Lapas attēli
PDF
ePub

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
Agents.
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cases within the 4th section of the Statute of Frauds, or the 4th section of the Sale of Goods Act, which re-enacts the repealed 17th section of the Statute of Frauds (q); or to sign on behalf of his principal the memorandum of association under the Companies Acts (r).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. R., 1 H. L. 129; Harmer v. Sharp (1874), L. R., 19 Eq. 108; and see Evans on Agency, 2nd ed., P. 164.

(n) 24 & 25 Vict. c. 21, ss. 10, 12.

(0) Ireland v. Livingston (1872), L. R.,
5 H. L. 395; Evans on Agency, 2nd ed.,
p. 312; Bentinck v. Fenn (1887), 12
App. Cas. 652.

(p) James v. Smith, [1891] 1 Ch. 384.
(q) See p. 102, ante.

(r) In re Whitley Partners (1886), 32
Ch. D. 337, C. A., distinguishing Hyde

[blocks in formation]

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 bona 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

(2) 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
v. Pearson (1824), 3 B. & C. 38; per Bayley,
J., Boyson v. Coles (1817), 6 M. & S. 14,
23; 18 R. R. 284.

(c) Rimell v. Sampayo, 1 C. & P. 254.

CH. IX. s. 1. occasions exercised the same authority; and that his principal knew, or had the means of knowing, that fact (d).

Contracts with
Agents.
Agent need
not be sui

juris.

How his authority may be deterinined.

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 (o).

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) Trueman v. Loder (1840), 11 A. & E. 589, 592; Salte v. Field (1793), 5 T.

Agents.

Revocation of

having a branch at Mauritius, to which island there is no telegraph, CH. IX. s. 1. and the agency of the branch bank and of the persons employed Contracts with there was revoked by the appointment of a liquidator, such revocation would not operate till the notice actually reached them at authorityMauritius (q). For, said Lord Blackburn (r) in the House of contd. Lords, "Where a person has given authority to another, the authority being such as would apparently continue, he is bound to those who act upon the faith of that authority though he has revoked it, unless he has given proper notice of the revocation." This liability is not on the ground, that the authority actually continues, but because it was his duty to give notice of revocation, and "the failure to give that notice precludes him from denying that he gave the authority against those who acted upon the faith that the authority continued."

vocable.

Nor is the authority given to an agent, revocable in all cases at When authothe mere will of the party who conferred it. Thus, it is not in rity not regeneral revocable after a part execution thereof by the agent, except on payment by the principal, of a compensation for the labour and expense, which may have been incurred by the agent in the course of the employment (s); and if a principal employs an agent to do something which involves the agent in liabilities, which even if not legal were binding on the agent in the ordinary course of his business, the principal cannot draw back and leave the agent to bear the liability at his own expense (†). And so, if there be an interest coupled with the authority; that is, if an agreement be entered into on a sufficient consideration, whereby an authority is given for the purpose of securing some benefit to the donee of the authority, such an authority is irrevocable (u).

A power of attorney is an authority to one person to act in the Powers of stead of another. It is usually given by deed, and must be so given attorney. in some cases, but the cases do not bear out a proposition sometimes laid down that it must always be so given (r).

The Conveyancing Act, 1881, ss. 46 and 47, and the Convey- Validity of power of ancing Act, 1882, ss. 8 and 9, may be referred to for details as to attorney in the effect “in favour of a purchaser of property." The 8th section favour of purchaser." of the Act of 1882, which applies only to powers given for valuable

R. 211, 215; Hazard v. Treadwell (1722), 1 Str. 506.

(q) Per Chitty, J., in Ex parte Guillemin (1884), 28 Ch. D. 634, citing Lord Westbury's decision as arbitrator in the European Arbitration National Bank

case.

(r) Scarf v. Jardine (1882), 7 App. Cas. 345, at p. 350, citing with approval Freeman v. Cook (1848), 2 Ex.

C.C.

[blocks in formation]
[ocr errors]

Ch. IX. s. 1. consideration, provides amongst other things against revocation by Contracts with the death, lunacy or bankruptcy of the donee of the power. The 9th section provides (amongst other things) as follows:

Agents.

Irrevocability of power of attorney.

Principal not liable without his assent, express or implied.

Rules by

authority is determined.

General and

"(1) If a power of attorney, whether given for valuable consideration or not, is in the instrument creating the power expressed to be irrevocable for a fixed time therein. specified, not exceeding one year from the date of the instrument, then, in favour of a purchaser

(2) The power shall not be revoked, for and during that fixed time, either by anything done by the donor of the power without the concurrence of the donee of the power, or by the death, marriage, lunacy, unsoundness of mind, or bankruptcy, of the donor of the power."

(c) Extent of Authority, and Liability of Principal.

A principal is liable for contracts of his agent, within the scope of his employment, although no express privity or command of the principal be proved (x); moreover, without such proof, the fraud of the agent in the course of his principal's business is deemed to be the fraud of the principal (y); and the better opinion seems to be that a principal concealing a material fact is liable for his agent's innocent denial of it (z); though an agent is not personally liable for an innocent misrepresentation (a). But, in order to render the principal responsible, his assent must in all cases appear, either by express evidence thereof, or by proof of facts, from which the law will raise an inference that such an assent was given.

The rules of law which regulate the extent of an agent's authority to bind his principal are, in general, the same whether such agent be appointed for commercial or domestic purposes. The nature of the employment in each of the two cases occasions, indeed, some distinctions; but the leading principles are the same both (b).

in

It is necessary and expedient, that parties should communicate special agents. with each other through the medium of third persons; but business would be impeded, if it were requisite on all occasions that the public, before dealing with the agent, should consult the principal.

(x) Bac. Abr. Master and Servant (K.).

(y) See Swire v. Francis (1877), 3 App. Cas. 106.

(z) See comments in Pasley v. Freeman, 2 Sm. L. C. on Cornfoot v. Fowkes (1840), 6 M. & W. 358, which case, however, so far as to the contrary, has never been expressly overruled.

(a) Eaglesfield v. Marquis of Londonderry, 26 W. R. 540, H. L.

(b) For the rules by which the authority of an agent will be construed, see Evans on Agency, 2nd ed., pp. 117 et seq. Authority to receive rents gives no authority to distrain; Ward v. Shew (1833), 9 Bing. 608.

« iepriekšējāTurpināt »