. Haverty, 70 111. 318 12 Murray v. Lumber Co., 143 Mass. 250, 9 N. E. 634 86 Murray v. Mann, 2 Ex. 538 (Eng.) 238 Murray v. Usher, 117 N. Y. 542, 23 N. E. 564 220 Murray v. Vanderbilt, 39 Barb. (N. Y.) 140 238 Murrel v. Jones, 40 Miss. 565 71 Muscott V. Stubbs, 24 Kan. 520 246 304 TABl^E OP CASES CITED. References are to pages. Mussenden V. RaifEe, 131 111. App. 456 173 Mussey v. Scott, 7 Cush. (Mass.) 216, 54 Am. Dec. 719.. 162, 164 Muth V. Goddard, 28 Mont. 237 72 Pac. 621 122 N. Naltner v. Dolan, 108 Ind. 500, 8 N. E. 298 241 Nash V. Kerr Murray Mfg. Co., 19 Mo. App. 1 45 Nash V. Mitchell, 71 N. Y. 199, 27 Am. Rep. 38 19 Nash V. Mosher, 19 Wend. (N. Y.) 431 261 Nat. Bank v. Merchants Nat. Bank, 91 U. S. 92 123 Nat. Bank of Commerce v. Railway, 44 Minn. 224, 46 N. W. 342 191 Nat. Bldg. Assn. v. Quinn, 120 Ga. 358, 47 S. E. 962 179 Nat. Fence Mach, Co. v. Highleyman, 71 Kan. 347, 30 Pac. 568 150 NaL Iron Armor Co. v. Bruner, 19 N. J. Eq. 331 141 Nat. S. S. Co. V. Sheahan, 122 N. Y. 461, 25 N. E. 858 3S Neal V. Patten, 40 Ga. 363 120 Neibles v. Railway Co., 37 Minn. 151, 33 N. W. 322 56, 59, 61 Nelson v. Cook, 17 Iowa 443 258 Nelson v. McDonald, 80 Wis. 605, 50 N. W. 893 53 Neufeld v. Beidler, 37 111. App. 34 213 Nevan v. Roup, 8 Iowa 207 261 Newell V. Borden, 128 Mass. 31 13 Newell V. Smith, 49 Vt. 225 32, 34 Newhall v. Vargas, 13 Me. 93, 29 Am. Dec. 489 262 Newman v. Greeff, 101 N. Y. 663, 5 N. E. 335 169 Newman v. Lee, 87 App. Div. 116, 84 N. Y. Supp. 106 139 Newman v. Sylvester. 42 Ind. 106 216 Newmarket Sav. Bank v. Gillett, 100 111. 254, 39 Am. Rep. 39 167 New York Central Ins. Co. v. Ins. Co., 14 N. Y. 85 206, 235 New York Central Ry. Co. v. Lockwood, 17 Wall. (U. S.) 357 233 New York etc. Ry. Co. v. Schuyler, 34 N. Y. 30 192, 193 New York Iron Mine Co. v. Bank, 44 Mich. 344, 6 N. W. 823. . 152 New York Life Ins. Co. v. Davis, 95 U. S. 425 18, 109 Niber v. Baghurst, 47 N. J. Eq. 20 1, 20 All. 252 71 Nichols V. Frotliingliam, 45 Mo. 220, 71 Am. Dec. 539 214 Nichols V. So. Pac. Ry. Co., 23 Ore. 123 179 Nicholson v. Doney, 37 111. App. 531 80 TABLE OF CASES CITED, 305 References are to pages. Nielsen v. Northwestern Siberian Co., 40 Wash. 194, 82 Pac. 292 130 Nims V. Mt. Herron School. 160 Mass. 177, 35 N. E. 776 72 Nixon V. Brown, 57 N. H. 34 146, 203, 204 Nixon V. Palmer, 8 N. Y. 398 152 Noe V. Christie, 51 N. Y. 270 12 Noel V. Drake, 28 Kan. 265, 42 Am. Rep. 162 47 Noel Const. Co. v. Atlas Cement Co., 103 Md. 209, 63 Atl. 384 197 Norfolk & W. Ry. Co. v. Cottrell, S3 Va. 512, 3 S. E. 123 8 Norris v. Hero, 22 La. Ann. 605 241 Norris v. Lantz, 18 Md. 260 19 North Carolina Ins. Co. v. Williams, 91 N. C. 69, 49 Am. Rep. 637 249 North Hudson Ry. Co. v. May, 48 N. J. Law 401, 5 Atl. 276 180 North V. Metz, 57 Mich. 612, 24 N. W. 759 112 North River Bank v. Aymar, 3 Hill (N. Y) 262 123 Northwest Thresher Co. v. Eddyville, 80 Neb. 377, 114 N. W. 291 118 Northwestern Dist. Co. v. Brant, 69 111. 658, 10 Am. Rep. 631 162 Northwestern Packet Co. v. Clough, 20 Wall. (U. S.) 528 182 Norton v. Ala. Nat. Bank, 102 Ala. 420, 14 South. 872 87 Norton v. Blinn, 39 Ohio St. 145 238 Norwick Univ. v. Denny, 47 Vt. 13 34 Noyes v. Landon, 59 Vt. 569, 10 Atl. 342 237 Noyes v. Loring, 55 Me. 408 215, 216 Nutt V. Knut, 200 U. S. 13, 26 Sup. Ct. 216 44 Nye V. Lowry, 82 Ind. 316 73 O. Oakes v. Water Co., 143 N. Y. 430, 38 N. E. 461 75 O'Barr v. Alexander, 37 Ga. 195 232 Oberne v. Burke, 30 Neb. 581, 46 N. W. 838 135, 140 O'Connor v. Clapton, 60 Miss. 349 217 Ohio etc. Ry. Co. v. Stein, 133 Ind. 243, 31 N. E. 180 183 Ohio Nat. Bank v. Cook, 38 Ohio St. 442 213 Olcott V. Tioga Ry. Co., 27 N. Y. 546, 84 Am. Dec. 298 168 O'Leary v. German American Ins. Co., 100 Iowa 390, 69 N. W. 686 115 Olyphant v. McNair, 41 Barb (N. Y.) 446) 149 20 306 TABLE OF CASES CITED. References are to pages. Opinion of Judges, 41 N. H. 550 29 Oregon Mortgage Co. v. American Mortgage Co., 35 Fed. 22. . 93 Oregon Ry. Co. v. Oregon R. & Nav. Co., 28 Fed. 505 79 Ormerod v. Dearman, 100 Pa. St. 561, 45 Am. Rep. 391 47 Ormsby v. Graham, 123 Iowa 202, 98 N. W. 724 148, 150 Ortmeier v. Ivory, 208 111. 577, 70 N. E. 665 150 Orvis V. Wells Fargo Co., 19 C. C. A. 382, 73 Fed. 110 80 Osborne v. Morgan, 130 Mass. 102, 39 Am. Rep. 437 221 Oscanyan v. Arms Co., 103 U. S. 261 41, 45 Oster V. Mieckley, 35 Minn. 245 133 Over V. Schifflin, 102 Ind. 191, 26 N. E. 91 179 Overman v. Atkinson, 102 Ga. 750, 29 S. E. 758 51 Owen v. Brockschmidt, 54 Mo. 285 149 Owens V. Wilkinson, 20 App. Dec. 51 43, 44 Owensboro Wagon Co. v. Boling, 32 Ky. Law Rep. 816, 107 S. W. 264 188 Owings V. Hull, 9 Pet. (U. S.) 607 84, 118 Owsley V. Philips, 78 Ky. 517, 39 Am. Rep. 258 73 P. Pacific Biscuit Co. v. Dugger, 40 Ore. 362, 67 Pac. 32 6 Pacific Lumber Co. v. Wilson, 6 Cal. App. 561, 92 Pac. 654... 185 Pack V. White, 78 Ky. 243 165 Packer v. Hinckley Loco. Works, 122 Mass. 484 98 Padfeld V. Green, 85 111. 529 150 Padley v. Neill, 134 Mo. 364, 35 S. W. 997 142 Page V. Wells, 37 Mich. 415 230 Paige V. Stone, 10 Mete. (Mass) 160, 43 Am. Dec. 420 151 Palacios v. Brasher, 18 Colo. 593, 34 Pac. 251 54 Palmer v. Haverhill, 98 Masp. 483 247 Palmeri v. Railway Co., 133 N. Y. 261, 30 N. E. 1001 40, 189 ParccU V. McComber, 11 Neb. 209, 7 N. W. 529 252, 256 Parker V. Brancker, 22 Pick (Mass.) 40 230,262 Parker V. Walker, 86 Tcnn. 566, 8 S. W. 391 7 Parks V. L. & S. Turnpike Road Co., 27 Ky. 456 164 Parks V. Ross, 11 How. (U. S.) 362 ri4 Parmele V. Simpson, 5 Wall. (U.S.) 81 8S Paton V. Baker, 62 Iowa 704 12 Patrick v. Llttrell, 36 Ohio St. 79 49 Patterson v. Gage, 22 Vt. 558, 56 Am. Dec. 96 254 TABLE OF CASES CITED. 307 References are to pages. Patterson v. Leavitt, 4 Conn. 50, 10 Am. Dec. 98 26 Patterson v. Lippincott, 47 N. J. Law 457, 1 Atl. 506 215, 216 Patterson v. Suffolk Mfg. Co., 106 Mass. 56 254 Patterson v. Van Loon, 186 Pa. St 367, 40 Atl. 495 115 Paul V. Grimm, 165 Pa. St. 139, 30 Atl. 721 228 Payne v. Potter, 9 Iowa 549 147 Paxton Cattle Co. v. Bank, 21 Neb. 621, 33 N. W. 271 75 Peabody v. Hoard, 40 111. 242 51 Pearson v. Anderberg, 28 Utah 495, 80 Pac. 307 13 Pease v. Pease, 35 Conn. 131, 95 Am. Dec. 225 222 Pease v. Warren, 29 Mich. 9 62 Peck V. Ritchey, 66 Mo. 114 112 Peckham v. Lyon, 4 McLean (U. S.) 45 149 Pegram v. Charotte, etc. Ry. Co., 84 N. C. 696, 37 Am. Rep 639 24 Penfold V. Warner, 96 Mich. 179, 55 N. W. 680 121, 127 Penn. Ir. Wks. v. H. Voght Mach. Co., 29 Ky. Law Rep. 861, 96 S. W. 551 72, 198 Pentz V. Stanton, 10 Wend. (N. Y.) 271, 35 Am. Dec. 558 165, 174, 222 People V. Lyon, 99 N. Y. 210 193 People V. Manistee Co. Com'rs., 40 Mich. 585 93 People V, Nichols, 52 N. Y. 478, 11 Am. Rep. 734 27 People V. Parks, 49 Mich. 333 194 People V. Roby, 52 Mich. 577, 18 N. W. 365 40 People V. Township Board, 11 Mich. 222 235 Peoples Bank v. Scalzo, 127 Mo. 164, 29 S. W. 1032 54 Perkins v. Evans, 61 Iowa 35, 15 N. W. 584 206 Perkins v. Hunington, 19 N. Y. Supp. 71, 64 Hun. (N. Y.) 635 61 Perkins v. Stebbins, 29 Barb. (N. Y) 523 112 Perminter v. Kelly, 18 Ala. 710, 54 Am. Dec. 177 12 Perrine in re, 41 N. J. Eq. 409, 5 Atl. 579 16 Perry v. Smith, 29 N. J. Law 74 142 Person v. Carter, 7 N. C. 321 8 Person V. Warren, 14 Barb. (N. Y.) 488 .' 17 Persons v. McKibben, 5 Ind. 261, 61 Am. Dec. 85 89 Peters v. Farnsworth, 15 Vt. 155, 40 Am. Dec. 671 128, 148 Peterson v. Christensen, 26 Minn. 377, 4 N. W. 623 32 Peterson v. Homan, 44 Minn. 166, 46 N. W. 303 212 Peterson v. Mayer, 46 Minn. 468, 49 N. W. 245 255 308 TABLE OF CASES CITED. References are to pages. Peto V. Hague, 5 Esp. 134 181 Pfister V. Wade, 69 Cal. 133, 10 Pac. 369 15S Phelps V. James, 86 Iowa 398, 53 N. W. 274 181 Phelps V. Sullivan, 140 Mass. 36, 2 N. E. 121 53 Phila. etc. Ry. Co. v. Cowell, 28 Pa. St. 329, 70 Am. Dec. 128 83 Phillips Buttoroff Mfg. Co v. Wild Bros., 144 Ala. 545, 39 South. 359 85 Phillips V. Dobbins, 56 Ga. 617 158 Phillips V. Howell, 60 Ga. 411 95 Phillips V. Moir, 69 111. 155 231 Philpot V. Bringham, 55 Ala. 435 76 Philpot V. Sandwich Mfg. Co., 18 Neb. 54, 24 S. W. 428 19 Phoenix Ins. Co. v. Frissell, 142 Mass. 513, 8 N. E. 348 227 Physio-Medical Col. v. Wilkinson, 108 Ind. 314, 9 N. E. 167.. 17 Pickard v. Perley, 45 N. H. 188, 86 Am. Dec. 153 88 Pickering v. Busk, 15 East (Eng.) 38 146, 202 Pickert v. Marston, 68 Wis. 465, 32 N. W. 550 132, 133, 147, 15G Pickett V. Pearson, 17 Vt. 470 91, 229 Pickney v. Dunn, 2 S. C. 314 241 Pierce v. Railway Co., 173 U. S. 1 251 Pike V. Balch, 38 Me. 302, 61 Am. Dec. 248 58 Pinkham v. Crocker, 77 Me. 563 155 Pitkin V. Harris, 69 Mich. 133, 37 N. W. 61 228 Pitts V. Mower, 18 Me. 361, 36 Am. Dec. 727 197 Pittsburg Glass Co. v. Roquemore (Tex. Civ. App.), 88 S. W. 449 210 Pitsinosky v. Beardsley, 37 Iowa 9 13-3 Plumb V. Curtis, 66 Conn. 154, 33 Atl. 998 115 Pollock V. Cohen, 32 Ohio St. 514 87, 120, 121 Pollock V. Gantt, 69 Ala. 373, 44 Am. Rep. 519 82 Porter v. Hermann, 8 Cal. 619 S Porter v. Jones, 52 Mo. 399 48 Porter v. Silvers, 35 Ind. 295 253 Posnor V. Bayless, 59 Md. 56 128 Post V. Pearson, 108 U. S. 418 211 Potulni V. Saunders, 37 Minn. 517, 35 N. W. 379 188 Powell V. Trustees, 19 Johns. (N. Y.) 284 257 Powell's Ad'mr. v. Henry, 27 Ala. 612 81 Power V. Bank, 6 Mont. 251, 12 Pac. 597 3:> Powers V. BriRgs. 79 111. 493, 22 Am. Rep. 175 1^5 TABLE OF CASES CITED, 309 References are to pages. Powers V. Skinner, 34 Vt. 274, 80 Am. Dec. 677 43, 49 Prather v. Ross, 17 Ind. 459 160 Pratt V. Beaupre, 13 Minn. 1S7 161 Pratt V. Davis, 118 111. App. 161 62 Pratt V. Reed, 19 How. (U. S.) 359 58 Preston v. Hull, 23 Gratt. (Va.) 600, 14 Am. Rep. 153 53 Price V. Seydel, 46 Iowa 696 116 Prichard v. Abbott, 104 Md. 560, 65 Atl. 421 24 Pringle v. Modern Woodmen of Amer., 76 Neb. 384, 107 N. W. 756 185 Proctor V. Ry. Co., 154 Mass. 251, 28 N. E. 13 179 Prov. Mach. Co. v. Browning, 72 S. C. 424, 52 S. E. 117 130 Providence Tool Co. v. Norris, 69 U. S. (2 Wall.) 45 45, 46 Provost V. Hai wood, 29 Vt. 219 254 Pulver V. Burke. 56 Barb. (N. Y.) 39 172 Putnam v. French, 53 Vt. 402, 38 Am. Rep. 682 135, 146, 147, 155, 156 Q Quay V. Preside etc. Ry. Co., 82 Cal. 1, 22 Pac. 925 122 Quigley v. DeHaas, 82 Pa. St. 267 161 Quinlan v. Insurance Co., 133 N. Y. 356, 31 N. E. 31 141 Quinn v. Dresbach, 75 Cal. 159, 16 Pac. 762 51, 60, 150 Quirk V. Quirk, 155 Fed. 199 240 R. Rabeneau, In re, 118 Fed. 471 7 Rail v. City Nat. Bank, 3 Tex. Civ. App. 557, 22 S. W. 865. . 142 Ry Co. V. Hackett, 58 Ark. 381, 24 S. W. 881 188 Rahm v. Dieg, 121 Ind. 283 181 Ramage v. Wilson, 37 Ind. App. 532, 77 N. E. 368 55 Randall v. Kehlor, 60 Me. 37, 11 Am. Rep. 169 147, 155 Randall v. Lautenberger, 16 R. I. 159, 13 Atl. 100 8 Randall v. Northwestern Tel. Co., 54 Wis. 140, 41 Am. Rep. 17 181 Randlette v. Judkin, 77 Me. 114 72 Randolph v. Wheeler, 182 Mo. 145, 81 S. W. 419 172 Ranger v. Thalman, 178 N. Y. 574, 70 N. B. 1108 165 Rankin v. Eakin. 3 Head. (Tenn ) 229 121 310 TABLE OP CASES CITED. References are to pages. Rathbone v. Tucker 15 Wend. (N. Y.) 498 176 Rathburn v. Snow, 123 N. Y. 343, 25 N. E. 379 135 Rawlings v. Neal, 126 N. C. 271, 35 S. E. 597 77 Rawson v. Curtis, 19 111. 456 141 Ray V. Bowers, 134 Mass. 22 14 Raymond v. Crown & Eagle Mills, 2 Mete. (Mass.) 319... 173, 174 Rayner v. Grote, 15 M. & W. 359 (Eng.) 224 Rea V. Bishop, 41 Neb. 202, 59 N. W. 555 17 Reab v. Moor 19 Johns. (N. Y.) 337 255 Ream v. McEhone, 50 Kan. 409, 31 Pac. 1075 114 Rectsherd v. Bank, 47 Mo. 181 226 Reed v. Johnson, 27 Wash. 42, 67 Pac. 381 42 Reed v. Northrup, 50 Mich. 442, 15 N. W. 543 231 Reed y. Seymour, 24 Minn. 273 124 Reed v. Van Cleve, 27 N. J. Law 352, 72 Am. Dec. 369 119 Reese v. Medlock, 27 Tex. 120, 84 Am. Dec. 611 122, 141 Reeves v. Bruening, 13 N. D. 157, 100 N. W. 241 113 Reeves & Co. v. Watkins, 28 Ky. Law Rep. 401, 89 S. W. 266 250 Reg. V. Stevens, L. R. 1 Q. B. 702 (Eng.) 194 Reid V. Alaska Packing Co., 47 Ore. 215, 83 Pac. 139 81, 142 Reid V. Hibbard, 6 Wis. 175 118 Reilly v. Phillips, 4 S. D. 604, 57 N. W. 870 105 Reiman v. Hamilton, 111 Mass. 245 11 Remelee v. Hall, 31 Vt. 582, 76 Am. Dec. 140 251 Renwick v. Bancroft, 56 Iowa 527, 9 N. W. 367 34 Reynolds v. Chi. etc. Ry. Co., 114 Mo. App. 670, 90 S. W. 100 135 Reynolds v. Collins, 78 Ala. 94 59 Reynolds v. Davidson, 34 Md. 662 80' Rhodes v. Neal, 64 Ga. 704, 37 Am. Rep. 93 47 Rhone v. Powell, 20 Colo. 41, 30 Pac. 899 212 Rice & Bullen Malting Co. v. Bank, 185 111. 422. 56 N. E. 1063 199 Rice V. Groffman, 56 Mo. 434 155 Rice V. Peninsular Club, 52 Mich. 87, 17 N. W. 708 14 Rice V. Post, 78 Hun. (N. Y.) 547, 29 N. Y. Supp. 553 38 Rice V. Wood, 113 Mass. 133, 18 Am. Rep. 459 25, 41 Rich V. Black, 173 Pa. St. 92, 33 Atl 880 25 Richardson v. Eagle Mach. Wks., 78 Ind. 422, 41 Am. Rep 584 251 Richardson v. Kimball, 28 Me. 4G3 91 TABLE OF CASES CITED. 311 References are to pages. Richardson v. Scott's Bluff Co., 59 Neb. 400, 81 N. W. 309. ... 43 Richey V. Brown, 58 Mich. 43G, 25 N. W. 386 12 Richmond v. Judy, 6 Mo. App. 465 16 Richmond Trading Co. v. Farquar, 2 Blackf. (Ind.) 89 85 Riclver, In re, 66 N. H. 207, 29 Atl. 559 7 Ricketts v. Birmingham St. Ry. Co., 85 Ala. 600 182 Ricketts v. Jolliff, 62 Miss. 440 18 Riehl V. Assn., 104 Ind. 70, 3 N. E. 663 205 Riggan v. Crane, 86 Ky. 249, 5 S. W. 561 78 Right V. Cuthell, 5 East. 491 (Eng.) 88 Kiley v. Minor, 29 Mo. 439... 2 Ringo V. Binns, 10 Pet. (U. S.) 269 236, 237 Ripley v. Gelston, 9 Johns. (N. Y.) 201 218 Ritch V. Smith, 82 N. Y. 627 150 Ritchie v. Waller, 63 Conn. 155, 28 Atl. 29 188 Robbins v. Blanding, 87 Minn. 246, 91 N. W. 844 83 Robert-Buist Co. v. Lancaster Merc. Co., 73 S. C. 48, 52 S. E. 789 113 Roberts v. Button, 14 Vt. 195 215 Roberts v. Knights, 7 Allen (Mass.) 449 18 Roberts v. Noyes, 76 Me. 590 238 Roberts v. Rumley, 58 Iowa 301, 12 N. W. 323 85 Robertson v. Cloud, 47 Miss. 208 97 Robins v. Coryell, 27 Barb. (N. Y.) 556 29 Robinson v. Anderson. 106 Ind. 152, 6 N. E. 12 150, 228 Robinson v. Bank, 44 Ohio St. 441, 8 N. E. 583 214 Robinson v. Bird, 158 Mass. 357, 33 N. E. 391 219 Robinson v. Jarvis, 25 Mo. App. 421 24 Robinson v. Kanawha Valley Bank, 44 Ohio St. 441, 8 N. E. 583 168, 169 Robinson v. Larabee, 63 Me. 116 261 Robinson Merc. Co. v. Thompson, 74 Miss. 847, 21 South. 794 143, 149 Robinson v. Webb, 11 Bush. (Ky.) 464 224 Robison v. Allison, 192 Mo. 366, 91 S. W. 115 19 Robison v. Iron Co., 39 Hun. (N. Y.) 634 130 Robison v. Patterson, 71 Mich. 141, 39 N. W. 21 44 Roca V. Byrne, 145 N. Y. 182, 39 N. E. 812 205 Roche V. Pennington, 90 Wis. 107, 62 N. W. 946 .■ 153 Rochester v. Levering, 104 Ind. 562, 4 N. E. 203 24, 253 Roehl v. Haumesser, 114 Ind. 311, 15 N. E. 345 55 312 TABLE OF CASES CITED. neferences are to pages. Rogers v. Greenwood, 14 Minn. 333 158 Rogers v. Higgins, 48 111. 211 19 Rogers v. Halden, 142 Mass. 196, 7 N. E. 768 141 Rogers v. Kneeland, 10 Wend. (N. Y.) 218 90 Rogers V. March, 33 Me. 106 211 Rolf V. Delman, 7 RoM. (N. Y.) 80 48 Rolfe, B., in Wilson v. Brett, 11 M. & W. 113 233 Rose V. Hayden, 35 Kan. 106, 10 Pac. 554 236 Rosenbaum v. Hayes, 8 N. D. 461, 79 N. W. 987 261 Rosenstock v. Tormey, 32 Md. 169, 3 Am. Rep. 125. .. 35, 156, 256 Rosser v. Darden, 82 Ga. 219, 7 S. E. 919 199 Rossiter v. Rossiter, 8 Wend. (N. Y.) 494, 24 Am. Dec. 62... 151 Roundtree v. Smith, 108 U. S. 269 49 Rountree v. Davidson, 59 Wis. 522, 18 N. W. 518 122 Rowe V. Rand, 111 Ind. 206, 12 N. E. 377 98, 102, 104, 223 Rowlands v. Higgins, 28 Conn. 122 114 Ruckman v. Bergholz, 38 N. J, Law 531 248 Ruffner v. Hewit, 7 W. Va. 585 6 Ruschenberg v. Southern Elec. Co., 161 Mo. 70, 61 S. W. 626. 182 Russ V. Telfner, 57 Fed. 973 87 Russell V. Andrae, 79 Wis. 108, 48 N. W. 117 38 Russo V. Maresca, 72 Conn. 51, 43 Atl. 552 73 Ruthven v. Ins. Co., 92 Iowa 316, 60 N. W. 663 32 Ryan v. Tudor, 31 Kan. 366, 2 Pac. 797 35, 151 Ryder v. Johnston, 153 Ala. 482, 45 South. 181 104 S. Sadler v. Leigh, 4 Camp. 195 (Eng.) 197 St. Johnsbury etc. Ry v. Hunt, 55 Vt. 570, 45 Am. Rep. 639 207 St. Louis Dairy Co. v. Sauer, 16 Mo. App. 1 52 St. Louis etc. Co. v. Parker, 59 111. 23 64 St. Louis etc. Ry. Co. v. Smith, 48 Ark. 317, 3 S. W. 364 38 St. Louis Gun. Adv. Co. v. Wannamalver & Brown, 115 Mo. App. 270, 90 S. W. 737 130 St. Paul Fire etc. Ins. Co. v. Parsons, 47 Minn. 352, 50 N. W. 240 186 St. Peter v. Denison, 58 N. Y. 421 29 Saladin v. Mitchell, 45 Hi. 79 15^ Salisbury v. Brisbane, 61 N. Y. 617 26 TABLE OF CASES CITED. 313 References are to pages. Saltus V. Everett, 20 Wend. (N. Y.) 2G7, 32 Am. Dec. 541 HG, 203 Sanborn v. Flager, 9 Allen (Mass.) 474 31 Sandage v. Studebaker Bros. Mfg. Co., 142 Ind. 148, 41 N. E. 380 41 Sanders v. Brown, 145 Ala. 665, 39 South. 732 62 Sanford V. Handy, 23 Wend. (N. Y.) 260 131,196 Sanford v. Johnson, 24 Minn. 122 71 Sargeant v. Clark, 108 Pa. St. 588 158 Saveland v. Green, 40 Wis. 431 34, 83, 257, 258 Savings Bank v. Railway Co., 20 Kan. 519 192 Sawyer v Lorillard, 48 Ala. 332 260, 261 Sawyer v. Mayhew, 51 Me. 398 227 Sawyer v. Northam, 212 N. C 261, 16 S. E. 1023 19 Sax V. Drake, 69 Iowa 760, 28 N. W. 423 60 Saxonia etc Mining Co. v. Cook, 7 Colo. 569, 4 Pac. 1111.. 142 Sayre v. Nichols, 7 Cal. 535, 68 Am. Dec. 280 32, 34, 170 Scanlan v. Keith, 102 111. 634, 40 Am. Rep. 624 167, 171 Scarritt Comstock Furniture Co. v. Hudspeth, 19 Okla. 429, 91 Pac. 843 147 Schaefer v. Henkel, 75 N. Y. 378 223 Schendel v. Sevenson, 153 Mass. 351, 26 N. E. 689 172 Schepflin v. Dessar, 20 Mo. App. 569 175 Schick V. Suttle, 94 Minn. 135, 102 N. W. 217 239 Schilling v. Rosenheim, 30 111. App. 81 114 Schlater v. Winpenny, 75 Pa. St. 321 98 Schmaltz v. Avery, 16 Q. B. 655 (Eng.) 224 Schuchardt v. Aliens, 1 Wall. (U. S.) 359 156 Schmidt v. Shaver, 196 111. 108, 63 N. E. 655 112 Schneider v. Schneider, 125 Iowa 1, 99 N. W. 159 57 Schramm v. O'Connor, 98 111. 539 18 Schwartze v. Yearly, 31 Md. 270 24 Schweyer v. Jones, 152 Mich. 241, 115 N. W. 974 173 Schwind v. Boyce, 94 Md. 510, 51 Atl. 45 158, 186 Scott V. Elmendorf, 12 Johns. (N. Y.) 317 151 Scott V. Jester, 13 Ark. 438 260 Scott V. Lord Ebury, L. R. 2, C. P 255 (Eng.) 75 Scott V. McGrath, 7 Barb. (N. Y.) 53 6 Scott V. Maier, 56 Mich. 544, 23 N .W. 218 247 Scott V. Rogers, 31 N. Y. 676 228 Scudder v. Anderson, 54 Mich. 122, 19 N. W. 775 153 314 TABLE OF CASES CITED, References are to pages. Sea V. Carpenter, 16 Ohio St. 412 253 Seaman v. Whitney, 24 Wend. (N. Y.) 260, 35 Am. Dec. 618. . 218 Searing v. Butler, 69 111. 575 82, 118, 256 Seavers v. Phelps, 11 Pick. (Rlass.) 304 16 Seabald v. Citizens' Bank, 31 Ky. Law Rep. 1244, 105 S. W. 530 187 Second Nat. Bank v. Adams, 29 Ky. Law Rep. 566, 93 S. W. .671 147 Second Nat. Bank v. Steele Co., 155 Ind. 581, 58 N. E. 833. . 16^ Security Trust & Life Ins. Co. v. Ellsworth, 129 Wis. 349, 109 N. W. 125 101 Sedgwick v. Stanton, 14 N. Y. 289 44 Seeberger v. McCormick, 178 111. 404, 53 N. E. 340 216, 217 Sellars v. Kelly, 45 Miss. 323 77 Semple v. Morrison, 23 Ky. 298 19 Senter v. Monroe, 77 Cal. 347, 19 Pac. 580 215 Serjeant v. Blunt, 16 Johns. (N. Y.) 74... 227 Sewell V. Holland, 61 Ga. 608 12 Sexton V. Weaver, 141 Mass. 273 37 Seymour v. Newton, 105 Mass. 272 262 Shackman v. Little, 87 Ind. 181 130, 156 Shaefer v. Henkel, 75 N. Y. 378 54 Shanks v. Lancaster, 5 Grat. (Va.) 110, 50 Am. Dec. 108 162 Sharp V. Jones, 18 Ind. 314, 81 Am. Dec. 359 195, 222 Shattuck V. Eastman, 12 Allen (Mass.) 369 166 Sheanon v. Pac. Mut. Life Ins. Co., 83 Wis. 507, 53 N. W. 878 115, 257 Shearman v. Morrison, 149 Pa. St. 386, 24 Atl. 313 241 Shopard v. McNail, 122 Mo. App. 418, 99 S. W. 494 lOG. 107 Shepardson v. Gillette, 133 Ind. 125, 31 N. E. 788 71 Shephard & Morse Lbr. Co. v. Eldridge, 171 Mass. 516, 51 N. E. 9 S6 Shields v. Blackburne, 1 H. Bl. 159 (Eng.) 234 S. H. Green & Sons v. Freund, 80 C. C. A. 387, 150 Fed. 721 250 Shine v. Kinoaly, 102 111. App. 473 198 Shirland v. Iron Works, 41 Wis. 162 235 Shinn V. Guiton & Harrington Mule Co., 109 Mo. App. 557, 83 S. W. 1015 86 Shinn V. Hicks, 68 Tex. 277, 4 S. W. 4SC 81 Shoonfcl.l V. FloiKhol, 7? 111. 404 227 TABLE OF CASES CITED. 315 References are to pages. Shoninger v. Peabody, 57 Conn. 42, 17 Atl. 278 SO Short V. Millard, 68 111. 292 94 Shotwell V. Ellis, 42 Miss. 439 18 Shuetze v. Barley, 40 Mo. C9 252 Sibbald v. Bethlehem Iron Works, 83 N. Y. 378, 38 Am. Rep. 441 252 Sidway v. American Mortgage Co., 222 111. 270, 78 N. E. 561 253 Siehold v. Davis, 67 Iowa 560. 25 N. W. 778 128, 138, 143 Sill V. Pate, 230 111. 39, 82 N. E. 356 84 Silverman v. Bullock, 98 111. 11 128 Simmons v. More, 100 N. Y. 140, 2 N. E. 640 217 Simonds v. Heard, 23 Pick. (Mass.) 120, 34 Am. Dec) 41. .211, 212 Simons v. Wittman, 113 Mo. App. 257, 88 S. W. 791 222 Simonton v. First Nat. Bank, 24 Minn. 216 95 Simpson v. Com. 89 Ky. 412, 12 S. W. 630 55 Simpson v. Walby, 63 Mich. 439, 30 N. W. 199 39, 243 Sims V. Dame, 113 Ind. 127, 15 N. E. 217 12 Singer etc. Stone Co. v. Hutchinson, 184 111. 169, 56 N. E. 353 113 Singer Mfg. Co. v. Christian, 211 Pa. St. 534, 60 Atl. 1087.. 86 Singer Mfg. Co. v. Holdfodt, 86 111. 455, 29 Am. Rep. 43.... 61 Singer Alfg. Co. v. Rahn, 132 U. S. 518, 10 Sup. Ct. 175 188 Singer Mfg. Co. v. Taylor, 150 Ala. 574, 43 South. 210 189 Singleton v. Scott, 11 Iowa 589 29 Skearaas v. Finnegan, 32 Minn. 107, 19 N. W. 729 217 SME V. Stoddard, 63 Conn. 198, 26 Atl. 874 133 Sloan V. Railway Co., 62 Iowa 728, 16 N. W. 331, 37 Sloan V. State 8 Ind. 312 194 Slawson v. Loring, 5 Allen (Mass.) 540, 81 Am. Dec. 750 170 Sloenecker v. Garrett, 48 Pa. St. 415 114 Small v. Howard, 128 Mass. 131, 35 Am. Rep. 363 230, 232 Smart v. Sanders, 3 C. B. 380 (Eng.) 155 Smith, v. Allen, 86 Mo. 178 55 Smith V. Alexander, 31 Mo. 193 211 Smith V. Barnard, 148 N. Y. 420, 42 N. E. 1054 118 Smith. V. Binder, 75 111. 492 218 Smith V. Brotherline, 62 Pa. St. 461 237 Smith V. Clews, 105 N. Y. 283, 59 Am. Rep. 502, 11 N. E. 632 146, 202 Smith V. Dickinson, 25 Tenn. (6 Hump.) 261, 44 Am. Dec. 306 51 316 TABLE OF CASES CITED, References are to pages. Smith V. Farmers etc. Bank, 2 Cal. App. 377, 34 Pac. 348 204, 205 Smith v. Fletcher, 75 Minn. 189, 77 N. W. 800 83 Smith V. Humphrey, 88 Me. 345, 34 Atl. 166 47 Smith V. Kelly, 43 Mich. 390, 5 N. W. 437 218 Smith V. Morse, 9 Wall. (U. S.) 76 80, 164 Smith V. Sublett, 28 Tex. 163 33, 36 Smith V. Swan, 2 Tex. Civ. App. 563, 22 S. W. 247'. 29 Smith V. Tracy, 36 N. Y. 79 85, 124, 133, 156 Smith's Com. v. Forsythe, 28 Ky. Law Rep. 1034, 90 S. W. 1075 17 Smout V. Ilbery, 10 M. & W. 1 (Eng.) 217 Smythe v. Parsons, 37 Kan. 79, 14 Pac. 444 132 Smythe's Estate v. Evans, 209 111. 376, 70 N. E. 906 48 Snell V. Goodlander, 9 Minn. 533, 97 N. W. 421 239, 240 Snider v. Express Co., 77 Mo. 523 222 Snodgrass v. Butler, 54 Miss. 45 238 Snook v. Lord, 56 N. Y. 605 112 Snyder v. Van Doren, 46 Wis. 610 152 Soens V. Racine, 10 Wis. 271 26 Solomon v. Penoyar, 89 Mich. 11, 50 N. W. 644 215 Souhegan Nat. Bank v. Wallace, 61 N. H. 24 238 South Bend Toy Mfg. Co., v. Dakota F. & M. Ins. Co., 3 S. D. 205, 52 N. W. 866 120 South Berwick v. Huntress, 53 Me. 89, 87 Am. Dec. 535 53 Southern Life Ins. Co. v. McCain, 96 U. S. 84 65, 98 Southern Ry. Co. v. Rowe, 2 Ga. App. 577, 59 S. E. 462 221 Sparks v. Transfer Co., 104 Mo. 531, 15 S. W. 417 213 Sparta School Twp. v. Mendall, 138 Ind. 188, 37 N. E. 604.... 215 Spaulding v. Ewing, 149 Pa. St. 375, 24 Atl. 219 44 Spear v. Gardner, 16 La. Ann. 383 250 Spence v. Cotton Mills, 115 N. C. 210, 20 S. E. 372 70, 71 Spencer v. Blackman, 9 Wend. (N. Y.) 167 228 Spencer v. Field, 10 Wend. (N. Y.) 88 160, 164, 196 Spofford V. Hobbs, 29 Me. 148, 48 Am. Dec. 521 120 Sprague v. Gillett, 9 Mete. (Mass.) 91 129, 149 Spraights v. Hawley, 39 N. Y. 441, 100 Am. Dec. 452 219 Spring v. Ansonia Clock Co., 24 Hun. (N. Y.) 175 254 SpringHeld, etc. Engine Co. v. Kennedy, 7 Ind. App. 502, 34 N. E. 856 ^^ Ktnckpolp V. .Arnold. 11 Mass. 27. G Am. Doc. 150 222 TABLE OF CASES CITED, 317 References are to pages. Stacy T. Bank, 12 Wis. 629 39 Stafford v. Lick, 13 Cal. 240 121 Stainback v. Read, 11 Grat. (Va.) 281, 62 Am. Dec. 648.. 120, 134 Stall V. Meek, 70 Pa. St. 181 21 Standard Oil Co. v. Gilbert, 84 Ga. 714, 11 S. E. 491 96 Stanton v. Bell, 9 N. C. 145, 11 Am. Dec. 744 232 Stanton v. Embrey, 93 U. S. 548 248 Staples V. Schmid, 18 R. I. 224, 26 Atl. 193 188 Stack V. Parker, 2 Pick. (Mass.) 267, 13 Am. Dec. 425 25.") Stark V. Starr, 94 U. S. 477 86 Starke v. Kenan, 11 Ala. 819 158 State V. Bacon, 40 Vt. 456 193 State V. Buttle's Exr's, 3 Ohio St. 309 77 State V. Devoon, 31 W. Va. 122, 5 S. E. 315 194 State V. Hastings, 10 Wis. 518 125 State V. Hays, 52 Mo. 578 125 State V. Henderson, 86 Mo. App. 482 113 State V. Hubbard, 58 Kan. 797, 51 Pac. 290 2 State V. James, 63 Mo. 570 193 State V. Kittele, 110 N. C. 560, 15 S. E. 103 194 State V. Learned, 41 Vt. 585 40, 193 State V. McCanoe, 110 Mo. 398, 19 S. W. 648 40, 194 State V. Mason, 26 Or. 273, 38 Pac. 130 194 State V. O'Connor, 5S Minn. 193, 59 N. W. 999 \ 194 State V. Roby, 52 Mich. 577, 18 N. W. 365 194 State V. Sarlis, 135 Ind. 195, 34 N. E. 1129 .' 4 State V. Smith, 78 Me. 260, 4 Atl. 412 40, 189 State V. Smith, 10 R. L 258 194 State V. State Journal, 77 Neb. 752, 110 N. W. 763 239 State V. Stewart, 31 Me. 515 194 State V. Thompson, 120 Mo. 12, 25 S. W. 346 7 State V. Torinus, 26 Minn. 1, 49 N. W. 259 70, 77 State V. Walker, 125 U. S. 339 105 State V. Wentworth, 65 Me. 234 194 State V. Wychoff , 31 N. J. Law 65 193 State V. Young, 23 Minn. 551 53, 54 State Bank v. Mfg. Co., 17 Tex. Civ. App. 214, 42 S. W. 1016 39 Steamboat v. King, 16 How. (U. S.) 469 234 Steamship Bulgarian Co. v. Transp. Co., 135 Mass. 421 211 Steamboat Co. v. Atkins, 22 Pa. St. 522 223 Steams v. Doe, 12 Gray (Mass.) 482, 74 Am. Dec. 608 58 '318 TABLE OF CASES CITED. References are to pages. Steele-Smith Gro. Co. v. Potthast, 109 Iowa 413, 80 N. W. 519 173 Steiner v. Clisby, 103 Ala. 181, 15 South. 612 230 Sternaman v. Met. Life Ins. Co., 170 N. Y. 413, 62 N. E. 763 1 Stevens v. Ewing, 87 Tenn. 49, 9 S. W. 230 25 Stevens v. Walker, 55 111. 151 232 Stewart V. Cowles, 67 Minn. 184, 69 N. W. 694 115, 136 Stewart v. Gregory, 9 N. D. 618, 84 N. W. 553 62 Stewart v. Schall, 65 Md. 299, 57 Am. Rep. 327 48 Stewart & Soubral v. Tucker, 119 Ala. 211, 43 South. 1009.. 248 Stimpson V. Sprague, 6 Greenl. (Me.) 470 232 Stinchfield v. Little, 1 Me. 231, 10 Am. Dec. 65 160, 161, 213 Stinson v. Lee, 68 Miss. 113, 8 South. 272 164 Stoddard v. Kej% 62 How. Prac. (N. Y.) 137 102 Stokes V. Mackay, 140 N. Y. 640, 35 N. E. 786 117 Story V. Flournoy, 55 Ga. 56 261 Stoughton V. Baker, 4 Mass. 522, 3 Am. Dec. 236 29 Stowell V. Eldred, 39 Wis. 614 124 Stracham v. Muxlow, 24 Wis. 21 99 Stratton -^ Todd, 82 Me. 149, 19 Atl. Ill 115 Strauss v. Meertief, 64 Ala. 299, 3 Am. Rep. 8 250, 251 Street v. Sinclair, 71 Ala. 110 72 Streissguth v. Bank, 43 Minn. 50, 44 N. W. 797 39, 243 Stroerner v. Van Orsdel, 74. Neb. 132, 103 N. W. 1053 44 Strong v. Buffalo Land Co., 203 U. S. 502 95 Strong V. High, 2 Rob. (La.) 103, 38 Am. Dec. 195 231 Strong V. Wes.t, 110 Ga. 382, 35 S. E. 693 252 Studebaker v. Taylor, 170 Ind. 498, 83 N. E. 747 17 Studwell V. Shapter, 54 N. Y. 249 22 Sturges V. Bank of Circleville, 11 Ohio St. 153 8 Suit v. Woodhall, 113 Mass. 391 185 Sullivan v. Shailor, 70 Conn. 733, 40 Atl. 1054 198 Summer v. Reicheniker, 9 Kan. 320 253 Summerlot v. Hamilton, 121 Ind. 87, 22 N. E. 973 8 Summers v. Carey, 69 App. Div. 428, 74 N. Y. Supp. 980 42 Summerville v. Hannibal etc. Ry. Co., 62 Mo. 391 61, 119 Sumner v. Conant, 10 Vt. 9 30, 7ti Sumner v. Stewart, 09 Pa. St. 321 132 Siissdorff V. Schmidt, 55 N. Y. 319 250 Sutherland v. Wyer. 67 Me. 64 251 Swan V. Nesmith, 7 Pick. (Mass.) 220, 19 Am. Dec. 282 230 Swartzwood v. Chance, 131 Iowa 714, 109 N. W. 297 17 TABLE OF CASES CITED. 319 References are to pages. Swartz V. Ballou, 47 Iowa 188, 29 Am. Rep. 470 53 Sweeney v. McLeod, 15 Or. 330, 15 Pac. 275 44 Sweet V. Jacobs, 6 Paige (N. Y.) 255, 31 Am. Dec. 252 236 Swentzel v. Bank, 147 Pa. St. 140, 23 Atl. 405 233 Swift V. Aspell & Co., 82 N. Y. Supp. 659 45 Swift V. Jewsbury, L. R. 9 Q. B. 301 (Eng.) 30 Swift V. Tyson, 16 Pet. (U. S.) 1 259 Swindell v. Latham, 145 N. C. 144, 58 S. E. 1010.... 24, 149, 235 Swisher v. Palmer, 106 111. App. 432 85 Switzer v. Connett, 11 Mo. 88 227 Switzer v. Wilvers, 24 Kan. 384, 36 Am. Rep. 259 147 T. Taber v. Cannon, 8 Mete. (Mass.) 456 149, 152 Taft V. Brewster, 9 Johns. (N. Y.) 334, 6 Am. Dec. 280 161, 213, 222 Tagg V. Bowman, 108 Pa. St. 273, 56 Am. Rep. 204 242 Talbot V. Bowen, 1 A. K. Marsh (Ky.) 436, 10 Am. Dec. 747 22 Talmadge v. Bierhause, 103 Ind. 270, 2 N. E. 716 133, 147 Tallon V. Mining Co., 55 Mich. 147 248 Tannat v. Rocky Mountain Nat. Bank, 1 Colo. 278, 9 Am. Rep. 156 166 Tate V. Evans, 7 Mo. 419 151, 152 Taussig V. Hart. 58 N. Y. 425 235 Taylor v. Assn., 68 Ala. 229 80 Taylor v. Burns, 203 U. S. 120 105 Taylor v. Carpenter, 3 Story (U. S.) 458 18 Taylor v. Griswold, 14 N. J. Law 222, 27 Am. Dec. 33 29 Taylor v. Harlow, 11 Barb. (N. Y.) 232 122 Taylor V. Hayes, 63 Vt. 475, 21 Atl. 610 224 Taylor v. Labeaume, 17 Mo. 338 153 Taylor v. Nostrand, 134 N. Y. 108, 31 N. E. 246 216 Taylor v. Starkley, 59 N. H. 142 147 Tedrick v. Hiner, 61 111. 189 25 Temby v. Williams Burnt Pottery Co., 229 111. 540, 82 N. E. 336 249 Temple v. Pomeroy, 4 Gray (Mass.) 128 149, 152 Tenn. River Transp. Co. v. Kavanaugh, 101 Ala. 1, 13 South. 283 61 320 T.VBLE OF CASES CITED. References are to pages. Terre-Haute etc. Ry. Co. v. McMurray, 98 Ind. 358, 49 Am. Rep. 752 58 Territory v. Maxwell, 2 N. M. 250 4 Terwillinger v. Murphy, 104 Ind. 32, 3 N. W. 404 215 Terwillinger v. Ontario etc. Ry. Co., 149 N. Y. 86, 43 N. E. 432 100, 106 Texas & Pacific Ry. v. Lester, 75 Tex. 56, 12 S. W. 955.. 180, 183 Thallhimer v. Brinkerhoff, 4 Wend. (N. Y.) 394, 29 Am. Dec. 155 179 Thayer v. Wadsworth, 19 Pick. (Mass.) 349 255 Third National Bank v. Bank, 61 Miss. 112, 48 Am. Rep. 78 39 Third Nat. Bank v. Gas Co., 36 Minn. 75, 30 N. W. 440 205 Thomas v. Atkinson, 38 Ind. 248 175 Thomts V. Caukett, 57 Mich. 392, 24 N. W. 154 41, 47 Thomas v. Davenport, 9 B. & C. 78 175 Thomas v. First Nat. Bank, 213 111. 261, 72 N. E. 801 42 Thomas v. Kerr, 3 Bush. (Ky.) 619 S Thompson v. Barnum, 49 Iowa 392 201 Thompson v. Clay, 60 Mich. 627, 27 N. W. G99 59 Thompson v. Elliot, 73 111. 221 150 Thompson V. Wharton, 7 Bush. (Ky.) 563 46 Thompson v. Woodruff, 47 Tenn. 401 7 Thorne v. Brown, 63 W. Va., 603, 60 S. E. 614 24, 236 Thorne v. Dees, 4 Johns. (N. Y.) 84 232 Thornton v. Boyden, 31 111. 200 128 Thrift V. Payne, 71 111. 408 254 Thurher v. Anderson, 88 111. 167 60 Thurston v. Blanchard, 22 Pick. (Mass.) 20, 33 Am. Dec. 700 155 Tier v. Lampson, 35 Vt. 179, 82 Am. Dec. 634 98 Tiernan v. Commercial Bank. 7 How. (Miss.) 648, 40 Am. Dec. 83 35 Tiernan v. Jackson, 5 Pet. ( U. S. ) 580 218 Tillery v. Wolverton, 46 Minn. 256, 48 N. W. 908 25 Tipping V. Rohbins, 64 Wis. 546, 25 N. W. 713 12 Tohin V. Larkin, 183 Mass. 389, 67 N. E. 340 164 Todd V. Emly, 7 M. & W. 427 (Eng.) 14 Todd V. German Am. Ins. Co., 2 Ga. App. 789, 59 S. E 94. . 24, 235 Toland V. Murray, 18 Johns. (N Y.) 24 223 Tolodo etc. Ry. Co. v. Mylott, 6 Ind. App. 438, 33 N. E. 135. . 58 Tollerton & Warfield Co. v. Gilruth, 21 S. D. 320, 112 N. W. 842 146 TABLE OP CASES CITED. 321 Heferences are to pages. Toole V. Crews, 3 Ga. App. 238, 59 S. E. 727 147 Towle V. Dresser, 73 Me. 252 • 21 Towle V. Leavitt, 23 N. H. 360, 55 Am. Dec. 195 134, 202 Townshend v. Shaffer, 30 W. Va. 176, 3 S. E. 586 122 Tracy v. Talmadge, 14 N. Y. 162, 67 Am. Dec. 132 49 Traders & Tuckers Bank v. Bank, 108 Va. 59, 60 S. E. 743 185, 187 Trainer V. Morrison, 78 Me. 160, 3 Atl. 185 135, 148 Traub v. Millil^en, 57 Me. 67, 2 Am. Rep. 14 199 Tredway v. Sioux etc. Ry., 40 Iowa 526 158 Triggs V. Jones, 46 Minn. 277, 48 N. W. 1113 91 Trimble v. Kerr Merc. Co., 56 Mo. App. 683 119 Triplett v. Jackson, 130 Iowa 408, IOC N. W. 954 38 Trist V. Child, 21 Wall. (U. S.) 441 43 Trowbridge v. Wheeler, 1 Allen (Mass.) 162 112 Trudo V. Anderson, 10 Mich. 357, 81 Am. Dec. 795 47, 70 Trueblood v. Trueblood, 8 Ind. 195, 65 Am. Dec. 756 76 Trundy v. Farrar, 32 Me. 225 54, 119 Truslow V. Parkersburg Bridge Co., 61 W. Va. 629, 57 S. E. 51 79, 235 Trustees etc. Ins. Corp. v. Bowling, 2 Kan. App. 770, 44 Pac. 42 141 Tuckwell V. Lambert, 5 Cush. (Mass.) 23 205 Tucker v. Railway Co., 54 Mo. 117 59 Tucker Mfg. Co. v. Fairbanks, 98 Mass. 101, 164, 166, 168, 213 222 Turner v. Cross, 83 Tex. 218, 18 S. W. 578 4 Turner v. Phoenix Ins. Co., 55 Mich. 236, 21 N. W. 326.. 70, 189 Twohy Merc. Co. v. Melbye, 78 Minn. 357, 81 N. W. 20 205 Tynan v. Dulling (Tex. Civ. App. ) 25 S. W. 465 33 Tynes v. Grimstead, 1 Tenn. Ch. 508 24 U. Union Gold Min. Co. v. Rocky Mt. Nat. Bank, 96 U. S. 640, 2 Colo. 248 81 Union Pac. Co. v. Beatty, 35 Kan. 268, 10 Pac. 845 59 Union Pac. Ry. Co. v. Fray, 35 Kan. 700 182 Union Trust Co. v. Phillips, 7 S. D. 225, 63 N. W. 903 196 U. S. V. Bartlett, 2 Ware (U. S.) 17 30, 201 U. S. V. Gooding, 12 Wheat (U.S.) 460 179,181,182 21 322 TABLE OF CASES CITED. References are to pages. U. S. V. Grossmayer, 9 Wall. (U. S.) 72 18, 70, 71 U. S. V. Jarvis, 2 Ware (U. S.) 278, Fed. Cas. No. 15,468 101, 102 U. S. Express Co. v. Rawson, 106 Ind. 215, 6 N. E. 337 69, 88 U. S. Fidelity Guar. Co. v. Ettenheimer, 70 Neb. 147, 99 N. W. 652 25 U. S. Mortgage Co. v. Henderson, 111 Ind. 24, 12 N. E. 88.. 90 U. S. Roll. St. Co. V. Atl. etc. Ry. Co., 34 Ohio St. 450, 32 Am. Rep. 380 , 206 U. S. Tel. Co. V. Gildersleve, 29 Md. 232, 96 Am. Dec. 51 222, 223 Upton \. Dennis, 133 Mich. 238, 94 N. W. 728 76, 132 Urquhart v. Mortgage Co., 85 Minn. 69, 88 N. W. 264.. 250, 257 V. Valeatine v. Stewart, 15 Cal. 387 47 Valette v. Tedens, 122 111. 607, 14 N. E. 52 236 Valley Bank v. Brown, 9 Ariz. 311, 83 Pac. 362 86 Vanada v. Hopkins, 24 Ky. 285, 19 Am. Dec. 92 124 Van Allen v. Vanderpool, 6 Johns. (N. Y.) 69 15 Van Antwerp v. Linton, 89 Hun. (N. Y.) 417, 157 N. Y. 716, 53 N. E. 1133 220 Van Arman v. Byington, 38 111. 443 56, 24G Vance v. Anderson, 39 Iowa 426 160 Van Dusen v. Sweet, 51 N. Y. 378 16 Van Dyke v. Van Dyke, 123 Ga. 686, 51 S. E. 582 160 Van Etta v. Evenson, 28 Wis. 33, 9 Am. Rep. 486 53 Van Sickle v. Keith, 88 Iowa 9, 55 N. W. 42 113 Varnun v. Martin, 15 Pick. (Mass.) 440 232 Varnum v. Meserve, 8 Allen (Mass.) 158 105 Vasse V. Smith, 6 Cranch (U. S.) 226 22, 23 Veazy v. Allen, 173 N. Y. 359, 66 N. E. 103 43 Vennum v. Gregory, 21 Iowa 326 253 Vent V. Osgood, 19 Pick. (Mass.) 527 22 Vernon v. Kirk, 30 Pa. St. 218 31 Very v. Levy, 13 How. (U. S.) 345 123 Vescelius v. Martin, 11 Colo. 391, 18 Pac. 338 153 Vicksburg etc. Ry. Co. v. O'Brien, 119 U. S. 99 178, 182 VicKsburg & M. R. Co. v. Ragdale, 54 Miss. 200 83 Vidoau V. Griffin, 21 Cal. 389 52 Vilas V. Downer, 21 Vt. 419 67 1 TABLE OF CASES CITED. 323 References are to pages. Vinton v. Baldwin, 95 Ind. 433, 88 Ind. 104, 45 Am. Rep. 447 241, 249, 260 Virginia etc. Coal Co. v, Lambert, 107 Va. 368, 58 S. E. 561 74 Visher v. Yates, 11 Johns. (N. Y.) 23 223 Volger V. Ray, 131 Mass. 439 14 Von Hunter v. Spengeman, 17 N. J. Eq. 185 238 Vose V. Dolan, 108 Mass. 155 53 Voss V. Robertson, 46 Ala. 483 147 Vulcan Det. Co. v. Amer. Can Co. (N. J. Eq.), 67 Atl. 339.. 186 W. Waddill V. Sebree, 88 Va. 1012, 14 S. E. 849 172 Wadhams v. Gray, 73 111. 415 158 Waggener v. Waggener, 19 Ky. 542 120 Wagoner v. Watts, 44 N. J. Law 126 52, 54 Waldman v. Ins. Co., 91 Ala. 170, 8 South. 666 32 Wallace v. Bank, 1 Ala. 565 124 Wallace v. Floyd, 29 Pa. St. 184, 72 Am. Dec. 620 247, 248 Wallace v. Sawyer, 90 Ind. 499 80 Wallis Tob. Co. v. Jackson, 99 Ala. 460. 13 South. 120 153 Walls V. Bailey, 49 N. Y. 464 132 Walker v. Dennison, 86 111. 142 97, 101 Walker v. Hannibal etc. Ry. Co., 121 Mo. 575, 26 S. W. 360. . 118 Walker v. Railway Co., 47 Mich. 338, 11 N. W. 187 146, 203 Walker v. Tirrell, 101 Mass. 257, 3 Am. Rep. 352 248, 249 Walker v. Walker, 5 Heisk. (Tenn.) 425 91, 226, 227 Walker Co. v. Produce Co., 113 Iowa 428, 85 N. W. 614 262 Walsh V. Hartford Fire Ins. Co., 9 Hun. (N. Y.) 421 5 Walsh V. Pierce, 12 Vt. 130 116 Wambole v. Foote, 2 Dak. 1, 2 N. W. 239 109 Warburton v. Ralph, 9 Wash. 537, 38 Pac. 140 61 Ward V. Bank, 7 T. B. Mon. (Ky.) 93 152 Ward V. Smith, 7 Wall. (U. S.) 447 109 Ward V. Williams, 26 111. 447, 79 Am. Dec. 385 69, 82 Warder, Bushnell & Glassner v. Cuthbert, 99 Iowa 681, 68 N. W. 917 80 Warder v. White, 14 111. App. 50 198 Ware v. Hylton, 3 Dall. 199 18 Ware v. Morgan, 67 Ala. 461 141, 216 Warner v. Martin, 11 How. (U. S.) 209 33. 35, 156 324 TABLE OF CASES CITED. References are to pages. Warner v. Smith, 8 Conn. 14 254 Warren v. Hays, 74 N. H. 355, 68 Atl. 193 86 Warren Bank v. Bank, 10 Cush. (Mass.) 582 3& Washington Bank v. Lewis, 22 Pick. (Mass.) 24 115 Watterson v. Rogers, 21 Kan. 529 69' Watson V. Banli, 8 Mete. (Mass.) 217, 41 Am. Dec. 500 241 Watson V. Erb, 38 Ohio St. 35 236 Watson V. Muirhead, 57 Pa. St. 161, 98 Am. Dec. 213 232 Watson V. Race, 46 Mo. App. 546 61 Watson V. Ruderman, 79 Conn. 687, 66 Atl. 515 19 Watson V. Swan, 11 C. B. (N. S.) 756 (Eng.) 75 Watson V. Sherman, 84 111. 263 2, 51 Watt V. Brookover, 35 W. Va. 323, 13 S. E. 1007 158 Watt V. Howard, 70 Minn. 122, 72 N. W. 840 136, 139, 140 Watt V. Kavanaugh, 35 Vt. 34 99 Weakley V. Pearce, 5 Heisk. (Tenn.) 407 229 Weare v. Grove, 44 N. H. 196 215 Weaver v. Cranall, 35 Ark. 198, 37 Am. Rep. 22 32, 34 Webb V. Browning, 14 Mo. 354 2, 54 Webber v. Howe, 36 Mich. 150 71 Webber v. Williams College, 23 Pick. (Mass.) 302 149, 151 Weber v. Bridgman, 113 N. Y. 600, 21 N. E. 985 103 Weber v. Shay, 56 Ohio St. 116, 46 N. E. 377 47 Weber v. Weber, 47 Mich. 569, 11 N. W. 389 219 Weed V. Burt, 78 N. Y. 192 251 Weeks v. Holmes, 12 Cush. (Mass.) 215 57, 246 Weer v. Adams, 37 Ky. 378 230 Wees V. Page, 47 Wash. 213, 91 Pac. 760 150 Weiss V. WhitLemore, 28 Mich. 360 224 Weisse V. New Orleans, 10 La. Ann. 46 158 Weisse's Appeal, 72 Pa. St. 351 141 Wellington v. Jackson, 121 Mass. 157 31, 74 Wells V. Addison, 20 La. Ann. 295 41 Wells V. Michigan Mut. Life Ins. Co., 41 W. Va. 131, 23 S. E. 527 142 Welsh V. Ferd Holm Bew. Co., 47 Mo. App. OOS 79 West St. Louis Sav. Bank v. Bank, 95 U. S. 557 154, 155 Westbrook v. Griffin, 132 Iowa 185, 109 N. W. 608 13 Western Cottage Piano Co. v. Anderson, 45 Tex. Civ. App. 513, 101 S. W. 1061 191 TABLE OF CASES CITED. 325 References are to pages. Western Mfg. Co. v. Cotton, 31 Ky. Law Rep. 1130, 104 S. W. S. W 758 79 Western Mining Co. v. Toole, 2 Ariz. 82, 11 Pac. 119 178 Western Mining Co. v. Toole, 2 Ariz. 82, 11 Pac. 119 178 Western Transportation Co. v. Barber, 56 N. Y. 544 238 Weston V. Esty, 22 Colo. 334, 45 Pac. 367 70 Weston V. Davis, 24 Me. 374 56, 246 Weyerhauser v. Dunn, 100 N. Y. 150, 2 N. E. 274 243 Whelan v. Reilly, 61 Mo. 565 65, 150 Wheeler v. Benton, 67 Minn. 293, 69 N. W. 927 59 Wheeler v. Citizens Bank, 32 Ky. Law Rep. 939, 107 S. W. 316 81 Wheeler v. Haskins, 41 Me. 432 242 Wheeler v. McGiiire, 86 Ala. 398, 5 South. 190 98, 99, 112, 135, 143, 143 Wheeler v. Nevins, 34 Me. 54 52 Wheeler v. Sleigh Co., 39 Fed. 347 84 Wheeler v. Walden, 17 Neb. 122, 22 N. W. 346 211 Wheeler & Wilson Mfg. Co. v. Aughey, 144 Pa. St. 398, 22 Atl. 667 84 Wheeler & Wilson Mfg. Co. v. Givan, 65 Mo. 89 156 Wheeler & Wilson Mfg. Co. v. Morgan, 29 KaQ. 371 62 White V. Davidson, 8 Md. 169, 63 Am. Dec. 699 29 White V. Dalquist Mfg. Co., 179 Mass. 427, 60 N. E. 791 8 White V. Equitable Nuptual Ben. Union, 76 Ala. 251, 52 Am. Rep. 325 48 White V. Ferguson, 29 Ind. App. 144, 64 N. E. 49 122 White V. Fuller, 67 Barb. (N. Y.) 267 132 White V. Howard, 46 N. Y. 144 13 White V. Leighton, 15 Neb. 424, 19 N. W. 478 117 White V. Madison, 26 N. Y. 117 215, 216 White V. Miller, 71 N. Y. 134, 27 Am. Rep. 13 178, 181 White V. Railway Co., 90 Ala. 254, 7 South. 910 241, 260 White V. Young, 122 Ga. 830, 51 S. E. 28 122 Whitehead v. Roddick, 34 N. C. 95 163 Whiteside v. U. S., 93 U. S. 247 125 Whitford v. Laidler, 94 N. Y. 145, 46 Am. Rep. 131 213 Whiting V. W. H. Crawford Co., 93 Md. 390, 49 Atl. 615 224 Whittier v. Child, 174 Mass. 36, 54 N. E. 344 119 Whitney v. Dutch, 14 Mass. 457, 7 Am. Dec. 229 20, 21 Whitney v. Express Co., 104 Mass. 152, 6 Am. Rep. 207 226 326 TABLE OF CASES CITED. References are to pages. ^^^litney V. Martin, 88 N. Y. 535 230 Whitney v. Wyman, 101 U. S. 392 211 Wiclvs V. Hatch, 62 N. Y. 535 33, 38 Widi-ig V. Taggart, 51 Mich. 103, 16 N. W. 251 23 Wiener v. Whipple, 53 Wis. 289, 10 N. W. 433 55 Wiggins V. Leonard, 9 Iowa 194 181 Wilber First Nat. Bank v. Ridpath, 47 Neb. 96, 66 N. W. 37.. 116 Wilbur V. Larkin, 3 Blackf. (Ind.) 55 163 Wilcox V. Arnold, 162 Mass. 577, 39 N. E. 414. 13, 15 Wilcox V. Hines, 160 Tenn. 524, 45 S. W. 781 120 Wilcox V. Railway, 24 Minn. 269 129 Wilcox V. Routh, 17 Miss. 476 138 Wilcox & Gibbs Sew. Mch. Co. v. Ewing, 141 U. S. 627 95 Wiley V. Logan, 95 N. C. 358 231 Wilkins v. McGehee, 86 Ga. 764, 13 S. E. 84 105 Wilkinson v. Heavenrich, 58 Mich. 574 89 Wilkinson v. King, 2 Camp. 335 203 Williams v. Crosby Lbr. Co., 118 N. C 928, 24 S. E. 800 79 Williams v. Evans, L. R. 1 Q. B. 352 (Eng.) 157 Williams V. Everett, 14 East 582 (Eng.) 218 Williams v. Getty, 31 Pa. St. 461, 72 Am. Dec. 757.. 129, 130, 135 Williams v. McKay, 40 N. J. Eq. 189, 53 Am. Rep. 575 233 Williams v. Mitchell, 17 Mass. 98 116 Williams v. Moore-Guant Co., 3 Ga. App. 756, GO S. E. 372 24, 235 Williams v. Paine, 1G9 U. S. 55 19, 31, 110 Williams v. Poor, 3 Cranch. (U. S.) 251 157 Williams v. Robbins, 16 Gray (Mass.) 77, 77 Am. Dec. 396 165 Williams v. Sapieha, 94 Tex. 430, 61 S. W. 115 17, 21 Williams v. School District, 21 Pick. (Mass.) 75, 32 Am. Dec. 243 27 Williams v. Tolbert, 76 S. C. 211, 56 S. B. 908 189 Williams v. Williams, 55 Wis. 300, 12 N. W. 465 241 Williams v. Woods, 16 Md. 220 32 Williamson v. Chicago etc. Ry. Co., 53 Iowa 126, 4 N. W. 870 47 Williamson etc. Paper Co. v. Bosbyshell, 14 Mo. App. 534.. 158 Wills V. International etc. Ry. Co., 41 Tex. Civ. App. 58, 92 S. W. 273 59 Wilson V. Bank, 187 111. 222, 58 N. E. 250 36, 39, 243 TABLE OF CASES CITED. 327 References are to pages. Wilson V. Board of Education, 63 Mo. 137 255 Wilson V. Brett, 11 M. & W. 113 233 Wilson V. Dame, 58 N. H. 392 90, 247 Wilson V. Harris, 21 Mont. 374, 54 Pac. 46 108 Wilson V. Mene-Chas, 40 Kan. 648, 20 Pac. 468 4 Wilson V. Russ, 20 Me. 421 232 Wilson V. Smith, 3 How. (U. S.) 763 36 Wilson V. Wilson, 26 Pa. St. 393 226, 227 Wilson V. Wilson-Rogers, 181 Pa. St. 80, 37 Atl. 117 123 Wilson Sewing Mach. Co. v. Sloan, 50 Iowa 367 178 Wilts V. Morrall, 66 Barb. (N. Y.) 511 227 Winchester v. Howard, 97 Mass. 303, 93 Am. Dec. 93 197 Winders v. Hill, 141 N. C. 694, 54 S. E. 440 148 Wing V. Netl (Me.) 2 Atl. 881 156 Winne v. Ins. Co., 91 N. Y. 185 123 Winshop V. Bank of U. S., 5 Pet. (U. S.) 529 , 8 Winship V. Baseball Assn., 78 Me. 571 254 Winter v. Coit, 7 N. Y. 288, 57 Am. Dec. 522 259 Wishard v. McNeill, 85 Iowa 474, 52 N. W. 474 149 Witherell v. Murphy, 147 Mass. 417, 18 N. E. 215 252 Witman v. Felton, 28 Mo. 601 238 Wolf V. Studebaker, 65 Pa. St. 459 251 Wolfe V. Pugh, 101 Ind. 293 191 Wolfson V. Allen Bros. Co., 120 Iowa 445, 94 N. W. 910 249 Wood V. Brewer, 66 Ala. 570 56, 246 Wood V. Goodridge, 6 Cush. (Mass.) 117, 52 Am. Dec. 771 121, 127, 148 Wood V. Hart, 50 Neb. 497, 70 N. W. 53 101 Wood V. McCain, 7 Ala. 800, 42 Am. Dec. 612 5, 88 Wood V. Palmer, 151 Mich. 30, 115 N. W. 242 85 Wood etc. Mach. Co. v. Crow, 70 Iowa 340, 30 N. W. 609 134 Woodford v. Hamilton, 139 Ind. 481, 39 N. E. 47 172 Woodman v. Innes, 47 Kan. 26, 27 Pac. 125 45 Woodruff V. Wentworth, 133 Mass. 309 47 Worrall v. Munn, 5 N. Y. 229, 55 Am. Dec. 330 52, 78, 125 Wright V. Boyton, 37 N. H. 9, 72 Am. Dec. 319 32 Wright V. Farmers' Mut. Life Ins. Assn., 96 Iowa 260, 65 N. W. 308 , 79 Wright V. Solomon, 19 Col. 64, 79 Am. Dec. 196 155 Wright V. Parks, 10 Iowa 342 157 Wunderlin v. Cadogan, 50 Cal. 613 53 328 TABLE OP CASES CITED. References are to pages. W. W. Gordon & Co. v. Cobb, 4 Ga. App. 49, 60 S. E. 821.... 230 Wycofl, Seaman & Benedict v. Davis, 127 Iowa 399, 103 N. W. 349 74 Wyman v. Smith, 2 Sandf. (N. Y.) 331 219 Wyman v. Snyder, 112 lU. 99, 1 N. E. 469 37 X Xenia Bank v. Stewart, 114 U. S. 224 181 Y Yerrington ▼. Green, 7 R. I. 589, 84 Am. Dec. 578 253 Yeoman v. McClenaban, 190 N. Y. 121, 82 N. E. 1086 190 Yerger v. Barz, 56 Iowa 77, 8 N. W. 769 186 York County Bank v. Stein, 24 Md. 446 175 Young V. Hughes, 32 N. J. Eq. 372 24 Z Zacharle T. Godfrey, 50 111. 186, 99 Am. Dec. 506 18 Zimpleman v. Keating, 72 Tex. 318, 12 S. W. 177 78 Zuck V. Gulp, 59 Gal. 142 241 INDEX (References are to sections.) A. ACJCEPTANCE, of appointment by agent, 52. of services, implies promise to remunerate, 154. ACCOUNT, duty of agent to, 151. ACTS, appointment to do Illegal, 39. what acts can not be delegated, 30, 31. what acts can be ratified, 54. see "Delegation of AuTHOEriT;" "Dxegai-ity of Object;' "Ratification." ADMISSIONS, defined, 112. by agent, good against principal, 113. authorized statements, 113 (b). statements part of transaction, 113 (c), res gestae, 114. see "Declarations." ADVERSE INTEREST, disqualifies to act as agent, 25. agent may not acquire, 150 (c), AGENCY, defined, 1. form of contract of, 2. created by law, 3. legal recognition of familiar forms, 11. undisclosed agency, 109. see "Peoof of AtrrHOErrz;" "PuiTiCTjr.AB Aqewcies;' "Termination of Agency." 830 INDEX. (References are to sections.) AGENT, defined, 1. as used in statutory enactments, 4. distinguished from servant, 4. acts tliat can be done by, 29. capacity to be, 22. appointment of, see "Appointment of Agent." declarations of, see "Declarations." apparent authority of general and special, 92. classification of, 5. universal, general, special, 6. del credere, 7. particular designations, 8. (a) attorney. (b) broker. (c) factor (d) auctioneer. legal recognition of particular classes, 11. to sell, 96. to puichase, 97. to receive payment, 98. to execute commercial paper, 99. to manage business, 100. joint agents, 27. unlicensed agents, 26. liability of, on contract to third person, 132. simple contract, 133. sealed instrument, 134. negotiable instrument, 135. liability of, when acting without authority, 137. liability of, for torts, 140. principal's liability for torts of, 119, 120. liability of, for money received, from third person for principal, 138. from principal for third person, 139. •wrongful transfer of property by, 128. where invested with indicia of title, 128 (b)^ money and negotiable paper, 128 (c). following trust funds in hands of, 129. obligations of, to princiijal, 146. INDEX. 331 (References are to sections.) AGENT (continued) — duty of, to obey instructions, 147. justification for disobedience of instructions, 148. emergency, 148 (a). illegal acts, 148 (b). ambiguous instructions, 148 (c). factor's rights, 148 (d). duty of, to exercise care and diligence, 149. gratuitous agent, 149 (b). duty of, to act in good faith, 150. acting as agent and party, 150 (b). acquiring adverse interest, 150 (c). may not deny title, 150 (d). may not make profit, 150 (e). duty of, to account, 151. necessity of demand, 151 (c). liability of, for acts of subagent, 152. see "Principax; " "Appointment of Agent;" "Authob- ity; " "Parties to Contract." ALIEN, capacity to be principal, 19. APPOINTMENT OF AGENT, in general, 45. to execute sealed instrument, 46. to fill blanks in sealed instruments, 47. to execute simple contracts required to be in writing, 48. oral appointment, 49. Implied appointment, 50. implication from circumstances, 50 (b). from acts or conduct, 50 (c). from relation of parties, 50 (d). estoppel to deny, 51. acceptance of, by agent, 52. see "Acts; " "Proof of Authority." ATTORNEY, defined, 8. attorney at law, implied authority of, 105. see "Power of Attorney. 332 INDEX. (References are to eectloni.) AUCTIONEER, defined, 8. implied auttiority of, 104. AUTHORITY, establishment of, see "Proof of Authoritt." construction of, see "Construction of Authority." ambiguous, 81. must be exercised for principal's benefit, 82. effect of exceeding, 84, 137. where transaction is severable, 84. slight deviations from, 83. transfer of property without, 128. acting without, effect on agent, 137. implied, 50, 88. Implication as to extent of, 89. apparent, 91. irrevocable, 70, 73. estoppel to deny, 51. scope of, in particular agencies, see "Pakticui.ab Agencies.' revocation of, see "Termination of Agenct." warranty of, by agent, 137 (c). see "Appointment of Agent;" "Powees." B. BANKRUPTCY, termination of agency by, 75. BROKER, defined, 8. scope of authority of, 103. powers of, implied from usage, 89. a CAPACITY, to be principal or a^ent, see "Pabties." CARE AND DILIGENCE, duty of agent to exercise, 149. see "Agent." INDEX. 33 i> (References are to sections.) CASHIER, implied authority of, 101. contract signed by, 108 (c). COLLUSION, of third person and agent, 130 (b). COMPENSATION, agent's right to, 154. amount of, 154 (c). when due, 155. effect upon, of revocation of authority, 156. of renunciation of agency, 157. CONSTRUCTION OF AUTHORITY, in general, 86. express authority, 87. implied authority, 88. implication as to extent of authority, 89. incidental powers, 89 (a). powers implied from usage, 89 (b). effect of express restrictions, 90. apparent authority, scope of, 91. of general and special agents, 92. notice of limitations upon, 93. see "Peoof of Authority;" "Wbittbn Authority." CONTRACT, form of contract of agency, 2. effect of illegality of object upon, 38. appointment to execute sealed, 46. appointment to execute written, 48. ratification of unauthorized, 54. mode of ratification, 57. when revocation of authority involves breach of, 68. persons bound by, see "Parties to Conteact." CORPORATIONS, capacity of, to be agent, 24. promoter's contract in behalf of, 55. COURT AND JURY, province of, 79 (e). see "Proof of Authority." 334: ESTDEX. (References are to sections.) CRIMES, can not be ratified, 54 (c). liability of principal for crimes of agent, 121. prior assent necessary, 122. statutory offenses, 122 (b). CUSTOM AND USAGE, implication of authority from, 89 (b). justifying appointment of subagent, 36. see "Construction of Authobitt." D. DEATH, termination of agency by, 73. powers not revoked by, 73 (c). DECEIT, of agent in claiming to have authority, 137. see "Fraud." DECLARATIONS, of agent, incompetent to prove agency, 79. admissible as admissions, 113. see "Admissions." DEFENSES, against disclosed principal, 123. against undisclosed principal, 126. against agent, 142. see "Parties to Contract." DELEGATION OF AUTHORITY, in general, 29. personal acts can not be delegated, 30. acts required by statute to be personally performed, 31. delegated authority can not be delegated, 32. see "Subagent." DEMAND, necessity of, by principal upon agent, 151 (c). DRUNKEN PERSON, ca[)acity to l)o principal, 18. INDEX. 835 (References are to sections.) E. ELECTION, to hold undisclosed principal, 109 (b). to hold agent, 133. ESTOPPEL, agency by, 51. establishment of, 79 (d). to set up revocation, 69 (b). to deny authority to sell, 128. EVIDENCE, of authority, see "Proof of Authority." parol, inadmissible to vary written powers, 80. parol, inadmissible to charge parties by sealed or negotiable instruments, 107, 108. exception as to negotiable instruments, 108 (b). parol, admissible to charge undisclosed principal, 109. parol, inadmissible to defeat agent's liability, 133. EXECUTION OF INSTRUMENTS, form of, necessary to bind principal, 107, 108. see "Parties to Contract." F. FACTOR, defined, 8. scope of authority of, 102. lien of, 160. FALSE REPRESENTATIONS, effect of agent's, upon contract, 120. see "Fraud." FORGERY, ratification of, 54 (d). FRAUD, of agent, principal liable, 120. where not for principal's benefit, 120 (b). of third person, liability to principal, 130. of agent, upon principal, 150. see "Deceit." 336 INDEX. (References are to sections.) G. GENERAL AGENT, defined, 6. apparent authority of, 92. GOOD FAITH, duty of agent to exercise, 150. GRATUITOUS AGENT, obligations of, to principal, 149 (b). H. HUSBAND AND WIFE, existence of relation does not, of itself, Imply authority In one to represent the other, 50 (d). see "Relationship of Parties." I. ILLEGALITY OF PURPOSE, justification for disobedience of instructions, 148 (b). effect of, upon contract of agency, 38. conditions necessary to invalidate contract, 44. appointment to do illegal acts, 39. services in influencing legislation, 40. services in procuring other governmental action, 41. services affecting the public, 42. services contrary to fair dealings, 43. effect of, upon agent's right to indemnity, 159 (b). INDEMNIFICATION, duty of principal to indemnify agent, 159. see "Pbincipal." INDICIA OF OWNERSHIP, effect of intrusting agent with, 12S (b). INFANT, capacity of, to be principal, 21. to be agent, 23. to ratify. 50. INDEX. 337 (References are to sections.) INSANE PERSON, capacity of, to be principal, 17. to be agent, 23. to ratify, 56. INSANITY, termination of agency by, 74. INSTRUCTIONS, duty of agent to obey, 147. see "Agent." IRREVOCABLE AUTHORITY, see "Tebmixation of Agency." JOINT AGENTS. all must act in execution of agency, 27. incapacity of one terminates the agency, 27. public agency, 28. JOINT PRINCIPALS, in general, 13. partnerships, 14. voluntary associations, 15. K. KNOWLEDGE, of material facts, necessary to ratification, 60. of limitations upon authority of agent, 93. see "Notice." L. LIABILITY, see "Principal;" "Agent;" "Third Persons;** "Pabties to Contract." LIEN, of agent, 160. general lien, 160. special lien, 161. requisites of, 161 (b). enforcement of, 161 (c). 333 INDEX. , (References are to sections.) LIMITATIONS, knowledge of, upon authority of agent, 91. LOSS OF SERVICES, liability to principal for causing, 131. M. MARRIAGE, revocation of power of attorney by, 76. see "Tek.mixation of Agency," MARRIED WOMAN, capacity to be principal, 20. to be agent, 23. to ratify, 56. MASTER AND SERVANT, relation, distinguished from that of principal and agent, 4. liability of master for torts of servant, 118. liability of principal analogous, 119. MINISTERIAL ACTS, implied authority to delegate, 35. see "SUCAGENT." MISTAKE OF FACT, payment to agent under, 138. payment by agent under, 144, 127. acting under, as to possession of authority, 137. MONEY, wrongfully paid by agent, 128 (c). N. NECESSITY, agency of, 50 (b). justification lor deviation from instructions, 148. NEGLIGENCE, liability of agent lor, to primiijal, 149. to third person. 110. INDEX. 339 (References are to sections.) NEGOTIABLE INSTRUMENTS, power of agent to issue, 99. unnamed principal not liable on, 108. parol evidence to charge, 108 (b). liability of agent upon, 135. wrongful transfer of, by agent, 128 (c). NOTICE, of limitations on authority of agent, 93. notice to agent imputed to principal, 116. when not imputed, 116 (b). duty of agent to give, to principal, 150 (f), O. OBLIGATIONS, of principal to agent, see "Pbincip-Vl/' of agent to principal, see "Agent." P. PARTICULAR AGENCIES, agent to sell, 96. agent to purchase, 97. agent to collect, 98. agent to execute commercial paper, 99. agent to manage business, 100. bank cashier, 101. factor, 102. broker, 103. auctioneer, 104. attorney at law, 105. PARTIES, capacity to be principal, 12 insane person, 17. drunken person, 18. alien, 19. married woman, 20. infant, 21. capacity to be agent, 22, infant, 23. insane person, 23. 340 INDEX. (References are to sections.) PARTIES (continued) — married woman, 23. corporation, 24. partnership, 24. persons adversely interested, 25. unlicensed agent, 26. PARTIES TO CONTRACT, when principal is deemed bound, 106. by sealed instrument, 107, by negotiable instrument, 108. parol evidence rule, 108 (b). by simple non-negotiable contract, 109. undisclosed principal, 109 (a), election to hold principal, 109 (b). effect of settlement with agent, 109 (c). •when third person bound to principal, 123. by sealed instrument, 124. by negotiable Instrument, 124. by simple non-negotiable contract, 125. to undisclosed principal, 125 (a), principal excluded by terms of contract, 125 (b). defenses good against principal, 126. when third person bound to agent, 141. defenses good against agent, 142. professed agent real principal, 143. when agent bound to third person, 132. simple non-negotiable contract, 133. sealed instrument, 134. negotiable instrument, 135. acting without authority, 137. public officers, 136. PARTNERS, each agent of all, 9. power of eacli to appoint agent for all, 14. PARTNERSHIP, may act as agent, 24. PAYMENT, authority of agent to receive, 98. of money, l)y agent tlirough mistake, 127. of iiioncy, by third pfMSon to agent, 138. INDEX. 341 (References are to sections.) PLEDGE, agent to sell not authorized to, 96, POSSESSION, intrusting agent with, 126 (b), 128. POWERS, irrevocable, 70. power coupled with an interest, 73 (c). formal, strictly construed, 80. implied from usage, 89 (b). incidental, 89 (a). see "Authority;" "Construction of Authobit POWER OP ATTORNEY, defined, 8. construction of, see "Written Authority." PRINCIPAL, capacity to be, 12. when bound by contract, see "Parties to Contract." revocation of authority by, see "Termination of Agenot." joint principals, 13. bound by ratification, 63. notice to agent imputed to, 116. declarations of agent, when admissible against, 113. estoppel of, to deny agent's authority, 51. liability of, for crimes of agent, 122. liability of, for tort of agent, 119. liability of third person to, see "Third Person.", undisclosed principal, 109. liability of third person, to, 125. defenses good against, 126. obligation of, to agent, in general, 153. obligation to compensate agent, 154. effect of ratification upon, 154 (b). amount of compensation, 154 (c). when compensation is due, 155. revocation of authority, 156. In violation of contract, 156 (b). for agent's misconduct, 156 (c). revocation by law, 156 (d). renunciation by agent, 157. entire and severable contracts, 157 (b). 342 INDEX. (References are to sections.) PRINCIPAL (continued) — obligation to reimburse agent, 158. obligation to indemnify agent, 159. illegal acts, 159 (b). obligations of agent to, see "Agent." PRIVITY OF CONTRACT, between principal and subagent, 37, 152. PROFIT, agent may not make secret, 150 (e). PROOF OF AUTHORITY, burden on third person to establish, authority, 78. agent's declarations incompetent to prove authority, 79. when competent, 79. agent may testify, 79. declarations of principal competent, 79 (b), communications between principal and agent, 79 (b), written authority, 80. oral authority, 79 (c). implied authority, 79 (c). establishment of ratification and estoppel, 79 (d). province of court and jury, 79 (e). public ofBcers, 85. PUBLIC OFFICERS, authority of, 85. contracts executed by, 136. PURCHASE, agent to, implied authority of, 97. see "Particular Agencies." R. RATIFICATION, the doctrine of, 53. acts and contiacts that can be ratifiea, ot. forgery, 54 (d). torts, 54 (c). rrimes, 54 (c). who may ratify, 56. INDEX. 343 (References are to sections.) RATIFICATION (continued) — conditions to ratification, 55. assumption of agency, 55 (a). existence of principal, 55 (b). . mode of ratification, 57. sealed instruments, 57 (b). Implied ratification, 58. affirmative act, 58 (a). silence, 58 (b). must be with knowledge of facts, 60. estoppel, 59. ratification in part, 61. effect of ratification, 62. between principal and third person, 63. intervening rights of strangers, 62 (b). between principal and agent, 64, 154 (b). proof of, 79 (d). REIMBURSEMENT, duty of principal to reimburse agent, 158. RELATIONSHIP OF PARTIES, does not raise implication of authority, 50 (d). may be considered by the jury, 79 (c), 50 (d). effect on obligation to remunerate, 154. REMUNERATION, duty of principal to remunerate agent, 154. see "Principal." RENUNCIATION, termination of agency by, 71. effect upon agent's right to remuneration, 157. REPRESENTATIONS, liability of principal for agent's, 120. REVOCATION OF AUTHORITY, effect of, upon agent's right to remuneration, 156. see "Termination of Agency." S SEALED INSTRUMENTS, appointment to execute, 46. to fill blanks, 47 344 INDEX. (References are to sections.) SEALED INSTRUMENTS (continued) — ratification of, 57. construction of powers given under seal, 80, 81. form of execution of, necessary to bind principal, 107. agent bound by, 134. parol evidence inadmissible to bind principal by, 107. see "Parties to Contract." SELL, agent to, implied powers of, 96. SERVANT, distinguished from agent, 4. liability of master for torts of, 118. SERVICES, illegal, see "Illegality." liability for causing loss of, 131. SET-OFF, against agent good against undisclosed principal, 126. against principal good in suit by agent, 142. by agent against principal, 151 (b). SETTLEMENT, with agent of undisclosed principal, 126. by undisclosed principal with agent, 109 (c). SKILL, duty of agent to exercise, 149. STOPPAGE IN TRANSITU, agent's right of, 162. SUBAGENT, appointment of, 33. impliPd authority of agent to appoint, 34. implication from nature of agency, 36. ministerial acts, 35. relation between principal and subagent, 37. resjionsibility of agent for conduct of, 152. T. TERMINATION OF AGENCY, Jn general, 65. by oriplnal agreement, 66. INDEX. 345 (References are to sections.) TERMINATION OF AGENCY (continued)— by implication, 66. revocation of authority, 68. how revocation is effected, 69. notice to agent, 69 (a). notice to third persons, 69 (b). revocation in violation of contract, 68 (b), irrevocable authority, 70. authority given for valuable consideration, 70. authority coupled with an interest, 73 (c). renunciation by agent, 71. by operation of law, 72. death, 73. powers not revoked by death, 73 (c). insanity, 74. bankruptcy, 75 marriage, 76. war, 77. THIRD PERSON, burden upon, to establish existence of agent's authority, 78. liability of, to principal, 123. sealed and negotiable instruments, 124. liability of, to undisclosed principal, 125. settlement with agent before disclosure, 126. principal excluded by terms of contract, 125 (b). defenses, 126. liability of, to principal for property wrongfully transferred 128. where agent invested with indicia of ownershp, 128 (b). money and negotiable instruments, 128 (c) following trust funds in hands of, 129 fraud of, 130. collusion of, with agent, 130 (b). causing loss of agent's service, 131. liability of, to agent, 141. on contract, 141 (a). where agent has inteiest in subject matter, 141 (b). defenses, 142. for money paid by agent, 144. 346 ^^''^^' (References are to sections.) THIRD PERSON (continued) — for torts, 145. professed agent real principal, 143. see "Pbixcipax;" "Agent." TITLE, agent to purchase may not acquire, 150 (c). agent may not deny principal's, 150 (d). TORT, of agent, may be ratified, 54 (c). liability of principal for tort of agent, 119. liability of agent for, 140. nonfeasance, 140 (b). liability of third person for, 130, 145. TRUST FUNDS, following, into hands of agent, 129, into hands of third person, 129. U. UNDISCLOSED PRINCIPAL, liability of, to third person, 109. election of third person to hold, 109 (b), settlement by, with agent, 109 (c). liability of third person to, 125. defenses, 126. see "Parties to Contract.* UNIVERSAL AGENT, defined, 6. USAGE, see "Clstom and Usage." V. VOLUNTARY ASSOCIATION, when members bound by act of agent, 15. W. WAR, ternilnaUnn of aponcy by, 77. INDEX. 347 (References are to sections.) WARRANTY, implied power of agent to give, 89 (b). of particular agents, see "Particulab Agencies." of authority, by agent, 137 (c). damages for breach, 137 (d). WIFE, implied authority of, to act as agent for husband, 50 (d). see "Relationship of Parties." WRITTEN AUTHORITY, when necessary, 46, 48. proof of, 80. formal powers strictly construed, 87, 80. can not be varied by parol, 80. informal powers, 80. UC SOUTHERN REGIONAL LIBRARY EACILITY AA 000 851 462 2