F\ y 2 UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY O' I-/ 122 N. BROi AY i-CG AXGELLG.CAU r OUTLINES OF THE LAW OF AGENCY BY FLOYD R. MECHEM Author of "Mechem on Agency," "Mechem on Sales," "Mechem on Public Officers," etc.; Tappan Professor of Law in the University of Michigan SECOND EDITION CHICAGO CALLAGHAN & COMPANY 1903 T COPYBIGHT 1901 BY FLOYD R. MECHBM Copyright 1903 BY FLOYD R. MECHBM 7->f f ©v. NOTE The following pages have been printed to accompany the writer's collection of Cases on Agency, for use in the Department of Law of this University. Nothing has been attempted beyond the merest outlines of the subject. Explanation as well as Illus- tration has in general been left to be supplied by the cases. F. R. M. University of Michigan, Ann Arbor, January 1, 1903. TABLE OF CONTENTS. [References are to sections.] CHAPTER T. DEFINITIONS AND DISTINCTIONS. Agency defined 1 Agency is a contractual relation 2 Can usually exist only by assent of the principal 3 Exceptions — Authority created by law 4 How agent compares with servant 5 Distinction usually of little practical importance ii Occasionally distinction important 7 How agent compares with "independent contractor" Agency differs from trust 9 Agency to be distinguished from sale 10 Agency differs from lease 11 The contract appointing — "Power of attorney" 12 Classification of agencies — Actual or ostensible 13 Universal, general and special agency 14-17 How to be proved 18 Professional and non-professional agents 19-23 Distinctions between these classes of agents 24-26 CHAPTER IT. FOR WHAT PURPOSES AN AGENCY MAY BE CREATED. The general rule 27 The exceptions 2S The first exception 29 Illustrations 30 The second exception 31 How these cases regarded in law 32 Illustrations 33 Validity as between principal and agent 34 How when contract illegal in part 35 v Tl TABLE OF CONTENTS. [References are to sections.] CHAPTER III. WHO MAY BE PRINCIPAL OR AGENT. In general 36 1. Who May Be Principal. The general rule , . . 37 Rule applies to corporations and partnerships 38 Natural or legal incapacity 39 Insane persons as principals 40 Infants as principals 41 Married women as principals 42 2. Who May Be the Agent. Less competence required in agent than in principal 43 Infant as agent 44 How authorized 45 Married woman as agent 46 As agent for her husband 47 Husband as agent for his wife 48 Corporations as agents 49 Partnerships as agents 50 Incapacity arising from adverse interest 51 3. Joint Principals. Agent may represent several joint principals. . . . „ * 52 Partners, co-tenants, etc. as principals 53 Clubs, societies, etc., as principals 54 4. Joint Agents. Several agents may jointly represent the same principal 55 If the power is joint and several 56 But where the agency is one created by law. 57 CHAPTER IV. OF THE APPOINTMENT OF AGENTS AND THE EVIDENCE THEREOF. In general 58 1. How the Agent May Be Appointed. Usually, only by act of principal 59 The method to be pursued 60 1. Authority to execute instruments under seal 61 How when instrument executed in presence of principal.. 62 How corporation may appoint 63 2. Authority required by statute to be in writing 64 TABLE OF CONTENTS. ▼& [References are to sections.] In other cases authority may be conferred by parol. 65 - Need not be express *6 Doctrine of estoppel applied 67 General rule 68 Limitations 69 2. Evidence of the Appointment. Authority not to be proved by agent's admissions 70 But agent may be called as a witness 71 What constitutes the best evidence 72 How question determined 73 CHAPTER V. OF AUTHORITY BY RATIFICATION. How question arises 74 1. What Is Ratification. Ratification defined 75 2. What Acts May Be Ratified. Cn general, any act which might previously have been authorized 76 Not void or illegal acts 77 Forgery 78 3. Who May Ratify. In general, any person who might authorize 79 State, corporation, etc 80 Infants, married women 81 Agent 82 4. Conditions of Ratification. What conditions must exist 83 5. What Amounts to a Ratification. General rule 84 Ratification by instrument under seal 85 Ratification by authority subsequently conferred 8G Ratification by conduct 87 By accepting benefits 88 By bringing suit 89 By acquiescence 90-91 6. The Effect of Ratification. In general Revocability 83 Effect as between principal and agent 94 Effect as to rights of third party against principal 95 Effect as to rights of principal against third party 96 viii TABLE OF CONTENTS. [References axe to sections.] Effect between agent and other party 9? In tort a8 CHAPTER VI. OF DELEGATION OF AUTHORITY BY THE AGENT. In general " Agent generally cannot delegate authority to sub-agent 100-2 Under what circumstances justified lu 3 Effect of appointment of sub-agent 104-5 CHAPTER VII. OF THE TERMINATION OF THE AGENCY. In general 1 ^ 6 I. TERMINATION BY ACT OF PARTIES. What methods fall under this head 10? Termination by original agreement 108 Termination by subsequent act of parties 109 1. Termination by Mutual Consent. Agency may be terminated at any time by mutual consent 110 2. Revocation by Principal. Power of principal to revoke 111-112 Not when coupled with interest 113-115 How revoke 116 Notice of revocation 117 3. Renunciation by Agent. Power of agent to renounce authority 118 Enforcement of contract of agency H 9 Agency at will 120 Discharge of agent justified when I- 1 Renunciation by agent justified when 122 II. TERMINATION BY OPERATION OF LAW. In general J *° Death of principal 124 Death of agent 125 Insanity of principal or agent 126 Bankruptcy of principal or agent I 27 Marriage of principal 128 War 121 J Destruction of subject matter 130 Termination of power over subject matter — sub agents 131 TABLE OF CONTENTS. :x (.References are to sections.] CHAPTER VIII. OF THE NATURE AND EXTENT OF THE AUTHORITY. Distinctions 132 Express authority 133 Implied authority 134 General authority 13T, Special authority 136 Appearance given to authority hy principal controls 137 Distinction between authority and instructions 1! Extent of general authority 13 j Known limitations 140 Extent of special authority 141 Incidential powers 142 CHAPTER IX. OF THE CONSTRUCTION OF THE AUTHORITY. What here considered 143 1. Of Construction In General. Necessity for construction 144 Necessity for evidence 143 By whom construed — court — jury 1 10 How construed 147-14S 2. Of the Construction of Particular Powers. What here included 14'J Authority to sell land — when exists 150 What included 151 Authority to sell personal property 152 What included 153 Authority to buy 154 Authority to collect or receive payment 155 Authority to make negotiable paper 15G Authority to manage business 157 CHAPTER X. OF THE EXECUTION OF THE AUTHORITY. In general 158 Excessive or defective execution 159 Execution of written instruments 16U Execution of sealed instruments 161 Execution of negotiable instruments 162 Execution of simple contracts 163 Parol evidence to explain 164 X TABLE OF CONTENTS. [References are to sections.] CHAPTER XI. OF THE DUTIES OF THE AGENT TO THE PRINCIPAL. In general 165 1. To Be Loyal to His Trust. In general 166 Incapacity resulting — cannot be agent of both parties 167 Cannot deal with himself 168 Voidability of transactions 169 Further limitations 170 Usage does not alter rule 171 2. To Obey Instructions. Agent must obey instructions 172 Good faith, etc. — no excuse 173 In what form of action liable 174 Sudden emergency as excuse 175 Ambiguous instructions 176 Effect of custom 177 3. To Exercise Care. Duty to exercise care 178 Special skill required in some cases 179 How when services gratuitous 180 Negligence in loaning money 181 Negligence in insuring 182 Negligence in collecting 183 Liability for default of correspondents 184 4. To Account for Money and Property. Duty to keep accounts 185 Cannot deny principal's title, etc 186 Duty to give notice of collections 187 Agent must not mix principal's funds with his own 188 5. To Give Notice to His Principal. Duty to give notice . . 189 CHAPTER XII. OF THE DUTIES AND LIABILITIES OF THE AGENT TO THIRD PERSONS. In general 190 I. Liability in Contract. What cases may occur <, 191 TABLE OF CONTENTS. H [References we to lections.] 1. Where he makes a contract without authority. Basis of liability m How want of authority may arise 193 What forms present themselves 19* Liability of agent 195 In what form of action liable 196 When liable on the contract itself 197 Limitations 198 2. Where there was no responsible principal. Agent liable if no principal in existence 199 Principal dead 200 3. Where agent pledges his personal responsibility. Agent may bind himself 201 Effect of not disclosing existence or name of principal 202-203 Agent of foreign principal 204 Presumption that principal was to be bound 205 Presumption stronger in case of public agent 206 4. Where agent has obtained money from third person. When money voluntarily paid by mistake may be recovered... 20' Money obtained illegally 208 5. Where agent has received money for third person. Money delivered to agent by principal for third person 209 II. In Tort. Agent not liable in tort for breach of duty owing to principal alone 21 ° Non-feasance — mis-feasance 211 Trespass — Conversion 212 How sued 21 o CHAPTER XIII. OF THE DUTIES AND LIABILITIES OF THE PRINCIPAL TO THE AGENT. In general 214 1. The Payment of Compensation. The right to have compensation 215 The amount of compensation 21b When compensation deemed to be earned 217 Where authority terminated by the principal 218 Where authority wrongfully revoked 219 Agent's duty to mitigate his damages 220 Where authority rightfully revoked 221 Xii TABLE OF CONTENTS. [References are to sections.] Where authority terminated by operation of law 222 Where agent abandons his undertaking 223 Where agent acted for two principals 224 Wbere agent violated his trust 225 Where agency unlawful 226 Where extra duties required 227 Where agent holds over 228 Recoupment by principal 229 2. Reimbursement and Indemnity of Agent. Agent's right to reimbursement 230 Agent's right to indemnity 231 None where act unlawful 232 CHAPTER XIV. OF THE DUTIES AND LIABILITIES OF THE PRINCIPAL TO THIRD PERSONS. In general 233 What questions arise 234-235 I. Liability for Agent's Contract, a. The disclosed principal. Principal liable when 236-237 b. The liability of the undisclosed principal. In general 238 Real principal liable when discovered 239 Exceptions 240 When right to be exercised 241 To what contracts rule applies 242 Agent also remains liable 243 II. Responsibility for Agent's Statements, etc. What statements, etc., bind the principal 244-245 III. Responsibility for Matters Brought to Knowledge of Agents. When notice to agent is notice to principal 246-247 Basis of rule 248 Notice to sub-agent 249 Notice to one of several agents 250 Notice to agents of corporations 251 IV. Liability for Agent's Torts and Crimes. Foundation of liability for agent's torts 252 Principal's liability for agent's torts 253-267 Limitations ^58 Principal's liability for agent's criminal acts 259 TABLE OF CONTENTS. xm [References are to sections.] CHAPTER XV. OF THE DUTIES AND LIABILITIES OF THIRD PERSONS TO AGENTS. In general 260 1. In Contract Agent usually no right of action 261 Sealed instruments or negotiable instruments made in agent's name 262 Contracts made without disclosing principal, etc 263 What defences may be made 264 2. In Tort. What actions maintainable 255 CHAPTER XVI. OF THE DUTIES AND LIABILITIES OF THIRD PERSONS TO THE PRINCIPAL. In general 266 1. In Contract. What contracts principal may enforce 267 What defences open 268 Right to follow and recover money or property 269 Right to rescind unauthorized dealings 270 2 In Tort. Right to recover damages for collusion 271 Recovery for enticing agent away, disabling him, etc 272 CHAPTER XVII. OF SPECIAL CLASSES OF AGENTS. In general 273 1. Of Attorneys at Law. Relation of attorney to client 274 How appointed 275 Duration of relation 276 Implied powers of attorney 277 Attorney bound to utmost loyalty and honor Dealings between attorney and client Confidential communications privileged 2S0 Liability of attorney to client 281 xiY TABLE OF CONTENTS. [References are to sections.] Liability of attorney to third persons 282 Attorney's right to compensation 283 Contingent compensation 284 How reasonable value shown 285 Attorney entitled to reimbursement and indemnity 286 Attorney's lien 287 2. Of Auctioneers. How authorized 288 Terms of sale 289 Implied powers 290 Duties to principal 291 Liability to third persons 292 Compensation and lien 293 Liability of principal 294 3. Of Brokers. How appointed 295 Implied powers 296 Same subject 297 Duties to principal 298 Acting for both parties 299 Liability to third persons 300 Compensation 301-302 Compensation from both parties 303 Reimbursement, indemnity and lien 304 4. Of Factors. How appointed 305 Implied powers 306 Duties to principal 307 Same subject 308 Duty to account 309 Compensation, reimbursement, lien 310 Right to sue 311 TABLE OF CASES. [References are to sections.) Adams v. Cost (62 Md. 2G4), 258. Adams v. Fraser (82 Fed. Rep. 211), 192, 297. Adams v. Power (52 Miss. 828), 85. Adams Express Co. v. Harris (120 Ind. 73), 244. Addison v. Gandasequl (4 Taunt. 573), 239. Adrian v. Lane (13 S. C. 183), 153. Akers v. Rowan (33 S. Car. 451), 247. Alabama, etc., R. Co. v. South, etc., R. Co. (84 Ala. 570), 63, 64. Albert v. Mutual Life Ins. Co. (122 N. C. 92), 244. Allen v. McKibben (5 Mich. 449), 223. Allen v. South Boston R. Co. (150 Mass. 200), 247, 251. Allen T. Whitlark (99 Mich. 492), 220. Alpers v. Hunt (86 Cal. 78), 33. Alworth v. Seymour (42 Minn. 526), 114, 115, 119. Amans v. Campbell (70 Minn. 493), 202. American Exchange Bank v. Loretta Mining Co. (165 111. 103), 83. American Surety Co. v. Pauly (170 U. S. 133), 189, 251. Andrews v. Kneeland (6 Cow. (N. Y.) 354), 297. Appleton Bank v. McGiloray (4 Gray 518), 100. Arbuckle v. Kirkpatrick (98 Tenn. 221), 10. Aeff v. Ins. Co. (125 N. Y. 57), 257. Argersinger v. Macnaughten (114 N. Y. 535), 306. Armitage v. Widoe (36 Mich. 124), 41, 77, 81. Armstrong v. Lowe (76 Cal. 616), 150. Ash v. Gine (97 Penn. St. 493), 54. Ashley v. Bird (1 Mo. 640), 150. Askey v. Williams (74 Tex. 294), 41. Ass'n v. Friedley (123 Ind. 143), 281. Atkins v. Lewis (168 Mass. 534). Atlantic Mills v. Indian Orchard Mills (147 Mass. 268), 247. Atlee v. Bartholomew (69 "Wis. 43), 96. Atlee v. Fink (75 Mo. 100), 33, 167. Atwell v. Jenkins (163 Mass. 363), 282. Augusta, etc. R. Co. v. Kittel (52 Fed. Rep. 63), 90. Austrian v. Springer (94 Mich. 343), 139, 142. Babbitt v. Bumpus (73 Mich. 331), 281. Badger Silver Min. Co. v. Drake (31 C. C. A. 378), 242. Bailie v. Augusta Sav. Bank (95 Ga. 277). IV in TABLE OF CASES. [References are Baird v. Shipman (132 111. 18), 211. Baker v. Drake (53 N. Y. 221), 298. Baker v. Humphrey (101 N. S. 494), 278. Baker -. N. Y. Bank (100 N. Y. 31), 269. Balderston v. National Rubber Co. (18 R. I. 338), 309, 310. Baldwin v. Burrows (47 N. Y. 199), 83. Baldwin v. Leonard (39 Vt. 260), 202. Baldwin v. Potter (46 Vt. 403), 185. Bell v. McConnell (37 Ohio St. 396), 299, 303. Baltimore & Ohio Em. Rel. Assn. v. Post (122 Pa. St. 579), 5, 70. Baltimore Trust Co. v. Hamble- ton (84 Md. 456), 256. Bancroft v. Scribner (72 Fed. Rep. 988), 101. Bank v. Bank (13 Bush (Ky.) 526), 94. Bank v. Railroad Co. (106 N. Y. 195), 253. Bank of Hamburg v. Wray (4 Strob. (S. Car.) L. 87), 195. Bank of Owensboro v. Western Bank (13 Bush (Ky.) 526), 181. Bannon v. Aultman (80 Wis. 307), 153. Barker v. St. Louis, etc. R. Co. (126 Mo. 143), 245. Barnard v. Coffin (141 Mass. 37), 105. Barnes Safe Co. v. Block Bros. Co. (38 W. Va. 158), 306. Barr v. Schroeder (32 Cal. 609), 15. Barret v. Rhem (6 Bush (Ky.) 466), 103. Barron v. Willis (2 Ch. 121), 279. to sections.] Earry v. Schmidt (57 Wis. 172), 167. Barthell v. Peter (88 Wis. 316), 217. Bartlett v. Savings Bank (79 Cal. 218), 283. Bartlett v. Sparkman (95 Mo. 136), 175. Basket v. Moss (115 N. C. 448), 33. Bass Furnace Co. v. Glasscock (82 Ala. 452), 121. Bates v. American Mortgage Co. (37 S. Car. 88), 249. Baxter v. Sherman (73 Minn. 434), 268. Eeal v. Polhemus (67 Mich. 130), 33. Beebe v. Board of Supervisors (64 Hun. 377), 33. Belfield v. National Supply Co. (189 Pa. 189), 240, 268. Eeliveau v. Amoskeag Co. (68 N. H. 225), 41, 277. Bell v. McConnell (37 Ohio St. 396), 51, 224. Bell's Gap R. R. Co. v. Christy (79 Penn. St. 54), 83. Benjamin v. Benjamin (15 Conn. 347), 47. Benjamin v. Dockham (134 Mass. 418), 47. Bennet v. Lathrop (71 Conn. 613), 54. Bennett v. Gillett (3 Minn. 423), 45. Beymer v. Bonsall (79 Pa. St. 298), 240. Beymer v. Bonsall (79 Penn. St. 298), 243. Bibb v. Allen (149 N. S. 481), 230, 231, 295. Bickford v. Menier (107 N. Y. 490), 69, 134. TABLE OF CASES. A V I 1 [References are to lectlonB.] Bierman v. City Mills (151 N. Y. 482), 83, 153. Bigler v. Baker (40 Neb. 325), 62. Billings v. Mason (80 Me. 496), 153. Billings v. Morrow (7 Cal. 171), 150. Birdsall v. Clark (73 N. Y. 73), 100. Bishop v. American Preserver's Co. (157 111. 2S4), 119. Blackstone v. Buttermore (53 Penn. 266), 115. Blatzen v. Nicolay (53 N. Y. 467), 198. Blood v. French (9 Gray (Mass.) 197), 290. Boardman v. Taylor (66 Ga. 638), 246. Boinert v. Leignez (2 Rich. (S. C.) L. 464), 290. Boland v. Glendale Quarry Co. (127 Mo. 520), 219. Bolton v. Lambert L. R. (41 Ch. Div. 295), 96. Borland v. Nevada Bank (99 Cal. 89), 245. Boston v. Simmons (150 Mass. 461), 271. Bowen v. Bowen (74 Ind. 470), 216. Bowermann v. Rogers (125 U. S. 585), 178. Bowman v. Officer (53 Iowa 640), 170. Bowman v. Phillips (41 Kans. 364), 33, 283. Boyd v. Cochrane (18 Wash. 281), 33. Brackenridge v. Claridge (91 Tex. 527), 301. Bradford v. Hanover Ins. Co. (102 Fed. Rep. 48), 104. 2 Bradford v. Kimberly (3 Johns. Ch. 431), 215. Brannan v. Strauss (75 111. 234), 221. Brant v. Gallup (111 111. 487), 182. Brawnn v. Keally (146 Pa. St. 519), 10. Brewer v. Sparrow (7 Barn. & Cres. 310), 77, 94. Bridge Co. v. Geisse (38 N. J. L 39), 72. Briggs v. Partridge (64 N. Y. 357), 164, 242. Britton v. Turner (6 N. H. 481), 223. Brockway v. Mullin (46 N. J. I.. 448), 157, 236. Brothers v. Bank (S4 Wis. 381). 246. Brown v. Bradlee (156 Mass. 28), 163. Brown v. First National Bank (137 Ind. 655), 33. Brown v. Iron & Coal Co. (18 C. C. A. 444), 246. Brown v. Rundlett (15 N. H. 360), 239. Brown v. Wilson (45 S. Car. 519), 87. Brown v. Wright (58 Ark. 20), 83. Bruley v. Garvin (105 Wis. 628), 280. Bryant v. Moore (26 Me. S4), 136, 138, 139, 141. Bryant v. Rich (106 Mass. 180), 255. Buckley v. Gray (110 Cal. 339). 282. Euckley v. Humanson (50 Minn. 195), 226. Bulwinkle v. Cramer (27 S. Car. 376), 164. XY111 TABLE OF CASES. [References are Burrill v. Bank (2 Mete. (Mass.) 163), 63. Busch v. Wilcox (82 Mich. 336), 83. Bush v. Cole (28 N. Y. 261), 289, 292. Bush v. Wilcox (82 Mich. 336), 133. Butler v. Baker (17 R. I. 582), 217. Butler v. Dorman (68 Mo. 298), 155. Butler v. Fayerweather (33 C. C. A. 625), 280. Butler v. Maples (9 Wall. 766), 14, 135. Butts v. Phelps (79 Mo. 302), 183. Byington v. Simpson (134 Mass. 169), 242. Byrd v. Hughes (84 111. 174), 33, 51. Cadigan v. Crabtree (179 Mass. 474), 302. Camden Safe Deposit Co. v. Ab- bott (44 N. J. L. 257), 147. Cameron v. Kenyon-Connell Com. Co. (22 Mont. 312), 211. Campbell v. Foster Home Assn. (163 Pa. St. 609), 148, 151. Campbell v. Portland Sugar Co. (62 Me. 552), 211, 213. Cannell v. Smith (142 Pa. 25), 224, 299. Carr v. National Bank & Loan Co. (167 N. Y. 375), 51, 167. Carroll v. East Tennessee, etc. R. Co. (82 Ga. 452), 245. Carroll v. Welch (26 Tex. 147), 221, 223. Carter v. Southern Ry. Co. (Ill Ga. 38), 263. Cashman v. Root (89 Cal. 373), to sections.] Cassidy v. McKenzie (4 Watts & Serg. (Pa.) 282), 124. Central etc. Ry. Co. v. Price (106 Ga. 176), 100. Central R. & B. Co. v. Cheatham (85 Ala. 292), 90. Central Stock Exchange v. Ben- diger (48 C. C. A. 726). Central Trust Co. v. Asheville Land Co. (72 Fed. Rep. 361), 90. Chadwick v. Knox (31 N. H. 226), 215. Chambers v. Sray (73 Ala. 873), 115. Chappie v. Cooper (13 M. & W. 252), 41. Charlotte Oil Co. v. Hartog (29 C. C. A. 56), 307. Chicago etc. R. Co. v. Dickson (63 111. 151), 254. Chicago etc. Ry. Co. v. Fiexman (103 111. 546), 255. City of Findlay v. Pertz (13 C. C. A. 559), 271. Claflin v. Lenheim (66 N. Y. 301), 117. Clark v. Cumming (77 Ga. 64), 295. Clark v. Marsiglia (1 Denio 317), 111. Clark v. O'Rourke (111 Mich. 108), 199. Clark v. Randall (9 Wis. 135), 286. Clark v. Slate Valley R. Co. (136 Pa. 408), 38. Clealand v. Walker (11 Ala. 1058), 240. Cleghorn v. Castle (13 Hawaiian 186), 9. Cleveland v. Pearl (63 Vt. 127), 141, 239. Cleveland etc. Ry. Co. v. Closser (126 Ind. 348), 244. TABLE OF CASES. XIX [References are to sections.] Cobb v. Knapp (71 N. Y. 349), 202. Cockeroft v. Muller (71 N. Y. 367), 294. Codding v. Munson (52 Neb. 580), 199. Coe v. Smith (4 Ind. 82), 223. Combes Case (9 Co. 76, b), 29. Combs v. Scott (12 Allen (Mass.) 493), 83. Comer v. Way (107 Ala. 300), 308, 310. Commercial Bank v. Burgwyn (110 N. Car. 267), 251. Commercial Bank v. Hurt (99 Ala. 130), 306. Commercial Electric L. & P. Co. v. Tacoma (20 Wash. 288), 80. Commonwealth v. Joslin (158 Mass. 482), 259. Commonwealth v. Press Co. (156 Pa. St. 516), 33. Commonwealth v. Stevens (153 Mass. 421), 259. Congar v. Chicago etc. R. Co. (24 Wis. 157), 246. Consolidated Co. v. Curtis (1 Q. B. 495), 292. Constant v. University (111 N. Y. 604), 246. Conway v. Lewis (120 Pa. St. 215), 307. Cook v. Hopper (23 Mich. 511), 282. Cook v. Tullis (18 Wall. 332), S3, 92. Cooley v. Betts (24 Wend. 203), 309. Cooper v. Hill (36 C. C. A. 402), 251. Coquillard v. French (19 Ind. 274), 150. Corbitt v. Timmerman (95 Mich. 581), 275. Cordross's Settlement (7 Ch. Div. 728), 44. Cort. v. Lassard (13 Oreg. 221), 119. Cosgrove v. Ogdc-n (49 N. Y. 255), 253. County of Colusa v. Welch (122 Cal. 428), 33. Coursoile v. Weyerhauser (69 Minn. 328), 41. Court v. Snyder (2 Ind. App. 440), 153. Co\ entry v. Barton (17 Johns. 142), 232. Cox v. Hoffman (4 Dev. & Bat. (X. C.) 180), 47. Cox v. Pearce (112 N. Y. 637), 248. Craig v. Chambers (17 Ohio St. 253), 179. Craighead v. Peterson (72 N. Y. 279), 14S. Craker v. Chicago etc. Ry. Co. (36 Wis. 657), 255. Cram v. Sickel (51 Neb. 828), £3, 155. Crane v. Gruenewald (120 N. Y. 274), 155. Cribben v. Deal (21 Ore. 211), 61. Crisup v. Grosslight (79 Mich. 3S0), 33. Cummins v. Heald (24 Kan. 600). 103, 184. Cunningham v. Jones (37 Kan. 477), 278. Curtis v. Williamson (L. R. 10 Q. B. 57), 240. Dale v. Donaldson Lumber Co. (48 Ark. 18S), 195. Daniels v. Erodie (54 Ark. 216), 83. Dansereau v. St. Louis (18 Can. S. Ct. R. 587), 33. XX TABLE OF CASES. [References are to sections.] D'Arcy v. Lyle (5 Binney 441), 232. Darlington's Estate In re (147 Pa. 624), 278. Davis v. Hamlin (108 111. 39), 51, 168. Davis v. King (66 Conn. 465), 100, 104. Davis v. Kline (96 Mo. 401), 278. Davis v. Kobe (36 Minn. 214), 308. Davis v. Webber (66 Ark. 190), 283, 285. Davison v. Holden (55 Conn. 103), 54. Daylight Burner Co. v. Odlin (51 N. H. 56), 153, 296. Deakin v. Underwood (37 Minn. 98), 50, 56. De Cordova v. Barnum (130 N. Y. 615), 295. Deering Co. v. Cunningham (63 Kan. 174), 33. De Forest v. Bates (1 Edw. (N. Y.) Ch. 394), 113. Deitz v. Insurance Co. (31 W. Va. 851), 263. Delafield v. Smith (101 Wis. 664), 296. Delaney v. Rochereau (34 La. Ann. 1123), 98, 211. Delano v. Jacoby (96 Cal. 275), 150. Dcvall v. Burbridge (4 Watts & S. (Pa.) 305), 189. Denning v. Yount (62 Kan. 217), 226. Dent v. McGrath (3 Bush (Ky.) 174). Dewerse v. Whiff (57 Neb. 17), 124. Dick v. Page (17 Mo. 234), 124. Dickson v. Kittson (75 Minn. 168), 33. Diefenback v. Stark (56 Wis. 462), 223. Dieringer v. Meyer (42 Wis. 311), 121. Dierstein v. Schubkagel (131 Pa. 46), 280. Dillenback v. Jerome (7 Cow. (N. Y.) 294), 265. Dillaway v. Butler (135 Mass. 479), 247. Distilled Spirits Case (11 Wall. 367), 246. Diversy v. Kellogg (44 111. 114), 153. Dixon v. Bristol Sav. Bank (102 Ga. 461), 87. Dodd v. Farlow (11 Allen 426), 290, 297. Dodge v. Hopkins (14 Wis. 686), 96. Dolan v. Thompson (126 Mass. 183), 308. Doremus v. Hennessy (176 111. 608), 272. Dorr v. Life Ins. Co. (71 Minn. 38), 251. Dorrah v. Hill (73 Miss. 787), 269. Doty v. Wilder (15 111. 407), 288. Doubleday v. Kress (50 N. Y. 410), 155. Donghaday v. Crowell (11 N. J. Eq. 201), 83. Downey v. Burke (23 Mo. 228), 223. Dows v. Glaspel (4 N. Dak. 251), 33. Dresser v. Norwood (17 Com. B. (U. S.) 466), 246. Drew v. Nunn (4 Q. B. Div. 661), 40, 126. Drover's Nat. Bank v. Roller (85 Md. 495), 308. Drury v. Foster (2 Wall. 24), 61, 81. TABLE OF CASES. xxi [References are to sections.] Dudley v. Collier (87 Ala. 431), 33. Duffy v. Hobson (40 Cal. 240), 150. Duke v. Harper (66 Mo. 51), 284. Duncan v. Baker (21 Kan. 99), 223. Dundee Mortg. Co. v. Hughes (20 Fed. Rep. 39), 210. Durant v. Roberts (1 Q. B. 629), 83. Durkee v. Gunn (41 Kan. 496), 115. Duval v. Wellman (124 N. Y. 156), 33. Dyer v. Duffy (39 W. Va. 148), 141. Eastman v. Relief Assn. (65 N. H. 176), 83. Eberts v. Selover (44 Mich. 519), 83. Edward v. Randle (63 Ark. 318), 33. Edwards v. Dillon (147 111. 14), 153. Eggleston v. Boardman (37 Mich. 14), 216, 285. Eichengreen v. Railroad Co. (96 Tenn. 229), 253. Elkhart County Lodge v. Crary (98 Ind. 238), 33. Ellis v. McNaughton '76 Mich. 237), 211. Ellis v. Pond Syndicate (1 Q. B. 426), 304.' Elmore v. Johnson (143 111. 513), 279. Elwell v. Shaw (16 Mass. 42), 161. Embrey v. Jemison (131 N. S. 336), 33. Enos v. St. Paul etc. Ins. Co. (4 S. Dak. 639), 189. Eoff v. Irvine (108 Mo. 378), 218. Exchange Nat. Bank v. National Bank (112 U. S. 276), 1C3. Exchange Nat. Bank v. Third Nat. Bank (112 U. S. 276), 184. Fairchild v. McMahon (139 N. Y. 290), 256. Fairfield Savings Bank v. Chase (72 Me. 226), 246. Fairlie v. Fenton (L. R. 5 Exch. 169), 304. Fairly v. Wappoo Mills (44 S. Car. 227), 295. Farebrother v. Ansley (1 Camp. 343), 292. Farmer's Bank v. King (57 Penn. 202), 188, 269. Farmers' Co-operative Trust Co. v. Floyd (47 Ohio St. 525), 192, 195. Farmers' Co-operative Trust Co. v. Floyd (47 Ohio St. 525), 195. Farmers' Loan & Trust Co. v. Wilson (139 N. Y. 284), 124. Farnsworth v. Hemmer (1 Allen (Mass.) 494). Farr v. John (23 Iowa 286), 289. Farrell v. School District (98 Mich. 43), 220. Ferchen v. Arndt (26 Ore. 121), 309. Ferguson v. Gooch (94 Va. 1), 299. Ferguson v. McBean (91 Cal. 63), 239. Ferris v. Snow (— Mich. — ), 83. Fifth Ave. Bank & Forty-second* Street, etc., Ry. Co. (137 N. Y. 231), 253. First Nat. Bank v. Hummel (14 Colo. 259), 269. First National Bank v. Mt. Tabor (52 Vt. 87), 57. XXII TABLE OF CASES. [References are to sections.] First National Bank v. Ocean National Bank (60 N. Y. 295), 180. First National Bank v. Sckween (127 111. 573), 306. First National Bank v. Sprague (34 Neb. 318), 184. Fish v. Kelly (17 Com, B. (N. S.) 194), 210. Fitzhugh v. Wiman (9 N. Y. 559), 311. Floyd v. Patterson (72 Tex. 202), 186. Forbes v. Hagman (75 Va. 168), 80. Foster v. Bates (12 M. & W. 225), 83. Foster v. Essex Bank (17 Mass. 479), 180. Toster v. Preston (8 Cowen (N. Y.) 198), 183. Foster v. Smith (2 Cold. (Tenn.) 474), 175. Fradley v. Hyland (37 Fed. Rep. 49), 240. Franklin Fire Ins. Co. v. Brad- ford (201 Pa. 32), 104. Fredenhall v. Taylor (26 Wis. 286), 199. Frenkel v. Hudson (82 Ala, 158), 247. Friedlander v. Railway Co. (130 U. S. 416), 253. Frixione v. Tagliaferro (10 Moore's Pr. Cown. Cas. 175), 94. Frizzell v. Rundle (88 Tenn. 396), 292. Frost v. Cattle Co. (81 Tex. 505), 151. Frost v. Erath Cattle Co. (81 Tex. 565), 148. Fulton Bank v. Canal Co. (4 Paige (N. Y.) 127), 250. Galigher v. Jones (129 N. S. 193), 172, 298. Gardner v. Allen (6 Ala. 187), 264. Gardner v. First National Bank (10 Mont. 119), 124. Gardner v. Gardner (5 Cush. 483), 62. Gardner v. Mobile R. Co. (102 Ala. 635), 277. Gardner v. Ogden (22 N. Y. 327), 168, 169. Garrett v. Hanshue (53 Ohio St. 482), 277. Garretzen v. Duenckel (50 Mo. 104), 253. Gelatt v. Ridge (117 Mo. 553), 217. Gerard v. McCormick (130 N. Y. 261), 269. Giberson v. Patterson Mills Co. (174 Pa. 369), 245. Gibson v. Winter (5 B. & Ad- 96), 264. Gilbert v. How (45 Minn. 121), 52, 147, 148, 151, 159. Gilder v. Davis (137 N. Y. 504), 301. Gilfcett v. Whiting (141 N. Y. 71), 87, 304. Gilman Oil Co. v. Norton (89 Iowa, 434), 269. Glaspie v. Krator (5 C. C. A. 474), 271. Glidden & Joy Co. v. Nat. Bank (16 C. C. A. 534), 157. Glover v. Henderson (120 Mo. 367), 120. Goode v. Ins. Co. (92 Va. 392), 256. Goodrich v. McDonald (112 N. Y. 157), 287. Gorman v. United States (34 Ct. of CI. 237), 33. TABLE OF CASES. XXlil [References are to sections.] Grady T. Insurance Co. (60 Mo. 116), 103. Gratz v. Improvement Co. (82 Fed. Rep. 381), 117. Graves v. Horton (38 Minn. 66), 69, 70, 134. Greenfield Bank v. Crafts (4 Allen, 447), 78, 96. Greenfield Savings Bank v. Sim- mons (133 Mass. 415), 169. Greenleaf v. Moody (13 Allen (Mass.) 3C3), 175. Griggs v. Swift (82 Ga. 392), 222. Grover v. Morris (73 N. Y. 473), 208. Grumbey v. Webb (44 Mo. 444), 168. Greenberg v. Wbitcomb Lumber Co. (90 Wis. 225), 211. Gulick v. Grover (33 N. J. L. 463), 15. Guneter v. Scranton Power Co. (181 Pa. 327), 247. Gunther v. Ullricb (82 Wis. 222), 88. Gwan v. Bank of Alexandria ( — Tenn. — ), 184. Hadden v. Dooley (34 C. C. A. 338), 251. Hale v. Kumler (29 C. C. A. 67), 217. Haley v. Eureka County Bank (21 Neb. 127), 280. Hall v. Grambill (34 C. C. A. 190), 225. Hall v. Harper (17 111. 82), 45. Hall v. Norfolk & West. R. Co. 44 W. Va. 36), 259. Hamberger v. Marcus (157 Pa. St. 133), 7. Hamilton v. Frotbingham (59 Micb. 253), 216. Hamilton v. Ins. Co. (98 Mich. 585), 251. Hamilton v. Love (152 Ind. 641), 219. Hamlin v. Sears (82 N. Y. 327), 83, 90. Hanna v. Island Coal Co. (5 Ind. App. 163), 287. Hanover Nat. Bank v. Ameri- can, etc., Co. (148 N. Y. 612), 137. Harkness v. W. U. Tel. Co. (73 Iowa, 190), 267. Harralson v. Stein (50 Ala. 347), 103. Harrington v. Gies (45 Mich. 374), 220. Harris v. Johnston (54 Minn. 177), 52, 147, 148. Harris v. Nickerson (L. R. & Q. B. 286), 292. Harris v. Smith (79 Mich. 54), 215. Hartley v. Phillips (198 Pa. 9), 9. Harvey v. Merrill (150 Mass. 1), 226, 304. Haskell v. Starbird (152 Mass. 117), 253. Haskins v. Royster (70 N. C. 601), 272. Hass v. Ruston (14 Ind. App. 8), 296. Hatch v. Squires (11 Mich. 185), 70. Hatch v. Taylor (10 N. H. 538), 135. Hatcher v. Comer (73 Ga. 418), 308. Hawkins v. McGroarty (110 Mo. 546), 84. Hawley v. Keeber (53 N. Y. 114), 55. Hawxhurst v. Rathget (119 Cal. 531), 151. Hayward v. Langmaid ( — Mass. -). 83. XXIV TABLE OF CASES. [References are to sections.] Hayward v. "ordberg Mfg. Co. (29 C. C. A. 438), 33. Hazard v. Spears (4 Keyes, 469), 90. Hazard v. Spears (4 Keyes (N. Y.) 469), 94. Heath v. Nutter (50 Me. 378), 61. Heffron v. Pollard (73 Tex. 96), 164, 239. Hegenmyer v. Marks (37 Minn. 6), 170. Kelber v. Schantz (109 Mich. 669), 33. Helena Nat'l Bank v. Rocky Mt. Tel. Co. (20 Mont. 379), 156, 157. Hellen v. Anderson (83 111. App. 506), 33. Henderson v. Ford (46 Tex. 627), 128. Henry v. Allen (151 N. Y. 1), 189. Henry v. Heeb (114 Ind. 275), 78. Herman v. Martineau (1 Wis. 151), 167. Herrick v. Gallagher (60 Barb. 566), 207. Herring v. Hellendorf (74 N. C. 588), 155. Hewett v. Swift (3 Allen (Mass.) 420), 313. Heyn v. O'Hagen (60 Mich. 150), 90, 91, 95. Hibbard v. Peek (75 Wis. 619), 153. Hickman v. Green (123 Mo. 165), 247. Hicks v. Minturn (19 Wend. (N. Y.) 550). 291. Higgins v. Lodge (68 Md. 229), 292. Higgins v. Senior (8 Mees. & Wels. 834), 164. Hitchcock v. Griffin Co. (99 Mich 447), 88. Hitchcock v. Griffin & Skelly Co. (99 Mich. 447), 297. Hoag v. Graves (81 Mich. 628), 105. Hobson v. Hassett (76 Cal. 203). 160, 162, 201. Hoffiin v. Moss (67 Fed. Rep. 440), 166, 256. Hoffman v. Maynard (35 C. C. A. 256), 256. Hohn v. Atlas Nat. Bank (28 C. C. A. 297), 251. Holly v. Domestic, etc., Society 34 C. C. A. 649), 269. Home Ins. Co. v. Mendenhall (164 111. 458), 251. Honaker v. Board of Education (42 W. Va. 110), 268. Hooe v. Oxley (1 Wash. (Va.) 19), 68. Horan v. Strachan (86 Ga. 408), 8. Hotchkiss v. Middlekauf (96 Va. 649), 148, 150. Hotchkiss Co. v. National Bank (15 C. C. A. 284), 251. Hoover v. Wise (91 N. S. 308), 249. Houlton v. Dunn (60 Minn. 26), 33. Houseman v. Girard Assn. (81 Penn. St. 256), 210, 282. Howard v. Daly (61 N. Y. 362), 219. Howard v. Grover (28 Me. 97), 179. Howe Machine Co. v. Clark (15 Kan. 492), 71. Hubbard v. Tenbrook (124 Pa St. 291), 68, 139, 154, 239. Hudson v. Randolph (13 C. C. A. 402), 247. TABLE OF CASES. XXV [References are to sections.] Huffman v. Newman (55 Neb. 713), 203. Hughes v. Gross (166 Mass. 61), 222. Hull v. Chaffin (54 Fed. Rep. 437), 168. Humphreys v. Finch (97 N. Car. 303), 61. Hunsaker v. Sturgis (29 Cal. 142), 171. Hunt v. Rousmanier (8 Wheat. 1), 124. Huntington v. Knox (7 Cush. 371), 164, 267. Huntley v. Mathias (90 N. C. 101), 153, 236 Hurley v. Watson (68 Mich. 531), 133. Hyatt v. Clark (118 N. Y. 563), 88, 95. Hyde v. Johnson (2 Bing. N. C. 776), 30. Idler v. Borgmeyer (13 C. C. A. 198), 217. Ikley v. Merriam (7 Cush. (Mass.) 242), 311. Innerarity v. Bank (139 Miss. 332), 247. Insurance Co. v. Davis (95 U. S. 425), 129. Insurance Co. v. Kiger (103 U. S. 352), 306. Ironwood Store Co. v. Harrison (75 Mich. 197), 82. Irwin v. Curie (56 N. Y. App. Div. 514), 33. Irvine v. Watson (5 Q. B. Div. 414), 240. Irwin v. Williar (110 U. S. at p. 510), 34. Ish v. Crane (8 Ohio St. 520), 124. Isham v. Post (140 N. Y. 100), 179, 184. Jackson v. Bank (92 Tenn. 154), 156. Jackson v. Burtis (14 id. 391), 113. Jackson v. National Bank (92 Tenn. 154), 65, 236. James v. Allen Co. (44 Ohio St. 226), 219. James v. Bixby (11 Mass. 34), 239. James v. Steere (16 R. I. 367), 279. Jammison v. Chesapeake etc. Ry. Co. (92 Va. 327), 245. Janney v. Boyd (30 Minn. 319), 155. Jansen v. Williams (36 Neb; 869), 224. Jarnes v. Smith (1 Ch. 384), 9. Jarvis v. Manhattan Beach Co. (148 N. Y. 652), 253. Jefferson v. Burhan (29 C. C. A. 481), 216. Jeffrey v. Bigelow (13 Wend. (N. Y.) 518), 17. Jemison v. Citizens Sav. Bank (122 N. Y. 135), 226. Jemison v. Citizens Sav. Bank (122 N. Y. 135), 232. Jett v. Hempstead (25 Ark. 462), 185, 187. Johnson v. First National Bank (79 Wis. 414), 251. Johnson v. Hurley (115 Mo. 513), 68. Johnson v. Martin (11 La. Ann. 27), 178. Johnson v. Stone (40 N. H. 197), 45. Johnston Harvester Co. v. Mil- ler (72 Mich. 265), 251. Jones v. Atkinson (68 Ala. 167), 88, 93. Jones v. Williams (133 Mo. 1), 164, XXVI TABLE OF CASES. [References are to sections.] Kahn v. Walton (46 Ohio St. 195), 33. Kane v. Barstow (42 Kan. 465), 70, 153. Kansas City etc. R. Co. v. Hig- don (94 Ala, 286), 253. Kayton v. Barnett (116 N. Y. 625), 239. Kearney v. Clinton (101 Mich. 106), 292. Kearney Bank v. Froman (129 Mo. 427), 246. Keighley v. Durant (App. Cas. 240), 83. Keidan v. Winegar (95 Mich. 430), 164. Kennedy v. Hodges (97 Ga. 753), 33. Kerr v. Cotton (23 Tex. 411), 183. Kershaw v. Ladd (34 Oreg. 375), 184. Kiewert v. Rindskopf (46 Wis. 481), 186. Killingsworth v. Trust Co. (18 Ore. 351). 49. Kilpatrick v. Haley (13 C. C. A. 480), 256. Kimball v. Billings (55 Me. 147), 212. King v. Sparks (17 Ga. 285), 156. Kingsley v. Fitts (51 Vt. 414), 137. Kingsley v. Siebrecht (92 Me. 23), 267. Kirk's Appeal (87 Pa. 243), 277. Kirkland v. Benjamin (67 Ark. 480), 33. Knickerbocker v. Wilcox (83 Mich. 200), 201. Knapp v. Alvord (10 Faige, 205), 124. Knight v. Clark (48 N. J. L. 22), 161, 206. Knowles v. Scott (1 Ch. 717), 9. Komorowski v. Krumdlck (56 Wis. 23), 154, 236. Kornemann v. Monaghan (24 Mich. 36), 70, 155. Kozel v. Deariove (144 111. 23), 64. Kramer v. Winslow (130 Pa. 484), 170. Kroeger v. Pitcairn (101 Pa. 311), 192, 195. Ladd v. Hildebrant (27 Wis. 135), 91. Laing v. Butler (37 Hun. (N. Y.) 144), 240. Larence v. Johnson (64 111. 351), 155. Larson v. Metropolitan Street Ry. Co. (110 Mo. 234), 244. Laredon Savings Fund Society v. Hagerstown Savings Bank (36 Tenn. St. 498), 12, 14, 146. Laverty v. Snethen (68 N. Y. 522), 174. Law v. Stokes (32 N. J. L. 249), 137. Lawall v. Groman (180 Pa, 532), 71, 281. Lawler v. Murphy (58 Conn. 294), 199. Leach v. Railroad Co. (86 Mo. 27), 170. Lawrence v. Gullifer (38 Me. 532), 221. Leake v. Watson (58 Conn. 332), 300. Lehman v. Pritchett (84 Ala. 512), 308. Leonard v. Poole (114 N. Y. 371), 33. Leroy v. Beard (8 How. (U. S.) 451), 151, 176. Levi v. Booth (58 Md. 30S), 152. Levy v. Spencer (18 Colo. 532), 166, 309. TABLE OF CASE! XXVll [References Lewis T. Brehner (33 Md. 412), 309. Lewis v. Fisher (80 Md. 139), 7. Lewis v. Insurance Co. (61 Mo. 634), 120. Lewis v. Tilton (64 Iowa 220), 64, 199. Llddell v. Chichester (84 Ala. 508), 219. Liebscher v. Kraus (74 Wis. 387), 162, 164. Liggett v. Glenn (2 C. C. A. 286), 280. Little Pittsburg etc. Co. v. Lit- tle Chief etc. Co. (11 Colo. 223), 138. Long v. Hartwell (34 N. J. L. 116), 61, 64. Lord v. Thomas (64 N. Y. 107), 111. Louisville etc. R. Co. v. Wallace 136 111. 87), 285. Lowey v. Granite Association (8 Misc. R. 319), 33. Lucas v. Bank of Darien (2 Stew. (Ala.) 280), 38. Lucke v. Clothing Cutters As- sembly (77 Md. 396), 265. Lum v. Clark (57 N. W. 662), 33. Lum v. McEwen (56 Minn. 278), 33. Lumpkin v. Wilson (5 Heisk. (Tenn.) 555), 151. Lyon v. Hussey (82 Hun. 15), 33. Lyon v. Kent (45 Ala. 656), 43. Lyon v. Pollock (99 U. S. 668). 151. Maddox v. Brown (71 Me. 432), 258. Mahoney v. McLean (26 Minn. 415), 242. Malone v. McCullough (15 Colo. 460), 64. are to sections.) Manning v. Leighton (65 Vt. 84), 287. Mansfield v. Mansfield (6 Conn. 559), 114. Massey v. Taylur (5 Coldw. (Tenn.) 447), 221. Matthews v. Dubuque Mattress Co. 87 Iowa, 246), 1G2. Matthiessen etc. Co. v. McMahon (38 N. J. L. 536), 126. Mattingly v. Pennie (105 Cal. 514), 217. Maury v. Ranger (38 La. Ann. 485), 204. Maxcy Mfg. Co. v. Burnham (89 Me. 538), 117, 239. Mayer v. Building Ass'n (104 Ala. 611), 211. Mayer v. Dean (115 N. Y. 556), 88, 256. Mayor of Salford \. Lever (1 Q. B. Div. 168), 271. McArthur v. Times Printing Co. (48 Minn. 319), 83. McCabe v. Goodfellow (133 N. Y. 89), 54. McCandless v. Belle Plaine Can- ning Co. (78 Iowa, 161), 162, 164. McClay v. Hedge (18 Iowa, 66), 223. McClelland v. Saul (113 Iowa, 208), 246. McClintock v. Oil Co. (146 Penn. 144), 96. McClure v. Herring (70 Mo. IS), 161. McCord v. Western Union Tel. Co. (39 Minn. 1S1), 255. McCracken v. San Francisco (16 Cal. 591), 75. 92. McCrary v. Ruddick (33 Iowa, 520), 216. McCullough v. Thompson (45 N. Y. Super. 449), 240. xxvm TABLE OF CASES. [References McCurdy v. Rogers (21 Wis. 197), 197, 256. McDonald v. Maltz (94 Mich. 172), 224, 303. McDonnell v. Rigney (108 Mich. 276), 33. McFarland v. Heim (127 Mo. 327), 81. McGraft v. Ruger (60 Wis. 406), 310. McHany v. Schenck (88 111. 357), 155. Mclntyre v. Park (11 Gray (Mass.), 132), 85. McKensey v. Edwards (88 Ky. 272), 162. McKindly v. Dunham (55 Wis. 515), 153, 155. McKinley v. Chicago etc. Ry. Co. (44 Iowa, 314) 255. McKinley v. Williams (20 C. C. A. 312), 225. McKinnon v. Vollmar (75 Wis. 82), 100, 103. McLaren v. Hall (26 Iowa, 297), 48, 81. McMullan v. Dickinson Co. (60 Minn. 156), 219. McNamara v. Gargett (68 Mich. 454), 33. McNeil v. Chamber of Commerce (154 Mass. 277), 57. McNeil v. Tenth National Bank 46 N. Y. 325), 152. McNevins v. Lowe (40 111. 209), 179. McWilliams v. Detroit Mills (31 Mich. 275), 49. Melledge v. Iron Co. (5 Cush. (Mass.) 158), 80. Melms v. Pabst Brewing Co. (93 Wis. 153), 247. Mercantile Ins. Co. v. Hope Ins. Co. (8 Mo. App. 408), 167. are to sections.] Merchant's Ins. Co. v. Prince (50 Minn. 53), 171. Merrill v. Packer (80 Iowa, 542), 33. Merrill v. Rokes (4 C. C. A. 433), 230. Mexican International B'k'g Co. v. Lichtenstein (10 Utah 338), 33. Meyerhoff v. Daniels (173 Pa. St. 555), 256. Michael v. Foil (100 N. Car. 178), 280. Midgley v. Midgley (3 Ch. 282), 281. Midland National Bank v. Brightwell (1*8 Mo. 358), 269. Milburn Wagon Co. v. Evans (30 Minn. 89), 182. Millar v. Cuddy (43 Mich. 273), 216. Miller v. Roach (150 Mass. 140), 162. Miller v. Wilson (98 Ga. 567), 98.. 212. Milliken v. Hcthaway (148 Mass. 69), 292. Milliken v. W. U. Tel. Co. (73 Iowa, 190), 267. Mills v. Mills (40 N. Y. 543), 33. Mining Co. v. Bank (96 Fed. Rep. 23), 88. Minneapolis Sash and Door Co. v. Metropolitan Bank (76 Minn. 136), 184. Minneapolis Trust Co. v. School District (68 Minn. 414), 30. Missouri v. Walker (125 N. S. 339), 115. Mitchell v. Bromberger (2 Nev. 345), 280. Mitchell v. Crasweller (13 Com. B. 237), 258. Mitchell v. Minnesota Fire Ass'n (48 Minn. 278), 83. TABLE OF CASES. XXIX [References Mitchurn v. Dunlap (98 Mo. 418), 70. Mobile Ry. Co. v. Clanton (59 Ala. 392), 229. Moline Malleable Iron Co. v. York Iron Co. (27 C. C. A. 442), 205. Montagu v. Forwood (2 Q. B. Div. 350), 103, 268. Montgomery v. Pacific Coast Land Bureau (94 Cal. 284), 291. Montgomery v. Crosthwait (90 Ala, 553), 78, 83. Montross v. Eddy (94 Mich. 100), 303. Moore v. Appleton (26 Ala. 633), 232. Moore v. Robinson (2 Barn. & Adol. 817), 265. Morris v. Georgia Loan Co. (109 Ga. 12), 251. Morrison v. Clark (89 Me. 103), 53. Morrison v. Rogers (115 Cal. 252), 33. Morrow Shoe Mfg. Co. v. New England Shoe Co. (6 C. C. A. 508), 292. Moulton v. Bowker (115 Mass. 36), 277. Murphy v. Murphy (1 S. Dak. 316), 215. Moyer v. Cantieny (41 Minn. 242), 33. Moyer v. East Shore Terminal Co. (41 S. Car. 300), 38. Mullanphy Savings Bank v. Schott (135 111. 655), 70. Mulchey v. Methodist Society 125 Mass. 487), 213. Muller v. Fuchs (64 Md. 217), 292. Munger v. Baldridge (41 Kans. 236), 42. are to sections.] Mussey v. Holt (24 N. H. 248), 53. Mutual Benefit L. Ins. Co. v. Brown (30 N. J. Eq. 193), 62. Myles v. My lea (6 Bush, 237), 298. Naltner v. Dolan (108 Ind. 500), 188. Nash v. Mitchell (71 N. Y. 199), 42. Nashville R. R. Co. v. Chumley (6 Heisk. 327), 229. Nashville etc. R. Co. v. Starnes (9 Heisk. 52), 254. National Bank v. Clark (139 N. Y. 307), 251. National Bank of Commerce v. Feeney (9 S. Dak. 553), 251. National L. Ins. Co. v. Minch. (53 N. Y. 144), 247. Neal v. Patten (40 Ga. 363), 72. Neely v. Jones (16 W. Va. 625), 93. New York Cent. Ins. Co. v. Na- tional Ins. Co. (14 N. Y. 85), 167, 270. New York Iron Mine v. First Nat. Bank (39 Mich. 614), 236. New York Iron Mine v. National Bank (Agency Cases, 423), 65. New York Mine v. Bank (C9 Mich. 644), 157. New York etc. R. Co. v. O'Leary (35 C. C. A. 562), 255. Nichells v. Nichells (5 N. Dak. 125), 277. Nichols v. Haines (98 Fed. Rep. 692), 61. Nixon v. Bogin (26 S. C. 611), 173, 178. Nixon v. Brown (57 N. H. 34), 152. Nobleboro v. Clark (68 Me. 87), 63. XXX TABLE OF CASES. [References are to sections.] North Point etc. Co. v. Utah Canal Co. (16 Utah 246), 80. North River Bank v. Dymar (3 Hill (N. Y.) 262), 250. Norwegian Plow Co. v. Clark (102 Iowa, 31), 10. Noyes v. Landon (59 Vt. 569), 170. Nunnelly v. Southern Iron Co. (94 Tenn. 397), 212. O'Brien v. Spalding (102 Ga, 490), 280. Oelricks v. Ford (64 N. S. 49), 204. Ogden v. Raymond (22 Conn. 379), 197. Olmstead v. Bach (78 Md. 132), 219. Olson v. Lamb (56 Neb. 104), 278. O'Neil v. Behanna (182 Pa. 236), 272. Orman v. State (22 Tex. App. 604), 280. Osborne v. Morgan (130 Mass. 102), 98, 211. Osborne v. Rider (62 Wis. 235), 177. Owen v. Frink (24 Cal. 171), 111. Pacific Bank v. Hannah (90 Fed. Rep. 72), 124. Page v. Wells (37 Mich. 415), 178. Parcell v. McComber (11 Neb. 209), 223. Park Bros. & Co. v. Kelly Axe Mfg. Co. (49 Fed. Rep. 618), 38, 89. Parks v. Dolcl Packing Co. (6 Misc. R. 570), 33. Passano v. Acosta (4 La. 26), 173. Paterson v. Gandasequl (15 East, 62), 239, 240. Patrick v. Bowman (149 N. S. 411), 195, 202. Patterson v. Lippincott (47 N. J. L. 457), 41, 197. Paul v. Grimm (165 Pa. 139), 178. Peabody v. Hoard (46 111. 242), 133. Peck v. Chouteau (91 Mo. 140), 282. Peck v. Heim (127 Pa. St. 500), 306. Peck v. Henrich (167 N. S. 624), 33. Penfield v. Warner (96 Mich. 179), 151. Pennoyer v. Willis (26 Oreg. 1), 179. Pennsylvania Houseman v. Gi- rard etc. Ass'n (81 Penn. St. 256), 246. Pennsylvania Railroad Co. v. Vandiver (42 Pa. St. 365), 63. People v. Roby (52 Mich. 277), 259. People v. Township Board (11 Mich. 222), 168. Pepper v. Cairns (133 Pa. St. 114), 70. Peters v. Farnsworth (15 Vt. 155), 151. Perin v. Parker (126 111. 201), 230, 304. Perkins v. Pendleton (90 Me. 166), 265. Peters v. Grim (149 Pa. 163), 186. Peterson v. Christensen (26 Minn. 377), 101. Peterson v. Homan (44 Minn. 166), 164. Peterson v. Wood, M. & R. Co. 97 Iowa, 148), 153. Petteway v. Mclntyre ( — N. Car. -), 11. TABLE OF CASES. 3DDD [References are to sections.] Pew v. Gloucester Bank (130 Mass. 391), 227. Phelon v. Stiles (43 Conn. 426), 253. Pheips v. Sullivan (140 Mass. 36), 61, 67. Phelps v. Wait (30 N. Y. 78), 213. Philadelphia R. R. Co. v. Cowell (28 Pa. St. 329), 87, 90. Phillips v. Moir (69 111. 155), 307. Phoenix Ins. Co. v. Flemming (65 Ark. 54), 201. Pickert v. Marston (68 Wis. 465), 153, 236. Pickle v. Muse (88 Tenn. 380), 89, 156. Pinkham v. Crocker (77 Me. 563), 306. Pittsburg Mining Co. v. Spooner (74 Wis. 307), 186. Plant v. Thompson (42 Han. 664), 301. Plaster v. Rigney (97 Fed. Rep. 12), 40. Pole v. Leask (33 L. J. Rep. Eq. 155), 59. Pope v. Hanke (155 111. 617), 226, 232. Powell v. Wade (109 Ala. 95), 267. Pullman Car Co. v. Gavin (93 Tenn. 53), 265. Pursley v. Morrison (7 Ind. 356), 68. Putnam v. French (53 Vt. 402), 153, ?96. Quirk v. Muller (14 Mont. 467), 33. Quinn v. Dresback (75 Cal. -159), 90. Quinlan v. Providence Ins. Co. (133 N. Y. 356), 140. Railroad Co. v. Henleln (52 Ala. 606), 73. Railroad Co. v. Morris (10 Ohio Cir. Ct. R. 502), 33. Ramspeck v. Pattillo (140 Ga. 772), 166. Randall v. Van Wogennen (115 N. Y. 527), 287. Rankin v. West (25 Mich. 195). 48. Raycroft v. Tayntor (68 Vt. 219), 265. Raymond v. Crown etc. Mills (2 Mete. 319), 239. Raymond v. Palmer (41 La. Ann. 425), 90. Raymond v. Squire (11 Johns. 47), 113. Reed v. Morton (27 Neb. 760), 81, 88. Rees v. Pellow (97 Fed. Rep. 167), 120. Reese v. Medlock (27 Tex. 120), 83, 133. Reeve v. Bank (54 N. J. L. 208), 162. Reynolds v. Fleming (30 Kan. 106), 275. Rhoades v. Blackiston (106 Mass. 334), 263. Rhodes v. Forwood L. R. (1 App. Cases 256), 120. Rice v. Davis (136 Pa. 439), 167. 224, 303. Rice v. McLarren (42 Me. 157), 86. Rice v. Wood (113 Mass. 133), 33, 51, 167, 224, 299, 303. Ripley v. Gelston (9 Johns. , and its growth has kept pace with the progress of com- mercial development. It furnishes the means by which 2 INTRODUCTION. the range of individual and corporate activity is enor- mously increased. As soon as it is conceded that one man may be represented by another in business trans- actions, and that he may have as many such repre- sentatives as occasion may require, the field of commer- cial activity is immensely widened. The modern business man may thus be constructively present in many places and carry on diverse and widely separated industries at the same time. The fundamental maxim of Agency, both as to right and liability, is Qui facit per alium, facit per se. Its second great maxim, also of right and liability, refer- ring to the time when the relation is created, is Omnis ratihabitio retrotrahitur et mandato priori aequi- paratur. Agency belongs in the field of contract law. The relation between the principal and his agent is, as will be seen, a contractual relation, while the purpose of its creation is to bring about contractual relations between the principal and third persons. .1 ; .? 1 I It Jl^\. OUTLINES OF THE LAW OF AGENCY CHAPTER I. DEFINITIONS AND DISTINCTIONS. § 1. Agency defined. 2. Agency is a contractual relation. 3. Can usually exist only by assent of the principal. 4. Exceptions — Authority created by law. 5. How agent compares with servant. G. Distinction usually of little practical importance. 7. Occasionally distinction important. S. How agent compares with independent contractor. 9. Agency differs from trust. § 10. Agency to be distinguished from sale. 11. Agency differs from lease. 12. The contract appointing — Power of attorney. 13. Classification of agencies — Actual or ostensible. 14-17. Universal, general and special agency. 18. How to be proved. 19-23. Professional and non-professional agents. 24-26. Distinctions be- tween these classes of agents. § 1. Agency defined. — Agency is a legal relation, founded upon the express or implied contract of the parties — or created by law — by virtu e of which one party — called the Agent — is employed and authorized to represent and act for the other, called the Principal — in business dealings with third persons. It Is said that agency is a "legal relation." It is unfortunate that in our law we have no word which clearly represents the idea of such a relation as agency or partnership and at the same time dis- tinguishes it from other relations. The word "relation" is used in a great many senses. We speak about parties coming into contract 3 4 DEFINITIONS AND DISTINCTIONS. [§§1-2. relations with each other, as when A and B enter into a contract. When a tort is committed, the parties are also often said to come into relations with each other. In this case, however, the relation, if it be such, is purely a temporary one; it is not permanent. On the other hand, we speak of the relation of husband and wife, the relation of parent and child, or the relation of guardian and ward. In these cases it is obvious that the word "relation" is used in an entirely different sense. The idea of permanence is involved, and, more than all, we see that here are rights, duties and liabilities which the law rather than the act of the parties has created, and which the parties are usually unable, by any act or agreement of their own, to alter or diminish. To such relations, in order to dis- tingush them from the temporary sort above referred to, the term status or condition is often applied. Lying between the casual rela- tions first referred to and these relations of status, are certain others, more permanent than the first class and more open to contractual limitation and control than the second — cases wherein the parties have agreed to occupy certain legal relations to each other for a time subject to their control and upon conditions largely determinable by their agreement. The most conspicuous of these relations are those of Agency, Master and Servant, and Partnership. We use the term, legal relation, therefore, not to distinguish it from illegal relations, but to indicate that this is a relation in law — a relation which the law recognizes. §2. Agency is a contractual relation. —Agency is a contractual relation and not a status. Even though it be conceded that it finds its origin in the re- lation of master and servant and that that relation was originally the relation of master and slave, it is clear enough that, regarded as an instrument for creating contractual obligations between the principal and third persons, agency does not exhibit those essential char- acteristics of status necessary to mark it as such. As stated by Sir William Anson, "so far as we are con- cerned with Agency for the purpose of creating con- tractual relations, it retains no trace in English law of its origin in status. Even where a man employs as his agent one who is incapable of entering into a con- tract with himself, as where he gives authority to his child, being an infant, the authority must be given, it §§ 2-4.] DEFINITIONS AND DISTINCTIONS. 5 4 is never inherent. There must be evidence of intention on the one side to confer, on the other to undertake, the authority given, though the person employed may, from defective status, be unable to sue or be sued on the contract of employment." See Anson on Contract, 330. § 3. Can usually exist only by assent of the prin- cipal. — As a rule, therefore, authority to act as agent can exist only by the express or implied assent of the principal, either previously given or subsequently con- ferred. We shall find hereafter that there may be express creations of the relation and implied creations. In fact, we shall doubtless find that the cases in which the existence of the relation is implied from the acts of the parties are the more numerous. It is not at all necessary that the authority shall have been con- ferred in advance, although it commonly is. After the act has been done, the authority may be conferred and, by retroactive effect, it goes back to the beginning. §4. — Exceptions — Authority created by law. — In a few cases, however, authority to act as agent lor certain purposes arises by mere operation of law, as an incident of some other relation in which, the parties al- ready stand. Of these cases there are four chief types : (1) The authority of the wife to buy necessaries on her husband's credit. (2) The similar authority of an infant child to bay necessaries, in certain cases, upon his father's credit (3) The authority of the vendor of personal prop- erty in certain cases to sell the goods still in his posses- sion to secure his pay. (4) The authority of a ship-master to buy neces- saries on the owner's credit. In these cases the assent of the principal is not neces- sary, and his dissent would in most cases be unavailing. 6 DEFINITIONS AND DISTINCTIONS. [§§ 4-5. This authority is said to be created by law, or to be authority by necessity. § 5. How agent compares with servant. — The rela- tion of principal and agent bears a close resemblance to that of master and servant, but is not identical with it. The characteristic of the agent is that he is a busi- ness representative. His function is to bring about contractual relations between his principal and third persons. The function of the servant i s to execute the com- mands of his master chiefly in reference to tilings, but occasionally with reference to persons when no con- tractual obligation is to result. A person who is ordinarily a servant may at times act as agent, and vice versa. "The distinction between a servant and an agent," it is said by Mr. Justice Holmes in his edition of Kent's Commentaries (Vol. 2, p. 260, note), "is the distinction between serving and acting for." When I employ an agent, I am seeking to employ some one who shall represent me in business dealings with other persons. The purpose of the employment of the agent and his authorization is to represent me and to deal for me with other persons. He is to come in contact with other persons and he is to enter into contractual relations for me with them. On the other hand, if I want a ditch dug or any other kind of manual service performed, the only thing that the person I employ has to do is to deal with things. The main purpose of his employ- ment is to accomplish some kind of manual labor and not to make contracts at all. He has neither occasion nor authority to effect contractual relations or impose contractual obligations upon me to another person. Such a person is a servant. If I say to A, "Go into the market and buy me a horse," my purpose is that he shall go out and find a person who has a horse for sale and make a contract with that person to sell that horse to me. A is here an agent. If, when he brings the horse to me, I say to him, "Put the horse in the stable and care for him," and A does so, he then is a servant. There are cases, of course, in which the servant is to come into contact with other persons. The porter on a parlor car is an illus- tration. Although a large portion of his duties may be to assist §§ 5-7.] DEFINITIONS AND DISTINCTIOl 7 passengers and look out for their comfort, he is a servant. The case of the conductor is not so simple. If he has no other duties than to manage the train; if he has no power to make contr for carriage; if his sole duty is to collect tickets a: re is no occasion in which he has the right to enter into contractual rela- tions for his employer, then he will be purely a servant. If, on the other hand, he is authorized not only to manage the train but to make contracts for carriage, to collect pay, to make the ordinary bargains that are made between carrier and passenger, then he is also an agent. It is obvious, therefore, that the p.me per- son may be at times a servant and at times an agent. The agent usually is vested with more or less discretion, while the servant is commonly required to act according to the directions of his master; and this has sometimes been suggested as the basis for distinguishing between the two relations. See Baltimore & Ohio Employees' Relief Ass'n v. Post, 122 Pa. St. 679, 9 Am. St. Rep. 147. The true distinction, however, is believed to be that already men- tioned. § 6. Distinction usually of little practical im- portance. — The distinction between the two relations, though in many aspects radical in theory, is, usually, not of much practical importance, as the same rules of law, in general, apply equally to both relations. There is, in many quarters, a somewhat absurd repugnance to the U6e of the word "servant," because it is supposed to emphasize social distinctions which ought not to exist among us. This leads, in popular language, to the substitution of the word "agent." and this popular use is often exhibited by the courts, with the result that even in legal language the word "agent" is coming to be more and more used where the word "servant" would be more appropriate. Fortunately it is usually immaterial and leads to uo serious diffi- culty. § 7. Occasionally distinction important. — There is, however, occasionally a case in which the dis- tinction becomes important. A statute, for example, may use one word or the other under circumstances which call for strict construction, and it then becoi important to distinguish. Regina v. Walker, Agency Cases, 1, is a case of this nature. What was the point there involved? Wakefield v. Fargo, Agency S DEFINITIONS AND DISTINCTIONS. [§§ 7-8. Cases, 4, presents another illustration. What was the question there? Hamberger v. Marcus, 157 Pa. St. 133; Wildner v. Ferguson, 42 Minn. 112, 6 L. R. A. 338, and Lewis v. Fisher, 80 Md. 139, 45 Am. St. Rep. 327, present olher illustrations. In Singer Mfg. Co. v. Rahn, Agency Cases, 8, was Corbett an agent or a servant? In "Wilson v. Owens, Agency Cases, 9, in what relation did Egan stand? "What is said here as to the similarity of the two relations? In Tete v. Lanaiix (1893), 45 La. Ann. 1343, 14 So. Rep. 241, there was a necessity, in view of a peculiar statute, to determine whether a certain person was a clerk, or a broker. Said the court: "A clerk is one who hires his services to an employer at a fixed price under a stipulation to do and perform some specific duty or labor which requires the exercise of skill. 'The broker is he who is employed to negotiate a matter oeiween two parties, and who for that reason is the mandatory of both.' R. C. C. 3016. The leading and essential difference between a clerk and a broker is that the former hires his services exclusively to one person, while the latter is employed to make bargains and contracts between other persons in matters of trade, commerce and navigation. For the services of the former there is a fixed stated salary, while for the latter a com- pensation, commonly styled brokerage, is allowed." § 8. How agent compares with "independent con- tractor." — The agent — and the servant also — is fur- — .iii.ii i, im Jb^mtf m \*'*k- ther to be distinguished from th e "independent co n- Uunjjg" who is one who exercises some independent employment, in the course of which he undertakes to accomplish a certain result, being responsible to his employer for the end to be achieved and not for the means by which he accomplishes it. Judging from what has been already said, does the servant or the agent more closely resemble the independent contractor? Why? Thus in a recent case wherein a loaded vessel ju3t leaving port was found to be on fire, and the master employed S. & Co., who were doing business as shipping-merchants, to take charge of her and rescue her cargo, the court said: "The employment of S. & Co., under these facts, was something more than the appointment of an agent. It was more in the nature of an employment or hiring than an appointment to an agency. It was in the nature of a contract between the captain of the vessel, as the owner's agent, and S. & Co., whereby the latter agreed to extinguish the fire, and if necessary unload the vessel of its cargo, and do everything else for the pro- 8§ 810] DEFINITIONS AND DISTINCTIONS. 9 tection of the vessel and cargo. They were employed to do a par- ticular thing, and were contractors, Instead of agents, in the general understanding of agency." See Horan v. Strachan (1890), 80 Ga. 408, 12 S. E. Rep. C78, 22 Am. St. Rep. 471. §9. Agency differs from trust. — Agency differs in material respects from the ordinary trust. See Hartley v. Phillips, (1901), 198 Pa. 9, 47 Atl. Rep. 929; Knowles v. Scott, [1891] 1 Ch. 717; James v. Smith, [1891] 1 Ch. 384; Cleghorn v. Castle, (1900) 13 Hawaiian 186. It is true that agency is often said to be a relation of trust and confidence, and that property in the hands of an agent is often held to be impressed with a trust for the benefit of the principal, yet the two relations are not identical._3— truetr-m-vohes control over prop- erly, ageney may be totally disconnected with any pa> ticular property. __The_Jjais4eeIJoIds'a legal__Utie JL Jhe agent has usually no title at all. The trustee may act hrins own name, the agent acts normally in the name of his principal. Trust is not necessarily a contract relation, agency is properly to be so regarded. A trust does not necessarily or even usually involve any author ity to enter into contracts which shall bind another, the authority to make such contracts is the distinguish- ing characteristic of agency. Other distinctions exist but these are sufficient to mark the contrast. See, for example, Central Stock Exchange v. Bendinger, (1901), 48 C. C. A. 726, 109 Fed. Rep. 926, 56 L. R. A. 875. § 10. Agency to be distinguished from sale. — Agency is further to be distinguished from sale. Not that thi" 1 two contracts are not ordinarily readily enough distinguished, but because so many cases arise wherein either through inadvertence or design con- tracts have been given some of the characteristics of each, and it is necessary to decide which of them so 10 DEFINITIONS AND DISTINCTIONS. [§§ 10-18. predominate as to determine the nature of the trans- action. A typical ease is presented where goods are put into the nanas of a person under a contract which in seme of its parts seems to treat that person as an absolute purchaser of the goods and in other parts merely as an agent to sell them. No hard and fast rule can be laid down for the determination of these contro- versies. Names go for very little, and if the parties have made a contract which really operates to transfer the title it must be deemed a sale, even though the parties have expressly declared that it shall be deemed an agency. See Mechem on Sales, §§ 41-49; Ex parte White, (1871), L. R. 6 Ch. App. 397; Arbuckle v. Kirkpatrick (1897), 98 Tenn. 221, 39 S. W. R. 3, 36 L. R. A. 285, 60 Am. St. Rep. 854; Braunn v. Keally, (1892), 146 Pa. St. 519, 23 Atl. R. 389, 28 Am. St. Rep. 811; Nor- wegian Plow Co. v. Clark (1897), 102 Iowa 31, 70 N. W. Rep. 808. §11. Agency differs from lease. — So agency may be distinguished from lease. As in the preceding case of sale, the tAvo contracts are usually very much un- like; but, here as there, cases are met with wherein one relation has apparently been disguised under the name of the other. Here as there, also, names are of no consequence, and the true nature of the contract determines the case. If, therefore, though the contract be called a lease, the alleged tenant is so far under the direction and control of the alleged landlord as to make the latter the real party in interest and the former merely his representative, the contract will be held to be one of agency. See Petteway v. Mclntyre,— N. Car. — , 42 S. E. Rep. 851. § 12. The contract appointing — "Power of attor- ney." — The contract by which the relation of principal and agent is created is called a "contract of agency"; the right of the agent to represent the principal is §§ 12-13.] DEFINITIONS AND DISTINCTIONS. 11 called his '-authority" or "power" j whejj the, authority is conferred by formal instrument in writing, it is said to be confi ired by "letter of attorney," or, more com- monly by "power of attorney." When the authority is conferred by power of attorney, the agent is frequently called an "attorney," or more commonly, an "attorney in fact." If an agent is called upon to execute a deed, he signs it, "John Smith," as principal, "by Richard Roe, his attorney," or, more com- monly, "his attorney in fact"; he may say. "agent." The words, "attorney in fact," are used chiefly to distinguish him from an attorney at law. See Loudon Savings Fund Society v. Hagerstown Savings Bank, 3G Pa. St. 498, 78 Am. Dec. 390, Cas. Ag. 371. § 13. Classification of agen -ies — Actual or osten- sible. — Agencies are sometimes classified as actual or ostensible. The agency is actual when the agent has really been employed and authorized by the principal; the agency is ostensible when the principal intentionally, or by want of ordinary care, leads a third person to believe another to be his agent who has not really been em- ployed and authorized by him. This distinction is one which is made in the Code of California, and has been adopted by several of the States in enacting their Codes. A man is an actual agent when he really has been employed, but he is an ostensible agent when the principal, either intentionally or by want of ordinary care, has held him out as though he were agent. So far as third persons are concerned, it usually makes no difference whether the agen actual or ostensible. If one person causes another reasonably to believe, and to act upon the belief, that a cer- tain man is his agent, then, so far as that other person is concerned, the assumed agent is agent. The agent always knows whether he has been employed, the principal always knows. As between themselves there is no difficulty. Third persons, however, cannot usually know whether he has really been employed or not, but if the principal leads the third person to believe that the man is an agent, then tl ! principal is bound. This distinction runs all through the law of agency. 12 DEFINITIONS AND DISTINCTIONS. [§ 14. § 14. Universal, general and special agency.— The most important classification of agencies is that based upon the nature and extent of the authority con- ferred into universal, general, and special agencies. A universal agent is one authorized to do all acts for his principal which can lawfully be delegated to an agent. A general agent is one having general authority to act in reference to some transaction or to some kind or series of transactions. A special agent is one authorized to act only in a par- ticular event and in accordance with specific instruc- tions. The distinction between the general and the special agent Is not always easy to draw, and courts and writers have not agreed upon the basis of it. judge Story has said: "A special agency properly exists, when there is a delegation of authority to do a single act; a general agency properly exists where there is a delegation to do all acts connected with a particular trade, business or employ- ment." Story on Agency, §17. Professor Parsons has said: "A general agent is one authorized to transact all his principal's busi- ness, or all his business of some particular kind. A particular [special] agent is one authorized to do one or two special things." 1 Parsons on Contracts, *41. Mr. Evans says: "General agents are such as are authorized to transact all business of a particular kind; whilst a special agent is authorized to act only in a single transac- tion." Evans on Agency (Ewell's ed.) p. 2. Mr. Wright says that the general agent "is usually a person to whom the principal has entrusted the management of a particular business, such as an estate agent, or the manager of a business; while the special agent is an agent given authority to deliver a particular message or buy a particular thing on one occasion, or do some special thing, and has no implied authority aliunde from his position or the nature of his business." Wright on Principal and Agent, 2d ed. 87, 88. Something of the distinction may be made clear by an illustra- tion. If I have a business which I cannot conduct In person, I may employ an agent to manage it for me. In the very nature of the case, however, in conferring his authority, I must do so in general terms. I cannot easily do more than to empower him to manage it \ccording to his best judgment for my best interest. I cannot well IS 14-17.] DEFINITIONS AND DISTINCTIONS. 13 go Into details and prescribe how he shall conduct himself and what he shall do In all the multitudinous contingencies which may arise. I must give him authority in general terms and leave the details to his discretion. On the ether hand, if I need a hor . I may send a person into the market to buy one only on condition that it shall be of the age, size, color, weight, disposition, speed and price which I prescribe. This case admits of special and particular instructions; the other did not. The former, the business manager, would be a general agent. The latter, who is to buy the horse, would be a spe- cial agent. But suppose I say to an agent, ''Go into the market and buy me a horse," and limit him neither as to age, size, color, price or otherwise. What kind of an agent is he? He has general power, but is to act only on a particular occasion. It is believed that the nature cf his power is the chief criterion, and that the dis- tinction between the special and the general agent is one of degree merely and not of kind. Formerly very important results were made to flow from this distinction; but the modern tendency is to minimize it, if not to ignore it altogether. See Butler v. Maples, 9 Wall. 766, Cas. Ag. 340; Loudon Savings Fund Society v. Hagerstown Savings Bank, 36 Pa. St. 498, 78 Am. Dec. 390, Cas. Ag. 371. § 15. It has been said that a principal can ha ve bu t onejiniYersa 1 agent, and it has been doubted whether such an agency could practically exist. It can only be created, if at all, by clear and unambiguous lan- guage, and will not be inferred from any general ex- pressions, however broad. See Gulick v. Grover, 33 N. J. L. 463, 97 Am. Dec. 72S; Barr v. Schroeder, 32 Cal. 609; Wood v. McCain, 7 Ala. 800, 42 Am. Dec. 612. § 10. A principal may have several general agents and as many special agents as occasion may require. § 17. The same person may at one time or in regard to one transaction be a special agent of his prin- cipal and at another time or in reference to other trans- actions he may be a general agent. So, though he may be authorized to act only in a particular case he may, with respect of that transaction, have general power. 14 DEFINITIONS AND DISTINCTIONS. [§§ 17-22. See Jeffrey v. Bigelow (1835), 13 Wend. (N. Y.) 518, 28 Am. Dec. 476. § 18. How to be proved. — Whether an agency is general or special is usually a fact to be proved. The law itself makes no abstract presumption in reference to it, though when an agency is once shown to exist, the law would presume it general rather than special. It is always true that anybody who relies upon the existence of agency has imposed upon him the burden of proving it. He must not only prove that it exists, but he must also show what kind~oTan agency it is. The law never simply presumes that agency exists, and it never simply presumes that an agent is general or special. When it appears that an agency does exist, the court, if it makes any presumption at all, presumes it to be general rather than lim- ited, but, speaking generally, the fact of the agency must be shown and also the nature and extent of it. See Savings Fund Society v. Savings Bank, Cas. Ag. 371. § 19. Professional and non-professional agents. —Agents may further be classified as professional and n o n-p r of ess iona I. Of the professional agents, the most important are the attorney at law, the auctioneer, the broker and the factor. §20. The attorney at law is one whose profes- sion it is to give advice and assistance in legal matters, and to prosecute and defend in the courts the causes of those who may employ him for that purpose. § 21. The auctioneer is one whose business it is to sell or dispose of property, rights or privileges, at public competitive sale, to the person offering or ac- cepting the terms most favorable to the owner. § 22. The broker is one whose business it is to bring parties together to bargain, or to bargain for them, in matters of trade, commerce or navigation. Brokers are of many kinds, such as merchandise brok- X y. §§ 22-26.] DEFINITIONS AND DISTINCTIONS. US ers, stock-brokers, insurance brokers, peal estate brokers, and tlie like. §23. The factor is one whose business il is to receive and sell goods for a commission. He is often called a commission-merchant. If he guarantees pay- ment for the goods he sells, he is said to act under a del credere commission. When authorized t<> sell a cargo which he accompanies on the voyage, he is called a super-cargo. § 24. Distinctions between these classes of agents. — These various classes of agents differ mate- rially from each other. Thus the auctioneer is em- ployed to sell or dispose of only, and not to buy, and his sales are always public, lie is primarily the agent of (lie seller only, blit lie becomes the agent of the bliyei; also when he accepts his bid and enters his name upon/ the memorandum of the sale. § 25. The broker sells at private sale, and has not usually the possession of the goods or property which he sells, lie is regarded as the agent of the per- son who first employs him, and he can not represent both parties to the transaction unless with full knowl- edge of his relations to the other each principal sees fit to confide his interests to him. The broker acts prop- erly in the name of his principal only, and he has not usually any property in his possession upon which he could claim a lien. § 26. The factor is entrusted with the posses- sion of the goods, and sells usually in his own name. Unlike the auctioneer, his sales are private. The factor has a special property in the goods, a lien upon them for his advances and charges, and, unless restricted, may sell upon a reasonable credit. Each of these different classes of agents will be more fully considered hereafter. 16 FOR WHAT PURPOSES CREATED. [§§ 27-29. CHAPTER II. FOR WHAT PURPOSES AN AGENCY MAY BE CREATED. § 33. 34. Illustrations. Validity as between principal and agent. 35. How when contract il- legal in part. § 27. The general rule. 28. The exceptions. 29. The first exception. 30. Illustrations. 31. The second exception. 32. How these cases re- garded in law. § 27. The general rule. — It is the general rule that an agency may be created for the transaction of any lawful business-, and that whatever a person may law- fully do, if acting in his own right and in his own be- half, he may lawfully delegate to an agent. § 28. The exceptions. — The cases is which authority cannot lawfully be delegated fall into one or the other of two general classes: I. Authority cannot be delegated for the perform- ance of an act which from its nature or the terms of the law requiring it, can only be performed by the principal in person. The rule in this class of cases is sometimes stated in this way : that authority cannot be delegated for the performance of a purely personal duty. II. Authority cannot be delegated to do an act which is illegal, immoral or opposed to public policy. §20. The first exception. — It is a general rule that a personal duty, trust or confidence imposed upon one person cannot be delegated by him to another. So, "if a public duty or trust is imposed on anyone, these, not being things which one does in his own right, can- not be delegated, but must be performed personally." §§ 29 -31.] FOR WHAT PURPOSES CREATED. 17 It is this principle which creates the limitation, here- after to be considered, upon the power of an agi q1 to delegate Ins agency. But the same rule may operate in some cases upon the principal, and it prevents him from delegating to an agent those things which by stat ute, custom or the inherent nature of the act are re- quired to be done by him in person. See United States v. Bartlett, Dav. 9, 24 Fed. Cas. 1021; Combes' Case, 9 Co. 76, b. §30. Illustrations. — Thus, for example, an elector who is entitled to vote at a public election must do so in person, and can not vote by agent. And where a statute required an affidavit to be made concerning matters peculiarly within the knowledge of a certain person, it was held that he must make the affidavit him- self, and that one made by an agent would not suffice. See Mechem on Public Officers, § 187; United States v. Bartlett supra. So it has been held that power to make, under a statute, an assignment for the benefit of creditors can not be delegated to an agent, the court saying: "Where an act authorized by statute must, from its nature or the necessary construction of the statutory authority, be done in person — for example, the statute authoriz- ing a party to make his will — the power to do the act cannot be delegated. Such cases fall within the excep- tion to the general rule that a person may authorize another to dispose of his property for him in any man- ner he himself may do." See Minneapolis Trust Co. v. School District, (1897) 6S Minn. 414, 71 N. W. Rep. 679. Compare In re Whitley Partners (1886) 32 Ch. Div. 337; Hyde v. Johnson, 2 Bing. N. C. 776, 29 Eng. Com. L. 488. §31. The second exception. — Under the second head the rule is, that the law will not sanction the IS FOR WHAT PURPOSES CREATED. t§§ 31-33. creation or enforce the performance of an agency which has for its purpose or which naturally and directly tends to promote, the commission of an act which is cither illegal or immoral in itself, or which is opposed to public policy. It may be thought at first view that this is not an exception to the rule at all— that the principal himself could not do any of the acts which are so condemned. This, of course, might be true of certain of them, but there are still many cases wherein one might, with im- punity, act in person, but could not appoint an agent to act for him. Thus, for example, one may very fre- quently resort to personal persuasion to procure legis- lation, or obtain a contract or a pardon by personal influence, and incur thereby no legal penalty, because no express statute has made it an offense. Such prac- tices, however, are undesirable, because they tend to substitute personal influences for considerations of the public good. They are opposed to public policy, and though the law may not reach them directly, it will at least refuse to lend its aid to enforce them. § 32. How these cases regarded in law. — The law scrutinizes undertakings of this nature with great strictness, and judges of their validity by their general nature and natural and probable results. It makes no difference that in the particular case nothing improper was done or intended to be done. The law determines the case by the tendency of undertakings of that kind, and holds the particular contract unlawful if its gen- eral nature brings it within the prohibited class. § 33. Illustrations. — The cases which fall under this prohibitum are exceedingly numerous, but a few classes will be mentioned. Thus, contracts for employment which lead the agent to put himself into a position wherein his duty to his .t ?3ti , f>* §83.] FOR WHAT PURPOSES CREATED. 10 principal and his own interesi may conflict, or wherein his duty to one principal may conflict with his duty to another principal, or which expose him to tempta- tion to violate his duty to his principal; See Rice v. Wood, 113 Mass. 133, 18 Am. Rep. 459, Cas. Ag. 12; Atlee v. Fink, 75 Mo. 100, 42 Am. Rep. 3S5, Cas. Ag. 14; Byrd v. Hughes, 84 111. 174, 25 Am. Rep. 442, Cas. Ag. 23. to procure or to suppress legislation by bringing per- sonal influence to bear upon the legislators; See Mills v. Mills, 40 N. Y. 543, 100 Am. Dec. 535, Cas. Ag. 17; Spalding v. Ewing, 149 Pa. St. 375, 24 Atl. R. 219, 15 L. R. A. 727; Houlton v. Dunn, 60 Minn. 26, 61 N. W. 898, SO L. R. A. 737; County of Colusa v. Welch, 122 Cal. 428, 55 Pac. R. 243. to procure action on the part of municipal bodies In- corrupt persuasion ; See Hayward v. Nordberg M'fg. Co., 85 Fed. R. 4, 29 C. C. A. 438. to procure contracts from governments and heads of governmental departments by like influences; See Stanton v. Embrey, 98 U. S. 548, Cas. Ag. 631; Elkhart County Lodge v. Crary, 98 Ind. 238, 49 Am. Rep. 746, Cas. Ag. 18; Beal v. Polhemus, 67 Mich. 130; Weed v. Black, 2 McArth. (D. C.) 268, 29 Am. Rep. 618; Gorman v. United States, 34 Ct. pf Ch. 237; Wasserman v. Sloss, 117 Cal. 425, 49 Pac. R. 566, 59 Am. St. R. 209; Commonwealth v. Press Co., 156 Pa. St. 516, 26 Atl. R. 1035. to procure the suppression or defeat of public prosecu- tions by other than the open and legally established methods of procedure; See Weber v. Shay, 56 Ohio St. 116, 46 N. E. 377, 60 Am. St. R. 743; Kirkland v. Benjamin, 67 Ark. 480, 55 S. W. 840. to secure appointment to public or private office, by personal solicitation or influence; See Edward v. Randle, 63 Ark. 318, 38 S. W. 343, 36 L. R. A. 174; Basket v. Moss, 115 N. C. 448, 20 S. E. 733, 44 Am. St. R. 463; West y. Camden, 135 U. S. 507, 34 L. ed. 254; Wilbur v. Stoepel, 82 Mich. 344, 46 N. W. 724, 21 Am. St. R. 568. 20 FOR WHAT PURPOSES CREATED. [J 33 to procure pardons by like means; See Deering & Co. v. Cunningham, 63 Kans. 174, 65 Pac. R. 263, 54 L. R. A. 410; Moyer v. Cantieny, 41 Minn. 242, 42 N. W. 1060. to secure or suppress evidence; See Lyon v. Hussey, 82 Hun 15, 31 N. Y. S. 281; Kennedy v. Hodges, 97 Ga. 753, 25 S. E. 493; Quirk v. Muller, 14 Mont. 467, 36 Pac. R. 1077, 43 Am. St. R. 647, 25 L. R. A. 87; Crisup v. Grosslight, 79 Mich. 380, 44 N. W. 621. to deal in prohibited articles or engage in forbidden transactions; See Sullivan v. Horgan, 17 R. I. 109. 20 Atl. R. 232; Helber v. Schantz, 109 Mich. 669, 67 N. W. 913; Mexican International B'k'g Co. v. Lichtenstein, 10 Utah 338, 37 Pac. R. 574. to deceive and defraud the public; See McDonnell v. Rigney, 108 Mich. 276, 66 N. W. 52; Merrill v. Packer, 80 Iowa, 542, 45 N. W. 1076; Shipley v. Reasoner, 80 Iowa, 548, 45 N. W. 1077; McNamara v. Gargett, 68 Mich. 454, 36 N. W. 218. to further and increase litigation ; See Peck v. Heurich, 167 U. S. 624; Alpers v. Hunt, 86 Cal. 78, 24 Pac. R. 846; contra, Vocke v. Peters, 58 111. App. 338. to do acts in contravention of statutes; See Irwin r. Curie, 56 N. T. App. Div. 514, 67 N. Y. S. 380; Dudley v. Collier, 87 Ala. 431, 6 So. R. 304, 13 Am. St. R. 55; Parks v. Dold Packing Co., 6 Misc. R. 570, 27 N. Y. S. 289; Lowey v. Granite Asso- ciation, 8 Misc. R. 319, 28 N. Y. S. 560. to procure election to public or private office by im- proper means; See Roby v. Carter, 6 Tex. Civ. App. 295, 25 S. W. 725 ; Dansereau v. St. Louis, 18 Can. S. Ct. R. 587; Dickson v. Kittson, 75 Minn. 168, 77 N. W. 820, 74 Am. St. R. 447. to endeavor to bribe or corrupt the servant or agent ot another ; See Woodstock Iron Co. v. Richmond etc. Co., 129 U. S. 643, 32 L. ed. 819; Lum v. McEwen, 56 Minn. 278, s. c. Lum v. Clark, 57 N. W. 662; Boyd v. Cochrane, 18 Wash. 281, 51 Pac. 383. §5 33-34.] FOR WHAT PURPOSES CREATED. 21 to commit crimes; See Mexican International Banking Co. v. Liechtenstein, 10 Utah, 338, 37 Pac. R. 574. to procure marriage for a commission or other com- pensation; See Duval v. Wellinan, 124 N. Y. 156, 26 N. E. 343; Morrison v. Rogers, 115 Cal. 252, 46 Pac. R. 1072; Hellen v. Anderson, 83 111. App. 506. to create "corners"' and monopolies; See Leonard v. Poole, 114 N. Y. 371, 21 N. E. 707, 11 Am. St. K. 667, 4 L. R. A. 728; Samuels v. Oliver, 130 111. 73, 22 N. E. 499. to engage in stock gambling transactions or unlawful dealings in other commodities or merchandise; or See Kahn v. Walton, 46 Ohio St. 195, 20 N. E. 203; Wagner v. Hildebrand. 187 Pa. St. 136, 41 Atl. R. 34; Dows v. Glaspel, 4 N. Dak. 251, 60 N. W. 60; Embrey v. Jemison, 131 U. S. 336, 33 L. ed. 172; Cashman v. Root, 89 Cal. 373, 26 Pac. R. 883, 12 L. R. A. 511, 23 Am. St. R. 482. these, and all others of like character or tendency the law declares void. See Bowman v. Phillips, 41 Kans. 364, 21 Pac. R. 230, 3 L. R. A. 631; Beebe v. Board of Supervisors, 64 Hun 377, 19 N. Y. S. 629; Brown v. First National Bank, 137 Ind. 655, 37 N. E. 158. 21 L. R. A. 206; Wood v. Mancheser Fire Ins. Co., 30 Misc. R. 230, 63 N. Y. S. 427; Railroad Co. v. Morris, 10 Ohio Cir. Ct. R. 502, 3 Oh. Dec. 419. Study the following cases, and be able to state how they illus- trate the rule: Rice v. Wood, 113 Mass. 133, 18 Am. Rep. 459, C on Ag. 12; Elkhart County Lodge v. Crary, 9S Ind. 238, 49 Am. Rep. 746, Cas. on Ag. 18; Byrd v. Hughes, S4 111. 174, 25 Am. Rep. 4 i2. Cas. on Ag. 23; Stanton v. Embrey, 93 U. S. 548, Cas. on Ag. 631; Mills v. Mills, 40 N. Y. 543, 100 Am. Dec. 535. Cas. Ag. 17; Atlee v. Fink, 75 Mo. 100, 42 Am. Rep. 385, Cas. Ag. 14. §34. Validity as between principal and agent. — But to make these contracts void as between the principal and the agent, it is necessary that the agent shall have participated in the unlawful intent of 22 FOR WHAT PURPOSES CREATED. [§§ 34-35. the principal, or shall knowingly have assisted in giv- ing it effect, See Irwin v. Williar, 110 U. S. at p. 510. §35. How when contract illegal in part. — Where contracts of this nature are entire, that is, where the mutual agreements are so connected and mutually dependent that one part can not stand without the others, the whole contract will be rendered void by the illegality; but if the contract is severable, the invalid part may be rejected and the residue be given effect. S3 36 37 J WHO MAY BE PRINCIPAL OR AGENT. 2* i SG 1. CHAPTER III. WHO MAY BE PRINCIPAL OR AGENT. In general. Who May Be Principal. 37. The general rule. 38. Rule applies to corpora- tions and partnerships. 39. Natural or legal incapac- ity. 40. Insane persons as princi- pals. 41. Infants as principals. 42. Married women as princi- pals. 2. Who May Be the Agent. 43. Less competence required in agent than principal. 44. Infant as agent. 45. How authorized. 46. Married woman as agent. 47. As agent for her hus- band. 52. 53. § 48. Husband as agent for hl» wife. 40. Corporations as agents. 50. Partnerships as agents. 51. Incapacity arising from adverse interest. 3. Joint Principals. Agent may represent sev- eral joint principals. Parties, co-tenants, etc., as principals. 54. Clubs, societies, etc., as principals. 4. Joint Agents. 55. Several agents may jointly represent the same prin- cipal. 56. If the power 13 joint and several. 57. But where the agency is one created by law. §36. In general. — Attention will next be given to th" general question, Who may be principal or agent? And as a not inappropriate part of the same gene subject, the questions which arise where several per- sons are jointly to be the principals or the agents, will be here considered. 1. 'Who may he Principal. § 37. The general rule. — It is the general rule that every person who is competent to act in his own ru and in his own behalf may act by agent. We have seen also that as a general rule a person may do by agent QQ 3 21 WHO MAY BE PRINCIPAL OR AGENT. [§§ 37-3S. whatever he may do in person. The reverse of this is also true in general, viz. : — that a person who is incom- petent to act in his own right and in his own behalf cannot act by agent ; neither can one do by agent what he cannot do in person. § 38. Rule applies to corporations and partner- ships. — This rule applies to collections of persons as well as to single individuals. Hence corporations may, and, from their nature, must usually act by agents; and the existence of the agency and the effect of the agent's acts are subject to the same rules which apply to individuals. Thus it is said in a recent case, "It is well settled that a corporation may contract and be contracted wdth through an agent whose authority may be implied from facts and circumstances showing recognition or ratification by the corporation. Indeed, it seems that the same presumptions are applicable in this respect to corporations as to natural persons." See Moyer v. East Shore Terminal Co. (1894) 41 S. Car. 300, 19 S. E. Rep. 651, 44 Am. St. Rep. 709. So partnerships may, unless restricted, perform by agent the acts which are within the scope of the part- nership business. See St. Andrews Bay Land Co. v. Mitchell, 4 Fla. 192, 54 Am. Dec. 340, Cas. Ag. 26; Lucas v. Bank of Darien, 2 Stew. (Ala.) 280, Cas. Ag. 27; Clark v. Slate Valley R. Co. (1890), 136 Pa. 408, 20 Atl. Rep. 562, 10 L. R. A. 238. The rule applies to limited partnerships as well as to ordinary partnerships. See Park Bros. & Co. v. Kelly Axe Mfg. Co. (1892), 49 Fed. Rep. 618, 6 U. S. App. 26, 1 C. C. A. 395. §39. Natural or legal incapacity. — Incapacity to be a principal may be either natural or legal. It is . Married woman as agent. — A married woman might at common law be the agent of third persons, even in their dealings with her husband. It was, how- ever, as in the case of the infant agent, an imperfect relation, because the married woman at common law had no capacity to enter into contract relations. Un- der the modern "Married Women's Acts," her capacity to act as agent is usually made much greater. § 47. As agent for her husband. — Both at the common law and under the modern statutes, the mar- ried woman is competent to be the agent of her hus- band. Her authority as her husband's agent is of two kinds: 1. That created by law, even against the husband's consent, to buy necessaries on his credit when he lias neglected to supply her. This is a matter, however, which does not concern us here, but belongs to the law of husband and wife. See Benjamin v. Dockham, 134 Mass. 418, Cas. on Ag. 71. 2. That which arises from his actual authorization, either express or implied, as in the case of his other agents. The wife has no general authority as her husband's agent merely because she is his wife. Her husband may give her such authority, but it must be conferred either expressly or impliedly, as in the ease of his other agents. Sec Benjamin v. Benjamin, 15 Conn. 347, 3D Am. Dec. 384, Cas. Ag. 72; Cox v. Hoffman, 4 Dev. & Bat. (N. C.) ISO, Cas. Ag. 39; Weisbrod v. Railway Co., 18 Wis. 35, 86 Am. Doc. 743, Cas. Ag. III. 30 WHO MAY BE PRINCIPAL OR AGENT. [§§ 48-50. § 48. Husband as agent for his wife. — Where a married woman is competent to act by agent (see ante § 42), her husband may be appointed as the agent. "If she appoints her husband as her agent in such a matter, and in making the appointment acts of her own free will and without coercion from him," said the court in Massachusetts, "we see no reason for regarding her as incapable of authorizing any act to be done by him in her name, and on her behalf, or for shielding her from responsibility. It must be held that whatever is done within the scope of the agency is done by her authority." See Shane v. Lyons (1898) 172 Mass. 199, 51 N. E. 976, 70 Am. St. Rep. 261. Her husband, however, has no authority as her agent merely because he is her husband, but his authority must be conferred a s in the case of any other agent. And it is said that even clearer evidence of her appoint- ment ought to be required, when he assumes to act as her agent, than would be required if a stranger were the agent. See McLaren v. Hall, 26 Iowa, 297, Cas. Ag. 77; Rowell v. Klein, 44 Ind. 290; Rankin v. West, 25 Mich. 195; Rust-Owen Lumber Co. v. Holt, 60 Neb. 80, 82 N. W. Rep. 112, 83 Am. St. Rep. 512. § 49. Corporations as agents. — A corporation may act as agent either for individuals, partnerships, or other corporations, if the act is within the scope of its corporaTe powers and not forbidden. Corporations are often organized for this express purpose, as in the case of trust companies, and the like. See Killingsworth v. Trust Co., 18 Ore., 351, 17 Am. St. Rep. 787, Cas. on Ag. 40; McWilliams v. Detroit Mills, 31 Mich. 275. § 50. Partnerships as agents. — The same rule ap- plies to partnerships. They may act as agent within the scope of their partnership powers, or may be ex- §f 50-51.J WHO MAY BE PRINCIPAL OR AGENT. 31 pressly organized for that purpose. Authority con- ferred upon a firm is supposed to be conferred upon each member of it, unless the contrary is expressed, and therefore the authority may be exercised by any one of the partners. See Deakin v. Underwood, 37 Minn. 98. 5 Am. St. Rep. 827, Cas. Ag. 68. §51. Incapacity arising from adverse interest — Incapacity to act as agent in certain eases arises from adverse interest. The law does not permit a person to assume to act as agent where he already has such an interest in the same matter as may prevent his acting fairly toward his principal. Thus the agent of one party cannot, without the intelligent consent of both principals, undertake to act in the same transaction as the agent of the other party. Neither can a person, without the full and intelligent consent of the other party, undertake to be both a party to a transaction and the agent of the other party. This subject will be more fully considered hereafter. See Rice v. Wood, 113 Mass. 133, 18 Am. Rep. 459, Cas. Ag. 12; Bell v. McConnell, 37 Ohio St. 396, 41 Am. Rep. 528, Cas. Ag. 538; Byrd v. Hughes, 84 111. 174. 25 Am. Rep. 442, Cas. Ag. 23; Davis v. Hamlin, 108 111. 39, 48 Am. Rep. 541, Cas. Ag. 461. It is not necessary in this class of cases that the interest shall be such as will or must prevent his acting fairly towards his prin- cipal. Here, as before, the lav; judges of the whole class by the tendency of any particular specimen in that class. It does not make any difference in this particular case whether the agent might have been able to sink entirely his own interest and act with the utmost fidelity. It makes no difference that he is acting and has acted with the utmost fidelity. See Carr v. National Bank & Loan Co. 167 N. Y. 375, 60 N. E. Rep. 649, 82 Am. St. Rep. 725. If the principal at the time he employs the agent knows that the latter has this interest, there Is no reason why he cannot employ him. If he is willing to trust him in view of the facts he may do so. The case spoken of Is where the interest is not disclosed. Without that full and intelligent consent on the part of the principal the law 32 WHO MAY BE PRINCIPAL OR AGENT. [§§ 51-R3. absolutely forbids the agent from assuming to act where he haa an adverse interest. See Wildberger v. Hartford Fire Ins. Co., 72 Miss. 338, 17 !3o. Rep. 282, 48 Am. St. Rep. 558; Ramspeck v. Pattillo, 104 Ga. 772, 30 S. E. Rep. 962, 69 Am. St. Rep. 197. 3. Joint Principals. § 52. Agent may represent several joint princi- pals. — An agent may be appointed to represent a num- ber of joint principals. The interest which the asso- ciates have may be that of partners, or of joint-tenants, or tenants in common of property, or merely that of persons who have united to form a club, society or asso- ciation in order to accomplish some social, political, religious or other similar purpose. What their interest is, becomes material in determining the extent of their powers and liabilities as joint principals. Where a number of co-tenants execute several and separate pow- ers of attorney to the same agent to dispose of the several interest of each, the agent will have no authority to bind them all jointly. Harris v. Johnston (1893), 54 Minn. 177, 55 N. W. Rep. 970, 40 Am. St. Rep. 312. So where two principals unite in giving a joint power to bind both jointly, there will be no authority to bind one only, Gilbert v. How (1890), 45 Minn. 121, 47 N. W. Rep. 643, 22 Am. St. Rep. 724, Cas. Ag. 380. § 53. Partners, co-tenants, etc., as principals. — In the case of a partnership, each partner has usually the power to appoint an agent whose acts, in reference to the partnership affairs, will bind all of the part- ners. But in the case of joint tenants, tenants in com- mon, and other similar relations, one party is not, from the mere fact of the relation, impliedly authorized to act for all, and an agent appointed by one will bind that one only and not all, unless all authorized his appointment. See Mussey v. Holt, 24 N. H. 248, 55 Am. Dec. 234; Tuttle v. Camp- bell, 74 Mich. 652, 16 Am. St. Rep. 652; Morrison v. Clark, 89 Me. 103, 56 Am. St. Rep. 395. 55 54-55.1 WHO MAY BE PRINCIPAL OR AGENT. '■>>'■>> §51. Clubs, societies, etc., a3 principals. — Clubs, societies, and unincorporated associations are not part- nerships, and no power in one member to bind the others will be implied from the mere fact of member- ship. A person, therefore, who assumes to act as agent of such a body can bind those only who have in so way, previously authorized his appointment, expressly or impliedly, or have subsequently ratified it As in other cases, no particular method of conferring the authority is necessary, unless made so by some i press rule of the association. Such an appointment may be authorized by the rules or regulations of the association to which the member assents on joining, or it may be made by those who vote for it at a meeting, or it may be ratified by the members who subse- quently take the benefit of the acts with knowledge of the facts. See Ash v. Guie, 97 Penn. St. 493, 39 Am. Rep. 818, Cas. Ag. 45; Davison v. Holden, 55 Conn. 103, 3 Am. St. Rep. 40, Cas. Ag. 47; Lewis v. Tilton, 64 Iowa, 220, 52 Am. Rep. 436, Cas. Ag. 510; Bennet v. Lathrop, 71 Conn. 613, 42 Atl. 634, 71 Am. St. Rep. 222. Of course, to bind any one as principal in these cases, it must appear that dealings upon credit were contemplated, for if it be evident that the authority went no further than to pledge funds pro- vided and supposed to be sufficient, no personal liability would attach. McCabe v. Goodfellow (1892), 133 N. Y. 89, 30 N. E. Rep. 728, 17 L. R. A. 204. i**""* 4. Joint Agents. § 55. Several agents may jointly represent the same principal. — There may also be a number of agents jointly representing the same principal. Where they are appointed by a private principal, the law pre- sumes that the principal relied upon their joint judg- ment and discretion, and they must therefore all act together in the execution of their authority, and a less number than the whole can not execute it, unless there 34 WHO MAY BE PRINCIPAL OR AGENT. [§§55-57. be some provision in the instrument appointing them or something in the circumstances, such as waiver, ac- quiescence and the like, which indicates the consent of the principal that less than the whole may act. See Hawley v. Keeler, 53 N. Y. 114, Cas. on Ag. 50. § 56. If the power is joint and several, then all or one only must act and not an intermediate num- ber. If a partnership is the agent, the authority may, as has been seen, be executed by any one of the part- ners, in the absence of stipulations to the contrary. The death or disability of one of two or more joint agents will terminate the authority unless it is coupled with an interest in the survivors. See Deakin v. Underwood, 37 Minn. 98, 5 Am. St. Rep. 827, Cas. Ag. 68. § 57. But where the agency is one created by law, or is public in its nature, the rule is different. In such cases all of the agents or officers must be pres- ent to deliberate, or must have notice and an oppor- tunity to be present and deliberate with the others, but a majority of the whole number, if present, may then lawfully meet. A majority of this meeting may then exercise the power. This rule applies to the directors of corporations. Thus after due notice, a majority constitute a quorum, and a majority of that quorum may act. See First Nat. Bank v. Mt. Tabor, 52 Vt. 87, 36 Am. Rep. 734, Cas. on Ag. 52; McNeil v. Chamber of Commerce, 154 Mass. 277, Cas. Ag. 63. 5§ G8 60] APPOINTMENT OF AGENTS. 35 ER Q, CHAPTER OF THE APPOINTMENT OF AGENTS AND THE EVIDENCE THEREOF. 5 58. In general. 1. How the Agent May Be Appointed. 59. Usually, only by act of principal. 60. The method to be pursued. 61. 1. Authority to execute in- struments under seal. 62. How when instrument executed in presence of Need not be express. 67. Doctrine of estoppel applied. CS. General rule. 69. Limitations. 2. Evidence of the Appoint- ment. 70. Authority not to be proved by agent's admissions. 71. But agent may be called as a witness. What constitutes the best evidence. How question deter- mined. principal. 63. How corporation may appoint. 64. 2. Authority required by statute to be in writing. 65. In other cases, authority may be conferred by pa- rol. § 58. In general. — The questions next to be consid- ered will be, 1, How the agent may be appointed, and 2, By *what evidence the fact of his appointment may be established. .f 1. How the [gent may be Appointed. § 59. Usually, only by act of principal. — Except in those cases in which the law creates the authoritv, it is the invariable rule, that an agent can only be ap- pointed at the will and by the act of the principal, though that will may find expression in many different ways. See Pole v. Leask, 33 L. J. Rep. Eq. 155, Agency Cases. 81. §60. The method to be pursued. — The law usu- ally prescribes no particular method of conferring the 36 APPOINTMENT OF AGENTS. [§§ 60-S1 . authority. The material question is as to the fact of the appointment rather than as to the method adopted.. There are, however, two classes of cases — one arising under the rules of the common law and one under statutes — in which the authority must be conferred in a particular way, and they are : 1. Cases wherein an instrument under seal is to be executed ; and, 2, Cases wherein some statute, usually designed to prevent fraud or perjury, expressly requires the authority to be conferred by writing. These two classes of cases will be considered first. § 61. 1. Authority to execute instruments under sea l f — it was the settled rule at common law — and this rule still generally prevails — that authority to execute an instrument necessarily under seal could be con- ferred only by a written power under seal. See Humphreys v. Finch, 97 N. Car. 303, 1 S. E. Rep. 870, 2 Am. St. Rep. 293. So authority to fill blanks in deeds or other sealed in- struments can generally be conferred only by sealed instrument, though there are cases wherein a principal, who has confided to an agent a bond or deed containing blanks to be filled and then delivered, will be held bound to innocent parties, although the agent has filled the blanks in an unauthorized manner. See Phelps v. Sullivan, 140 Mass. 36, 54 Am. Rep. 442, Cas. Ag. 101; White v. Duggan, 140 Mass. 18, 54 Am. Rep. 437; Humphreys v. Finch, supra; Cribben v. Deal, 21 Oreg. 211, 28 Am. St. Rep. 746. But much less significance is now attached to seals than formerly, and there is a marked tendency in many States either to abolish the old distinctions by statute, or to disregard them as no longer suited to the times. And even at common law, if the instrument to be exe- cuted was unnecessarily under seal, and the authority x §§ 61-63.] APPOINTMENT OF AGENTS. 37 was sufficient for an unsealed instrument, the superflu- ous seal would be disregarded and the authority held sufficient. See Heath v. Nutter, CO Me. 378, Agency Cases 91; Long v. Hart- well, 34 N. J. L. 116, Cas. Ag. 92; Nichols v. Haines, 98 Fed. Rep. 692, 39 C. C. A. 235. Compare, in passing, Thomas r. Joslin, 30 Minn. 388, Cas. Ag. 427; Drury v. Foster. 2 Wall. 24, Cas. Ag. 120. § 62. How when instrument executed in presence of principal. — So even though the instrument to be executed were necessarily under seal, yet if the instrument were executed in the presence of the prin- cipal and by his express direction mere verbal author- ity was sufficient. This rule still prevails. See Gardner v. Gardner, 5 Cush. 483, 52 Am. Dec. 741, Cas. Ag. 100; Bigler v. Baker, (1894) 40 Neb. 325, 58 N. W. Rep. 1026, 24 L. R. A. 255. The reason given for this rule is that "if the grantor's name is written by the hand of another, in his presence and by his direc- tion, it is his act, and the signature, in point of principle, is as actually his as though he had performed the physical act of making it." Mutual Benefit L. Ins. Co. v. Brown, 30 N. J. Eq. 193. § G3. Kcw corporation may appoint. — It was also the rule of the common law that a corporation could contract only by deed under its corporate seal, and that its appointment of an agent could be made only in the same manner, but this rule has been quite generally abandoned, and a corporation may now ap- point agents in substantially the same manner that an individual may employ them. "A great deal of the difficulty," it is said in one case, "originally felt in holding corporations liable for the acts of their agents within the scope of their authority, arose from the supposition that it was necessary that their appointment should be under the seal of their principals. The decisions, both in England and America, have satis- factorily disposed of this technical doubt, and it is now clearly the law, particularly with regard to what are called trading corpora- tions, that no such evidence of authority is required. A private corporation is liable for the acts of its agents within the scope of / 7 38 APPOINTMENT OF AGENTS. [§§ 63-64. their authority, in the same way, and it would appear in the same form, as any individual person is." Pennsylvania Railroad Co. v. Vandiver (1862), 42 Pa. St. 365. See Burrill v. Bank, 2 Mete. (Mass.) 163, 35 Am. Dec. 395; Noble- boro v. Clark, 68 Me. 87, 28 Am. Rep. 22; Alabama, etc., R. Co. v. South, etc., R. Co., 84 Ala. 570, 5 Am. St. Rep. 401; Williams v. Fresno Canal Co., 96 Cal. 14, 31 Am. St. Rep. 172; Scofield v. Parlln & Orendorff Co., 61 Fed. Rep. 804, 18 U. S. App. 692, 10 C. C. A. 83. § 64. 2. Authority required by statute to be in writing. — In very many of the States, by statute (the .statute of frauds or its equivalent) an agent to sell, mortgage or lease lands or any interest therein (other, usually, than leases for not more than one year), can be authorized only by an instrument in writing. Thus the statute in Michigan (Comp. L. 1897, §§9509, 9511) de- clares that "No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or con- cerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of lav;, or by deed or conveyance in writing, sub- scribed by the party creating, granting, assigning, surrendering or declaring the same, or by some person thereunto by him lawfully authorized by writing." And "Every contract for the leasing for a longer period than one year, or for the sale of any lands, or any in- terest in lands, shall be void, unless the contract, or seme note or memorandum thereof, be in writing, and signed by the party by whom the lease or sale is to be made, or by some person thereunto by him lawfully authorized by writing." Statutes substantially sim- ilar are found in Alabama, California, Colorado, Illinois, Ohio, and other States. Not all of the States, however, have such statutes. Thus, Wis- consin, for example, while it has a statute identical with the first sei ion quoted above from Michigan, omits the words "by writing" at the close of the second one. Indiana and Iowa do the same, and there are various distinctions in other States which it is not prac- ticable to reproduce here. The statute in each State must be con- sulted whenever this general question arises. See, for example, Lccg t. Hartwell, 34 N. J. L. 116, Agency Cases, 92; Malone v. Mc- Cullough, 15 Colo. 460; Kozei v. Dearlove, 144 111. 23, 36 Am. St. Rep. 416; White v. Breen, 106 Ala. 159, 19 So. Rep. 59, 32 L. R. A. 127; Alabama, etc., R. Co. v. South, etc., R. Co., 84 Ala. 570, 5 Am. St Rep. 401. §§ 64-67.] APPOINTMENT OF AGENTS. .".0 The policy of the law may extend this rule to other cases. Thus, in Kentucky it is enacted thai "No per- son shall be bound as the surety of another by the art of an agent unless the authority of the agent is in writ- ing, signed by the principal." See Kentucky Statutes, 1899, §482; Simpson v. Commonwealth, 89 Ky. 412, 12 S. W. Rep. 630. § 65. In other cases, authority may be conferred by parol. — Except in these cases, of instruments ond< r seal, and statutes expressly requiring written author- ity, it is the general rule that authority for the doing of any act lawful to be done, including the execution of all written instruments other than those mentioned above, may be conferred without writing. See Worrall v. Munn, 5 N. Y. 229, 55 Am. Dec. 330. There seems to be an impression, easily acquired, but with diffi- culty removed, that, because authority for the execution of instru- ments under seal must be conferred by an instrument under seal, authority for the execution of instruments in writing must be con- ferred by writing. This, however, is not true. Except in the cases already referred to, authority for the execution of written instru- ments may be conferred without writing. Authority for the execu- tion of negotiable instruments is no exception, though such an authority is not easily implied. (See Jackson v. National Bank. Agency Cases, 415; New York Iron Mine v. National Bank, Agency Cases, 423.) §G6. Need not be express. — The authority, moreover, need not be expressly conferred. In tie 1 great majority of the cases it is informally conferred, or is presumed from the acts and conduct of the prin- cipal. § 67. Doctrine of estoppel applied. — The doc- trine of estoppel is constantly applied, and the prin- cipal will not be permitted to deny that which by his words or conduct he has asserted, if such denial would prejudice an innocent third person who has reasonably relied upon such words or conduct. 40 APPOINTMENT OF AGENTS. [§§67-69. See Breckeuridge v. Lewis, 84 Me. 349, Ag. Cas. 103; Phelps v. Sullivan, 140 Mass. 36, 54 Am. Rep. 442, Cas. Ag. 101. Estoppel, as here used, has been defined to be: "An impediment or bar by which a man is precluded from alleging or denying a fact, in consequence of his own previous act. allegations or denial to the contrary." Jacob's Law Diet. § 68. General rule. — It may therefore be stated as a general rule that whenever a person has held out another as his agent authorized to act for him in a given capacity; or has knowingly and without dissent permitted such other to act as his agent in that ca- pacity; or where his habits and course of dealing have been such as to reasonably warrant the presumption that such other was his agent authorized to act in that capacity; whether it be in a single transaction or in a series of transactions — his authority to such other to so ;■<•{ for him in that capacity will be conclusively pre- sumed, so far as it may be necessary to protect the rights of third persons who have relied thereon in good faith and in the exercise of reasonable prudencej and he will not be permitted to deny that such other was his agent authorized to dp the act he assumed to do, provided that such act was within the real or apparent scope of the presumed authority. See Savings Society v. Savings Bank, 36 Penn. St. 498, 78 Am. Dec. 390, Cas. Ag. 371; Johnson v. Hurley, 115 Mo. 513, Cas. Ag. 84. See also Pursley v. Morrison, 7 Ind. 356, 63 Am. Dec. 424; Hooe v. Oxley, 1 Wash. (Va.) 19, 1 Am. Dec. 425; Tier v. Lampson, 35 Vt. 179, 82 Am. Dec. 634; Hubbard v. Tenbrook (1889). 124 Pa. St. 291, 16 Atl. Rep. 817, 2 L. R. A. 823, Cas. Ag. 367; Union Stock Yard Co. v. Mallory, 157 III. 554, 41 N. E. Rep. 888, 48 Am. St. Rep. 341. § 69. -Limitations. — But authority will not arise from mere presumption. _It must he based on facts, for which the principal is responsible, and wiW not arise from any mere argument as to the conven- ience, utility or propriety of its existence. The facts, moreover, from which it is implied must be given their ordinary and natural effect, and where §2 69-71.] APPOINTMENT OP AGENTS. 11 the authority is inferred from the adoption of arts of a certain kind, its scope will be limited to the perfor m- ance of a■ 54 OP AUTHORITY BY RATIFICATION. ["§92-95. have intervened between the act and its ratiiication, such rights cannot be cut off by the ratification. See Cook v. Tullis, L8 Wall. (U. S.) 332, Cas. Ay. 160; Mccracken v. San Francisco, 16 Cal. 5S1, Cas. Ag. 109. §93. Itevocability. — Ratification, once intelli- gently made, is irrevocable, so far as the rights of third persons arc concerned; but, on the other hand, repudi- ation unless it lias led some one interested to change his situation to his detriment may ordinarily be subse- quently changed to ratification. See Jones v. Atkinson, 68 Ala. 167, Cas. Ag. 192; Neely v. Jones, 16 W. Va. 625, 37 Am. Rep. 794; Sanders v. Peck, 87 Fed. Rep. 61. 59 U. S. App. 248, 30 C. C. A. 530. § 94. Effect as between principal and agent. — As _ between the principal and the agent, the effect of the ratification is to release the agent from all liability to the principal for acting without authority; and to give the agent Uiesa in< ' lights against the principal, — as for compensation, reimbursement, etc., — which he would have had if the act had been previously~alithorized. The principal must ratify the whole act, and his con- duct, it is held, will be liberally construed in favor of a ratification. See Wilson v. Dame, 58 N. H. 392, Cas. Ag. 526; Bank v. Bank, 13 Bush (Ky.), 526, 26 Am. Rep. 211, Cas. Ag. 206; Hazard v. Spears, 4 Keyes (N. Y.), 469, Cas. Ag. 182; Szymanski v. Plassan, 20 La. Ann. 90, 96 Am. Dec. 382; Risbourg v. Bruckner, 3 Com. B. N. S. 812, 91 Eng. Com. L. 810; Brewer v. Sparrow, 7 B. & C, 310, 14 Eng. Com. L. 144; Frixione v. Tagliaferro, 10 Moore's Pr. Coun. Cas. 175; Smith v. Cologan, 2 Term Rep. 188n. § 95. Effect as to rights of third party against principal. — As between the principal and the party with whom the agent dealt, the effect of the ratification is to give the other party the same rights against the princi- pal which he would have had if the act had been pre- 5§ 95-97.] OF AUTHORITY BY RATIFICATION. 55 viously authorized. This is the aspect of the question most frequently arising, and the rule is declared in the familiar ma:-:!;n Omiiis ratihubitio retrotrahitur et rnandato priori aeguiparatur. See Ileyn v. O'llagen. 60 Mich. 150, Cas. Ag. 186; Hyatt v. Clark, 118 N. Y. 5G3, Cas. Ag. 177. § 96. Effect as to rights of principal against third party. — The ratification of the act by the princi- pal being equivalent to prior authority, will operate to cut off any remedies which he might otherwise have had against the third party based upon the want of authority, a.s, for example, the right to recover property or money received by the other party from the agent. Whether the principal by ratifying it can acquire the same right to enforce against the other party a con- tract made on his behalf which he would have had if it had been previously authorized, is a question upon which the cases are in some conflict. The rule sus- tained by the weight of authority seems to be that the principal mav ratifv the unauthorized contract and then enforce it against the other party, if he does so within a reasonable time and before the other party has withdrawn from it. See Dodge v. Hopkins, 14 Wis. 686, Cas. Ag. 215; McClintock v. Oil Co., 146 Penn. 144, 28 Am. St. Rep. 785, Cas. Ag. 219; Bolton v. Lambert, L. R. 41 Ch. Div. 295, Cas. Ag. 222; In re Tiedeman [1899], 2 Q. B. 66; Atlee v. Bartholomew, 69 Wis. 43, 5 Am. St. Rep. 103, and note; 25 Am. L. Rev. 74. The Wisconsin cases and the English cases represent extreme views. The rule of the Pennsylvania case is more likely to be fol- lowed. The question is one of real difficulty. In addition to the discussions referred to in the notes to the* cases, see 9 Harv. L. Review, 60; 5 Law Quar. Rev. 440; Fry on Specific Performance (3d Eng. ed.), 711. § 97. Effect between agent and other party. — In contract. — A person who assumes to deal as agent with third parties in matters concerning which he has 5G OF AUTHORITY BY RATIFICATION. [§§ 97-98. no authority incurs, in many instances, as will be seen hereafter, an individual liability to the person so dealt with. As between such another party and the agent of a disclosed principal, the effect of the ratification in contract cases is to release the agent from liability to the other party for having made a contract without authority; and it gives the agent the same rights against the other party which he would have had if the contract had been previously authorized. See Spittle v. Lavender, 2 Brod. & Bing. 452, 6 Eng. Com. L. 224. If the principal were undisclosed, ratification will not pro tect the agent from liability to the other party, but it will charge the principal and give the other party an option to hold the principal or the agent as he choo ses.^ See post, § 243. § 98. In tort. — But in cases of tort, the rule is different: The ratification by the principal makes him liable also for the tort to the third person, but it does not release the agent from his liability to the third person for his participation in the tort. Both princi- pal and agent are thereafter liable. It is no defense to the agent when sued for a tort that he acted as the agent of another in committing it. See Stephens t. Elwall, 4 Maule & Sel. 259, Cas. Ag. 226; Delaney v. Rochereau, 34 La. Ann. 1123, 44 Am. Rep. 456, Cas. Ag. 514; Os- borne t. Morgan, 130 Mass. 102, 39 Am. Rep. 437, Cas. Ag. 518; Miller v. Wilson, 98 Ga. 567, 58 Am. St. Rep. 319. §99.] DELEGATION OF AUTHORITY. 57 CHAPTER VI. OF DELEGATION OF AUTHORITY BY THE AGENT. 99. In general. 100-2. Agent generally cannot delegate authority to sub-agent. § 103 Under what circumstances justified. 104-5. Effect of appointment of sub-agent. §99. In general. — Thus far there has been consid- ered the (question of the appointment of agents by the principal himself, either before the act was done — by authorization, or after it was done — by ratification. Some consideration is required of the question whether authority can be conferred not by the principal him- self but by some one else to whom that power has been confided. There can be no doubt, of course, that the principal may authorize an agent to employ other agents, as where the manager of a business is clothed with the power of employing all such servants and agents as the conduct of the business may require. In such eas< -. employment of agents by the agent authorized to em- ploy them, within the scope of the employment, is an appointment by the principal under the general maxim Qui facit per alium, farit per se } and the agents so ap- pointed are the agents of the principal as fully as though appointed by him in person. Another and a different question is, not whether an agent may thus be authorized to appoint agents who will derive authority directly from the principal, but whether an agent who has been given certain authority may himself hand that authority over in whole or in part to another, who is to exercise it either for ^v under 58 DELEGATION OF AUTHORITY. [§§99-101. him. It is the question, not whether an agent may be authorized to appoint other agents, but whether he may appoint sub-agents. The difference may be seen by inquiring whether an agent appointed by an agent is the agent of the principal or the agent of the agent. The act of handing down authority conferred is fre- quently spoken of as delegation of the authority, and the question arises in other departments of the law than agency. § 100. Agent generally cannot delegate authority to sub-agent. — It is the general rule, finding expres- sion in the familiar maxim, Delegatus non potest dele- gari, that an agent cannot delegate his authority to a sub-agent, without the expressed or implied consent of his principal. This is always the rule where the act to be performed requires the exercise of judgment or discretion, or where the principal evidently trusted to a personal performance by the agent. The rule is based upon the presumption that the principal has selected the particular agent because he relied upon, or desired the benefit of, that particular person's judgment, discretion, experience, skill or abil- ity, and it would be a manifest injustice, as well as a disappointment of expectations, if the person so selected could turn the matter over to another of whom the principal may be ignorant and to whom he might not be willing to entrust the authority. See Appleton Bank v. McGilvray, 4 Gray (Mass.) 518, 64 Am. Dec. 92, Cas. Ag. 229; Birdsall v. Clark, 73 N. Y. 73, 29 Am. Rep. 105, Cas. Ag. 231; McKinnon v. Vollmar, 75 Wis. 82, 43 N. W. 800, 17 Am. St. Rep. 178, 6 L. R. A. 121; Davis v. King, 66 Conn. 465, 50 Am. St. Rep. 104 and exhaustive note; Central, etc., Ry. Co. v. Price, 106 Ga. 176, 71 Am. St. Rep. 246. § 101. These are the considerations also which forbid the agent's doing what is really the same thing §§ 101-103.] DELEGATION OF AUTHORITY. 5S under another name, that is, assigning his contract of agency. "In the case of sue!) a contract," it is said in a recent case, "it is a presumption of law that the trust is exclusively personal, and that it cannot be trans- ferred or delegated by the agent without his principal's consent." See Bancroft v. Scribner, 72 Fed. Rep. 988, 44 U. S. App. 480, 21 C. C. A. 352; Peterson v. Christensen, 26 Minn. 377, Cas. Ag. 234. § 102. The rule, however, is not inflexible. It is based upon the presumed intention of the principal and is intended for his protection. There are cast-, moreover, wherein the reason is not present, and the rule should not then prevail. Ifjhe c ase doe s not in- volve the exercise of any special skill, judgment or dis- cretion, or, though it does, if it appears that the prin- cipal is willing that the authority may be delegated, then exceptions should be recognized, and the law admits them. Hence — § 103. Under what circumstances justified. — Unless the contrary is expressed, authority to appoint a sub- agent will be implied — (1) where the act to be done is mechanical or ministerial only; (2) where the au- thority can not be executed without the employment of sub-agents; (3) where their employment is in accord- ance with a known and well established usa DUTIES OF PRINCIPAL TO THIRD PERSON. [§ 233. CHAPTER XIV. OF THE DUTIES AND LIABILITIES OF THE PRINCIPAL TO THIRD PERSONS. ! 233. In general. 234. "What questions arise. I. LIABILITY FOR AGENT'S CON- TRACTS. 235. In general. a. The disclosed principal. 236-237. Principal liable, when. b. The liability of the un- disclosed principal. 238. In general. 239. Real principal liable when discovered. 240. Exceptions. 241. When right to be exer- cised. 242. To what contracts rule applies. 243. Agent also remains liable. II. RESPONSIBILITY FOR AGENT'S STATEMENTS, ETC. 244-245. What statements, etc., bind the principal. III. RESPONSIBILITY FOR MAT- TERS BROUGHT TO KNOWL- EDGE OF AGENT. § 246-247. When notice to agent is notice to principal. 248. Basis of rule. 249. Notice to sub-agent. 250. Notice to one of several agents. 251. Notice to agents of cor- porations. IV. LIABILITY FOR AGENT'S TORTS AND CRIMES. 252. Foundation of liability for agent's torts. 253-257. Principal's liability for agent's torts. 258. Limitations. 259. Principal's liability for agent's criminal acts. § 233. In general. — This subdivision of the general subject is naturally one of the most important ones. It certainly is the one most frequently arising. The rea- son for this is obvious. The very purpose of the crea- tion of the agency is to enable the principal to put the agent forward to act, contract, speak, deal and be dealt with, in the place and stead of the principal in person. The question, therefore, of the liability which the prin- cipal incurs while thus acting through the intervention of his agent must constantly and necessarily present itself. §§234-236.] DUTIES OF PRINCIPAL TO THIRD PERSON. 123 §234. What questions arise. — This question of the liability of the principal to third persons presents four chief aspects — 1. His liability upon contracts made by the agent. 2. His responsibility for the agent's statements, admissions or representations. 3. His responsibility for matters brought to his agent's knowledge. 4. His liability for his agent's torts and crimes. I. LIABILITY FOR ACEXT'S CONTRACTS. §235. In general. — The question of the liability of the principal for the contracts of his agent may aris- (a) where the principal at the time of making- the con- tract was disclosed and known to exist, or (b) where the principal at the time was undisclosed; and separate consideration must be given to each aspect. It is only with respect of contracts that the distinc- tion between the disclosed and the undisclosed prin- cipal becomes material. a. The Liability of the Disclosed Principal. §230. Principal liable when.— It is not the pur- pose here to inquire concerning the existence of the au- thority. The question of how authority may be con- ferred and upon whom, has already been discussed. As- Burning that the relation of principal and agent exists, the question becomes, What contracts of the agent are binding upon the principal? To this question the an- swer is: A principal is liable to third persons for all the lawful contracts of his agent, made for the princi- pal and in his behalf, while the agent was acting within the scope of his authority and in the course of his un- dertaking; or which have subsequently been ratitied by the principal with full knowledge of the facts. Stated negatively, the principal is not liable upon 124 DUTIES OF PRINCIPAL TO THIRD PERSON. [§§236-238. contracts made by the agent not within the scope of the authority and not subsequently ratified. See Huntley v. Mathias, 90 N. C. 101, 47 Am. Rep. 516, Cas. Ag. 408; Pickert v. Marston, 68 Wis. 465, 60 Am. Rep. 876, Cas. Ag. 411; Komorowski v. Krumdick, 56 Wis. 23, Cas. Ag. 413; Jackson v. National Bank, 92 Tenn. 154, 20 S. W. Rep. 802, IS L. R. A. 663, Cas. Ag. 415; Brockway v. Mullin, 46 N. J. L. 448, 50 Am. Rep. 442, Cas. Ag. 419; Vescelius v. Martin, 11 Colo. 391, Cas. Ag. 422; New York Iron Mine v. First Nat. Bank, 39 Mich. 644, Cas. Ag. 423. § 237. By the term "scope of the authority" is meant the extent of the powers expressly or impliedly conferred upon the agent. It includes not only those actually given but those apparently conferred. It em- braces those which custom may confer. It includes, also, in a given case, those powers whose existence, as against the party interested, the principal is estopped to deny. It embraces, finally, all those powders whose exercise, though not originally authorized, has been subsequently ratified with a full knowledge of the facts. See ante § 132 et seq. h. The Liability of the Undisclosed Principal. § 238. In general. — What has thus far been said in this subdivision has had to do with the liability of the principal who was known to be such at the time of the transaction; but, as has been already intimated, it is not always the fact that the existence and name of the principal are thus known. The principal, for some rea- son, may prefer to keep in the background, or the agent, without the knowledge or authority of the principal, may fail to disclose that he is an agent and deal as though he were himself the real party in interest. What then is the liability of such a principal? It must be observed that, by the hypothesis, there is a competent principal in existence who has authorized, and is entitled to the benefits of the act of the agent; §§ 228-239.] DUTIES OF PRINCIPAL TO THIRD PERSON. 125 he has simply not been disclosed. The ease, therefore, is radically unlike that presented in the domain of rati- fication where, by the hypothesis, then? was, at the time of the act, no principal who had authorized it. This distinction is not infrequently lost sight of, and the two cases treated as substantially identical. § 239. Real principal liable when discovered. — It is the general rule that the real principal in the trans- action, though undisclosed at the time of making the contract, may be held liable, when discovered, upon all simple contracts made in his behalf by his agent, even though at the time of making the contract the party dealing with the agent did not know that he was an agent or did not know who his principal was, and gave credit to the agent supposing him to be the principal. See Kayton v. Barnett, 116 N. Y. 625, Cas. Ag. 553; Maxcy Mfg. Co. t. Burnham, 89 Me. 538, 36 Atl. Rep. 1003, 56 Am. St. Rep. 436. In such a case the principal is bound by the apparent authority given to the agent, and he can not escape lia- bility by showing that he had instructed the agent not to do acts which are within the scope of his apparent authoritv. See Watteau v. Fenwick, L. R., [1893] 1 Q. B. Div. 346, Cas. Ag. 369; Hubbard v. Tenbrook, 124 Pa. 291, 16 Atl. Rep. 817, 10 Am. St. Rep. 585, 2 L. R. A. 823, Cas. Ag. 367. The case, however, presupposes that the principal at the time of the contract was really undisclosed. For if he were known at the time of the transaction and the other party nevertheless elected to give credit to the agent only, he cannot afterwards charge the principal. Whether exclusive credit was given to the agent or not is usually a question of fact. See Paterson v. Gandasequi, 15 East 62, Cas. Ag. 545; Addison v. Gandasequi, 4 Taunt. 573, Cas. Ag. 547; Thompson v. Davenport, 126 DUTIES OF PRINCIPAL TO THIRD PERSON. [§§ 239-240. 9 B. & Cr. 78, Cas. Ag. 547; Raymond v. Crown, etc., Mills, 2 Mete. (Mass.) 319; James v. Bixby, 11 Mass. 34; Stehn v. Fasnacht, 20 La. Ann. S3; Brown v. Rundlett, 15 N. H. 360; Ferguson v. McBean 91 Cal. 63, 14 L. R. A. 65; Heffron v. Pollard, 73 Tex. 96, 15 Am. St. Rep. 764. The exemption of the principal, in such a case, is strengthened by the fact that he has settled with the agent supposing that the third party looked to the agent only. See Cleveland v. Pearl, 63 Vt. 127, 25 Am. St. Rep. 748, Cas. Ag. 556; James v. Bixby, supra. § 240. Exceptions. — To the general rule thus giving the other party the right to hold the undis- closed principal when discovered, there are two excep- tions: — 1. The principal can not be held where, although he was not disclosed at the time of the transaction, he has since been disclosed and the other party has then, with full knowledge as to the principal and with power of choice, deliberately elected to give credit to the agent alone. Knowledge not only of the existence but of the name of the principal is necessary, and what the other party may have done before he received such knowledge can- not bind him as an election. And even with such knowledge, the mere presentation of a claim against the agent or even the commencement of a suit against him, will not, it has been held, be conclusive evidence of an election to hold the agent only. See Beymer v. Bonsall, 79 Pa. St. 298, Cas. Ag. 554; Curtis v. Williamson, L. R. 10 Q. B. 57. 2. The principal can not be held where, before the other party presents his claim, the principal has settled with the agent* relying upon some conduct of the other §§240-242.] DUTIES OF PRINCIPAL TO THIRD PERSON. 127 party from which it was reasonable to infer- that the agent has already settled with sueli third party. See Paterson v. Gandasequi, 15 East, 62, 2 Smith L. C. 342, Cas. Ag. 545; Thompson v. Davenport, 9 Barn. & Cr. 78, 2 Smith L. C. 351, Cas. Ag. 547; Irvine v. Watson, 5 Q. B. Div. 414, 29 Moak's Eng. Rep. 371, Cas. Ag. 550. The American cases, so far as they have considered the subject, would support the rule only so far as the * See Fradley v. Hyland, 37 Fed. Rep. 49, 2 L. R. A. 749; Laing v. Butler, 37 Hun, (N. Y.) 144; Thomas v. Atkinson, 38 Ind. 248; Clealand v. Walker, 11 Ala. 1058; McCullough v. Thompson, 45 N. Y. Super. 449; Belneld v. Na- tional Supply Co. 189 Pa. 189, 42 Atl. Rep. 131. But the English rule is right, and will doubtless be followed in the United States. See 23 Am. L. Rev. 5G5. ' §241. When right to be exercised. — The right of the other party to so hold the undisclosed principal must be exercised within a reasonable time after the principal is discovered. See Smethurst v. Mitchell, 1 Ell. & Ell. 622. The existence and identity of the principal may be shown by parol evidence. See Waddill v. Sebree, 88 Va. 1012, 14 S. E. Rep. 849, 29 Am. St. Rep. 766. § 242. To what contracts rule applies. — The rule applies to all simple contracts, whether written or un- written, and to those required to be in writing as well as to those not so required; but it does not apply to negotiable instruments, or to instruments under seal, though if the seal were unnecessary, the principal may be held liable on the consideration, if he has ratified or accepted the benefit of the contract. In other words, he may be held liable upon an implied contract to pay for the benefit so received. See Byington v. Simpson, 134 Mass. 169. 45 Am. Rep. 814, Cas. Ag. 558; Briggs v. Partridge, 64 N. Y. 357. 21 Am. Rep. 617. Cas. Ag. 128 DUTIES OF PRINCIPAL TO THIRD PERSON. [§§ 242-244. 436; Mahoney v. McLean, 26 Minn. 415; Badger Silver Min. Co. v. Drake, 31 C. C. A. 378, 88 Fed. Rep. 48. In Texas the rule does not apply to conveyances of real estate though not under seal: Sanger v. Warren, 91 Tex. 472, 44 S. W. Rep. 477. 66 Am. St. Rep. 913. Specific performance may be had of a contract to buy land: Waddill v. Sebree, 88 Vt. 1012, 14 S. E. Rep. 849, 29 Am. St. Rep.766. §243. Agent also remains liable. — This liability of the undisclosed principal is an additional, and not an exclusive one; that is to say, the third person is not obliged to pursue the principal when discovered. He may do so at his option. The agent also remains liable, and the creditor, if he prefers, may pursue him because he was the party with whom he contracted. See Beymer v. Bonsall, 79 Penn. St. 298, Cas. Ag. 554. IL RESPONSIBILITY FOR AGENT'S STATEMENTS, ETC. § 214. What statements, etc., bind the principal. — The responsibility of the principal is net necessarily confined to what the agent does: it may in many cases include also what he says. Indeed the agent may be authorized expressly and solely to make. statements or representations; but even where his chief duty is to act, the authority will include power to say whatever natu- rally and appropriately accompanies, characterizes or explains the thing done. The rule is this: The state- ments, representations and admissions of the agent, made while acting within the scope of his authority — (him fervet opus, as it is sometimes put — and in refer- ence to the subject matter of his agency are admissible against the principal if the agent's authority has first been shown by other evidence. See Sidney School Furniture Co. v. Warsaw School District, 122 Pa. 494, 15 Atl. Rep. 881, 9 Am. St. Rep. 124; Albert v. Mutual Life Ins. Co., 122 N. C. 92, 30 S. E. Rep. 327, 65 Am. St. Rep. 693; Larson v. Metropolitan Street Ry. Co., 110 Mo. 234, 19 S. W. Rep. §§ 244-246.] DUTIES OF PRINCIPAL TO THIRD PERSON. 129 416, 33 Am. St. Rep. 439; Adams Express Co. v. Harris, 120 Ind. 73, 21 N. E. Rep. 340, 16 Am. St. Rep. 315, 7 L. R. A. 214; Cleveland, etc., Ry. Co. v. Closser, 126 Ind. 318, 2G N. E. Rep. 159, 9 L. R. A. 754; Worthington v. Gwin, 119 Ala. 44, 24 So. Rep. 739, 43 L. R. A. 382. § 245. The power to bind the principal by what is thus said is implied because it is a part of tin- act authorized to be done — because it tends to characterize or explain it, or because it is a natural and appropriate accompaniment of it. It follows, therefore, that the power exists only while the act is being performed. The agent has no implied power to make nana (ions concerning past transactions. It is only while he is acting within the scope of his authority that the state- ments are relevant. Hence the rule that, in order to be considered as made while he was acting within the scope of his authority, the statements, representations or admissions must be made cither while the agent is actually engaged in the execution of his authority, or so soon thereafter as to be really a part of the same transaction. In other words, they must constitute a. part of the res gestae. See Vicksburg, etc., R. R. Co. v. O'Brien, 119 U. S. 99, Cas. Ag. 572; Jammison v. Chesapeake, etc., Ry. Co., 92 Va. 327, 23 S. E. Rep. 758, 53 Am. St. Rep. 813; Borland v. Nevada Bank, 99 Cal. 89, 33 Pac. Rep. 737, 37 Am. St. Rep. 32; Barker v. St. Louis, etc., R. Co.. 126 Mo. 143, 28 S. W. Rep. 866, 26 L. R. A. 843; Carroll v. East Ten- nessee, etc., R. Co., 82 Ga. 452, 10 S. E. Rep. 163, 6 L. R. A. 214; Giberson v. Patterson Mills Co., 174 Pa. 369, 34 Atl. Rep. 563, 52 Am. St. Rep. 823. ni. RESPONSIBILITY FOR MATTERS BROUGHT TO KNOWL- EDGE OF AGENT. §246. When notice to agent is notice to prin- cipal. — The question of notice or knowledge occupies a large place in our law. The duty to take action often arises only upon notice of some fact or condition; the \ 30 DUTIES OF PRINCIPAL TO THIRD PERSON. [§ 246. obligation to make repairs or take precautions exists often only upon notice of their need; whether one ob- tains a perfect title or a defeasible one depends in many cases upon his having or not having notice of prior liens or defen •es; etc. Assuming that notice or knowl- edge might, in a given case, affect the principal if it came to him personally, the question at once arises, how- will he be affected by notice to or knowledge of his agent? In respect of this, the rule is, that the law- charges the principal with notice of any fact, relating to the subject matter of the agency, which the agent acquires or obtains while acting as such agent and within the scope of his authority. Many, but not all, cases go further and charge the principal not only with the notice or knowledge which the agent acquires during the agency, but also with that which he may previously have acquired and then has in mind, or which he had acquired so recently as to reasonably warrant the as- sumption that he then remembered it. The English courts impute to the principal the knowledge pos- sessed by the agent though he acquired it before he became agent. Dresser v. Norwood, 17 Com. B. (N. S.) 466; Rolland v. Hart, L. R. 6 Ch. App. 678. The Supreme Court of the United States does the same, The Distilled Spirits Case, 11 Wall. 367. The lower Federal courts of course follow this ruling: Brown v. Iron & Coal Co., 18 C. C. A. 444, 25 U. S. App. 679, 72 Fed. Rep. 96. And it is the rule sustained by the weight of authority: Con- stant v. University, 111 N. Y. 604, 7 Am. St. Rep. 769, Cas. Ag. 560; Brothers v. Bank, 84 Wis. 381, 54 N. W. Rep. 786, 36 Am. St. Rep. 932; Wilson v. Minnesota Ins. Ass'n, 36 Minn. 112, 1 Am. St. Rep. 659; Snyder v. Partridge. 138 111. 173, 32 Am. St. Rep. 130; Trentor v. Pothen, 46 Minn. 298, 24 Am. St. Rep. 225, and note; Fairfield Savings Bank v. Chase, 72 Me. 226, 39 Am. Rep. 319; McClelland v. Saul, 113 Iowa 208, 84 N. W. Rep. 1034, 86 Am. St. Rep. 370. Certain of the State courts limit the rule to knowledge acquired during the agency. Thus, Alabama, Wheeler v. McGuire, 86 Ala. 398, 5 So. Rep. 190, 2 L. R. A. 808, Cas. Ag. 362; Pennsylvania, Houseman v. Girard, etc., Ass'n, 81 Penn. St. 256; etc. Notice after the termination of the agency, of course, does not bind: Boardman v. Taylor, 66 Ga. 638. §§246-247.] DUTIES OF PRINCIPAL TO THIRD PERSON. 131 The notice or knowledge which is so to be imput d to tlie principal must relate to the subject matter of the agency, and not to some other matter concerning which the agent has neither duty nor authority. It mi . ap- pear to be material, and it must come from such au apparently authentic and reliable source that an ordi- narily prudent man would be bound to give heed to it. See Fairfield Sav. Bank v. Chase, 72 Me. 226, 39 Am. Rep. Trentor v. Pothen, 46 Minn. 298, 49 N. W. Rep. 129, 24 Am. St. Rep. 225; Congar v. Chicago, etc., R. Co., 24 Wis. 157, 1 Am. Rep. 164; Shafer v. Phoenix Ins. Co., 53 Wis. 361; Kearney Bank v. Froman, 129 Mo. 427, 31 S. W. Rep. 769, 50 Am. St. Rep. 456; Washington Nat. Bank v. Pierce, 6 Wash. 491, 33 Pac. Rep. 972, 36 Am. St. Rep. 174. § 247. Three exceptions to the rule exist: Such notice will not be charged to the principal — 1. Where it is such as it is the agent's duty to some other principal not to disclose. Thus, for example, much information comes to an attorney which it is his duty to his client not to disclose — in the language of the law, it is privileged. Such information will not be imputed to another client of the attorney, because the law will not require him to violate his duty to one client in order to perform what other- wise might be his duty to some other client. See Melms v. Pabst Brewing Co., 93 Wis. 153, 66 N. W. Rep. 244, 57 Am. St. Rep. 899; Akers v. Rowan, 33 S. Car. 451, 12 S. E. Rep. 165, 10 L. R. A. 705. 2. Where the agent, though nominally acting as such, is really acting in his own or another's interest and adversely to his principal. In such a case, the agent really ceases to be agent at all. The law does not permit him to be an agent in such a case, and it does not presume that he will perform a duty which his adverse interest renders certain that he will not perform. See Atlantic Mills v. In- dian Orchard Mills, 147 Mass. 268, 9 Am. St. Rep. 698; Innerarity v. Bank, 139 Miss. 332, 52 Am. Rep. 710, Cas. Ag. 569; Frenkel v. Hud- sou, 82 Ala. 158, 60 Am. Rep. 736; Dillaway v. Butler. 135 Mass. 479; Gunster v. Scranton Power Co., 181 Pa. 327, 37 Atl. Rep. 550. 59 Am. St. Rep. 650; Hickman v. Creen, 123 Mo. 165, 29 L. R. A. 39; 132 DUTIES OF PRINCIPAL TO THIRD PERSON. [58 247-249. Allen v. South Boston R. Co., 150 Mass. 200, 22 N. B. Rep. 917, 15 Am. St. Rep. 185, 5 L. R. A. 716. 3. Where the person who claims the benefit of the notice had colluded with the agent to cheat or defraud the principal. See National L. Ins. Co. v. Minch, 53 N. Y. 144; Western Mortg. Co. v. Ganzer. 11 C. C. A. 371, 23 U. S. App. 608, 63 Fed. Rep. 647; Hudson v. Randc'ph, 13 C. C. A. 402, 23 U. S. App. 681, 66 Fed. Rep. 216. § 248. Basis of rule.— The rule that notice to the agent is notice to the principal finds its origin in the duty, already considered, resting upon the agent to inform his principal of all matters coming to his notice or knowledge, concerning the subject matter of the agency, which it is material for the principal to know for his protection or guidance. So far as third persons are concerned, however, the law will not per- mit the principal to escape the consequences of notice by alleging that his own agent has not performed his duty. The rule, therefore, does not depend upon whether or not the agent has actually communicated his knowledge to the principal; the law presumes that he has done so and charges the principal, although in fact he knew nothing about it. o See ante § 189; Cox v. Pearce, 112 N. Y. 637, 20 N. E. Rep. 566, 3 L. R. A. 563. § 249. Notice to sub-agent. — Whether notice to a sub-agent is notice to the principal depends upon whether the sub-agent, under the rules already con- sidered, is to be regarded as the agent of the principal or of the original agent only. If, having been ap- pointed with the express or the implied authority of the principal, the sub-agent is deemed the agent of the principal, notice to him, within the limits affecting any agent, is notice to his principal ; otherwise, it is not. §§ 249-251.] DUTIES OF PRINCIPAL TO THIRD PERSON. 133 See Hoover v. Wise, 91 U. S. 308; Bates v. American Mortgage Co., 37 S. Car. 88, 16 S. E. Rep. 883, 21 L. R. A. 340. §250. Notice to one of several agents. — Notice to ODe of two or more joint agents is notice to the prin- cipal. So notice to one of several but not joint agents will be notice to the principal if it relates to matters concerning which such agent is under a duty to disclose. See Wittenbrcck v. Parker, 102 Cal. 93, 36 Pac. Rep. 374, 41 Am. St. Rep. 172; Fulton Bank v. Canal Co. 4 Paige (N. Y.) 127; North River Bank v. Aymar, 3 Hill (N. Y.) 262. § 251. Notice to agents of corporations. — The rules respecting notice are of constant application in the case of corporations. See Johnson v. First National Bank, 79 Wis. 414, 48 N. W. Rep. 712, 24 Am. St. Rep. 722; Morris v. Georgia Loan Co., 109 Ga. 12, 34 S. E. Rep. 378, 46 L. R. A. 506; Hotchkiss Co. t. National Bank, 15 C. C. A. 284, 37 U. S. App. 86, 68 Fed. Rep. 76; Cooper v. Hill, 36 C. C. A. 402, 94 Fed. Rep. 582; Wilson t. Pauly, 18 C. C. A. 475, 37 r. S. App. 642, 72 Fed. Rep. 129; Hamilton v. Ins. Co., 98 Mich. 535, 57 N. W. Rep. 735, 22 L. R. A. 527; Johnston Harvester Co. v. Mil- ler, 72 Mich. 265, 40 N. W. Rep. 429, 16 Am. St. Rep. 536; Home Ins. Co. v. Mendenhall, 164 111. 458, 45 N. E. Rep. 1078, 36 L. R. A. 374. But by reason of the fact that corporations often have many agents with a great variety of duties and scattered, not infrequently, over a wide range of terri- tory, it is indispensable that the notice or knowledge should be acquired or possessed while the agent in ques- tion was acting as such, and should relate to some mat- ter within the scope of his authority. See cases Nat. Bank v. Clark, 139 N. Y. 307, 34 N. E. Rep. 908, 36 Am. St. Rep. 705; Commercial Bank v. Burgwyn, 110 N. Car. 267, 14 S. E. Rep. 623, 17 L. R. A. 326; Phccnix Ins. Co. v. Flem- ming, 65 Ark. 54, 44 S. W. Rep. 464, 39 L. R. A. 789. The exeex>tions to the general rule also apply here. The one most frequently applied is the second, namely, that if though sometimes agent he w T a« not acting as 134 DUTIES OF PRINCIPAL TO THIRD PERSON. [§§ 251-252. such in the transaction in question, or though ostensibly agent was really acting adversely to his principal, or attempting to defraud him, the notice is not imputed. See Allen v. South Boston R. Co.. 150 Mass. 200, 22 N. E. Rep. 917, 15 Am. St. Rep. 185, 5 L. R. A. 716; Seaverns v. Presbyterian Hospital, 173 111. 414, 50 N. E. Rep. 1079, 64 Am. St Rep. 125; Ship- man v. Bank, 126 N. Y. 318, 12 L. R. A. 791; National Bank of Com- merce v. Feeney, 9 S. Dak. 550, 70 N. W. Rep. 874, 46 L. R. A. 732; Dorr v. Life Ins. Co., 71 Minn. 38, 73 N. W. Rep. 635, 70 Am. St. Rep. 309; Holm v. Atlas Nat. Bank, 28 C. C. A. 297, 55 U. S. App. 570, 84 Fed. Rep. 119; Hadden v. Dooley, 34 C. C. A. 338, 63 U. S. App. 173, 92 Fed. Rep. 274; American Surety Co. v. Pauly, 170 U. S. 133, 42 L. ed. 977; Thompson, etc., Co. v. Capitol Co., 12 C. C. A. 643, 22 U. S. App. 669, 65 Fed. Rep. 341. IV. LIABILITY FOR AGENT'S TORTS AND CRIMES. §252. Foundation of liability for agent's torts. — It very rarely happens that a principal confers ex- press authority for the commission of torts, or con- templates in any way that they will be committed. It is verv rare, too, that the commission of a tort can be of benefit to the principal; it is much more likely to work to his disadvantage. It is likely, therefore, that instead of authorizing a tort, the principal will caution or direct against it, and, in employing agents, will ex- ercise precautions to employ none but those who will avoid the commission of torts. Notwithstanding all his precautions, however, and although he may have expressly forbidden the commis- sion of such acts, the principal, in many cases> is held responsible in law for torts committed by his agents. He is so held, in the ordinary case, not because he di- rected the commission of the tort, but because he au- thorized the doing of some other act in the doing of which the tort was committed, and to which it was an attribute or incident, however much deplored and un- expected. §§252 254.] DUTIES OF PRINCIPAL TO THIRD PERSON. L35 The rule in this respect is that — § 253. Principal's liability for agent's torts. — The principal is liable to thin! persons in damages for the negligence, trespasses, frauds, misrepresentations and deceits of his agent committed while the agent was act- ing in the execution of his undertaking and within the scope of his authority. The older cases hold the principal not liable for the agent's wilful and malicious acts, but the modern rule is that he is liable for these also if the agent committed them while he was acting in the execution of his agency and within the scope of his authority. It is entirely immaterial that the principal did not direct or know of the act complained of, or even that he disapproved or forbade it, if it were done while the agent, as has been stated, was acting in the execution of his agency and within the scope of his authority. See Singer Mfg. Co. v. Rahn, 132 U. S. 518, Cas. Ag. 8; Wilson v. Owens, 16 Ir. L. Rep. 225, Cas. Ag. 9; Bank v. Railroad Co., 106 N. Y. 195, 60 Am. Rep. 440, Cas. Ag. 576; Friedlander v. Railway Co., 130 U. S. 416, Cas. Ag. 579; Southern Express Co. v. Brown, 67 Miss. 260, 19 Am. St. Rep. 306; Haskell v. Starbird, 152 Mass. 117, 25 N. E. Rep. 14. 23 Am. St. Rep. 809; Cosgrove v. Ogden, 49 N. Y. 255, 10 Am. Rep. 361; Garretzen v. Duenckel, 50 Mo. 104, 11 Am. Rep. 405; Phelon v. Stiles, 43 Conn. 426; Fifth Ave. Bank v. Forty-second Street, etc., Ry. Co.. 137 N. Y. 231, 33 N. E. Rep. 378, 33 Am. St. Rep. 712; Jarvis v. Manhattan Beach Co., 148 N. Y. 652, 43 N. E. Rep. 68. 51 Am. St. Rep. 727; Kansas City, etc., R. Co. v. Higdon, 94 Ala. 286, 10 So. Rep. 282, 33 Am. St. Rep. 119; Eichengreen v. Railroad Co., 96 Tenn. 229, 34 S. W. Rep. 219, 54 Am. St. Rep. 833. § 254. The act will be deemed to have been done while the agent was 11ms acting in the execution of his agency and within the scope of his authority, if it were done while the agent was engaged in doing that which he was authorized to do — if the default com- plained of were a part of, or incident to, or interwoven With, the act authorized. Certainly 136 DUTIES OF PRINCIPAL TO THIRD PERSON. [§§ 234-255. if the thing complained of were designed to facilitate or promote the act authorized, of which it thus formed a part — if it were intended how- ever mistakenly, to further the principal's business, promote his welfare or protect his interests in matters concerning which the agent was then acting and au- thorized to act — it would be within the rule. But so much as this cannot be required; for it is clear, by the modern authorities at least, that though the agent at the moment may not have had the principal's interests in mind, though he may have been roused to resent- ment, puffed up by brief authority, or quickened by mere wantonness, still if he did the act complained of while he was engaged, in the course of his employment, in the performance of an act authorized to be per- formed, the principal will be responsible. Especially is this true, though it is not the criterion, where the in- strument or means of injury is some implement, tool, machine or other agency with which he has been in- trusted by the principal for the execution of his authoritv. See Nashville, etc., R. Co. v. Starnes, 9 Heisk. (Tenn.) 52, 24 Am. Rep. 296; Chicago, etc., R. Co. v. Dickson, 63 111. 151, 14 Am. Rep. 114; Southern Express Co. v. Platten, 36 C. C. A. 46, 93 Fed. Rep. 936. § 255. In the case of carriers of passengers who owe their passengers a special duty of protection, and others in like situation, the rule may, perhaps, be more broadly stated. For if a principal who owes such a duty entrusts its performance to an agent, he will not only be liable if it be not performed, but he will clearly be responsible if the agent not only does not perform it, but adds to the wrong of non-performance the ag- gravation of vranton, wilful or malicious injury. See Craker v. Chicago, etc., Ry. Co., 36 Wis. 657, 17 Am. Rep. §5 255-258.] DUTIES OF PRINCIPAL TO THIRD PERSON. 1 37 501; Bryant v. Rich, 106 Mass. 180, 8 Am. Rep. 311; Stewart v. Brook- lyn, etc., R. Co., 90 N. Y. 588, 43 Am. Rep. 185; Chicago, etc., R. Co. v. Flexman, 103 111. 546, 42 Am. Rep. 33; McKinky v. Chicago, etc. Ry. Co., 44 Iowa 314, 24 Am. Rep. 748. See the same principle applied to telegraph companies in McCord v. Western Union Tel. Co., 39 Minn. 181, 39 N. W. Rep. 315, 12 Am. St. Rep. 636, and as to the duty to furnish safe appliances, etc.: New York, etc., R. Co. t. O'Leary, 35 C. C. A. 562, 93 Fed. Rep. 737. § 256. The doctrine of ratification is constantly applied, and the rule that he who with knowledge of the facts receives the fruits or takes the benefits of an act, must adopt also the liabilities, is especially appli- cable. Frequent illustrations are found in cases where- in false representations have been made by the agent to obtain the benefit which the principal has appro- priated. See Mayer r. Dean, 115 N. Y. 556, 22 N. E. Rep. 261, 5 L. R. A. 540; Fairchild v. McMahon, 139 N. Y. 290, 34 N. E. Rep. 779. 36 Am. St. Rep. 701; Meyerhoff v. Daniels, 173 Pa. St. 555, 34 Atl. Rep. 298, 51 Am. St. Rep. 782; Baltimore Trust Co. t. Hambleton, 84 Md. 456, 36 Atl. Rep. 597, 40 L. R. A. 216; Hoffman y. Mayand, 35 C. C. A. 256, 93 Fed. Rep. 171; Kilpatrick v. Haley, 13 C. C. A. 480, 66 Fed. Rep. 133. § 257. The rule of liability extends also to the acts of sub-agents, where they have been so appointed, within the principles already considered, as to make them in law the agents of the principal. See Arff t. Ins. Co., 125 N. Y. 57, 25 N. E. Rep. 1073, 10 L. R. A. 609; Goode v. Ins. Co., 92 Va. 392, 23 S. E. Rep. 744, 30 L. R. A. 842; Steele v. Ins. Co., 93 Mich. 81, 53 N. W. Rep. 514, IS L. R. A. 85. § 258. Limitations.— It is not to be assumed, how- ever, that the principal is responsible for every act which his agent may commit. If the agent has finished that which he was authorized to do, or if he leaves the principal's affairs to attend to some matter of his own, and then commits the act complained of, the principal will not be responsible. So if, prompted by curiosity 1 38 DUTIES OF PRINCIPAL TO THIRD PERSON. [§§ 258-259. or ill-will, he is where he has no business to be — where he has no duty to perform, where his authority does not call him — if he be engaged in that which does not concern his principal — and then commits the tort, the principal is not liable. See Mitchell v. Crassweller, 13 Com. B. 237; Storey v. Ashton, L. R. 4 Q. B. 476; Maddox v Brown, 71 Me. 432, 36 Am. Rep. 336; Stone v. Hills, 45 Conn. 44, 29 Am. Rep. 635; Adams v. Cost, 62 Md. 264, 50 Am. Rep. 211. § 259. Principal's liability for agent's criminal acts.— The principal may also be held liable in a civil action for the criminal or penal act of his agent com- mitted under the same circumstances. Thus the agent may be prosecuted for assault and battery and the principal be held liable in damages, as the result of the same act. The principal will not ordinarily be criminally liable unless he has, in some way, participated in, counte- nanced or approved the act; but he may become liable to a penalty for permitting his agent to perform acts which a statute has imposed a penalty for performing. If, for example, a statute forbids, under penalty, the sale of liquors to minors, or the keeping open of saloons on Sunday, the principal will be liable for the penalty if the forbidden act be done by the agent, even though the principal had no knowledge of it. See State v. Kittelle, 110 N. C. 560, 28 Am. St. Rep. 698; People v. Roby, 52 Mich. 577, 50 Am. Rep. 270; State v. Armstrong, 106 Mo. 395, 16 S. W. Rep. 604, 27 Am. St. Rep. 361; Hall v. Norfolk & West. R. Co., 44 W. Va. 36, 28 S. E. Rep. 754, 67 Am. St. Rep. 757; Commonwealth v. Stevens, 153 Mass. 421, 26 N. E. Rep. 992, 25 Am. St. Rep. 647, 11 L. R. A. 357; Commonwealth v. Joslin, 158 Mass. 482, 33 N. E. Rep. 653, 21 L. R. A. 449. §§ 260-262.] DUTIES OF THIRD PERSONS TO AGENT. 139 CHAPTER XV. OF THE DUTIES AND LIABILITIES OF THIRD PERSONS TO THE AGENT. § 260. In general. 1. In Contract. 261. Agent usually no right of action. 262. Sealed instruments or ne- gotiable instruments made in agent's name. § 3. Contracts made without disclosing principal, etc. 264 What defences may be made. 2. In Tort. 265. What actions maintaina- ble. § 260. In general. — The question of the liability of the third person to the agent may present the same two aspects which have been noticed in the preceding sub- divisions, namely, the liability: 1. In Contract. 2. In Tort. 1. In Contract. §261. Agent usually no right of action. — The agent usually has no right of action against third per- sons upon contracts made by him with them for his prin- cipal. His duty is, in general, as has been seen, to act in the name as well as for the benefit of his principal ; and where he has done so, the rights of action must of course accrue to th,e principal. Exceptional cases, however, may arise which require exceptions to the rule. § 262. Sealed instruments or negotiable instru- ments made in agent's name.— Thus, if, though acting for the principal, the agent makes a contract under seal in his own name, or if he takes a negotiable instrument payable to himself alone, the action must be brought in the name of the agent, though the recovery will be for the benefit of the principal. 140 DUTIES OF THIRD PERSONS TO AGENT. [§§ 263-265. § 263. Contracts made without disclosing princi- pal, etc. — So in other cases than those mentioned in the preceding section, if the agent makes a contract without disclosing his principal, or if he makes a written con- tract in his own name, the action may be brought in the name of the agent because it was made in his name. See Deitz v. Insurance Co., 31 W. Va. 851, 8 S. E. Rep. 616, 13 Am. St. Rep. 909; Carter v. Southern Ry. Co., Ill Ga. 38, 50 L. R. A, 354. But in cases other than those referred to in the pre- ceding section this right of action in the agent is usually not exclusive. Because the contract was made for the principal, he may ordinarily enforce in his own name or permit the agent to sue. And where the principal may sue (a matter to be discussed more fully in the following chapter), his right is paramount, and he may always sue to the exclusion of the agent, unless the aeent had some beneficial interest in the contract. See Rhoades v. Blackiston, 106 Mass. 334, 8 Am. Rep. 332, Cas. Ag. 584; Rowe v. Rand, 111 Ind. 206, Cas. Ag. 257; Thompson v. Kelly, 101 Mass. 291, 3 Am. Rep. 353, Cas. Ag. 653; Wilson v. Groelle, 83 Wis. 530, 53 N. W. Rep. 900. §264. What defences may be made.— When the agent sues in his own name, the other party may ordi- narily make any defence against the agent which he may have, either against the agent or against the prin- cipal in whose behalf the action is brought. See Gibson v. Winter, 5 B. & Ad. 96; Gardner v. Allen, 6 Ala. 187, 41 Am. Dec. 45. Set off of claim against the principal cannot be made if would defeat agent's right to reimbursement for ad- vances: Young v. Thurber, 91 N. Y. 388. 2. In Tort. § 205. "What actions maintainable. — The agent may sue third persons in tort for injuries done by them to property of the principal confided to the agent's posses- §265.] DUTIES OF THIRD PERSONS TO AGENT. 141 sion — certainly wherever he has a special property in the goody, possibly in any case. See Moore v. Robinson, 2 Barn. & Adol. 817, 22 Eng. Com. L. 344. Compare I ick v. Jerome, 7 Cow. (N. Y.) 294; Pullman Car Co. v. Gavin, 93 Tenn. 53, 23 S. W. Rep. 70, 21 L. R. A. 298. He may also recover of third persons in tort for frauds or deceits practiced by them upon him while he was en- gaged in making contracts with them on the principal's account, and which have rendered him liable to his prin- cipal. He may also recover of them for damages caused by their wrongfully procuring his dismissal by his princi- pal; and for slander or other wrong whereby they de- prive him of his right to earn the stipulated compensa- tion or commission. Seo Lucke v. Clothing Cutters Assembly, 77 Md. 396, 19 L. R. A. x08; Raycroft v. Tayntor, 68 Vt. 219, 33 L. R. A. 225; Whittemore v. Weiss, 33 Mich. 318; Perkins v. Pendleton, 90 Me. 166, 38 Atl. Rep. 96, 60 Am. St. Rep. 252. 142 DUTIES OF THIRD PERSON TO PRINCIPAL. [§§ 266-267. CHAPTER XVI. OF THE DUTIES AND LIABILITIES OF THIRD PERSONS TO THE PRINCIPAL. § 266, In general. 1. In Contract. 267. What contracts principal may enforce. 268. "What defences open. 269. Right to follow and recov- er money or property. § 270. Right to rescind unau- thorized dealings. 2. In Tort. 271. Right to recover damages for collusion. 272. Recovery for enticing agent away, disabling him, etc. § 266. In general. — The question of the duties and liabilities of third persons to the principal, presenting the same general aspects as the preceding ones, may be considered under the same classification: 1. In Con- tract, and 2. In Tort, 1. In Contract. §267. What contracts principal may enforce. — The principal may enforce against third persons all law- ful contracts made in his own name with them by his agent. This is, of course, the ordinary and familiar case. Here the principal will be disclosed and the con- tract will be made in his name and in his behalf. He may also show himself to be the principal and enforce contracts, whether written or unwritten, made on his behalf with them by his agent, though he was not disclosed at the time of the contract and the contract was made in the agent's name, except in the cases men- tioned in the preceding subdivision, namely, contracts under seal and negotiable instruments payable to the agent only. §§ U67-269.J DUTIES OF THIRD PERSON TO PRINCIPAL. 143 See Huntington v. Knox, 7 Cush. (Mass.) 371, Cases on Ag. 587; Ilarkness v. W. U. Tel. Co., 73 Iowa, 190, 5 Am. St. Rep. 672; Mil- liken v. W. U. Tel. Co., 110 N. Y. 403, 1 L. R. A. 281; Powell v. Wade, 109 Ala. 95, 19 So. Rep. 500, 55 Am. St. Rep. 915, and note; Kingsley v. Siebrecht, 92 Me. 23, 42 Atl. Rep. 249, 69 Am. St. Rep. 486. If the agent has a property interest in the contract equal to its value, or if the contract were really made with the agent as the contracting party, to the exclusion of the principal, as where the third person with knowl- edge of the principal has elected to deal only with the agent, these cases also would be exceptions. § 2G8. What defences open. — In an action by the principal, the other party may make any defences which he may have against the principal, and also, usually, any defence, such as payment or set-off, which he may have acquired against the agent before the discovery of the principal, if the principal was not disclosed and the agent was permitted to appear as the ostensible prin- cipal. See Baxter v. Sherman, 73 Minn. 434, 76 N. W. Rep. 211, 72 Am. St. Rep. 631; Belfield v. National Supply Co., 189 Pa. 189, 42 Atl. Rep. 131, 69 Am. St. Rep. 799; Rosser v. Darden, 82 Ga. 219, 7 S. E. Rep. 919, 14 Am. St. Rep. 152; Montagu v. Forwood [1893], 2 Q. B. 350. The principal must also, of course, be affected by any defences growing out of the fraud, misrepresentation or deceit of the agent in securing the contract. See Honaker v. Board of Education, 42 W. Va. 170, 24 S. E. Rep. 544, 57 Am. St. Rep. 847, 32 L. R. A. 413. >: 209. Right to follow and recover money or prop- erty. — Where property or money belonging to the principal comes into the hands of the agent for some particular purpose, use or disposition, such property or money becomes charged with a trust which can not be 144 DUTIES OF THIRD PERSON TO PRINCIPAL. [§ 269. defeated except by the act of the principal or the greater equities of some third person. Any disposition of the property or money contrary to the purpose for which the agent received it is unauthorized, and the person who received it must restore it to the principal unless he can establish a paramount right. Third persons, therefore, who by fraud, collusion or sharp practices obtain such property or money may be compelled to restore it. And even if the third person has obtained it in good faith, he must still return it unless he can show that he is a bona fide holder for value without notice of the trust. In the case of ordinary chattels a person, however free from bad faith he may be or however good a con- sideration he may give, can obtain no better title than his grantor had, unless the true owner has done some- thing which estops him from asserting his title. In the case of negotiable instruments and money, which is sometimes said to have no "earmark" by which it may beMistinguished, one who parts with value in good faith may be protected. In pursuing his property or money, it makes no dif- ference how much it has been changed in form, or through how many hands it has passed; the principal may recover it if he can identify it, and if it has not come into the hands of a bona fide holder for value. See Farmers' Bank v. King, 57 Penn. 202, 98 Am. Dec. 215, Cas. Ag. 590; Baker v. N. Y. Bank, 100 N. Y. 31, 53 Am. Rep. 150, ' Ag 596; Roca v. Byrne, 145 N. Y. 182, 39 N. E. Rep. 812, 45 Am. St. Rep. 599; Midland National Bank v. Brightwell, 148 Mo. 358, 49 S. W. Rep. 994, 71 Am. St. Rep. 608; First Nat. Bank v. Hummel, 14 Colo. 259, 23 Pac. Rep. 986, 8 L. R. A. 788; Holly v. Domestic, etc., Society, 34 C. C. A. 649, 92 Fed. Rep. 745; Gerard v. McCormick, 130 N. Y. 261, 29 N. E. Rep. 115, 14 L. R. A. 234; Dorrah v. Hill, 73 Miss. 787,' 19 So. Rep. 961, 32 L. R. A. 631; Stevenson v. Kyle, 42 W. Va. 229, 24 S. E. Rep. 888, 57 Am. St. Rep. 854; Gilman Oil Co. V. Norton, 89 Iowa 434, 56 N. W. Rep. 663, 48 Am. St. Rep. 400. §§ 270-272.] DUTIES OF THIRD PERSON TO PRINCIPAL. 145 § 270. Right to rescind dealings where agent secretly in employment of other party. — As has been seen, an agent cannot, consistently with his duty, under- take to represent his principal where he is at the same time secretly in the employment of the other party. Where, therefore, he was thus at the same time secretly in the employment of the other party, the principal is not bound, and he may, if he so elects, rescind dealings with the other party and recover from him what he has parted with to him. As has been seen also, it is not necessary for the prin- cipal in such a case to show that he has been injured or that the agent has in fact betrayed his interests; his right to repudiate the transaction is absolute, provided he acts promptly and before the rights of innocent third parties have intervened. See New York Cent. Ins. Co. v. National Ins. Co., 14 N. Y. 85; United States Rolling Stock Co. v. Atlantic R. Co., 34 Ohio St. 450, 32 Am. Rep. 380. 2. In Tort § 271. Right to recover damages for collusion. — The principal may also recover damages from third per- sons who have colluded with his agent to defraud him; and he may recover money which such persons have received from him by virtue of such collusion, or may defeat a recovery against himself by showing such col- lusion. See Boston v. Simmons, 150 Mass. 461, Cas. Ag. 598, 15 Am. St. Rep. 230; Mayor of Salford v. Lever [1891], 1 Q. B. Div. 168, Cas. Ag. 601; City of Findlay v. Pertz, 13 C. C. A. 559, 66 Fed. Rep. 427, 29 L. R. A. 188; Glaspie v. Keator, 5 C. C. A. 474, 56 Fed. Rep. 203; Sbipway v. Broadwood [1899], 1 Q. B. 369. l'72. Recovery for enticing agent away, disa- bling him, etc. — The principal may also maintain ac- 10 146 DUTIES OF THIRD PERSON TO PRINCIPAL. [§ 272. tions of tort against third persons who maliciously en- tice his agent to break his contract of service, or who prevent him from performing, or who so injure him as to disable him from performing. See Haskins v. Royster, 70 N. C. 601, 16 Am. Rep. 780; St. Johns- bury R. R. Co. v. Hunt, 55 Vt. 570, 45 Am. Rep. 639, Cas. Ag. 608; O'Neil v. Behanna, 182 Pa. 236, 37 Atl. Rep. 843, 61 Am. St. Rep. 702; Doremus v. Hennessy, 176 111. 608, 52 N. E. Rep. 924, 68 Am. St. Rep. 203. §273.] SPECIAL CLASSES OF AGENTS. 147 CHAPTER XVII. OP SPECIAL CLASSES OF AGENTS § 273. In general. 1. Of Attorneys at Law. 274. Relation of attorney to client. 275. How appointed. 276. Duration of relation. 277. Implied powers of attor- ney. 278. Attorney bound to utmost loyalty and honor. 279. Dealings between attor- ney and client. 280. Confidential communica- tions privileged. 281. Liability of attorney to client. 282. Liability of attorney to third persons. 283. Attorney's right to com- pensation. Contingent compen- sation. — How reasonable value 284. shoVn. 286. Attorney entitled to re- imbursement and in- demnity. 287. Attorney's lien. §288. 289. 290. 291. 292. 293. 294. 295. 296. 297, 298. 299. 300. 301- 303. 304. 305 306 307 308 309 310. 311. 2. Of Auctioneers. How authorized. Terms of sale. Implied powers. Duties to principal. Liability to third persons. Compensation and lien. Liability of principal. 3. Of Brokers. How appointed. Implied powers. Same subject. Duties to principal. Acting for both parties. Liability to third persons. 302. Compensation. Compensation for both parties. Reimbursement, i n d e ra- nity and lien. 4. Of Factors. How appointed. Implied powers. Duties to principal. Same subject. Duty to account. Compensation, reimburse- ment, lien. Right to sue. §273. Ingeneral. — Some attention has already been given (§§ 19-26) to certain classes of professional agents — i. e., persons whose business or profession it is to act for others in certain capacities. Some further attention to these special classes of agents seems here desirable. The most important of them, as already observed, are 148 SPECIAL CLASSES OF AGENTS. [§§278-276. the Attorney at Law, the Auctioneer, the Broker, and the Factor. 1. Of Attorneys At Law. § 274. Relation of attorney to client. — The attor- ney at law is an officer of the court in which he prac- tices, and is in some sense an officer of the State. But the relation of the attorney to his client is a relation of agency, and is in general governed by the same rules which apply to other agencies. § 275. How appointed. — No formal power is ordi- narily necessary, but the attorney's authority may be shown as in other cases. When a duly admitted attor- ney appeal's for a party in a cause, the law presumes that his appearance was authorized, and while this pre- sumption is not conclusive, it will suffice until some showing is made to the contrary, and then the attorney may be required to produce his authority. See Reynolds v. Fleming, 30 Kan. 106, 46 Am. Rep. 86, Cas. Ag. 615. Proceedings taken in reliance upon such an appear- ance are also presumed to be valid, and only to be im- peached upon by a direct proceeding. If the principal is injured by the application of this rule to proceedings really unauthorized, he has a remedy against the attor- ney. See Corbitt v. Timmerman, 95 Mich. 581, 55 N. W. Rep. 437, 35 Am. St. Rep. 586. §270. Duration of relation. — The employment of an attorney to conduct a cause is presumed to be an entire contract on his part for the whole suit, and he can not lawfully abandon the case before its termina- tion without just cause and reasonable notice. But on the part of the client, the engagement is deemed to be 19 17C-277.] SPECIAL CLASSES OF AGENTS. 149 at will merely, and be may discharge the attorney at any time upon paying him for services already rendered. See Tenney v. Berger, 93 N. Y. 524, 45 Am. Rep. 263; Under- wood t. Lewis [1894], 2 Q. B. 306. § 277. Implied powers of attorney. — An attorney at law employed to conduct a case has implied authority to control the conduct and management of the cause, and to do all things which are necessary or incidental to the prosecution or defense of the cause, and which affect the remedy only and not the right of action. His acts and stipulations, therefore, which affect the prac- tice only will bind his client, but he has no implied power to confess judgment or compromise or release his client's cause of action, release liens, levies, or securi- ties, grant extensions of time, or waive or give up the substantial rights of his client. He may receive pay- ment of the claim, either before or after judgment, and may take the necessary steps to enforce the judgment; but he cannot release the judgment without payment in full, or assign it, or receive anything but money in pay- ment See Moulton v. Bowker, 115 Mass. 36, 15 Am. Rep. 72, Cas. Ag. 619; Kirk's Appeal, 87 Penn. 243, 30 Am. Rep. 357, Cas. Ag. 621; Nichells v. Nichells, 5 N. Dak. 125, 64 N. W. Rep. 73, 57 Am. St. Rep. 540, 33 L, R. A. 515; Smith v. Jones, 47 Neb. 108, 66 N. W. Rep. 19, 53 Am. St. Rep. 519; Gardner v. Mobile R. Co., 102 Ala. 635, 15 So. Rep. 271, 48 Am. St. Rep. 84; Garrett v. Hanshue, 53 Ohio St. 482, 42 N. E. Rep. 256, 35 L. R. A. 321. As in the case of other agents, his powers will con- tinue after a discharge unless notice of that fact be given. See Beliveau v. Amoskeag Co., 68 N. H. 225, 40 Atl. 724, U L. R. A. 167. 150 SPECIAL CLASSES OF AGENTS. [§§ 278-280. § 278. Attorney bound to utmost loyalty and honor. — The attorney is bound to exercise the highest honor and integrity towards his client, not to take his case if he has any adverse interest which will prevent his giving his individual allegiance to his client, and to maintain at all times the utmost loyalty to his client's interests. See Strong v. International Building Union, 183 111. 97, 55 N. E. Rep. 675, 47 L. R. A. 792; Darlington's Estate 147 Pa. 624 23 Atl. Rep. 1046, 30 Am. St. Rep. 776. Like other agents also he must absolutely refrain from permitting his own interests to conflict with those of his client. He may not buy his client's property at sales in litigation in which he is concerned. He may not profit by his own defaults or take advantage of his sit- uation to make gains for himself at his client's expense. See Olson v. Lamb, 56 Neb. 104, 76 N. W. Rep. 433, 71 Am. St. Rep. 670; Eoff v. Irvine, 108 Mo. 378, 18 S. W. Rep. 907, 32 Am. St. Rep. 609; Baker v. Humphrey, 101 U. S. 494; Cunningham v. Jones, 37 Kan. 477, 1 Am. St. Rep. 257; Davis v. Kline, 96 Mo. 401, 9 S. W. Rep. 724, 2 L. R. A. 78. § 279. Dealings between attorney and client. — Dealings between attorney and client must be charac- terized by the utmost fairness and good faith. Some cases hold them absolutely voidable at the option of the client, but the true rule seems to be that while they will be scrutinized with great strictness, they will be upheld if they are entirely fair and voluntary, but of this the attorney has the burden of proof. See Elmore v. Johnson, 143 111. 513, 32 N. E. Rep. 413, 36 Am. St. Rep. 401, 21 L. R. A. 366; James v. Steere, 16 R. I. 367, 16 Atl. Rep. 143, 2 L. R. A. 164; Barron v. Willis [1900], 2 Ch. 121; Stout v. Smith, 98 N. Y. 25, 50 Am. Rep. 632, Cas. Ag. 628. § 280. Confidential communications privileged. — Confidential communications made by the client to his §5 280-281.] SPECIAL CLASSES OF AGEXTS. 151 attorney, and all information received by the attorney from the client or from his papers, and of a confidential nature, arc "privileged," and the attorney will not be permitted i«» disclose them without the consent of his client. The operation of the privilege is perpetual survives not only the relation of attorney and client, but the lives of the attorney and client as well. It van only be removed when it becomes necessary for the at- torney's own protection against his client, or for the furtherance of public justice. See Orman v. State, 22 Tex. App. 604, 58 Am. Rep. 662; Mitchell v. Bromberger, 2 Xev. 345, 90 Am. Dec. 550; Liggett v. Glenn, 2 C. C. A. 286, 51 Fed. Rep. 381; Butler v Fayerweather, 33 C. C. A. 625, 91 Fed. Rep. 458; O'Brien v. Spalding, 102 Ga. 490, 31 S. E. Rep. 100, 66 Am. St. Rep. 202. The privilege is the privilege of the client and not of the attorney; and it may be waived by the client. See Michael v. Foil, 100 X. Car. 178, 6 S. E. Rep. 264, 6 Am. St. Rep. 577. It exists only when the communication can fairly be regarded as confidential, and. the relation of attorney and client must exist. See Bruley v. Garvin, 105 Wis. 625, 81 X. W. Rep. 1038, 48 L. R. A. 839. Communications to a law student are not privileged: Schubkagel v. Dierstein, 131 Pa. 46, 18 Atl. Rep. 1059, 6 L. R. A. 481. Where several persons employ the same attorney in the same matter their communications are privileged as to third persons, but not in a controversy between themselves. See Seip's Estate, 163 Pa. 423, 30 Atl. Rep. 226. 43 Am. St. Rep. 803; Haley v. Eureka County Bank, 21 Xev. 127, 26 Pac. Rep. 64. 12 L. R. A. 815. §281. Liability of attorney to client. — Theattor- 13 ney impliedly agrees with his client that he posses 15.2 SPECIAL CLASSES OF AGENTS. [§§281-282. and will exercise a reasonable degree of professional knowledge, skill and diligence. He does not agree that he knows all the law and will make no mistakes, but he will be liable if he is ignorant of the well settled rules of law or practice, from which his client sustains injury. He will also be liable to his client for losses sustained bv him, caused by the failure of the attorney to exercise reasonable care, skill and diligence in collecting claims, in bringing suit, in trying the cause, in examining titles, in preparing contracts, and the like. He is liable for the neglects and defaults of his part- ners and clerks in the same manner as for his own. It is no defence to him that he was acting gratuitously. See Lawall v. Groman, 180 Pa. 532, 37 Atl. Rep. 98, 57 Am. St. Rep. 662; Citizens', etc., Ass'n v. Friedley, 123 Ind. 143, 23 N. E. Rep. 1075, 18 Am. St. Rep. 320, 7 L. R. A. 669; Babbitt v. Bumpus, 73 Mich. 331, 41 N. W. Rep. 417, 16 Am. St. Rep. 585; Midgley v. Midgley [1893], 3 Ch. 282. § 282. Liability of attorney to third persons. — The attorney is not liable to third persons for the neg- lect of duties which he owes to his client only ; but he may make himself liable to third persons where he con- tracts with them personally, though on his client's be- half. See Savings Bank v. Ward, 100 U. S. 195; Houseman v. Girard Ass'n, 81 Pa. 256; Buckley v. Gray, 110 Cal. 339, 42 Pac. Rep. 900, 52 Am. St. Rep. 88, 31 L. R. A. 862; Atwell v. Jenkins, 163 Mass. 362, 40 N. E. Rep. 178, 28 L. R. A. 694. He will not ordinarily be liable to third persons who may be injured by malicious or wrongful actions insti- tuted by his client in which he was attorney, but he will be liable if he shares and aids his client's malice, or if he acts from malice of his own. He will also be liable with his clienl where he directs the service of void or illegal process. §§282-285.] SPECIAL CLASSES OF AGENTS. 153 See Peck v. Chouteau, 91 Mo. 140, 60 Am. Rep. 236; Cook v. Hop- per, 23 Mich. 511. §283. Attorney's right to compensation.— Unless he has undertaken to serve gratuitously, the attorney is cut ii led to compensation for his lawful services. The amount to be paid may be fixed by the contract of the parties or be left to be determined according to the reasonable value of the service rendered. See Davis v. Webber, 66 Ark. 190, 49 S. W. Rep. 822, 45 L. R. A. 196; Russell v. Young, 36 C. C. A. 71, 94 Fed. Rep. 45; Bartlett v. Savings Bank, 79 Cal. 218, 21 Pac. Rep. 743, 12 Am. St. Rep. 139; Bowman v. Phillips, 41 Kan. 364, 21 Pac. Rep. 230, 13 Am. St. Rep. 292, 3 L. R. A. 631. § 284. Contingent compensation. — A contract for compensation contingent upon success is valid, and, in most States, it is no less valid because the attorney is to receive as his compensation a portion of the money or thins: recovered. i t> See Stanton v. Embrey, 93 U. S. 548, Cas. Ag. 631; Duke T. Harper. 66 Mo. 51, 27 Am. Rep. 314. § 285 How reasonable value shown. — When no amount has been agreed upon, the attorney is enti- tled to recover the reasonable value of his services, and for the purpose of proving this he may call other law- yers as witnesses to give their opinion. In such cases the nature and difficulty of the matter, the amount in- volved and the character and standing of the attorney may be considered in determining the value. See Stanton v. Embrey, 93 U. S. 548, Cas. Ag. 631; Eggleston v. Boardman, 37 Mich. 14; Louisville, etc., R. Co. v. Wallace, 136 111. 87, 26 N. E. Rep. 493, 11 L. R. A. 787; Selover v. Bryan; 434, 56 N. W. Rep. 58, 40 Am. St. Rep. 349. 21 L. R. A. 418; Wi . v. Kohn, 7 C. C. A. 314. 58 Fed. Rep. 462; Davis v. W T ebber, 66 Ark. 190, 49 S. W. Rep. 822, 45 L. R. A. 196. 154 SPECIAL CLASSES OF AGENTS [§§ 286-288. § 280. Attorney entitled to reimbursement and indemnity. — The attorney is also entitled to reimburse- ment for his necessary and legitimate expenses and to indemnity for liability properly incurred in his client's behalf. See Clark v. Randall, 9 Wis. 135, 76 Am. Dec. 252. § 287. Attorney's lien. — For the purpose of secur- ing the payment of his costs and charges, the attorney is entitled to a lien. This lien is of two kinds: 1. A general or retaining lien which entitles him to retain his client's papers, property or money in his hands until his claim is paid; and 2. A special or charging lien, which exists in most States and which attaches to the judgment, money or property recovered by the services of the attorney, and secures the payment of his costs and charges in that particular suit. In many States the attorney's lien is regulated by statute. See Goodrich v. McDonald, 112 N. Y. 157, Cas. Ag. 633; In re Wil- son, 12 Fed. Rep. 235, Cas. Ag. 638; Weeks v. Judges, 73 Mich. 256, Cas. Ag. 648; .Hanna v. Island Coal Co., 5 Ind. App. 163, 31 N. E. Rep. 846, 51 Am. St. Rep. 246, and note; Manning v. Leighton, 65 Vt. 84, 26 Atl. Rep. 258, 24 L. R. A. 684; Randall v. Van Wagenen, 115 N. Y. 527, 22 N. E. Rep. 361, 12 Am. St. Rep. 828. 2. Of Auctioneers. § 288. How authorized. — The auctioneer does not require to be authorized in any particular manner, though the authority must contemplate a sale by auc- tion, for general authority to sell property does not jus- tify a sale by auction. See Towle v. Leavitt, 23 N. H. 360, 55 Am. Dec. 195, Cas. Ag. 358. Parol authority is usually sufficient, even to sell land. See Doty v. Wilder, 15 111. 407, 60 Am. Dec. 756. §§ 289-291.] SPECIAL CLASSES OF AGENTS. 155 §281). Terms of Bale.— The owner of the property to be sold has tin' righl to fix the terms and conditions of the sale, and where they are made known at the sale, a purchaser can not acquire a good title in violation of t hem. But secret limitations would not affect the rights of a purchaser who lias relied in good faith upon the usual powers exercised by such agents. See Farr v. John, 23 Iowa, 286, 92 Am. Dec. 426; Bush v. Cole, 28 N. Y. 261. 84 Am. Dec. 343, Cas. Ag. 650. § 290. Implied powers. — The auctioneer has implied authority to accept the bid, and to receive the price, though he can not sell for anything except money or receive anything but money in payment of the price. He may sue in his own name to recover the price of personal property sold by him. He has no implied power to dele- gate his authority, or to sell on credit, or to rescind the sale, or to sell at private sale, or to warrant the quality of goods sold unless that is usual. Like other agents, he is disqualified to sell to himself. See Thompson v. Kelly, 101 Mass. 291, 3 Am. Rep. 353, Cas. Ag. 653; Boinest v. Leignez, 2 Rich. (S. C.) L. 464, Cas. Ag. 655; Blood v. French, 9 Gray (Mass.), 197; Dodd v. Farlow, 11 Allen, 426, 87 Am. Dec. 726. § 201. Duties to principal. — The auctioneer is bound to his principal for the exercise of good faith and for reasonable skill and diligence. See Hicks v. Minturn, 19 Wend. (N. Y.) 550. He must obey instructions, take reasonable care of the goods, and account to the principal for their pro- ceeds. See Steele v. Ellmaker, 11 Serg. & R. (Pa.) 86; Montgomery v. Pacific Coast Land Bureau, 94 Cal. 284. 29 Pac. Rep. 640. 28 Am. St. Rep. 122. 156 SPECIAL CLASSES OF AGENTS. [§§292-293. § 292. Liability to third persons. — The auctioneer who discloses his principal and sells as agent only, and within the limits of his authority, incurs no liability to third persons on the contract of sale, but if he conceals his principal, he is personally liable upon the contract. See Bush v. Cole, 28 N. Y. 261, 84 Am. Dec. 343, Cas. Ag. 650; Seemuller v. Fuchs, 64 Md. 217, 54 Am. Rep. 766. He is also liable to third persons for injuries which they may sustain by reason of his acting without au- thority. See Dent v. McGrath, 3 Bush (Ky.) 174; Harris v. Nickerson, L. R. 8 Q. B. 286, Cas. Ag. 659. It has been held that an auctioneer who receives and sells the goods of a stranger is liable, even though he acted in good faith supposing them to be the goods of the person from whom he received them ; but other cases hold that he is not so liable where he has paid over the money to the person from wiiom he received the goods before he had notice of the fact that such person was not the owner. The weight of authority seems to be that he is liable in these cases also. See Farebrother v. Ansley, 1 Camp. 343; Higgins v. Lodge, 68 Md. 229, 6 Am. St. Rep. 437, Cas. Ag. 656; Frizzell t. Rundle, 88 Tenn. 396, 17 Am. St. Rep. 908; Robinson v. Bird, 158 Mass' 357, 35 Am. St. Rep. 495; Kearney v. Glutton, 101 Mich. 106, 59 N. W. Rep. 419, 45 Am. St. Rep. 394; Consolidated Co. v. Curtis [1892], 1 Q. B. 495; Milliken v. Hathaway, 148 Mass. 69, 19 N. E. Rep. 16, 1 L. R. A. 510. A fortiori will be liable if he had notice of the third person's rights: Morrow Shoe Mfg. Co. v. New England Shoe Co., 6 C. C. A. 508, 57 Fed. Rep. 685, 24 L. R. A. 417. §293. Compensation and lien. — The auctioneer is entitled to compensation for his services, and to reim- bursement for his necessary expenditures and liabilities. He has a special property hi the goods delivered to him §§293-295.] SPECIAL CLASSES OF AGENTS. 157 for sale, and a lien upon the goods and their proceeds for his commissions and charges. See Webb v. Smith, 30 Ch. Div. 192, Cas. Ag. CC1. § 294. Liability of principal for acts of auctioneer. — The principal is bound, as in any other case of agency, by the contracts made by the auctioneer with- in the scope of the authority. And to the same extent as in other cases, also, he is affected by the represen- tations which the auctioneer makes in order to effect a sale. See Cockcroft v. Muller, 71 N. Y. 3G7; Roberts v. French, 153 Mass. 60, 26 N. E. Rep. 416, 25 Am. St. Rep. 611, 10 L. R. A. 656. 3. Of Brokers. § 295. How appointed. — Brokers, as has been seen, are of many kinds, according- to the special branch of trade which they pursue, but their rights and powers are substantially the same. They are appointed like other agents, and their powers are terminated as in other eases. Their powers and duties are much con- trolled by usage, with which it is not only their right hut their duty to comply unless otherwise directed. Usage, however, will not justify a departure from pos- itive instructions, or the disregard of an express con- tract. See Bibb v. Allen, 149 U. S. 481, 13 Sup. Ct. Rep. 950, 37 L. ed. 819; Skiff v. Stoddard, 63 Conn. 198, 26 Atl. Rep. 874, 21 L. R. A. 102; Fairly v. Wappoo Mills, 44 S. Car. 227, 22 S. E. Rep. 10S. 29 L. R. A. 215; De Cordova v. Barnum, 130 N. Y. 615, 29 N. E. Rep. 1099, 27 Am. St. Rep. 538. The broker is usually a special agent who can bind his principal only while acting in pursuance of the limi- tations put upon his authority. See Clark v. Cumming, 77 Ga. 64, 4 Am. St. Rep. 72. Cas. Ag. 6GH. 158 SPECIAL CLASSES OF AGENTS. [§§ 296 298. § 29G. Implied powers. — The broker lias no implied authority to delegate his powers, except under the same circumstances which justify it in the case of other agents. His acts usually should be done in the name of his principal only. See Delafield v. Smith, 101 Wis. 664, 78 N. W. Rep. 170, 70 Am. St. Rep. 938; Haas v. Ruston, 14 Ind. App. 8, 42 N. E. Rep. 298, 56 Am. St. Rep. 288. Where he has not been limited as to the price at which he shall buy or sell, he has implied power to fix the price, if he acts in good faith and confines him- self to the usual price, or to a fair and reasonable one where there is no usage. See Daylight Burner Co. v. Odlin, 51 N. H. 56, 12 Am. Rep. 45; Putnam v. French, 53 Vt. 402, 38 Am. Rep. 682. § 297. Same subject. — He has no general power to sell with a warranty of quality, but may give one where it is usually given with such goods at that time and place. If not restricted, he may sell upon a reasonable credit. When not entrusted with the possession of the goods he sells, he has no implied authority to receive payment. Having once made a valid contract he has no implied authority to rescind it. See Hitchcock v. Griffin & Skelley Co., 99 Mich. 447, 58 N. W. Rep. 373, 41 Am. St. Rep. 624; Andrews v. Kneeland, 6 Cow. (N. Y.) 354; Dodd v. Farlow, 11 Allen (Mass.) 426, 87 Am. Dec. 726; Adams v. Fraser, 27 C. C. A. 82 Fed. Rep. 211; Saladin v. Mitchell, 45 111. 79. §298. Duties to principal. — The broker must obey the principal's instructions, and will be liable for a loss caused by his disobedience. He owes to his principal the possession and exercise of a reasonable degree of care, skill and diligence. He must be faithful to the interests of his principal, and must not allow his own interests or those of any other employer to conflict with those of his principal. .- §§298-300.] SPECIAL CLASSES OF AGENTS. 159 See Galigher v. Jones, 129 U. S. 193, 9 Sup. Ct. Rep. 333. 32 L. ed. 658; Taussig v. Hart, 58 N. Y. 425; Baker v. Drake, 53 N. Y. 211, 13 Am. Rep. 507, 66 N. Y. 518, 23 Am. Rep. 80; Myles v. Myles, 6 Bush (Ky.) 237; Farnsworth v. Hemmer, 1 Allen (Mass.) 494, 79 Am. Dec. 756; Levy v. Spencer, 18 Colo. 532, 33 Pac. Rep. 415, 36 Am. St. Rep. 303. §299. Acting for both parties. — He will not be allowed to represent both parties to the transaction, without the full and intelligent consent of both, except in those eases in which he acts as mere middle-man, bringing- the parties together and then leaving them to contract for themselves. See Rice v. Wood, 113 Mass. 133, 18 Am. Rep. 459, Cas. Ag. 12; Bell v. McConnell, 37 Ohio St. 396, 41 Am. Rep. 528, Cas. Ag. 538; Vinton v. Baldwin, 88 Ind. 104, 45 Am. Rep. 447, Cas. Ag. 664. Contracts made while the broker is secretly in the employment of the otber party are avoidable as in other similar cases. See Ferguson v. Gooch, 94 Va. 1, 26 S. E. Rep. 397, 40 L. R. A. 234; Cannell v. Smith, 142 Pa. St. 25, 21 Atl. Rep. 793, 12 L. R. A 395. §300. Liability to third persons. — The broker will not be personally liable upon the contracts which he makes where he discloses the name of his principal and contracts in his name and within the limits of his authority; though he may make himself personally lia- ble by exceeding his authority, concealing his principal, or contracting on his own responsibility. See Simmons v. More, 100 N. Y. 140, Cas. Ag. 505. He will, however, be liable, it seems, where he sells the property, such as stocks, of a third person, even though he acted in good faith supposing that the per- son from whom he received the stock for sale was tic true owner and although he has paid over the proceed ; to such person. ICO SPECIAL CLASSES OF AGENTS. [§§300-302. See Swim v. Wilson, 90 Cal. 126, 27 Pac. Rep. 33, 25 Am. St. Rep. 13 0, 13 L. R. A. 605, and cases cited ante §292; Roach, v. Turk, 9 Heisk. (Tenn.) 708, 24 Am. Rep. 360; Compare Leake v. "Watson. 58 Conn. 332, 20 Atl. Rep. 343, 18 Am. St. Rep. 270. § 301. Compensation. — The broker is entitled to his compensation when he has completed his undertaking. If employed to find a purchaser, he is entitled to his com- pensation when he has found a person ready, willing and able to buy on the terms proposed, or, if no terms are fixed, to whom the principal sells. He is not to be deprived of his compensation because the principal sub- sequently changes his mind or his terms, or because the principal's title fails, or because, he can not make a sat- isfactory conveyance. It is not necessary in these cases that the broker shall have actually completed a binding contract. It is enough if he is the procuring cause of the sale, though the transaction is concluded by the principal. Sea Vinton v. Baldwin, 88 Ind. 104, 45 Am. Rep. 447, Cas. Ag. 664; Plant v. Thompson, 42 Kan. 664, 16 Am. St. Rep. 512, Cas. Ag. 666; Sibbald v. Bethlehem Iron Co., 83 N. Y. 378, 38 Am. Rep. 411, Cas. Ag. 301; Brackenridge v. Claridge, 91 Tex. 527, 44 S. W. Rep. 819, 43 L. R. A. 593; Gilder v. Davis, 137 N. Y. 504, 33 N. E. Rep. 599, 20 L. R. A. 398. § 302. Unless there is an express agreement to the contrary, the principal may revoke the broker's au- thority at any time before the purchaser has been found, and in such a case the broker will not be entitled to any compensation for what he has done in endeavor- ing to find a purchaser. Where, however, the broker substantially performed, the principal will not be permitted to revoke the authority and complete the sale himself for the very purpose of avoiding the payment of the commission. See Cadigan v. Crabtree, 179 Mass. 474, 61 N. E. Rep. 37, 551*. R. A. 77; Sibbald v. Bethlehem Iron Co., svpra. §§ 302-304.] SPECIAL CLASSES OF AGENTS. 1G1 Where two or more brokers arc employed, he only is entitled to tin* commission whose services were the ef- ficient cause of the sale, even though the others have also contributed in producing the result. See Whitcomb v. Bacon, 170 Mass. 479, 49 N. E. Rep. 742, 64 Am. St. Rep. 317. § 303. Compensation from both parties. — lie can not have compensation from both parties except when he acts as agent of both with their full knowledge and consent. Where, however, the broker was acting as a mere "middle-man," bringing the parties together only and then leaving them to make their own bargains, — the broker standing entirely indifferent between them, — the rule forbidding double compensation does not ap- ply. In such a case it is held that the broker may have compensation from each principal although each may have been ignorant of the broker's relations to the other. See Rice v. "Wood; Bell v. McConnell, supra; McDonald v. Maltz, 94 Mich. 172, 53 N. W. Rep. 1058, 34 Am. St Rep. 331; Montross v. Eddy, 94 Mich. 100, 53 N. W. Rep. 916, 34 Am. St. Rep. 323; Rice v. Davis, 136 Pa. St. 439, 20 Atl. Rep. 513, 20 Am. St. Rep. 931. § 304. Reimbursement, indemnity and lien. — He is entitled to reimbursement and indemnity like other agents for losses and liabilities properly incurred and advances made on his principal's account; but no! where the loss was caused by his own default or the advances were made to further a transaction known to be un- lawful. See Perin v. Parker, 126 111. 201, 18 N. E. Rep. 747. 9 Am. St. Rep. 571, 2 L. R. A. 336; Ellis v. Pond Syndicate [1898], 1 Q. B. 426; Harvey v. Merrill, 150 Mass. 1, 22 N. E. Rep. 49, 15 Am. St. Rep. 159; Gillett v. Whiting, 141 N. Y. 71, 35 N. E. Rep. 939, 38 Am. St. Rep. 762. 13 162 SPECIAL CLASSES OF AGENTS. [§§304-307. The broker is ordinarily not in possession of the goods he sells, and therefore generally he has no right of lien. Since it is his duty to contract in the name of his principal, he has usually no right to sue in his own name upon the contracts which he makes. See Fairlie v. Fenton, L. R. 5 Exch. 169, Cas. Ag. 669. 4. Of Factors. § 305. How appointed. — The authority of the factor may be created and terminated like that of other agents. §306. Implied powers. — He may sell the goods in his own name, may grant a reasonable credit, and may give a warranty where that is usual. He has no implied power to pledge or transfer the goods for his own debt, though by statutes called Factors' Acts now found in many States innocent pledges are protected. He has no implied power to exchange the goods, to delegate his authority, to compromise the claim for the pur- chase price, to rescind the sale, to extend the time of payment, to make negotiable paper, or to receive any- thing but money in payment for the goods. See Pinkham v. Crocker, 77 Me. 563, Cas. Ag. 676; Warner v. Martin, 11 How. (U. S.) 209, Cas. Ag. 678; Insurance Co. v. Kiger, 103 U. S. 352, Cas. Ag. 686; Commercial Bank v. Hurt, 99 Ala. 130, 12 So. Rep. 568, 19 L. R. A. 701, 42 Am. St. Rep. 38; Romeo v. Martucci, 72 Conn. 504, 45 Atl. Rep. 1, 99, 47 L. R. A. 601; First National Bank v. Schween, 127 111. 573, 20 N. E. Rep. 681, 11 Am. St. Rep. 174; Argersinger v. Macnaughten, 114 N. Y. 535, 21 N. E. Rep. 1022, 11 Am. St. Rep. 687; Peek v. Heim, 127 Pa. St. 500, 17 Atl. Rep. 984, 14 Am. St. Rep. 865; Barnes Safe Co. v. Bloch Bros. Co., 38 W. Va. 158, 18 S. E. Rep. 482, 22 L. R. A. 850, 45 Am. St. Rep. 846. § 307. Duties to principal. — He must act in good faith, be loyal to his trust and exercise reasonable skill and diligence. See Phillips v. Moir, 69 111. 155, Cas. Ag. 671; Conway v. Lewis, 120 Pa. St. 215, 13 Atl. Rep. 826, 6 Am. St. Rep. 700; Usborne v. §§307-309.1 SPEC I.\ I, CLASSES OF AGENT! Stephenson, 36 Oreg. 328, 48 L. R. A. 432; Sims v. Miller, 3. Car. 402, 16 S. E. Rep. 155, 34 Am. St. Rep. 762; Charlotte Oil Co. v. Hartog, 29 C. C. A. 56, 85 Fed. Rep. 150. §308. Same subject. — He must obey instructions as to the time and terms of sale, and will be Liable Cor losses caused by his disobedience; except thai where lie lias made advances on the goods t<> his principal, he may sell contrary to orders, for his own reimbursement, if the principal has neglected to reimburse him within a reasonable time after demand; and he is not obliged to sell at a price fixed by the principal when he would thereby imperil his security. See Talcott v. Chew, 27 Fed. Rep. 273, Cas. Ag. 689; Lehman v. Pritchett, 84 Ala. 512, Cas. Ag. 693; Hatcher v. Comer, 73 Ga. 418, Cas. Ag. 698; Davis v. Kobe, 36 Minn. 214, 1 Am. St. Rep. 663, Cas Ag. 700; Dolan v. Thompson, 126 Mass. 183, Cas. Ag. 684; Comer v Way, 107 Ala. 300, 19 So. Rep. 966, 54 Am. St. Rep. 93. § 309. Duty to account.— It is the duty of the fae tor to account to his principal for all goods, proper t; and moneys of the principal, which come into his hands as factor, after deducting his own proper advances and commissions. See Cooley v. Betts, 24 Wend. 203, Cas. Ag. 702. The principal may follow and recover his propeity or its proceeds so long as it can be identified and urtiil it comes into the hands of a bona fide holder for value. See ante § 269; Drovers' Nat. Bank v. Roller, 85 Md. 495, 37 Atl. Rep. 30, 36 L. R. A. 767; Ferchen v. Arndt, 26 Ore. 121, 37 Pac. Rep. 161, 29 L. R. A. 664. Where the factor sells upon a del credere commis- sion he guarantees the payment of the price. See Lewis v. Brehme, 33 Md. 412, 3 Am. Rep. 190. Cas. Ag. 706; Balderston v. National Rubber Co., 18 R. I. 33S, 27 Atl. Rep. 507, 49 Am. St. Rep. 772. 164 SPECIAL CLASSES OF AGENTS. [§§ 310-311. § 310. Compensation, reimbursement, lien. — The factor is entitled to compensation, reimbursement and indemnity, like other agents. He has also a lien upon all the goods in his possession, and upon the price of those sold and on securities taken for goods sold to se- cure the payment of the general balance of the account between himself and his principal, and he may sell the goods to satisfy his claim. See McGraft y. Rugee, 60 Wis. 406, 50 Am. Rep. 378, Cas. Ag. 717; Comer y. Way, 107 Ala. 300, 19 So. Rep. 966, 54 Am. St. Rep. 93; Warren v. First Nat. Bank, 149 111. 9, 38 N. E. Rep. 122, 25 L. R. A. 746. Whether the factor must enforce his lien before call- ing for reimbursement is in dispute. See Balderston y. Nat. Rubber Co., 18 R. I. 338, 27 Atl. Rep. 507, 49 Am. St. Rep. 772. § 311. Right to sue. — He may sue in his own name for the price of goods sold by him, and he has such a spe- cial property in the goods that he may maintain actions of trespass, replevin and trover in respect of them. See Ilsley v. Merriam, 7 Cush. (Mass.) 242, 54 Am. Dec. 721; Fitzhugh v. Wiman, 9 N. Y. 559. INDEX. [References are to sections.] ABANDONMENT— when agent may abandon agency 122 compensation in case of, see "Compensation" ACCOUNT— duty of agent to 185 et seq. see also "Attorney at Law," "Auctioneer," "Broker," "Factor." ACTION— in what form of, agent liable to principal 174 in what form of, agent liable to third persons usually 196 no right of, against third persons 261 when agent may sue third person 2G2, 263 what actions maintainable 265 auctioneer may sue 290 factor may sue 311 ADMISSIONS— of agent will not establish agency 70 bind principal, when 244 ADVERSE INTEREST— agent may not assume 51 AGENCY— defined 1 a contractual relation 2 exists usually by assent of principal 3 may be created by law 4 differs from — trust 9 sale 10 lease H contract of 12 classification of 13 t 24 actual or ostensible 13 universal, general and special 14 how proved 18 professional and non-professicnal 12, 24 distinction between classes of 24, 27 may be created for any lawful purpose 27 exceptions 29, 34 165 166 INDEX. [References are to sections.] AGENCY— Continued. what contracts for, void 34, 35 how to determine nature of 73 why created HI enforcement of contract of 119 at will 120 how terminated, see "Termination of Agency" AGENT— duties and liabilities of, see "Duties and Liabilities.' how authority of, exists 2, 3 compared with servant 5, 8 compared with independent contractor 8 the contract appointing 12 classes of 13, 24 distinction between classes of .24, 27 validity as between principal and 34 who may be 43, 51 may not assume adverse interest 51 may represent joint principals 52 several, may jointly represent the same principal 55, 58 appointment of method of 59, 60 to execute instruments 61, 62 by corporations 63 to sell and convey interest in land 64 by parol 65 doctrine of estoppel on 67, 70 evidences of 70, 74 cannot ratify his own act 82 as a rule cannot delegate authority 100, 103 power of, to appoint sub-agent 103, 106 extent of interest Ill power to renounce authority 118 discharge of 121 renunciation by 122 death, insanity and bankruptcy of, terminates authority. 125, 128 duty of, in general 158 forbidden to do certain things 167 purpose of 190 how sued 213 APPOINTMENT OF AGENT— see "Agent." ATTORNEY AT LAW— definition of 20 relation to client 274 INDEX. 167 [References are to sections.] ATTORNEY AT LAW— Continued. how appointed 275 duration of relation 276 implied powers of 277 bound to loyalty and honor 278 donlirrs of, must be fair and in good faith 279 confidential communications privileged 280 liability to client 281 liability to third person 282 right to compensation 283, 284 how amount determined 285 reimbursement and indemnity of 286 lien of 287 AUCTIONEER— definition of 21 his function 24 how authorized 2S8 terms of sale 289 implied powers of 290 duties of, to principal 291 liabilities of, to third person 292 compensation and lien of 293 liability of principal for acts of 294 AUTHORITY— to act as agent 3 created by law 4 delegation of 27, 34 to execute instruments under seal 61, 62 of corporation to appoint 63 required by statute to be in writing 64 may be conferred by parol 65 not to be proved by agent's admissions 70 written instrument best evidence of 72, 73 to appoint sub-agent 103 coupled with an interest Ill et. seq. termination of 121, 132 express 133 implied 134 general 135, 139 special 136, 144 distinction between, and instructions 138 powers incident to 142, 150, 158 construction of, in general 144, 149 In particular 150, 158 168 INDEX. [References are to sections.] AUTHORITY— Continued. to sell land 150, 151 to sell personal property 152, 153 to buy 154 to collect or receive payment 155 to make negotiable paper 156 to manage business 157 how executed, in general 158 execution of, excessive or defective 159 written instruments 160 sealed instruments 161 negotiable instruments 162 other similar contracts 163 parol evidence to explain 164 BANKRUPTCY— of principal or agent, effect of 127 BENEFITS— acceptance of, will ratify 88 BROKER— definition of 22 his function 25 how appointed 295 implied powers of 296, 297 duties to principal 298 acts for both parties 299 liability to third persons 3 ;0 compensation of 301, 304 reimbursement, indemnity and lien of 304 CLIENT— relation of attorney to 274 duration of relation 276 must receive loyalty and honor from attorney 278 dealings between attorney and 279 has privilege of confidential communications with attorney. 280 liability of attorney to 281 CLUBS, SOCIETIES, ETC.— as principals , 54 COLLUSION— defeats notice 232 between agent and third person 271 COMPENSATION— cannot be recovered by agent who serves two principals 167 the right to have 215 amount of, determined 216 INDEX. 16S [Reference* are to sections.] COMPENSATION— Continued. when earned 217 under conditions 218 et seq. right of professional and non-professional agents to of attorney 2S3, 285 of auctioneer 293 of broker 304 of factor 310 contingent 284 CONSTRUCTION— necessity for Hi of particular powers 149 et seq. CONTRACT— agency based on 1 appointing agent 12 when, of agency void 34 Illegal in part 35 enforcement of contract of agency 119 presumed for definite time 120 execution of simple contract 163 et seq. when agent liable on 197 CORPORATIONS— may be principal ' 36 as agents 49 how may appoint agent 63 may ratify what they can authorize 80 CO-TENANTS— as principals 53 DAMAGES— see "Duties and Liabilities." DELEGATION— see "Sub-Agent." of personal duty, etc 29 of authority by agent 100, 106 of power includes incidental authority to effect power granted 142 of authority by auctioneer 290 of authority by factor 306 DESTRUCTION OF SUBJECT MATTER— effect of, on agency 130 DISCLOSED PRINCIPAL— see "Principal," also "Duties and Liabilities." DUTIES OF THE AGENT TO THE PRINCIPAL— in general 153 to be loyal to his trust 166 170 INDEX. [References are to sections.] DUTIES OF AGENT TO PRINCIPAL— Continued. barred from some acts 167, 168 unloyal act voidable 169 further limitations 170 usage does not alter rule 171 must obey instructions 172 et seq. good faith — no excuse 173 in what form of action liable 174 sudden emergency as excuse 175 ambiguous instructions 176 effect of custom 177 to exercise care 178 special skill required in some cases 179 when services gratuitious . 180 liable for negligence in loaning money 181 in effecting insurance 182 in collecting 183 liable for defaults of correspondents 184 to account for money and property 185, 189 DUTIES AND LIABILITIES OF THE AGENT TO THIRD PERSONS— in general .' 190 in contract without authority 191, 199 when no responsible principal 199, 201 where agent pledges his personal responsibility 201 et. seq. to disclose principal 202, 203 when principal foreign £04 when principal is known 205 when agent has obtained money from third person ...207, 208 when agent has received money from third person 209 in cases of tort 210, 212 non-feasance — misfeasance 211 trespass — conversion 212 how sued 213 DUTIES AND LIABILITIES OF THE PRINCIPAL TO THE AGENT— to pay compensation 215 rules regulating payment 216, 230 when compensation deemed to be earned 217, 221 where authority rightfully revoked 221 when authority terminated by operation of law 222 where agent abandons his undertaking 223 where agent acted for two principals 224 where agent violated his trust 225 INDEX. 171 [ReferenceB are to sections.] DUTIES OF PRINCIPAL TO AGENT— Continued. rules where agency unlawful 226 where extra duties required 227 where agent holds over 228 recoupment by principal 229 reimbursement and indemnity of agent 230, 333 DUTIES AND LIABILITIES OF THE PRINCIPAL TO THIRD PERSONS— liability for agent's contracts 235, 214 liability of disclosed principal 238, 244 liability of undisclosed principal 238, 211 responsibility for agent's statements 244, 246 responsibility for matters brought to knowledge of agent 246, 252 liability for agent's torts and crimes 252, 260 DUTIES AND LIABILITIES OF THIRD PERSONS TO THE AGENT— in contract, usually no right of action 261 exception — sealed instruments or negotiable instruments made in agents' name 262 when principal undisclosed 263 in tort 265 DUTIES AND LIABILITIES OF THIRD PERSONS TO THE PRINCIPAL— in contract 267, 271 what contracts principal may enforce 267 what defences open 268 right to follow and recover money or property 269 right to rescind dealings where agent secretly in em- ployment of other party 270 In tort 271, 273 right to recover damages for collusion 271 recovery for enticing agent away, disabling him, etc... 272 ESTOPPEL— doctrine of, as applied to agents 67 applied to ratification by conduct 87 may effect determination of authority 138 EVIDENCE— of authority, see "Authority." necessity for 145 parol, to explain 164 EXECUTION— defective or excessive 157 of written instrument 'l60 172 INDEX. [Refereaces are to sections.] EXECUTION— Continued. of sealed instruments 161 of negotiable instruments 162 FACTOR— definition 23 his function 26 how appointed 305 implied powers of 306 duties of, to principal 307, 310 compensation, reimbursement and lien 310 right to sue 311 FORGERY— as to ratification of 78 GENERAL AGENCY— definition 14 number possible 16 how proved 18 ILLEGAL ACTS— agency cannot be created to perform 28 cannot be ratified 77 IMPLIED POWER— of agent 142, 150 et seq. of attorney 277 of auctioneer 290 of broker 296, 297 of factor 306 INCAPACITY— natural or legal 39 of insane persons 40 of infants 41, 44 of married women 42 more important in principal than in agent 43 arising from adverse interest 51 of agent to serve two principals 167 INDEMNITY— of agent 231, 232 of attorney-at-law 286 of broker 307 "INDEPENDENT CONTRACTOR"— how compares with agent 8 INFANTS— as principals 41 as agents 44 how authorized 45 may ratify what they can authorize 81 INDEX. 173 [Reference* are to flections.] INSANE PERSON— cannot be principal 40 INSANITY— of principal or agent terminates 126 JOINT AGENTS— discussion of 55, 58 JOINT PRINCIPALS— discussion of 52, 55 LEASE— differs from agency 11 LIABILITY— of various parties, see "Duties and Liabilities." LIEN— of attorney 287 of auctioneer 293 of broker 3 °4 of factor 310 MANAGE BUSINESS— authority to 157 MARRIAGE OF PRINCIPAL— when agency is affected by 128 MARRIED WOMEN— as principals 42 as agents 46, 47 may ratify what they can authorize SI NEGOTIABLE PAPER— execution of authority to make II execution of 162 parol evidence in case of 1C4 NOTICE— duty of agent to give 189 to agent is notice to principal 246 defeated by collusion between agent and third person 247 PAROL EVIDENCE— to explain authority 164 ; ARTNERSHIPS— may be principal 36 as agent 50, 56 may ratify what they can authorize SO PERSONAL PROPERTY— authority to sell 152 what included 153 PRINCIPAL— duties and liabilities, see "Duties and Liabilities." •when assent of, necessary *3, 4 1 174 INDEX. [References are to sections.] PRINCIPALr— Continued. number of agents possible 15, 16 validity as between, and agent 34 who may be 37, 38 incapacity to be 39, 43 natural or legal 39 insane persons 40 infants 41 married women 42 more competence required than in agent 43 may be joint 52 partners, co-tenants, etc., as 53 clubs, societies, etc., as 54 may be represented by joint agents 55, 58 usually appoints agent 59 responsible for authority of agent 70 effect of ratification as between, and others 94 et seq. may authorize agent to employ other agents 99 power of, to revoke agency Ill must give notice of revocation 117 death of, terminates authority 124 insanity of, terminates authority 126 bankruptcy of, terminates authority 127 marriage of, terminates authority 128 appearance given to authority by, controls 137 distinction between authority and instruction of 138 duty of agent to disclose 202 agent of foreign 204 presumption that, to be bound 205 liable for acts of auctioneer 294 PRIVILEGED COMMUNICATIONS— between attorney and client 280 PUBLIC POLICY— agencies for purposes opposed to, void 28 RATIFICATION— definition of 75 what acts subject to 76, 78 of forgery 78 by whom may be made 79, 83 conditions of 83 what amounts to f 84, 92 by instrument under seal 85 by authority subsequently conferred 86 by conduct SV by accepting benefits 88 INDEX. 175 [References are to sections.) RATIFICATION— Continued. by bringing suit 89 by acquiescence 90, 91 effect of, in general 92, 93 as between principal and agent 94 as to rights of third party against principal 95 as to rights of principal against third party 96 in contract 97 in tort 98 may effect determination of authority 138 RECOUPMENT— principal may recoup damages caused by agent's act 229 REIMBURSEMENT— of agent 230 of attorney-at-law 286 of broker 304 of factor 310 RENUNCIATION— by agent 118 when justifiable 122 REPRESENTATIONS OF AGENT— when principal bound by 244, 245 REVOCATION— compensation, in case, see "Compensation." of ratification 93 by principal HI not when coupled with interest 113, 116 distinction between "power" and "right" of 115 need not be express 116 notice of 117 SALE— distinguished from agency 1° terms of 289 SEALED INSTRUMENTS— authority to execute 61 ratification of 85 execution of 161 who bound in 164 SERVANT— compared with agent 5-8 SIMPLE CONTRACT— how executed 163 176 INDEX [References are to sections.J SOCIETIES, CLUBS, ETC.— as principals & * SPECIAL. AGENCY— 14 definition • number of special agents possible 16 how to be proved 1 ® SUB-AGENT— see "Delegation." when appointment justifiable 103 relation of sub-agent to principal 104, 105 termination of authority of agent terminates power of 131 SUBJECT-MATTER— destruction of, terminates agency 130 termination of power over 131 TERMINATION OF AGENCY- by act of parties, 1. original agreement 108 2. subsequent act of parties, by mutual consent HO revocation by principal HI, 118 renunciation by agent 118, 123 by operation of law, death 124, 125 insanity 128 bankruptcy 127 marriage 128 war 1^9 destruction of subject matter 130 termination of power over subject-matter 131 of sub-agents 131 TORT— may be ratified 98 see "Duties and Liabilities." TRUST— differs from agency 9 not necessarily a contract relation 9 UNDISCLOSED PRINCIPAL— liable when discovered 239 his exceptions 240 agent also liable 243 liable in tort, see "Duties and Liabilities." UNIVERSAL AGENCY— definition 14 number of universal agents possible 15 INDEX. 177 [B«forenc«t irt to »»ctlon».] USAGE— contributes to determine authority 188 WAR— effect of, on agency 128 WITNESS— when agent may be called as 71 WRITTEN INSTRUMENTS— execution of ISO UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 684 088 8 f^ I e ( ^ ^ [