promise in A. to indemnify * C.; for if that were so, it 617 would be in the power of C. to make A. his debtor nolens volens. (a) If there be any relation between the parties, a payment without authority may be binding on the person for whose use it was made, if it be made under the pressure of a situation in which one party was involved by the other's breach of faith. A surety, from his relation to the principal debtor, has an interest, and a right to see that the debt be paid; and if he pays to relieve himself, it is money paid to and for the use of the other. (b) 1 So, in the case mentioned by Lord Kenyon, (c) from Roll's Abridgment, where a party met to dine at a tavern, and all except one went away after dinner without paying their quota of the tavern-bill, and the one remaining paid the whole bill; he was held entitled to recover from the others their aliquot proportions. The recovery must have been, upon the principle, that as a special association, they stood in the light of sureties for each other, and each was under an obligation to see that the bill was paid. (d)

II. Of the power and duty of agents.

An agent who is intrusted with general powers, must exercise a sound discretion, and he has all the implied powers which are within the scope of the employment. A power to settle an account implies the right to allow payments already made.2 If he

(a) Lord Kenyon, 8 Term Rep. 310. Story J., 5 Mason, 400.

(b) Exall v. Partridge, 8 Term Rep. 308.

(c) Ibid. 614.

(d) When several persons dine together at a tavern, each is liable for the reckoning. Collyer on Part. 25, note w. They are considered to be liable jointly. They are parties to a joint contract. But the members of a club are not partners, and are not to be treated as such. The committee of a club are the agents of the members at large, and bound by the contracts they make in that character, but the members are not bound by the acts of the committee, if they exceed their authority as agents. Todd v. Emly, before Abinger, Ch. B., 8 Mees. &. W. 505, and cited at large in Woodworth on Joint-stock Companies, pp. 174–185. See, also, Eichbaum v. Irons, 6 Watts & Serg. 67, S. P. As to the liability of a member of a club, the question is, if the contract was not made personally with the member, whether there was sufficient evidence of an authorized agency to make a contract binding on the members personally. Flemyng v. Hector, 2 Mees. & W. 172. It is not a question of partnership, but of principal and agent.

1 If one of several sureties have a security from the principal for his indemnity, it enures to the benefit of all. Ramsey v. Lewis, 80 Barb. (N. Y.) 403. Between wrong-doers there

is no right of compelling contribution. Andrews v. Murray, 33 Barb. (N. Y.) 354.

* But an agent appointed to settle claims, has not the power to commute them. Kings

*

be an empowered agent in a particular transaction, he is not bound to go on and do all other things connected with, or arising out of the case; for the principal is presumed to have his attention awakened to everything not within the specific *618 charge. (e) If his powers are special and limited, he must strictly follow them;1 but whether there be a special authority to do a particular act, or a general authority to do all acts, in a particular business, each case includes the usual and appropriate means to accomplish the end. (a) An agent, acting as such, cannot take upon himself at the same time an incompatible duty. He cannot have an adverse interest or employment.

2

(e) Dubreuil v. Rouzan, 13 Martin (Louis.) 158. Hodge v. Durnford, Ibid. 100. But the negotiorum gestor of the civil law, who interferes where the interest of his principal does not positively require it, must do everything necessarily dependent on the business he commences, though not within the order or knowledge of the person for whom it is transacted.

(a) Paley on Agency, by Lloyd, pp. 198-207. Story on Agency, §§ 58, 83.

ton v. Kincaid, 1 Wash. C. C. 454. Lewis v. Gamage, 1 Pick. 347. Nor to submit them to arbitration, unless according to a general usage, or by a rule of court. The Alexandria Canal Co. v. Swann, 5 How. U. S. 83. Story on Agency, § 99. Inhabitants of Buckland v. Inhabitants of Conway, 16 Mass. 396. Henley v. Soper, 8 Barn. & Cress. 16. An attorney at law has a general power to submit to arbitration. Filmer v. Delber, 3 Taunt. 486. Faviell v. E. Counties R. Co. 2 Exch. 343. Wilson v. Young, 9 Barr, 101. Holker v. Parker, 7 Cranch, 486. Talbot v. McGee, 4 Monroe (Ky.) 377. Swinfen v. Swinfen, 37 E. L. & Eq. 327. But it seems this power is limited to suits already commenced. Jenkins v. Gillespie, 10 Smedes & Marsh. 31. Scarborough v. Reynolds, 12 Ala. 252. An attorney, either at law or in fact, has no authority either to make a lease, or to ratify or confirm an imperfect one, or to perfect an inchoate agreement for a lease of property of his principal, unless authority for such purpose is expressly given. Howard v. Carpenter, 11 Md. 259. An agent employed to sell or lease real property, has not authority to make such representations in regard to title as will bind the principal. Tondro v. Cushman, 5 Wis. 279. An agent, authorized to collect debts, can only receive money. Earnhart v. Robertson, 10 Ind. 8.

No officer of the United States has authority to enter into a submission in their behalf, which will be binding upon them. United States v. Ames, 1 Wood. & Minot, 76, 89. General words are limited secundum subjectam materiam. Taylor v. Robinson, 14 Cal. 396.

1 So sternly has the rule been enforced, that the agent must obey his instructions, that in a case where an agent, having money of his principal in his hands, was directed to employ it in the purchase of a bill for his principal, but the agent purchased the bill on his own credit, and the bill could not be collected, it was h ld, that the principal, by reason of the disobedience, might recover the amount of the bill of the agent. Hays v. Stone, 7 Hill (N. Y.) 128.

* If an agent do an act apparently within the scope of his power, his principal is bound by his representation of facts peculiarly within the agent's knowledge and essential to the proper exercise of the power. Farmers' and Mechanics' Bank v. Butchers' and Drovers' Bank, 16 N. Y. 125. Fogg v. Griffin, 2 Allen, 1. Griswold v. Haven, 25 N. Y. 595.

He cannot be both buyer and seller, for this would expose his fiduciary trust to abuse and fraud. (b) 3

If A. authorizes B. to buy an estate for him at fifty dollars per acre, and he gives fifty-one dollars an acre, A. is not bound to pay that price; but the better opinion is, that if B. offers to pay the excess out of his own pocket, A. is then bound to take the estate. This case is stated in the civil law, and the most equitable conclusion among the civilians is, that A. is bound to take the estate at the price he prescribed. Majori summæ minor inest. (c) So, where an agent was directed to cause a ship to be insured at a premium not exceeding three per cent., and the agent, not being able to effect insurance at that premium, gave three and a quarter per cent., the assured refused to reimburse any part of the premium, under the pretence that his correspondent had exceeded his orders; but the French admiralty decreed that he should refund the three per cent.; and Valin thinks they might have gone further, and made him pay the quarter per cent. ex bono et aquo; because, he says, it is permitted, in the usage of trade, for factors to go a little beyond their orders, when they are not very precise and absolute. (d) The decree was undoubtedly correct, and the injustice of the defence disturbed in some degree the usually accurate and severe judgment of Valin.

If the agent executes the commission of his principal in part only, as if he be directed to purchase fifty shares of bank stock, and he purchases thirty only, or if he be directed to cause 2,000 dollars to be insured on a particular ship, and he effect an insurance for 1,000 dollars, and no more, it then becomes a question, whether the principal be bound to take the stock, or pay the premium. The principal may perhaps be bound to the extent

*

of the execution of the commission in these cases, though *619 it has not been executed to the utmost extent; and this

(b) See infra, vol. iv. p. 438. Story on Agency, § 165. McGhee v. Lindsay, 6 Ala. 16.

(c) Inst. 3, 27, 8. Ferriere, sur Inst. h. t. Pothier, Traité du Contrat de Mandat, Nos. 94, 96. The act of an agent exceeding his authority is good pro tanto, and void as to excess. Johnson v. Blasdale, 1 Smedes & Marsh. 1.

(d) Valin, Com. sur l'Ord. de la Mer. tom. ii. pp. 32, 33.

3 An agent to receive moneys, who accounts for them to his principal as having been received, cannot afterwards claim that they were advanced by him and recover the amount from the principal. Owens v. Kirby, 30 Beavan, 31.

seems to have been the conclusion of the civil law. (a) But a distinction is to be made according to the nature of the subject. If a power be given to buy a house, with an adjoining wharf and store, and the agent buys the house only, the principal would not be bound to take the house, for the inducement to the purchase has failed. So, if he be instructed to purchase the fee of a certain farm, and he purchases an interest for life or years only, or he purchases only the undivided right of a tenant in common in the farm; in these cases the principal ought not to be bound to take such a limited interest, because his object would be defeated. It might be otherwise, if the agent was directed to buy a farm of one hundred and fifty acres, and he buys one corresponding to the directions as nearly as possible, containing one hundred and forty acres only. The Roman lawyers considered and discussed these questions with their usual sagacity and spirit of equity; and whether the principal would or would not be bound by an act executed in part only, depends in a measure upon the reason of the thing, and the nature and object of the purchase. (b)

If the agent does what he was authorized to do, and something more, it will be good, as we have seen, so far as he was authorized to go, and the excess only would be void. If an agent has a power to lease for twenty-one years, and he leases for twenty-six years, the lease in equity would be void only for the excess, because the line of distinction between the good execution of the power and the excess can be easily made. (c) But, at law, even such a lease would not be good, pro tanto, or for the twenty-one years, * 620 according to a late English * decision in the K. B. (a) If, however, the agent does a different business from that he was authorized to do, the principal is not bound, though it might even be more advantageous to him; as if he was instructed to buy such a house of A., and he purchased the adjoining house of B. at a better bargain; or, if he was instructed to have the ship of his correspondent insured, and he insured the cargo. The prin

(a) Dig. 17, 1, 33.

(b) Dig. 17, 1, 36.

Greene J. in Gordon v. Buchanan, 5 Yerger (Tenn.) 81.
Pothier, Traité du Contrat de Mandat, No. 95. 1 Livermore on

the Law of Principal and Agent, 100, 101.

(c) Sir Thomas Clarke, in Alexander v. Alexander, 2 Vesey, 644. Campbell v. Leach, Amb. 740. Sugden on Powers, 545.

cipal is not bound, because the agent departed from the subjectmatter of the instruction. (b)

There is a very important distinction on this subject of the powers of an agent, between a general agent and one appointed for a special purpose. The acts of a general agent, or one whom a man puts in his place to transact all his business of a particular kind, or at a particular place, will bind his principal, so long as he keeps within the general scope of his authority, though he may act contrary to his private instructions; and the rule is necessary, to prevent fraud and encourage confidence in dealing. (c) But an agent, constituted for a particular purpose, and under a limited power, cannot bind his principal if he exceeds that power. (d) The special authority must be strictly pur- *621

*

(b) Dig. 17, 1, 5, 2. Pothier, Traité du Contrat de Mandat, No. 97. Grotius, de Jure, B. & P. b. 2, ch. 16, sec. 21, says, that the famous question stated by Aulus Gellius, whether an order or commission might be executed by a method equally or more advantageous than the one prescribed, might easily be answered, by considering whether what was prescribed was under any precise form, or only with some general view that might be effected as well in some other way. If the latter did not clearly appear, we ought to follow the order with punctuality and precision, and not interpose our own judgment when it had not been required.

(c) Whitehead v. Tuckett, 15 East, 400. Walker v. Skipwith, Meigs (Tenn.) 502. Lightbody v. N. A. Ins. Co. 23 Wendell, 22. Lobdell v. Baker, 1 Metcalf, 202. Cook v. Hunt, 24 Ills. 535. Attorneys, having a discretionary power to collect a debt, may, in the exercise of their discretion, assent to an assignment for the benefit of creditors, and bind their clients thereto. Gordon v. Coolidge, 1 Sumner, 537. But a law agent is responsible for the consequences of professional error when the injury thereby to his client arises from the want of reasonable skill or diligence on his part, both of which qualities he assumes to have and duly employ. Hart v. Frame, 6 Cl. & F. 193. A general agent is to act for his principal as he would for himself, and is bound to exercise a sound discretion. A special agent is confined to his instructions. Master of the Rolls, in Bertram v. Godfray, 1 Knapp, 383. Anderson v. Coonley, 21 Wendell, 279.

Beals v. Allen, 18 Ibid. 363

(d) Munn v. Commission Company, 15 Johns. 44. Thompson v. Stewart, 3 Conn. 172. Andrews v. Kneeland, 6 Cowen, 354. Buller J., 3 Term Rep. 762. East India Company v. Hensley, 1 Esp. N. P. 111. Allen v. Ogden, Wharton's Dig. tit. Agent and Factor, A. 1. Blane v. Proudfit, 3 Call, 207. If possession of goods be given for a specific purpose as to a carrier or wharfinger, the property is not changed by the sale of such a bailee, and the owner may recover them from the bonnâ fide buyer. Wilkinson v. King, 2 Camp. N. P. 335.

1 Johnson v. Jones, 4 Barb. (N. Y.) 369. A general agent to sell may give a warranty. Milburn v. Belloni, 34 Barb. (N. Y.) 607. An agent to sell on a particular occasion cannot. Brady v. Todd, 9 C. B. (N. S.) 592. As to the liability of the principal in an action for deceit, for false representations made by an agent without authority to make them, the Barons of the Exchequer were equally divided in Udell v. Atherton, 7 Hurl. & Nor. 172.