self after the principal has sought to adopt the agent's act; in other words, that a second assent is required from the third party.

38. Same subject-As between principal and strangers.-Ratification cannot be allowed to defeat the intervening rights of strangers to the transaction. The principal cannot, for example, ratify an unauthorized contract for the sale of property made by an agent and thus defeat a sale of the same property made by himself. Ratification by a principal is only effective so long as he is in a present position to perform or comply with the contract of the agent.

39. Same subject-As between principal and agent. Prior to ratification there is no liability of the principal for the unauthorized act. If the principal never ratifies the agent may incur a personal liability as is explained in the next section. But when the agent's act is ratified it becomes the act of the principal and the agent is no longer bound.49 If, however, the agent practices a fraud on his principal and thus induces the principal to ratify, the agent is not relieved of responsibility to the principal. Furthermore, where the principal is kept in ignorance of the true facts of the transaction by reason of the negligence of the agent, the agent is not relieved of liability to his principal.50 While it is true that when the agent has overstepped his authority he becomes liable to his principal for such losses as are the direct and

49 Triggs v. Jones, 46 Minn., 277.

50 Bank of Owensboro v. Western Bank, 13 Bush 526 (Ky.).

natural consequences thereof, whether his motives be good or bad, still it is also true that the agent is released from liability when the principal, with knowledge of all the material facts, ratifies the agent's departure from his duty.

40. Same subject-As between agent and third party.-Ratification by the principal of the unauthorized contracts made by the agent for him will ordinarily relieve the agent from liability, so far as the unauthorized contract is concerned. There may, however, be instances wherein even after ratification the agent still remains liable to the third party, as where an agent is guilty of conversion. In these cases, even though the principal seeks to ratify the act of the agent, the latter will, nevertheless, remain liable; for the principal having had no authority to commit the conversion he cannot indirectly confer such authority on the agent by ratification.51 If the principal never ratifies the agent may be personally liable as explained later in Sections 106 and 107.

41. Delegation of authority by agents.-There is another Latin maxim in the law of agencydelegata potestas non potest delegari-which means that delegated authority cannot be delegated. That is to say, an agent to whom authority is delegated cannot delegate that authority to another.52 This, however, is not an absolute and positive rule in all cases. In the first place the principal may authorize the agent to delegate his authority and intrust the performance of the duty to sub-agents. Or the

51 Stephens v. Elwall, 4 M. & S. 259 (Eng.).

52 Appleton Bank v. McGilvray, 4 Gray 518 (Mass.); Lynn v. Burgoyne, 13 B. Mon. 400 (Ky.).

act itself may clearly require that the authority be delegated to others. When this is the case the agent may, within the proper scope of the employment, appoint a sub-agent and the act of the latter will be binding on the principal. The principal may ratify the act of the sub-agent as well as the act of the agent.

42. Same subject—Authority involving judgment and discretion.-Where the act to be performed requires the exercise of personal judgment and discretion or where the principal evidently trusted to a personal performance of the act by the agent, the authority of the agent cannot be delegated to others without the express or implied consent of the principal. The reason of the rule is that the principal relies upon and desires the benefit of a particular agent's judgment, discretion, experience, ability, and skill, and it would be contrary to sound policy to hold that under such circumstances the agent could turn over to another a responsibility which was entrusted to him personally. It is evident that if such power could be delegated a principal would be at the mercy of an unknown and perhaps untrustworthy representative. Nor can the agent assign his contract of agency. The contract is exclusively personal and the principal would not be obliged to recognize the substituted agent. In considering the question of delegated authority, therefore, the courts will look to the nature of the act to be performed by the agent and the customs, if any, prevailing in the particular business or locality.

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43. Same subject-Mechanical and ministerial duties. There is usually an implied authority in an agent to appoint a sub-agent where the act to be performed is of a mechanical or ministerial nature, or where it is evident from the very character of the undertaking that the employment of a sub-agent is a necessity. It is a general rule that where the sub-agent is properly appointed he is to be regarded as the agent of the principal. On the other hand, where the sub-agent has not been duly appointed on behalf of the principal the agent is responsible for the sub-agent's acts. If the principal in any event becomes bound to third persons by reason of the acts of an unauthorized sub-agent, the agent is responsible to the principal.

44. Same subject-Sub-agents.-Something has been said already under this head. A case in the United States Supreme Court which shows the very striking conflict between a number of states holding one doctrine and a number of states holding a contrary doctrine, bears upon the point of the responsibility of a sub-agent.54 The doctrine of many of the states, as shown in that case, is that the liability of a bank in taking, at New York, certain drafts from a bank at Pittsburgh for collection from a drawee at Newark, N. J., extended merely to the exercise of due care in the selection of a competent agent at Newark, and to the transmission of the drafts to such agent with proper instructions, and that the Newark bank was not its agent but the agent of the

53 Williams v. Woods, 16 Md. 220.

54 Exchange National Bank v. Third National Bank, 112 U. S. 276.

Pittsburgh bank, so that the New York bank was not liable for the default of the Newark bank, due care having been used in selecting that bank.

The contrary doctrine of many other states is shown to be that a bank receiving a draft or bill of exchange in one state for collection in another state from a drawee residing there, is liable for neglect of duty occurring in its collection whether arising from the default of its own officers or from that of its correspondent in the other state or the agent employed by such correspondent, in the absence of any express or implied contract varying such liability. The United States Supreme Court has adopted the latter view.

A lawyer who takes certain claims for collection and sends them to a correspondent attorney out of town is liable for the fraud and embezzlement of the correspondent attorney unless the first attorney has received authority from his client to engage the correspondent.55

55 Cummins v. Heald, 24 Kan. 600.