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 and the agency of the branch bank and of the persons employed Contracts with there was revoked by the appointment of a liquidator, such revocation would not operate till the notice actually reached them at authorityMauritius (q).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 autho the 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 (t). 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 (v). power of The Conveyancing Act, 1881, ss. 46 and 47, and the Convey- Validity 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 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. "(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. Rules by The rules of law which regulate the extent of an agent's authority which agent's to bind his principal are, in general, the same whether such agent authority is determined. 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 both (b). General and same 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. Agents. Extent of And accordingly the liability of the latter mainly depends, not on CH. IX. s. 1. the instructions which he may have given to the agent, but on the Contracts with question, whether the agent was a general or special agent. If a servant or agent be accredited, and invested by his master with authorityauthority to act for him in all his business of a particular kind; contd. or if the agent, being himself engaged in a particular trade or business, be employed by the principal to do certain acts for him in that trade or business, he will in each case be held to be, with reference to his employment, a general agent (c); and,-the public having no means of knowing what are, in any particular case within the general scope of the agent's powers, the wishes and directions of the principal,—the latter will be liable, even although his orders be violated (d). In such a case the principal, having for his own convenience induced the public to consider that his agent was possessed of general powers, is bound by the exercise, on the agent's part, of the authority which he has thus allowed him to assume (e). And it makes no difference in such a case, whether the agent acts as if he were the principal, or professes to act as agent (f). But if, on the other hand, the agent is appointed only for a particular purpose, and is invested with limited powers, or, in other words, is a special agent; then it is the duty of persons dealing with such agent, to ascertain the extent of his authority; and the principal or master will not be bound by any act of the agent, not warranted expressly by, or by fair and necessary implication from, the terms of the authority delegated to him (g). Sale of horse. These rules have been illustrated as follows:-If a person keep- Illustrations ing a livery stable, and having a horse to sell, direct his servant of these rules. not to warrant him, still the master will be liable on the servant's warranty, because the latter was acting within the general scope of his authority; and the public cannot be supposed to be cognizant of any private conversation between the master and the servant (h). So the servant of a private owner, who is intrusted with the sale of a horse at a fair or other public mart, would seem to have power to bind his master by warranting the horse; because, in such a case, the usual course of business is, for the person who (e) Russell on Merc. Agency, 2nd ed., P. 62. (d) Duke of Beaufort v. Taylor (1845), 9 Jur. 813, 915, H. L.; Smethurst v. Taylor (1844), 12 M. & W. 546. (e) See Summers v. Solomon (1857), 7 E. & B. 879; Thompson v. Bell (1854), 10 Exch. 10. Wherever one of two innocent persons must suffer by the act of a third, he who has enabled such third person to occasion the loss must sustain it; per Ashurst, J., Lickbarrow (f) Per Buller, J., Fenn v. Harrison (g) Sandeman v. Scurr (1860), L. R., 2 Q. B. 86, 97. (h) Per Ashurst, J., Fenn v. Harrison (1790), 3 T. R. 757; see also Howard v. Sheward (1866), L. R., 2 C. P. 148. Agents. CH. IX. s. 1. is in possession of the horse, to have all the powers of an owner Contracts with in respect of the sale (i). But, except in such a case, the servant of a private owner, intrusted to sell and deliver a horse on one particular occasion, is not by law authorised to bind his master by a warranty; and the buyer who takes a warranty from such an agent, takes it at the risk of being able to prove that he had the principal's authority (k). Purchase of goods on credit. So, if a servant has been allowed by his master to purchase goods upon credit, the latter is answerable for goods bought on credit by that servant, although without his master's authority. "If a man send his servant with ready money to buy goods, and the servant buy upon credit, the master is not chargeable. But if the servant usually buy for the master upon tick, and the servant buy some things without the master's order, yet if the master were trusted by the trader, he is liable" (l). Thus, where the defendant, who was a dealer in iron, and known by the plaintiff to be so, though they had never before had dealings together, sent a waterman to the plaintiff for iron on trust, and paid for it afterwards; and he then sent the man with ready money, but upon this occasion the man received the goods without paying for them; it was ruled, that the sending the man upon trust the first time, amounted to giving him credit, so as to charge the defendant upon a second contract (m). And so, where a tradesman in the country had, in several instances, employed A. B. as his agent, to purchase goods from the plaintiff, a London dealer, on credit it was held that A. B. was thereby constituted the general agent of the country tradesman; and that the latter was liable for goods which A. B. had subsequently bought as from the defendant, but without orders, and had appropriated to his, the agent's, own use (n). But where a servant is supplied by his master with money to pay over to a tradesman, with whom the dealings have always been for ready money, the master is not liable if the servant do not pay the tradesman; because the servant was never authorised to pledge his master's credit (o). So, where the servant has invariably paid the account whenever it amounted to a certain sum, the master is not liable, if the tradesman allow the account to (i) See per Cur., Brady v. Todd (1861), (1) Per Holt, C. J., Anon. (1691), 1 (m) Hazard v. Treadwell (1722), 1 Str. 506. (n) Todd v. Robinson (1825), 1 R. & M. 217; Gilman v. Robinson (1825), id. 226. (0) Rusby v. Scarlett (1803), 5 Esp. 76; per Lord Abinger, C. B., Flemyng v. Hector (1836), 2 M. & W. 172. Agents. remain undischarged, until it amount to a larger sum; for, by so CH. IX. s. 1. doing, he is presumed to give credit to the servant (p). And where Contracts with the master is in the habit of paying ready money, for articles Purchase on furnished in certain quantities to his family; if the tradesman credit-contd. suffer additional articles of the same sort to be delivered at the master's house, without informing the master, or satisfying himself that they were for his use, when in fact they were not, the master is not responsible (q). Where, however, the servant is once authorised to pledge his master's credit, the latter is liable, though he subsequently furnish the servant with money to settle the demand, which he omits to do (r); and the same rules are equally applicable to other cases. Thus, where A. was the owner of a sawmill, and B. was his foreman; and B., as the agent of A., but without any express authority, entered into a contract in writing to supply the plaintiff with a quantity of Scotch fir staves: this contract was held binding on A., inasmuch as B. must be presumed to have had a general authority to enter into such contracts as the one in question (s). brokers are general Factors and brokers are both general agents. And hence, it Factors and follows, that-except in cases where it is known to be usual to limit their authority, although the actual limit may not be agents. known (t)—all contracts made by them in the ordinary course of their employment, without notice by third parties of their private instructions, and without fraud or collusion, are binding on their principals (u). And this is the case, whether the parties with whom they deal have notice of the agency or not (x). or conduct. But, whether the agent be invested with a general or a special When prinauthority, the principal is not bound if the agent's act or contract cipal not bound by do not fall within the general purview or scope of his powers, or agent's act if it be wholly unconnected with the business intrusted to his direction. For instance, a domestic servant, who has never been employed in any other capacity, cannot bind his master by purchasing goods unconnected with domestic use, or by accepting bills of exchange in his master's name. So, a factor has no power, 66. (p) Stubbing v. Heintz (1791), Peake, (9) Pearce v. Rogers (1800), 3 Esp. 214. (r) Wyland's case, 3 Salk. 234; Bolton v. Hildersden (1698), 1 Ld. Raym. 225; S. C. nom. Boulton v. Arlsden, 3 Salk. 234. (8) Kichardson v. Cartwright (1844), 1 C. & K. 328. (1) See Baines v. Ewing (1866), L. R., 1 Ex. 320. (u) Daniel v. Adams (1764), Amb. 495; Petties v. Soame (1590), Goldsb. 138; Pickering v. Busk (1812), 15 East, 38; 13 R. R. 364; Whitehead v. Tuckett (1812), id. 400; 13 R. R. 509. (x) See Factors Act, 1889 (52 & 53 Vict. c. 47), post, p. 266, repealing the previous Factors Acts; the powers conferred by the Factors Act, 1889, are (see sect. 13) in amplification and not in derogation of the factors' common law powers. |