CH. IX. s. 1. must be appointed by deed (2), though, as we shall see presently, this rule has been much broken in upon (a). Contracts with Agents. Parol or im 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. the agent of another except by the will of that other person. His will may be manifested in writing, or orally, or simply by placing another in a situation in which, according to ordinary rules of law, or perhaps it would be more correct to say according to the ordinary usages of mankind, that other is understood to represent and act 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" (b). "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" (c). And when the original relation of agency is 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. 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 (d). And so, where a coachman went in his master's livery, and hired horses in his name, which the master used; it (z) R. v. Biggs (1717), 3 P. Wms. (a) See "Corporations," post, sect. 4. (d) See per Lord Ellenborough, C.J., Pickering v. Busk (1812), 15 East, 88, 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. CH. IX. s. 1. Contracts with Agents. 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 Implied having had any notice, that the coachman hired them on his own authorityaccount, and not for his master (e). So, an authority on the contd. 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 occasions exercised the same authority, and that his principal knew, or had the means of knowing, that fact (f). 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 (g). Agent need not be sui juris. How authority Death. An agent's authority may be determined either1st. By the express revocation thereof by the principal; or by determined. renunciation of the agency on the part of the agent himself (h). 2nd. By the death (i), lunacy (k), or bankruptcy (l), of the principal; or by the lunacy or (except as to formal acts) bankruptcy of the agent (m). 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 (n); or, 4th. By the execution of his commission, whereby the agent becomes functus officio (o). Notice of when neces determination 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 sary. 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 (p). But in the case (e) Rimell v. Sampayo, 1 C. & P. 254. (f) Davidson v. Stanley (1841), 3 Scott, N. R. 49; Prescott v. Flinn (1832), 9 Bing. 19; Pott v. Bevan (1844), 1 C. & K. 335. (g) Co. Litt. 54 a. By the French law, married women and emancipated minors may be agents; Code Civil, Book III., tit. 13, art. 1990. (h) Story on Agency, 2nd ed., Ch. XVIII. (1) Campanari v. Woodburn (1854), 15 C. B. 400. (k) Drew v. Nunn (1879), 4 Q. B. D. 661, C. A.; and see Evans on Agency, 2nd ed., at p. 113. C.C. (1) See Drew v. Nunn (1879), 4 Q. B. D. at p. 665, per Brett, L.J. (m) 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. (0) Per Ellenborough, C.J., Blackburne v. Scholes (1809), 2 Camp. 341. (p) 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. 15 Contracts CH. IX. s. 1. 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 (q). with Agents. Revocation of authoritycontd. When autho rity not revocable. 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 (r); and therefore, in the case of a bank having a branch at Mauritius, to which island there is no telegraph, and the agency of the branch bank and of the persons employed there was revoked by the appointment of a liquidator, such revocation would not operate till the notice actually reached them at Mauritius (s). For, said Lord Blackburn (t), in the House of 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." Nor is the authority given to an agent revocable in all cases at the mere will of the party who conferred it. Thus, it is not in general 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 (u); 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 (x). 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 (y). Cas. 345, at p. 350, citing with approval Freeman v. Cook (1848), 2 Ex. 654. (u) Simpson v. Lamb (1856), 17 C. B. 603, 616. (x) See Loring v. Davis (1886), 32 Ch. D. 625 (Stock Exchange contract). (y) Per Cur., Smart v. Sandars (1848), 5 C. B. 895, 917; per Lord Ellenborough, C.J., Bristow v. Taylor (1817), 2 Stark. 50; 19 R. R. 675. A power of attorney is an authority to one person to act in the stead of another. It is usually given by deed, and must be so given in some cases, but the cases do not bear out a proposition sometimes laid down that it must always be so given (z). CH. IX. s. 1. Contracts with Agents. Powers of attorney. Validity of power of attorney in favour of "purchaser." The Conveyancing Act, 1881, ss. 46 and 47, and the Conveyancing Act, 1882, ss. 8 and 9, may be referred to for details as to the effect “in favour of a purchaser of property." The 8th section of the Act of 1882, which applies only to powers given for valuable consideration, provides amongst other things against revocation by the death, lunacy or bankruptcy of the donee of the power. The 9th section provides (amongst other things) as follows:"(1) If a power of attorney, whether given for valuable con- Irrevocability of power of sideration or not, is in the instrument creating the attorney. 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." Principal not liable without his assent, express or implied. (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 (a); moreover, without such proof, the fraud of the agent in the course of his principal's business and for his principal's benefit (b) is deemed to be the fraud of the principal (c); and the better opinion seems to be, though it has been held otherwise, that a principal concealing a material fact is Fowke. liable for his agent's innocent denial of it (d). But an agent is not personally liable for an innocent misrepresentation (e). 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 agent's be appointed for commercial or domestic purposes (ƒ). Cornfoot v. Rules as to authority. It is necessary and expedient that parties should communicate General and with each other through the medium of third persons; but business special agents. (=) See Bythewood & Jarman, at p. 868. (a) Bac. Abr., Master and Servant (K). (b) Thorne v. Heard, [1895] A. C. 495. See Swire v. Francis (1877), 3 App. Cas. 106. (d) See comments in Pasley v. Freeman (1789), 2 Sm. L. C., 11th ed. at p. 83, on Cornfoot v. Powke (1840), 6 M. & W. 358, which case, however, has never been expressly overruled. 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. (e) Eaglesfield v. Marquis of Londonderry (1878), 26 W. R. 540, H. L. (f) For the rules by which the authority of an agent will be construed, see Contracts with Agents. Extent of authoritycontd. CH. IX. s. 1. would be impeded if it were requisite on all occasions that the public before dealing with the agent should consult the principal. And accordingly the liability of the latter mainly depends, not on the instructions which he may have given to the agent, but on the question whether the agent was a general or special agent. If a servant or agent be accredited and invested by his master with authority to act for him in all his business of a particular kind; 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 (g); 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 (h). 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 (i). 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 (k). But if 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 (1). Illustrations of these rules. Sale of horse. These rules have been illustrated as follows:-If a person keeping a livery stable, and having a horse to sell, direct his servant 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 (m). So the servant of a private owner, who is entrusted 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, Evans on Agency, 2nd ed., pp. 117 et seq. (g) Russell on Merc. Agency, 2nd ed., p. 62. (h) Duke of Beaufort v. Taylor (1845), 9 Jur. 813, 915, H. L.; Smethurst v. Taylor (1844), 12 M. & W. 546. (i) 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., in Lickbarrow v. Mason (1787), 1 Sm. L. C., 2 T. R. 63, 70. (k) Per Buller, J., Fenn v. Harrison (1790), 3 T. R. 757; East India Company v. Hensley (1794), 1 Esp. 111. (1) Sandeman v. Scurr (1860), L. R., 2 Q. B. 86, 97. (m) Per Ashurst, J., in Fenn v. Harrison (1790), 3 T. R. 757; see also Howard v. Sheward (1866), L. R., 2 C. P. 148. |