LECTURE XLL OF PRINCIPAL AND AGENT. THE law of principal and agent is of constant application in the commercial world, and the rights and duties which belong to that relation ought to be accurately, as well as universally understood. And while recommending that title to the attention of the student, as well as of the practising lawyer, I will give a summary view of those general principles which apply at large to every branch of the subject, and more especially to agencies that relate to commercial concerns. I. Agency, how constituted. Agency is founded upon a contract, either express or implied, by which one of the parties confides to the other the management of some business, to be transacted in his name, or on his account, and by which the other assumes to do the business, and to render an account of it. The authority of the agent may be created by deed or writing, or verbally without writing; and, for the ordinary purposes of business and commerce, the latter is sufficient. (a) Though the statute of frauds of 29 *613 Charles II. *requires, in certain cases, a contract for the sale of goods to be in writing, and signed by the party to be charged, or by his authorized agent, the authority to the agent need not be in writing. It may be parol. (b) The agency (a) Chitty on Commercial Law, vol. iii. p. 104. Lord Eldon, 9 Ves. 250. Stackpole v. Arnold, 11 Mass. Rep. 27. Long v. Colburn, ibid. 97. Northampton Bank v. Pepoon, ibid. 288. Ewing v. Tees, 1 Binney's R. 450. Shaw v. Nudd, 8 Pick. Rep. 9. Turnbull & Phyfe v. Trout, 1 Hall's N. Y. Rep. 336. M'Comb v. Wright, 4 Johns. Ch. Rep. 667. (b) Rucker v. Cammeyer, 1 Esp. N. P. Rep. 105. Chitty on Contracts, 213. Lord Eldon, in Coles v. Trecothick, 9 Vesey, 250. may be inferred from the relation of the parties and the * nature of the employment, without proof of any express 614 appointment. (a) It is sufficient that there be satisfactory evidence of the fact that the principal employed the agent, and that the agent undertook the trust. The extent of the authority of an agent will sometimes be extended or varied on the ground of implied authority, according to the pressure of circumstances connected with the business with which he is intrusted. (b) The statute of frauds does not require that the authority of the agent contracting even for the sale of land, should be in writing. (c) But if the agent is to convey or complete the conveyance of real estate or any interest in land, or to make livery of seisin, the appointment must be in writing; (d) and where the conveyance of any act is required to be by deed, the authority to the attorney to execute it must be commensurate in point of solemnity, and be by deed also. (e) 1 The agency must be antecedently given, or be subsequently adopted; and in the latter case, there must be some act of recognition. But an acquiescence in the assumed agency (a) Whitehead v. Tuckett, 15 East's Rep. 400. Hooe v. Oxley, 1 Wash. Va. Rep. 19. Long v. Colburn, ub. sup. (b) Judson v. Sturges, 5 Day's Rep. 556. (c) Clinan v. Cooke, 1 Sch. & Lef. 27, 31. Barry v. Lord Barrymore, cited in 1 Sch. & Lef. 28. McWhorter v. McMahan, 10 Paige, 394. But in Louisiana, it is settled that an agency to purchase real estate cannot be established by parol. Breed v. Guay, 10 Robinson's Rep. 35. (d) The statute of frauds, on this point, was adopted verbatim in the first revision of the laws of New York, (sess. 10, ch. 44,) and the provision was continued in the N. Y. Revised Statutes, vol. ii. p. 134, sec. 6. Cooper v. Ran- (e) Co. Litt. 52 a. Horsley v. Rush, cited in 7 Term Rep. 209. kin, 5 Binney's Rep. 613. Plummer v. Russell, 2 Bibb's R. 174. Mass. Rep. 40. Shamburger v. Kennedy, 1 Dev. Rep. 1. Mellen, Ch. J., in 2 Greenleaf's Rep. 260. Blood v. Goodrich, 9 Wendell's Rep. 68. Delius v. Cawthorn, 2 Dev. N. C. Rep. 90. Toomer, J., ibid. 153. Gibson, J., 6 Serg. & Rawle, 331. Davenport v. Sleight, 2 Dev. & Battle, 381. Paley on Agency, by Lloyd, 158–160. 1 Where a statute prescribes the formalities requisite for making a deed, a power to make such deed must be executed with the same formalities. Thus, where a conveyance of land must have two witnesses, a power to convey with only one witness is not good. Gage v. Gage, 10 Fost. 420. See also Clark v. Graham, 6 Wheat. 577. If the agent, authorized by parol, executes a sealed instrument, the agreement binds the principal as a simple conWorrall v. Munn, 1 Selden R. 229. Wood v. A. & R. R. R. Co. 4 Seld. 160. Crozier v. Carr, 11 Tex. 376. Contra, Wheeler v. Nevins, 34 Me. 54. tract. of another, when the acts of the agent are brought to the knowledge of the principal, is equivalent to an express authority. By permitting another to hold himself out to the world as his agent, the principal adopts his acts, and will be held bound to the person who gives credit thereafter to the other, in the capacity of his agent. Thus, where a person sent his servant to a shopkeeper for goods upon credit, and paid for them afterwards, and sent the same servant again to the same place for goods, and with money to pay for them, and the servant received the goods, but em* 615 bezzled the cash, the master was held answerable for the goods; for he had given credit to his servant by 1 By adopting the act of a person who assumed to act in his behalf, the principal will make himself liable, as though he had actual knowledge of facts which were within the knowledge of the agent, at the time of doing the act. Hovey v. Blanchard, 13 N. Hamp. R. 145. But a ratification of the act of the agent, in ignorance of his misconduct, will not, as to the agent, be binding upon the principal. Hays v. Stone, 7 Hill's N. Y. R. 132. Owings v. Hull, 9 Pet. R. 608. Paley on Agency, Dunlap's ed. p. 171, n. (o.) An act done for another, by a person not assuming to act for himself, but for such other person, though without any precedent authority, becomes the act of the principal, if subsequently ratified by him. Wilson v. Tumman, 6 M. & G. R. 242. But where A. does act as an agent of B., without any communication with C., a subsequent ratification by C. does not make A. his agent. Id. The act, it would seem, cannot be ratified unless it was done in the name of the person ratifying. The principle is concisely expressed by the learned editors of the last report, in the quotation of the latin maxim, Ratum quis habere non potest, quod ipsius nomine non est gestum. If the act of the agent is in itself unlawful and directly injurious to another, no subsequent ratification will operate to make the principal a trespasser. 2 Greenl. Ev. § 68. Ratification of a person's unauthorized acts will not be permitted to defeat the rights of third persons, which have accrued in the mean time. Accordingly, it has been held, that a consignor of goods, after this transitus was ended, could not, by adopting the act of one who had claimed the goods for him in transitu, entitle himself to the goods. In delivering the opinion of the court, Pollock, C. B., said, "the act of ratification must take place at a time and under circumstances where the ratifying party might himself have lawfully done the act ratified." Bird v. Brown, 19 Eng. Law Journal R. 1850. So, where a notice to quit was such that the tenant must act upon it at the time, a subsequent ratification will not make it good by relation. Right v. Cuthell, 5 East R. 491. Doe v. Goldwin, 2 Ald. & El. N. S. 143. So the holder of a dishonored bill cannot adopt a notice given by a stranger. Story on Promissory Notes, § 301. A general agent has no authority to order or ratify a wilful trespass on the part of a subagent, so as to subject his principal to liability. Vanderbilt v. The Richmond Turnpike Co. 2 Comst. R. 479, 482. The principal must ratify the entire doings of one who acted for him, or repudiate the whole. Farmers' Loan Co. v. Walworth, 1 Comst. R. 447. Story on Agency, § 250. Hovey v. Blanchard, 13 N. H. R. 145. It seems, that the act of a public officer, exceeding the authority conferred on him by law, may be adopted by the party for whose benefit it was done. 1 Comst. R. 444, supra. adopting his former act. (a) So, where a broker had usually signed policies of insurance for another person, or an agent was in the habit of drawing bills on another, the authority was implied from the fact that the principal had assumed and ratified the acts; and he was held bound by a repetition of such acts, where there was no proof of notice of any revocation of the power, or of collusion between a third party and the agent. (b)1 It is the prior conduct of the principal that affords just ground to infer a continuance of the agency in that particular business; and the rule is founded on obvious principles of justice and policy. It was familiar to the Roman law, (c) and is equally so in the law of modern Europe, and the jurisprudence of this country. (d) Emerigon states an interesting case within his experience, of the presumption of ratification of an act, from omission in due season to dissent from it. A merchant of Palermo wrote to a house at Marseilles, that he had shipped goods consigned to them, to be sold on his account. The ship being out of time, the consignees at Marseilles caused the cargo to be insured on account of their friend at Palermo, and gave him advice of it. He received the letter, and made no reply, and the vessel arriving safe, he refused to account for the premium paid by the consignees, under the pretence they had insured without orders. But the reception of the letter, and the subsequent silence, were deemed by the law-merchant equivalent to a ratification of the act. At this day, and * with *616 us, the authority would be implied from the duty of the (a) Hazard v. Treadwell, 1 Str. Rep. 506. Rusby v. Scarlett, 5 Esp. R. 76. Todd v. Robinson, Ryan & Moody's Rep. 217. (b) Neal v. Erving, 1 Esp. Rep. 61. Hooe v. Oxley, 1 Wash. (Va.) Rep. 19. So also, if a confidential clerk had been accustomed to draw checks for his principal, and had occasionally been permitted to indorse for him, the jury would be warranted to infer a general authority to indorse. Prescott v. Flinn, 9 Bing. Rep. 19. (c) Dig. 17, 1, 6, 2. Ibid. 50, 17, 60. (d) Emerigon, Traité des Assurances, tom. i. p. 144. Nickson v. Brohan, 10 Mod. Rep. 109. Williams v. Mitchell, 17 Mass. Rep. 98. Bryan v. Jackson, 4 Conn. R. 288. 1 So where the defendant had permitted goods to be delivered at two different places, by the plaintiff, on his credit, to a woman with whom he cohabited, and the plaintiff delivered goods at a third place, the defendant was held liable. Ryan v. Sams, 12 Jurist R. 745, 1848. consignee, without the aid of the subsequent silence, provided the previous course of dealing between the parties had been such as to warrant the expectation. (a) The ground taken at Marseilles was undoubtedly sufficient; and it is a very clear and salutary rule in relation to agencies, that where the principal, with knowledge of all the facts, adopts or acquiesces in the acts done under an assumed agency, he cannot be heard afterwards to impeach them, under the pretence that they were done without authority, or even contrary to instructions. Omnis rati habitio mandato æquiparatur. When the principal is informed of what has been done, he must dissent, and give notice of it in a reasonable time; and if he does not, his assent and ratification will be presumed. (b) Semper qui non prohibet pro se intervenire, mandare creditur. Procurator qui recepit literas mandati, et statim non contradixit, videtur acceptare mandatum.' The Roman law would oblige a person to indemnify an assumed agent, acting without authority, and without any assent or acquiescence given to the act, provided it was an act necessary and useful at its commencement. (c) But the English law (a) Buller, J., in Wallace v. Tellfair, 2 Term Rep. 188 n. ibid. Smith v. Lascelles, (b) Dig. 14, 6, 16. Dig. 46, 3, 12, 4. Dig. 50, 17, 60. Towle v. Stevenson, 1 Johns. Cas. 110. Cairnes & Lord v. Bleecker, 12 Johns. Rep. 300. Erick v. Johnson, 6 Mass. Rep. 193. Frothingham v. Haley, 3 ibid. 70. Clement v. Jones, 12 ibid. 60. Shaw v. Nudd, 8 Pick. Rep. 9. Merlin, Questions de Droit, vol. i. p. 482. Verbo, Compte Courant, sec. 1. Pitts v. Shubert, 11 Louis. Rep. 286. Flower v. Jones, 7 Martin, N. S. 143. (c) Dig. 3, 5, 45. Ibid. 3, 5, 10, 1. The negotiorum gestio, according to the civilans, is a species of spontaneous agency, or an interference by one in the affairs of another, in his absence, from benevolence or friendship, and without authority. The negotiorum gestor acquires no right of property by means of the interference, and he is strictly bound, not only to good faith, but to ordinary care and diligence; and in some cases he is held responsible for the slightest neglect. Jones on Bailment, 37. 1 Bell's Com. 269. Pothier, du Quasi. Contrat Negotiorum gestorum, Nos. 208, 209, 210. Pothier, Contrat de Mandat. Nelson v. Macintosh, 1 Starkie's Rep. 237. 1 See Brigham v. Peters, 1 Gray, 139. But where the agent disobeys his principal's orders, it is held that, as between them, a failure to notify the agent of the principal's dissent, is no ratification. Lewin v. Dille, 17 Mis. 64. With respect to the liability of banks for the acts of their agents, it has been held, that a bank is not bound to receive deposits; and is not liable for not applying properly a deposit, unless it be made with the proper officer, as with the receiving teller, (not the paying teller,) or with the assent of the cashier. Thatcher v. Bank of State of New York, 5 Sandf. S. C. R. 121. |