subsequent transaction is payment to the principal. But generally speaking an agent has no right to endorse a principal's name without an express or implied authority.95 74. Agent to manage business.-An agent to manage a business can only bind his principal for whatever acts are done in the regular and known' and proper transaction of that business. It is generally held that an agent employed to manage a retail business has no authority to sell out the entire business in one transaction. Nor has such agent authority by reason of his position to issue or endorse negotiable paper. His authority in this connection must be clearly established. There is no authority by implication in the agent to borrow money on behalf of the principal in connection with the business or to mortgage the principal's property, and it is not permitted the agent to make any unusual contract or to enter into any undertaking or obligation outside of the usual scope of the business." 75. Execution of the authority by the agent.-It is the general duty of the agent to act within the scope of the authority conferred upon him by the principal and to act in the name of and on behalf of the principal. It has already been stated that when the agent acts beyond the authority conferred he cannot bind his principal. It is often a difficult question to ascertain just when an agent has exceeded his authority. The burden of proof is always upon the person dealing with the agent to show that 95 Morrison v. Chapman, 155 App. Div. 509 (N. Y.). 96 Brockway v. Mullin, 46 N. J. Law 448. the agent had the requisite authority to act in the manner in which he acted. When the authority given to an agent is in writing it is easy to ascertain how far the agent might go. When the authority is not in writing there are various means open to the third party to inquire as to the extent of the agent's authority, and under these circumstances he deals. with the agent at his peril." The agent should act in all cases so as to give his principal the benefit of his acts and not to seek any personal benefit to himself and he should also be careful to perform his duty so as to bind his principal and not himself personally. The agent, it may be added, generally speaking, is never held personally responsible where he represents himself as agent of a known principal and acts on behalf of the principal within the scope of his authority. The agent may not always escape liability for the negligent performance of his duty. Where there is a complete execution of the power conferred upon him but he goes farther and does something which is improper, the execution will be good, and the excess acts only will be void. If, however, there is not a complete execution of the power the act will not be binding upon the principal; as where an agent was given authority in writing to sell the lands of his principal subject to a lease, and he agreed to sell free and clear, there was not a complete execution of the power conferred and the agreement was not binding upon the principal.98 97 Mullen v. Quinlan & Co., 195 N. Y. 109, LEADING Illustrative Cases. 98 Thomas v. Joslin, 30 Minn. 388. 76. Same subject-Instrument under seal.— When an agent is to perform an act by an instrument under seal his authority should be conferred by an instrument under seal. The instrument which he makes under seal as an agent must be executed by him in the principal's name. An agent signing his own name to a sealed contract is personally liable and the principal cannot be held liable by the third party, even though the third party knew the signer was an agent; the agent is liable and bound to perform irrespective of whether or not the contract could be enforced against his principal."" 77. Same subject Simple contracts.-In oral contracts, as distinguished from written contracts, it is always a question of fact as to who are the actual contracting parties. Even though one is an agent, still he may in fact make himself the other party to a contract with a third person. Where, however, the contract is written, but is not sealed and is not negotiable, like a note, then if the agent signs his own name to the contract so as to appear by the writing to be the other contracting party he will be personally bound, even though he intended to bind only his principal. This is because parol evidence is not admissible to vary a written contract and thus relieve a person from liability who appears by the writing to be liable. But even though the written contract appears on its face to be the agent's personal contract, still since the agent is in legal theory the same as his principal parol evidence is admissible to enable the principal 99 Briggs v. Partridge, 64 N. Y. 357, LEADING ILLUSTRATIVE CASES. to take advantage of the contract or, in case the third party so elects, to hold him liable on the contract. Where a contract not under seal is made by an agent in his own name for an undisclosed principal, whether he describes himself as agent or not, either the agent or principal may sue upon it. Parol evidence is admissible under a simple contract to charge an unknown principal, but not to discharge the actual signer.2 78. Same subject-Negotiable instruments.-The rules with regard to the execution of negotiable paper by an agent, while embodying some of the principles already referred to, have their own peculiar application. It is of the utmost importance that checks, promissory notes, drafts, bills of exchange, and other negotiable instruments should clearly and definitely show upon their face who are the parties thereto. In order therefore that the principal may be bound it is necessary that the paper shall show upon its face who the principal is, and that his signature thereto is his signature, although made by the hand of his agent. It is not sufficient that the principal be named on the face of the paper; it must also appear that the promise is his, and that the agent signs for him. If the signature is not properly made the agent cannot escape personal liability simply by adding the word "agent." The principal must be named and the signature must be the principal's. With regard to the signing of notes by officers of cor 1 Gordon Malting Co. v. Bartels Brewing Co., 206 N. Y. 528. 2 Ludwig v. Gillespie, 105 N. Y. 653. 3 porations the general rule is that the corporate name should be signed thereto and following this the name of the official and a designation of his office. Where, however, the note is subscribed by the name of an officer of the corporation, to which name he affixes the title of his office, the result is not always the same. While in some jurisdictions it is held that the note would be a note of the individual officer, it is nevertheless now considered to be the general rule that the signing in the form mentioned presents an ambiguity arising out of the manner of coupling the names of the natural person and the corporation, and it has been held to be open to the parties to introduce extrinsic testimony to disclose the intention of the parties.* 3 Tucker Mfg. Co. v. Fairbanks, 98 Mass. 101. |