CHAPTER IX. CONTRACTS WITH PARTICULAR PARTIES. Factors and brokers. THE Common Law rule is qui facit per alium, facit per se; and everything that a man may do for himself, his authorised agent may do for him. Thus, he may authorise an agent to sign for him unless a statute requires a personal signature (a); and an acknowledgment to bar the Statute of Limitations may be signed by an agent duly authorised thereto (b). (a) Different Kinds of Agents. Agents may be divided into factors and brokers, auctioneers, shipmasters, solicitors, estate, house and land agents (c). A factor is intrusted with the possession and apparent ownership of the goods to be sold by him for his principal. And in this respect he differs from a broker, -the latter not having, in general, the custody of the goods or other property of his principal, but (a) In re Whitley Partners (1886), 32 Ch. D. 337, C. A.; R. v. Kent (JJ. of) (1873), L. R., 8 Q. B. 305; R. v. Middlesex (JJ. of) (1850), 20 L. J., M. C. 45. (b) Mercantile Law Amendment Act, 1856, 19 & 20 Vict. c. 97, s. 13, making Hyde v. Johnson (1836), 2 Bing., N. C. 776, not law. (c) See Evans on Principal and Agent, 2nd ed., Bk. I., Ch. 1, and Bk. II., pt. 1, Ch. III. As to relations between princi pals and agents generally, see Ch. XIX., sect. 5, post; and as to relations between stockbrokers and their principals, see Ch. XX., sect. 6, post. The divisions and instances in the text do not pretend to be exhaustive, but merely to take the most important and usual classes. being a mere negotiator empowered to effect contracts of sale or CH. IX. s. 1. purchase on his behalf (d). Contracts with Del credere An agent for the sale of goods sometimes acts under a del credere commission; that is, for a higher reward than is usually agents. given, he becomes responsible to his principal for the solvency of the vendee; or, in other words, he guarantees, in every case of sale, the due payment of the price of the goods sold (e). An auctioneer is agent to sell at an open sale, and is, at all Auctioneers. events after sale, agent for both parties; representations made by him at the sale bind the principal, and he is in a fiduciary capacity as regards the vendor both as to what is sold and as to the purchase-money (ƒ). The shipmaster is equivalent to magister navis in civil law, and Shipmaster. has authority to enter into contracts for usual employment of the ship, to contract for repairs and necessaries in a prudent way when he cannot communicate with the owner, and when he can in no other way obtain money therefor; to give a customary bond for such necessaries, but this will only bind the owner if strictly for such necessaries, and the master is acting bonâ fide (g). A solicitor, acting under a general retainer, has implied authority Solicitors. to accept service of process and appear for the client, but has no such authority to commence an action, unless such authority may be reasonably inferred from the terms of the retainer, and as between client and opponent, the former is bound by every act of his solicitor, done in the ordinary course of practice, and the solicitor has authority, in the absence of express prohibition, to compromise an action (h). He is also agent to receive money in an action (i), and by sect. 56 of the Conveyancing Act, 1881, can receive purchase-money, which he takes in a fiduciary capacity (k). and land agents. An agent by the vendor to find a purchaser, has authority to House, estate, describe the property and make statements as to its value so as to bind the principal, and a false statement so made vitiates the contract of sale (1), and it would seem to be that an agent to find a (d) Baring v. Corrie (1818), 2 B. & Al. 137; and see definition of "mercantile agent" in Factors Act, 1889, post, p. 266 (k); Stevens v. Biller (1883), 25 Ch. D. 31, C. A. (e) Morris v. Cleasby (1816), 4 M. & S. 566, 574; 16 R. R. 544. (f) Crowther v. Elgood (1887), 34 Ch. D. 691, C. A.; and see Evans on Agency, 2nd ed., pp. 144, 145. (g) Evans on Agency, 2nd ed., p. 146, Story on Agency, § 36; and see The Pontida (1884), 9 P. D. 177, C. A. ; and Kleinwort v. Cassa Marittima of Genoa (1877), 2 App. Cas. 156. (h) Evans on Agency, 2nd ed., pp. 152 -161; and as to the relation between solicitor and client, see Ch. XIX., sect. 9, post. (i) Lydney Wigpool Iron Co. v. Bird (1886), 33 Ch. D. 85, C. A. (k) In re Bell (1886), 34 Ch. 462; and see Gordon v. James (1885), 30 Ch. D. 249, C. A.; and see Ex parte Edwards (1884), 13 Q. B. D. 747, C. A. (1) Mullens v. Miller (1882), 22 Ch. D. 194. CH. IX. s. 1. purchaser, has no power to conclude a contract for sale without express authority, so as to bind the principal (m). Contracts with Furnished house agent. Commission agents. How an agent may be appointed. When by deed or writing. Parol or im Agents, not being land agents, solicitors, auctioneers or appraisers, for the sale or letting of furnished houses at a rent or value exceeding 25l., must take out an annual licence at a duty of 21., the penalty for acting without such licence being 201. (n). A foreign agent, to purchase, must buy as cheaply as possible, and within the price (if any) named by the principal, and he must not sell to the principal his own goods or take a secret commission (o). (b) Appointment of an Agent, and Revocation of his Power. An agent, for whatever purpose he is appointed, may, in general, be appointed by mere words. The first section of the Statute of Frauds which requires a lease for three years or more to be in writing, signed by the lessor or his agent, requires also that the agent shall be authorised in writing, and the 7th section of that Statute which requires a trust of land to be in writing, has the effect of invalidating as between principal and agent a purchase of land by an agent orally appointed, so that the agent may deny the agency and take a conveyance to himself (p). But writing is not necessary to empower an agent to act in cases within the 4th section of the Statute of Frauds, or the 4th section of the Sale of Goods Act, which re-enacts the repealed 17th section of the Statute of Frauds (q); or to sign on behalf of his principal the memorandum of association under the Companies Acts (r). Nor need a del credere agent be appointed (s) in writing (t). But a deed cannot be executed by an agent, so as to bind his principal, unless the authority to execute it be conferred by deed (u); and the general rule is that the agent of a corporation must be appointed by deed (x), though, as we shall see presently, this rule has been much broken in upon (y). There are cases, moreover, in which an authority may be implied, plied agency although no authority was ever given in fact. 'No one can become and authority. (m) Ramsden v. Thornton (1866), L. (n) 24 & 25 Vict. c. 21, ss. 10, 12. (0) Ireland v. Livingston (1872), L. R., (p) James v. Smith, [1891] 1 Ch. 384. (r) In re Whitley Partners (1886), 32 v. Johnson (1836), 2 Bing. N. C. 776. (s) Morris v. Cleasby (1816), 4 M. & S. 566, 574; 16 R. R. 544. (t) Coutourier v. Hastie (1852), 8 Exch. 40. (u) Per Lord Kenyon, C. J., Horsley v. Rush (1788), cited in Harrison v. Jackson, 7 T. R. 209; and see Berkeley v. Hardy (1826), 5 B. & C. 355. (x) R. v. Biggs (1717), 3 P. Wins. 419, 425. (y) See "Corporations," post, sect. 4. Agents. the agent of another except by the will of that other person. His CH. IX. s. 1. will may be manifested in writing, or orally, or simply by placing Contracts with another in a situation in which, according to ordinary rules of law, Implied or perhaps it would be more correct to say according to the ordinary authorityusages of mankind, that other is understood to represent and act contd. for the person who has so placed him; but in every case it is only by will of the employer that an agency can be created" (z). "But the most usual mode of appointment is by an unwritten request, or by implication from the recognition of the principal, or from his acquiescence in the acts of his agents. Cases of this latter description arising from the grant of agency by an unwritten or verbal request or by implication are very familiar in all the common business of life and the common departments of trade. Thus the appointment by which the relation of master and servant is created, and the extent of authority conferred on the latter, are ordinarily known, and ascertained only by implication from the recognition or conduct or acquiescence of the master. As where a clerk is employed in a shop or warehouse to sell goods, his authority to make a particular sale is implied from his ordinary occupation, and the acquiescence of the master. So where a clerk is usually entrusted to sign notes or usually does sign notes for his master, which are afterwards paid or recognised to be valid, he is presumed to possess a rightful authority to do so in other instances within the scope of the same business" (a). Thus the original relation of agency once proved, an authority to do things within the scope of the agency is implied, and the question merely is, what is the scope of the agency; e.g., solicitor or broker? Thus, if the owner of a horse send it to a common repository for the sale of horses; or if the proprietor of goods send them to an auction-room, or to a broker, whose ordinary business it is to sell goods of the description; the owner will be bound by a sale to a bonâ fide purchaser, although made without his express consent; because an authority to sell is presumed against him (b). And so, where a coachman went in his master's livery, and hired horses in his name, which the master used; it was held that the latter was bound to pay for the hire of the horses, although he had agreed with the coachman to pay him a large salary to provide horses ;-the owner of the horses not having had any notice, that the coachman hired them on his own account, and not for his master (c). So, an authority on the part of the agent will be implied, even in cases which are not within the scope of his ordinary business; provided it be shown that he has on former (z) Per Lord Cranworth in Pole v. Leask (1863), 33 L. J., Ch. 155, H. L. (a) Story on Agency, Ch. V., s. 54. (b) See per Lord Ellenborough, C. J., Pickering v. Busk (1812), 15 East, 38, 45; 13 R. R. 364; per Abbott, C. J., Dyer (c) Rimell v. Sampayo, 1 C. & P. 254. CH. IX. s. 1. occasions exercised the same authority; and that his principal Contracts with knew, or had the means of knowing, that fact (d). Agents. Agent need not be sui juris. How his authority may be determined. Notice of determination when neces sary. A contract made by an agent, as such, is, in law, the contract of the principal. Qui facit per alium, facit per se. The agent is considered merely as the medium by which the contract is effected; and his assent is merely the assent of his principal. He need not therefore be a person sui juris: and hence, infants, and married women, are competent to act as agents (e). An agent's authority may be determined either 1st. By the express revocation thereof by the principal; or by renunciation of the agency on the part of the agent himself (ƒ). 2nd. By the death (g), lunacy (h), or bankruptcy (i) of the principal; or by the lunacy or (except as to formal acts) bankruptcy of the agent (k). 3rd. By efflux of time, where a specific period is fixed, either by express agreement or by the usage of trade, for the execution of the act to be done by the agent (1); or, 4th. By the execution of his commission, whereby the agent becomes functus officio (m). But the mere happening of the above events will not, in each case, operate per se as a complete revocation of the agent's authority. In the case indeed of the principal's death, agency is determined by the death without any regard to notice of it either to the agent or to a third party contracting with the principal through him, and the contract becomes void (n). But in the case of insanity of the principal, where the principal has held out to A. that B. is his agent, and the principal afterwards becomes insane, he will continue to be bound by any dealing between A. and B. within the scope of B.'s authority, until A. has had notice of the principal's insanity (0). If the principal countermand the authority of the agent, such countermand will not take effect as to third persons, until it is made known to them (p); and therefore, in the case of a bank (d) Davidson v. Stanley (1841), 3 Scott, N. R. 49; Prescott v. Flinn (1832), 9 Bing. 19; Pott v. Bevan (1844), 1 C. & K. 335. (e) Co. Litt. 54 a. By the French law, married women and emancipated minors may be agents; Code Civil, Book III., tit. 13, art. 1990. (f) Story on Agency, 2nd ed., Ch. XVIII. (g) Campanari v. Woodburn (1854), 15 C. B. 400. (h) Drew v. Nunn (1879), 4 Q. B. D. 661, C. A.; and see Evans on Agency, 2nd ed. at p. 113. (i) See Drew v. Nunn (1879), 4 Q. B. D. at p. 665, per Brett, L. J. (k) Evans on Agency, 2nd ed., p. 115 (lunacy); p. 106 (bankruptcy). (2) Story on Agency, 2nd ed., Ch. XVIII.; Dickinson v. Lilwall (1815), 4 Camp. 279. (m) Per Ellenborough, C. J., Blackburne v. Scholes (1809), 2 Camp. 341. (n) Blades v. Free (1829), 9 B. & C. 167. See, however, per Brett, L. J., in Drew v. Nunn (1879), 4 Q. B. D. at p. 668, for suggestion that the estate of the principal may be liable for represen tation acted on in ignorance of his death. (0) Drew v. Nunn (1879), 4 Q. B. D. 661, C. A. (p) Trucman v. Loder (1840), 11 A. & E. 589, 592; Salte v. Field (1793), 5 T. |