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What authority

ferred.

1240. Exceptions to general authority.

1241. What included in authority to sell personal property.

1242. What included in authority to sell real property.

1243. Authority of general agent to receive price of property.

1244. Authority of special agent to receive price.

S1222. An agent may be authorized to do any

may be con- acts which his principal might do, except those to which the latter is bound to give his personal attention.

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S 1223. Every act which, according to this Code, may be done by or to any person, may be done by or to the agent of such person for that purpose, unless a contrary intention clearly appears.

S 1224. An agent can never have authority, either actual or ostensible, to do an act which is, and is known or suspected by the person with whom he deals to be, a fraud upon the principal.

S 1225. An agency may be created, and an authority may be conferred, by a precedent authorization, or a subsequent ratification.

Newton v. Bronson, 13 N. Y., 594; Moss v. Rossie Mining Co., 5 Hill, 137; Weed v. Carpenter, 4 Wend., 219; Peterson v. Mayor of New York, 17 N. Y., 453; Hoyt v. Thompson, 19 id., 218.

S1226. A consideration is not necessary to make an authority, whether precedent or subsequent, binding upon the principal.

Commercial Bank v. Warren, 15 N. Y., 577.

S1227. An oral authorization is sufficient for any purpose,' except that:

1. An authority to enter into a contract under seal can only be given by an instrument under seal;" and,

2. An authority to enter into a contract for the transfer of real property, or to declare a trust in relation thereto, can only be given in writing.3

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of agent's

S1228. A ratification can be made only in the man- Ratification ner that would have been necessary to confer an ori- act. ginal authority for the act ratified,' or, where an oral authorization would suffice, by accepting or retaining the benefit of the act, with notice thereof.3

1

1 Story Ag. § 242; M'Cracken v. San Francisco, 16 Cal.,
591, 623; Despatch Line v. Bellamy, 12 N. H., 232.
See Newton v. Bronson, 13 N. Y., 595; Blood v.
Goodrich, 9 Wend., 68; 12 id., 525; Wells v. Evans,
20 id., 251.

'Bennett v. Judson, 21 N. Y., 238; Clarke v. Van Reims-
dyck, 9 Cranch, 153; Lowenstein v. McIntosh, 37
Barb., 251; Decker v. Judson, 16 N. Y., 446.
Seymour v. Wyckoff, 10 N. Y., 213; Cobb v. Dows, id.,

341.

S 1229. Ratification of part of an indivisible trans- Ratification action is a ratification of the whole.

Decker v. Judson, 16 N. Y., 446; Cobb v. Dows, 10 N. Y.,
335; Farmers Loan Co. v. Walworth, 1 N. Y., 433; Bell
. Shibley, 33 Barb., 610; Ferguson v. Hamilton, 35
id., 427; Story Ag., § 250. See Bennett v. Judson, 21
N. Y., 238; Condit v. Baldwin, id., 231.

S1230. A ratification is not valid unless, at the time of ratifying the act done, the principal has power to confer authority for such an act.

M'Cracken v. San Francisco, 16 Cal., 591.

S1231. No unauthorized act can be made valid, retroactively, to the prejudice of third persons, without their consent.

This is perhaps a broader rule than at present exists.
But great difficulty has been felt in attempting to re-
concile the cases (See Story Ag., §§ 246, 247; Bliss v.
Cottle, 32 Barb., 322; Bird v. Brown, 4 Exch., 786;
Wilson v. Tumman, 6 M. & G., 236; Palmer v. Ste-
phens, 1 Denio, 481; Rossiter v. Rossiter, 8 Wend.,
499). In Buron v. Denman (2 Exch., 167), the defend-
ant had committed a trespass, which the English gov-
ernment expressly ratified This was held to relieve

of part of a transaction.

When rati void.

fication

Ratification injury to

not to work

third per sons.

Rescission of ratifica

tion.

Measure of agent's

the defendant from responsibility. In Lucas v. Wilkinson (1 H. & N., 420), it was held that an act expressly done on behalf of A., could not be ratified and adopted by B., to the prejudice of C.

S1232. A ratification may be rescinded when made without such consent as is required in a contract, or with an imperfect knowledge of the material facts of the transaction ratified,' but not otherwise.2

'Seymour v. Wyckoff, 10 N. Y., 213, 224; Cobb v. Dows, Id., 341; Nixon v. Palmer, 8 id., 398; Brass v. Worth, 40 Barb., 648; Roach v. Coe, 1 E. D. Smith, 175; M'Cracken v. San Francisco, 16 Cal., 591, 625; Freeman v. Rosher, 13 Q. B., 780; Owings v. Hull, 9 Peters, 607.

2 Story on Agency, §§ 242, 250. See Commercial Bank v. Warren, 15 N. Y., 577.

S1233. An agent has such authority as the princi authority. pal, actually or ostensibly, confers upon him.

Actual authority what.

Ostensible authority, what.

Agent's
authority
as to per-
sons having
notice of
restrictions
upon it.

Agent's necessary authority.

S1234. Actual authority is such as a principal intentionally confers upon the agent, or intentionally, or by want of ordinary care, allows the agent to believe himself to possess.

1235. Ostensible authority is such as a principal intentionally, or by want of ordinary care, causes or allows a third person to believe the agent to possess.

Farm.& Mech. B'k v. Butch. & Drov. B'k, 16 N. Y., 125;
Beaufort v. Neeld, 12 Clark & Fin., 290; Sickens v.
Irving, 7 C. B. (N. S.), 171, 173; see Smith v. McGuire
3 H. & N., 554.

S1236. Every agent has actually such authority as is defined by this Title, unless specially deprived thereof by his principal, and has even then such authority ostensibly, except as to persons who have actual or constructive notice of the restriction upon his authority.

Dingle v. Hare, 7 C. B. (N. S.), 159.

S1237. An agent has authority :

1. To do everything necessary, or proper and usual in the ordinary course of business, for effecting the purpose of his agency; and,

2. To make a representation respecting any matter of fact, not including the terms of his authority, but upon which his right to use his authority depends, and the truth of which cannot be determined by the use of reasonable diligence on the part of the person to whom the representation is made.2

1 Story on Agency, §§ 85, 86, 96, 97; Dingle v. Hare, 7 C.
B. (N. S.), 159; see Horton v. Morgan, 19 N. Y., 170;
Waring v. Mason, 18 Wend., 434; Graves v. Legg, 2
H. & N., 210; Taylor v. Stray, 2 C. B. (N. S.), 191;
Pollock v. Stables, 12 Q. B., 765; Bayliffe v. Butter-
worth, 1 Exch., 428; Sutton v. Tatham, 10 Ad. & El.,
27; Bayley v. Wilkins, 7 C. B., 886; see, however,
Sweeting v. Pearce, 7 C. B. (N. S.), 449; Partridge v.
Bank of England, 9 Q. B., 396.

'Griswold v. Haven, 25 N. Y., 595; Farmers' & M. Bank
v. Butchers' & Drovers' Bank, 16 id., 125; Exchange
Bank v Monteath, 26 id., 505; North River Bank v.
Aymar, 3 Hill, 263.

power to structions.

disobey in

S1238. An agent has power to disobey instructions Agent's in dealing with the subject of the agency, in cases where it is clearly for the interest of his principal that he should do so, and there is not time to communicate with the principal.

Code La., 2975, 2980; Drummond v. Wood, 2 Caines, 310.

1239. When an authority is given partly in general, and partly in specific terms, the general authority gives no higher powers than those specifically mentioned.

Sto. Agency, § 71; Stair Inst., B. 1, t. 12, § 15.

Authority strued by rather than

to be con

its specific,

its general terms.

S1240. An authority expressed in general terms, Exceptions however broad, does not authorize an agent:

1. To act in his own name,' unless it is the usual

course of business to do so;2

2. To define the scope of his agency;3 or,

3. To do any act which a trustee is forbidden to do

by article II, of chapter I, of the last Title.'

1 Bank of State of N. Y. v. Farmers' Branch Bank, 36
Barb., 332.

2 Horton v. Morgan, 19 N. Y., 170; Whitehouse v. Moore,

13 Abb. Pr., 142.

to general authority.

What included in authority to sell personal property.

What included in authority

Sup'rs of Rensselaer v. Bates, 17 N. Y., 246; Mechanics' Bank v. New Haven R. R., 13 id., 599; Gould v. Sterling, 23 id., 463; Grant v. Norway, 10 C. B., 665; Coleman v. Riches, 16 id., 104. But see these cases explained and greatly restricted in Griswold v. Haven, 25 N. Y., 295.

Claflin v. Farmers', &c., Bank, 25 N. Y., 293; Bentley v. Columbian Ins. Co., 17 id., 421; N. Y. Central Ins. Co. v. National Prot'n Ins. Co., 14 id., 85; Fellows . Com'rs of Oneida, 36 Barb., 655; Bruce v. Davenport, id., 349; Conkey v. Bond, 34 id., 276; Cassard v. Hinman, 6 Bosw., 8.

S1241. An authority to sell personal property includes authority to warrant the title of the principal, and the quality and quantity of the property.

Waring v. Mason, (Ct. of Errors), 18 Wend., 434; see Ferguson v. Todd, 35 Barb., 427; Milburn v. Belloni, 12 Abb. Pr., 451; Sto. Agency, §§ 58, 59; Nelson v. Cowing, 6 Hill, 336. See, however, Brady v. Todd (9 C. B. [N. S.], 592), which holds these powers to be confined to a general agent.

S1242. An authority to sell and convey real protorial perty includes authority to give the usual covenants

property.

Authority of general agent to receive price of property.

Authority of special agent to receive price.

of warranty.

Leroy v. Beard, 8 How. (U. S.), 451.

S1243. A general agent to sell, who is intrusted by the principal with the possession of the thing sold, has authority to receive the price.

S 1244. A special agent to sell has authority to receive the price on delivery of the thing sold, but not afterwards.

Peck v. Harriott, 6 Serg. & R., 149.

ARTICLE III.

MUTUAL OBLIGATIONS OF PRINCIPALS AND THIRD PERSONS.

SECTION 1245. Principal, how affected by acts of agent within the scope of his authority.

1246. Principal, when bound by incomplete execution of authority. 1247. Notice to agent, when notice to principal.

1248. Obligation of principal when agent exceeds his authority.

1249. For acts done under a merely ostensible authority.

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