Lapas attēli
PDF
ePub

Agents, therefore, are appointed not by the association but by its members. Individual members may be made agents by the constitution or by-laws or they may be appointed by vote. Ordinarily an absent member is not bound by the contracts of his members, but one who wishes to avoid liability under a contract created by a motion adopted at a meeting at which he is present should have his dissent recorded. Failure to observe this precaution may be construed by the courts into an acquiescence in the decision of the majority. The general rule is, however, that a majority does not represent the minority. If one signs a constitution that provides that all the members shall be bound by the will of the majority, he will be liable for any action taken by the majority within the scope of their power as provided in the constitution.

337. Delegation of powers by agent.—An agent cannot delegate any of his powers, the exercise of which requires judgment, skill or discretion, unless he is given special authority. When given power to appoint agents his appointees become, not his own agents, but the agents of his principal, for whose acts the principal is directly responsible. Where mere clerical or mechanical work is involved in an agency it may be intrusted to a sub-agent for whose acts and omissions the agent will be responsible to his principal.

338. Who may be agent.-A principal may appoint any person as agent, and will be responsible for his acts performed within the scope of his authority irrespective of the agent's competency. An infant, a married woman, an insane person, a partnership or a corporation may be given power to bind a principal. Where two or more persons are appointed they are ordinarily bound to act jointly unless they constitute a partnership. A board

of directors of an agent corporation has power to bind its principal by the decision of a majority of its board of directors.

339. Methods of appointment.-An agency may be created in any one of four ways: (1) by express contract, (2) by ratification, (3) by estoppel, or (4) by necessity. So, too, an agent with certain powers may have his authority extended in any one of these four

ways.

340. Agency by express agreement.-An express agreement appointing an agent ordinarily may be oral or in writing. In some states the statute of frauds requires that if the contract by which an agent seeks to bind his principal must be in writing, the agent's authority must also be evidenced by a writing signed by the principal. This, however, is not the general rule. Where an agency is created to exist for a period of more than one year, the agent or the principal may terminate the relation at any time unless the contract is in writing signed by each party seeking to hold the other. But this provision of the statute of frauds will not operate to relieve a principal from his obligations to a third party where the agent creates the obligations while acting under an oral contract that would be unenforcible as between the principal and the agent. Where a contract is required to be under seal, the agent must receive his authority to make the contract by a document under seal. However, an agent may affix his principal's seal to a contract in his presence and with his consent. A sealed and acknowledged document by which an agent is appointed is called a "Power of Attorney," and the agent thus appointed is called an "Attorney in Fact."

Know all Men by these Presents, That I, Thomas Deeg, unmarried, of the Borough of Manhattan, City, County, and

State of New York, have made, constituted and appointed, and by these presents do make, constitute and appoint Lester King, of the Borough and County of Queens, City and State of New York, my true and lawful attorney for me and in my name, place and stead to grant, bargain and sell the two lots of land situated at Rockaway Beach, Borough and County of Queens, City and State of New York, known as lots Nos. 12 (twelve) and 13 (thirteen) upon a certain map entitled "Map of Lots at Rockaway Beach, Long Island, N. Y.," made by George Robinson, Surveyor, dated March 15, 1886, which map was filed in the office of the Clerk of the County of Queens, on March 31, 1886, or any part thereof, for such price, and on such terms, as he shall think fit, and for me, and in my name, to make, execute, acknowledge, and deliver good and sufficient deeds and conveyances for the same whether with or without covenants and warranty, giving and granting unto my said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully, to all intents and purposes, as I might or could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that my said attorney himself or his substitute shall lawfully do or cause to be done by virtue hereof.

In Witness whereof, I have hereunto set my hand and seal the twenty-first day of November in the year one thousand nine hundred and ten.

[blocks in formation]

Be it Known, That on the twenty-first day of November in the year one thousand nine hundred and ten, before me, Thomas Williamson, a Notary Public in and for the State of New York,

Kings County, duly commissioned and sworn, dwelling in the County of Kings, City and State of New York, personally came and appeared before me THOMAS DEEG to me personally known, and known to me to be the same person described in and who executed the within Power of Attorney, and he therewith duly acknowledged the within Power of Attorney to be his act and deed, for the purpose therein mentioned.

In Testimony Whereof, I have hereunto subscribed my name and affixed my seal of office, the day and year last above written. THOMAS WILLIAMSON, Notary Public, Kings County. Certificate filed in N. Y. Co. [SEAL]

341. Destruction of powers of agent.-An agent's power or competency to represent his principal may be destroyed by special circumstances. Thus, where an agent in acting for his principal acts against his own interest, the agency is void as to himself but not as to third persons who deal with him in good faith. An agent's acts done in collusion with third persons are void as to those persons. Ordinarily one person cannot act as the agent for another contracting party to sign the memorandum required by the statute of frauds, but an auctioneer may act as agent for both parties for this purpose if he signs at the time of the sale.

342. Ratification.-Ratification consists in the adoption by one person of a contract made on his behalf by another without authority. Ratification may bind one to the act of a total stranger or to the act of an agent who has exceeded his authority. Certain rules may be formulated which govern the ratification of the contracts of a would-be agent. He must have acted on behalf of an existing and ascertainable principal and not on his own account; the contract must be lawful and one which the principal had the legal capacity to make

at the time. A contract can be ratified in whole and not in part and only after the principal is actually or constructively acquainted with all the material facts. A contract under seal cannot be ratified except under seal, and in general whenever a particular form is required by statute for the appointment of an agent, the same form must be observed in ratifying his acts.

EXAMPLES

320. A notifies X that P wants a polo pony and tells X to send one to P and then notifies P that he has bought a pony for him at a certain price. When the pony arrives P refuses to take him. He is under no liability. If, on the other hand, P accepts the pony and when demand is made for payment refuses to pay and offers to return the pony, X would be justified in refusing to receive it. P would be bound by his ratification of A's contract.

321. P engages A as a cloak and suit buyer. X, a cloak salesman, calls on A and during the course of the conversation tells A that he has recently bought some store fixtures that he will sell cheap. A says that P will buy them and directs X to ship them to P's store. When P hears of the contract he may either reject or ratify it. If he rejects it he will not be bound for A has no authority to bind him in the purchase of anything but cloaks and suits. If he retains the property for an unreasonable time without notifying X to remove it, or if he uses it he will be bound by his implied ratification.

322. A, a promoter, makes a contract for the P corporation which he is about to organize. The P corporation cannot ratify this contract. The courts, however, usually give effect to an attempted ratification by treating it as an acceptance of the third party's offer. The effect of this distinction is that the contract operates from the time of the attempted ratification and not, as in the true case of ratification, from the time it was made by the agent.

323. A purchases four diamonds from X on behalf of P

« iepriekšējāTurpināt »