Nor does he incur any risk or liability, except for torts, so long as he keeps within his powers; but the moment he exceeds his powers he becomes personally responsible, both to the principal and to third persons. If limited by special instructions, therefore, he must adhere strictly to them; if not, he is to be governed by the established uses of his employment. (a) By the mere acceptance of the agency, he binds himself to the principal, for sufficient skill and diligence to execute it well; and if a loss arise for the want of either, he is therefore liable for it. (b) In dealing with third persons, he should disclose the fact of being an agent, or he will be held personally responsible to them; and in making written contracts, he must take care so to frame them as to bind his principal only and not himself; otherwise, though his agency appear, he will be personally liable. (c) Finally, an agent is personally responsible for all those injuries which the law denominates trespasses or torts, though done as agent and by order of the principal; for the law will recognize no authority to do wrong, as an excuse for doing it. (d)

§ 117. Liability of Principal. (e) The general liability of the

(a) The necessities of maritime life give the masters of vessels peculiar powers to bind the owners under special emergencies. The master has power in a foreign port, in case of necessity, to hypothecate the vessel and to bind the owners personally for repairs and supplies, and he may bind the vessel by a loan for that purpose, but the party furnishing the supplies or repairs, or lending the money, must see to it that such a necessity apparently exists. Thomas v. Osborn, 19 How. 22. In cases of absolute necessity, the master may sell both vessel and cargo. Post v. Jones, id. 150. Contracts of affreightment entered into with the master in good faith and within the scope of his apparent authority, bind the vessel, whether the master be in the employ of the general owner or of a party to whom the entire control and management of the vessel have been committed under a contract. Freeman v. Buckingham, 18 How.

182.

(b) If his services are gratuitously rendered, he is liable for gross negligence. Grant . Ludlow, 8 Ohio State, 1. But where a gratuitous agent begins to execute the work that he has undertaken, and does it negligently, he is liable in damages for ordinary negligence. Vickery v. Lanier, 1 Met. (Ky.) 133.

(c) See 2 Kent, Com. 830 (7th ed.), notes. The principal may maintain an action in his own name on a written contract made by the agent in the agent's name, but in behalf of the principal, the agent not disclosing to the third party the fact that he was so acting. Ford v. Williams, 21 How. 287. Story in his work on Agency, § 268290, lays it down as a presumption of law that where an agent contracts for a foreign principal, the credit is given to the agent. Kent differs from him. The rule in England is now settled to be, that in every case it is a question of fact to whom the credit was really given. This is said, however, not to shake Addison v. Gandasequi. Mahoney v. Kakulé, 14 C. B. 390; Green v. Kopke, 18 C. B. 549; Crandell v. James, 6 R. I. 144. The maker of a note signed "Edw'd K. Collins, Agent," is personally liable, though his agency and his principal are known to the payee. Collins v. Buckeye Ins. Co. 17 Ohio St. 215. But in England it is held that where an agent appears on the face of the contract to be acting as agent, he is not generally liable personally on the contract; though evidence of a custom in a special trade that he shall be so liable, is admissible. Fleet v. Murton, L. R. 7 Q. B. 126.

(d) If a horse is let to A. and delivered to B. on A.'s credit, and B. with A.'s assent and aid, who is driving another horse alongside, drives him to death, both A. and B. are jointly liable to the owner. Banfield v. Whipple, 10 Allen, 27.

(e) It is not always an easy question to determine whether the relation of master and servant exists between the employer and the employed, so as to render the former liable for the acts of the latter. According to recent English authorities, a principal contractor is not liable for damage occasioned by the negligence or wrongful act of his sub-contractor, although acting in the course of his employment. Knight v. Fox, 1 Eng. Law & Eq. 477; Peachey v. Rowland, 16 id. 442, and notes. In this country,

principal depends upon the maxim, that the acts of his agent are his own acts qui facit per alium facit per se. Hence the principal is personally responsible for whatever his agent does, in the regular course of his employment, including both contracts and torts; (a) and this extends to all sub-agents, when the first agent

there is some variety of opinion on the question. Stone v. Codman, 15 Pick. 297; Wiswall v. Bronson, 10 Iredell, 554; Blake v. Ferris, 1 Selden (N. Y.), 48; Lloyd v. New York, 1 Selden, 369; Stevens v. Armstrong, 2 id. 435. The English rule is now established in this country. Carman v. Steubenville and Indiana R. R. Co. 4 Ohio State, 399; Clark v. Fry, 8 id. 358; Hilliard v. Richardson, 3 Gray, 349; Pierce on American Railroad Law, pp. 235-42. But the principal contractor is liable if he authorized or co-operated in the injurious act. Carman v. Steubenville R. R. Co. 4 Ohio State, 399; Cincinnati v. Stone, 5 id. 38; Clark v. Fry, 8 id. 358. It is held that a master is not answerable to one of his servants for an injury received by him in consequence of the carelessness of another servant, while both are engaged in the same business. Priestley v. Fowler, 3 M. & W. 1; Farwell v. Boston and Worcester R. R. 4 Met. 49; IIayes v. Western R. R. Corp. 3 Cush. 270; Ryan v. Cumberland Valley R. R. Co. 23 Penn. State, 384; Coon v. Utica and Syracuse R. R. Co. 1 Selden, 492; 8. c. 6 Barb. 231; Whaalan v. Mad River and Lake Erie R. R. Co. 8 Ohio State, 249; Horner v. Illinois Central R. R. Co. 15 Ill. 550; King e. Boston and Worcester R. R. Co. 9 Cush. 112. Pierce on American Railroad Law, ch. xiii. pp. 286-310. Durgin v. Munson, 9 Allen, 396. It is held in Ohio, that this rule does not apply where the servant who is injured holds a subordinate position to the person through whose negligence the injury was done. Little Miami R. R. Co. v. Stevens, 20 Ohio, 415; C. C. & C. R. R. Co. v. Keary, 3 Ohio State, 201; Timmons v. Central R. R. Co. 6 id. 105; Haynes v. East Tenn. & Ga. R. R. Co. 3 Coldwell, 222; Louisville & Nash. R. R. Co. v. Collins, 2 Duvall, 114. When employees are to be regarded as fellow-servants, and when as subordinates, see Manville v. C. & T. R. R. Co. 11 Ohio State, 417; Col. & X. R. R. Co. v. Webb's Adm. 12 Ohio State, 475; Pittsburg, Ft W. & C. R. R. Co. v. Devinney, 17 Ohio State, 197. But the rule is undoubtedly different in England, and most of the United States. Albro v. Agawam Canal Co. 6 Cush. 75. But the principal will be liable if the injury resulted from his negligence or misconduct either in the act which caused the injury, or in the selection and employment of the agent by whose fault it was occasioned, or in providing improper machinery. Keegan v. Western R. R. Co. 4 Selden, 175; McGatrick v. Wason, 4 Ohio State, 566; Carman v. Steubenville R. R. Co. id. 399; Mad River and Lake Erie R. R. Co. v. Barber, 5 id. 541. The negligence of the plaintiff, contributing to the injury, will bar recovery. Timmons v. Central Ohio R. R. Co. 6 Ohio State, 105. One servant is not liable to an action by another servant in the employment of the same master for damages occasioned by the negligence of the first in such employment. Albro v. Jaquith, 4 Gray, 99.

(a) The principal is liable on a contract made by the agent within the scope of his authority, though the other party dealt solely with the agent, and did not know at the time that he was acting as agent. But where in such a case the principal in good faith settles with the agent, the third party still trusting to the agent alone, this liability ceases. Armstrong v. Stokes, L. R. 7 Q. B. 610. Where an agent acting within the scope of his authority perpetrates a fraud for the benefit of his principal, and the latter receives the fruits of it, he is liable as if for his own wrong. Smith v. Tracy, 36 N. Y. 79. A principal is not criminally responsible for the acts of his agent, done without his authority, knowledge, or consent. State v. Bacon, 40 Vt. 456. The master is liable, though the act be contrary to instructions, if it is done by the employee to accomplish something that he thinks best for the interest of his master. But if the act be done to effect a purpose of the servant, without reference to the master's interest, the master is not liable. Limpers v. London, &c., Co. 1 Hurl. & Colt. 526. But a railroad company is not liable for injuries inflicted upon a passenger by a baggage master with a batchet furnished him for use in the performance of his duties, such injuries being inflicted to gratify his own personal resentment in the course of a quarrel provoked by the importunate behavior and abusive language of the passenger, though the quarrel arose during the performance by the servant of the duties he was employed to perform. Little Miami R. R. Co. v. Wetmore, 19 Ohio St. 111. But where the act done is in the course of his employment, and a person is injured thereby, the motive or intention of the servant in doing the act will not discharge the master. So a conductor, being clothed with the implied authority to determine who shall be admitted, and who excluded, the company will be respon

has express power to appoint them; but the liability of the principal is confined to acts done within the scope of the agency; for to that extent only does he undertake with the public; and beyond that they have no right to confide in the agent. (a) Hence it is incumbent on those who deal with agents, knowing them to be such, to ascertain the extent of their authority; whether it be general or special, express or implied; for beyond this authority they cannot look to the principal. There is, however, this distinction between a general and special agency, in respect to binding the principal. A special agent, who exceeds his authority, in no case binds his principal; but a general agent, though he act contrary to private instructions, will bind his principal, if the act done were within the general scope of the agency, and the person dealt with did not know of the private instructions. (b) What is the general scope of the agency, must be determined by the custom of the business. (c) And it is well settled that no general agency to sell will authorize the agent to pledge or barter. (d) The chief difficulty in determining the liability of the principal arises in those cases where the agency is inferred from mere employment; as where a common servant, for example, obtains money or goods in the name of his master. In all such cases, the rule is, that if the principal receives the benefit of the agency, he is responsible for the consequences; and if he does not receive the benefit of it, in this particular case, yet if he has before recognized the authority of the agent, and has not countermanded it, or if he has done anything amounting to a subsequent ratification, he is held responsible. (e)

sible for the wrongful exercise of the power, whatever the motive. The intent can only be looked at, where the nature of the act is such as to render it doubtful whether it is within the scope of the servant's employment or not. Passenger R. R. Co. v. Young, 21 Ohio St. 518. Where a travelling agent of a firm, employed to solicit orders for goods, without particular orders as to route and travel, hires a buggy at a livery stable, for use in the prosecution of his agency, without disclosing his employers, and through his negligence some damage is caused, he is the servant of the firm in the transaction, and it will be liable for such damage. Pickens and Blummer v. Diecker and Bro. 21 Ohio St. 212. A principal, whether a corporation or an individual may be subjected to exemplary or punitive damages for the tortious acts of agents or servants, when done within the scope of their employment, in all cases where natural persons, acting for themselves, if guilty of like tortious acts, would be liable to such damages. Atlantic & G. W. R. Co. v. Dunn, 19 Ohio St. 162; Baltimore and Ohio R. R. Co. v. Blocher, 27 Md. 277; Jeffersonville R. R. Co. v. Rogers, 28

Ind. 1.

(a) Simons v. Monier, 29 Barb. 420; Henshaw v. Noble, 7 Ohio State, 231. As to the liability of a railroad corporation for injuries to third parties by their agents, see C. C. & C. R. R. Co. v. Terry, 8 Ohio State, 570.

(b) Williams v. Getty, 31 Penn. State, 461; Smith v. Maguire, 3 Hurl. & Nor. 554; Baltimore v. Esclebuck, 18 Md. 276.

(c) Layet v. Gano, 17 Ohio, 473; Lobdell v. Baker, 1 Met. 201-3; Story on Agency, $17-22. And private instructions to a special agent which are not made known, or designed to be made known, to persons dealing with him, do not limit the liability of the principal. Hatch v. Taylor, 10 N. H. 538. Parties dealing with a special agent are generally chargeable with notice of the extent of his authority. White v. Langdon, 30 Vt. 599; Black v. Shreeve, 2 Beasley, 455.

(d) Guerreiro v. Peile, 3 B. & Ald. 616; Stevens v. Wilson, 6 Hill, 513. An agent to sell cannot warrant without express authority, unless the article is one the sale of which is usually attended with such warranty. Smith ». Tracy, 36 N. Y.

79.

(e) Paley on Agency, 161-71. A ratification of an unauthorized contract, in

§ 118. Termination of the Agency. The appointment of an agent is revocable at any moment by the principal, unless, for a valuable consideration, the agent has acquired a vested and permanent interest in the continuation of the agency. Such powers are called powers coupled with an interest; and they are not revocable at pleasure. A familiar instance is that of a power of attorney in a mortgage, to sell the land on default of payment, which will be described hereafter. Such a power would be of no value, if revocable at pleasure; and therefore it is not so held; but all powers not coupled with an interest are revocable at pleasure; (a) and with respect to the manner of revocation, the rule is, that if the appointment was made under seal, the revocation must be under seal; otherwise it may be either in writing or oral. But until notice of such revocation, the acts of the agent will bind the principal. The death of the principal, however, works a revocation from the moment it takes place; although notice of the fact be not received until some time after: and this severe rule makes it hazardous to deal with an agent whose principal lives at a distance. (b) It would perhaps be well to alter this rule, by express provision, so as to make the law uniform, that no power should be considered as revoked, by death or otherwise, with respect to any third person, who had previously dealt with the agent, until notice of such revocation. So the death of the agent terminates the agency, because the law does not transfer such a trust to his personal representatives. So lunacy of the principal, when ascertained by inquest, revokes the agency, (c) and, in most cases, his bankruptcy would

order to be obligatory, must be shown to have been made with a full knowledge of all essential facts connected with the transaction. Dickinson v. Conway, 12 Allen, 487; Humphrey v. Havens, 12 Minn. 298. It makes no difference that the ignorance arose solely from the neglect of the principal to make inquiries. Coombs v. Scott, 12 Allen, 493.

(a) If the power is given for a valuable consideration, it is irrevocable by the principal during his life. Walsh v. Whitcomb, 2 Esp. 565; Gaussen v. Morton, 10 B. & C. 731; Wheeler v. Knaggs, 8 Ohio, 169. But the interest, which will enable the power to survive the death of the principal, must be an interest in the subject on which the power is to be exercised, and not merely an interest in that which is produced by the exercise of the power. The power must pass with the power, and vest in the person by whom the power is to be exercised, so that he can act in his own name. Hunt v. Rousmanier, 8 Wheaton, 201; Bergen v. Bennett, 1 Caines' Cas. 1; Knapp v. Alvord, 10 Paige, 295. Hartley's Appeal, 53 Penn. St. 212; Barr ε. Schroeder, 32 Cal. 609.

(b) 2 Kent, Com. 646. Michigan Ins. Co. v. Leavenworth, 30 Vt. 11; Saltmarsh v. Smith, 32 Ala. 404; Travers v. Crane, 15 Cal. 12; Lewis v. Kerr, 17 Iowa, 73; Bank of New York v. Vanderhorst, 32 N. Y. 553. Easton v. Ellis, 1 Handy (Cincinnati), 70. The rule, that the death of the principal operates as a revocation of the agency, is fully discussed in Ish v. Crane, 8 Ohio State, 520; reaffirmed 13 Ohio State, 574, and it is held not to apply to acts of an agent not necessary to be done in the name of the principal, as matters in pais and done in good faith without the knowledge of the principal's decease. See also Cassiday v. McKinzie, 4 Watts & Serg. 282; Dick v. Page, 17 Mo. 234.

(c) But see Davis v. Lane, 10 N. H. 156, where it is held not to revoke the authority to the damage of innocent parties dealing with the agent. In Bunce v. Gallagher, 7 Am. L. Reg. (N. 8.), the court held that the insanity of the principal revoked the agency as soon as it became known to the agent, whether it was ascertained by inquest or not.

nave the same effect. (a) So the marriage of a woman revokes an agency created by her when single. (b)

I have heretofore spoken of the relation of master and servant, as one of the domestic relations; but the view now presented shows that it belongs more properly to the business relations. It has, in fact, very little to do with domestics, or domestic life; and here again we have a strong illustration of the growing policy of non-interference. Our law wisely abstains from attempting to regulate the relation of master and servant, strictly so called, except where the servant is a minor, and incapable of contracting for himself. What a contrast is here presented to the laws of England, which leave hardly any thing to the discretion of the employer and the employed! There is manifestly no more reason for providing by law what wages shall be paid, and how many hours servants shall work, and how long the contract shall continue, than there would be in prescribing what dress each person shall wear, by what title he shall be called, and how much money he shall expend. Such laws have, in fact, been tolerated in former times; and perhaps some relics of them may even now be found in England, under the name of sumptuary laws. But who does not feel that personal liberty must be a mere name, where all the most common affairs and relations of life are thus imperatively prescribed by law? I must be pardoned for recurring so often to this topic; for we cannot fully appreciate the value of our freedom, until we contemplate it in the absence of those vexatious details of municipal regulation, which have been elsewhere endured.

LECTURE XVIII.

EXECUTORS AND ADMINISTRATORS. (c)

§ 119. Who may Appoint and be Appointed. The relations we have been considering are those which exist among the living. We are now to consider one which results from death. When a person dies, there must be some one authorized to settle up his affairs. The law permits the living to designate who shall perform this office for them. This is done by making a will or testament, to take effect after death; the nature of which instrument will be explained hereafter. The deceased is then called testator, and the person so nominated to settle his affairs, executor. But if the liv

(a) Parker v. Smith, 16 East, 382; Minet v. Forrester, 4 Taunt. 541. (b) Charnly v. Winstanley, 5 East, 266.

(c) See Kent, Com. lec. 37; 2 Black. Com. ch. 32; Treatises on Executors by Wentworth, Williams, and Toller; Robertson on Personal Succession; Roper on Legacies; and the treatises of Jarman, Roberts, and Ram, on Wills. Redfield on Wills.