court: Clark, Ch. J., delivered the opinion of the, and involved the expenditure of many thousands of dollars, without any bond or guaranty given by the plaintiff for the faithful performance of his work, and such contract would bind the company, should it sell its timber to another party. There is no testimony of any express authority given to Shucker to make such contract or any ratification of such contract by the company. This action is based upon the complaint that the defendant company, through its agent, one L. E. Shucker, made a verbal contract with the plaintiff to cut and top all the merchantable juniper timber of the defendant, in that part of the Dismal Swamp owned by the defendant, containing some 5,000 or more acres, at the rate of In Mechem on Agency, § 290, it is said: 61⁄2 cents per tree. The defendant denied "The person dealing with the agent must that Shucker made such contract, and that also act with ordinary prudence and reasonhe had any authority to do so, and averred able diligence. If the character assumed by that the timber cut by the plaintiff was the agent is of such a suspicious or unreaunder a contract to cut the same, restricted sonable nature, or if the authority which he to the service as performed from time to seeks to exercise is of such an unusual or time, and the plaintiff admits that he was improbable character, as would suffice to paid up to the time of his discharge. put an ordinarily prudent man upon his The evidence shows that the alleged con-guard, the party dealing with him may not tract was indefinite as to the time of cut-shut his eyes to the real state of the case, ting, and that the quantity of timber to be but should either refuse to deal with the cut, with the force which the plaintiff em-agent at all, or should ascertain from the ployed, would require several years. The principal the true condition of affairs." plaintiff estimates three years, and the defendant's estimate is from ten to twenty years. In Stephens v. John L. Roper Lumber Co. 160 N. C. 107, 41 L.R.A.(N.S.) 1141, 75 S. E. 933, it is said that a principal is not bound by the act of the general agent, unauthorized by him, so unusual and remarkable as to arouse the inquiry of a man of average business prudence as to whether the The plaintiff testifies that he made such verbal contract with Shucker, the wood boss or field manager of the defendant; that it was to cover the cutting of the entire area of the Dismal Swamp owned by the defend-authority had actually been conferred; for ant; that this verbal contract was made in third persons cannot assume that an agent's a blacksmith's shop, no one being present acts are authorized, unless they are within except the plaintiff and the agent, Shucker. the scope of the duties ordinarily conferred It was further in evidence that the plain- upon agencies of that character, nor when tiff had little experience with such work, the transaction is of a nature so unusual and had only worked for the defendant one that the other party should be put upon month previously, and that said Shucker inquiry, to ascertain the actual authority of had been in the employment of the company the agent of the company to make a conhimself for only seven months, and was sub-tract of that nature. This opinion by Judge ject to discharge at any time. Shucker denied having made such contract. Hoke discusses the proposition so thoroughly (with the citation of many preceThe defendant had a general manager, dents in point), that it is unnecessary for Mr. Warwick, which fact was known to the us to do more than refer to what is there plaintiff. Shucker was not an officer of the so well said. To the same purport, Newcompany, nor its general superintendent, berry v. Seaboard Air Line R. Co. 160 N. C. and denied that he had any authority to 156, 76 S. E. 238; King Furniture Co. v. make such contract or any contract for a Bussell, 171 N. C. 474, 88 S. E. 484. In definite time, or that was not subject to the Gooding v. Moore, 150 N. C. 195, 63 S. E. approval of the general manager; and testi- 895, the agent was "a general agent not only fied that he was merely a field superintend-in purchasing the plant and timber, but in ent of logging operations, with authority to have timber cut from time to time as needed. managing the business." The contract was within the apparent scope of such agency, and it was held that the other party was not bound by restrictions which were not made known to him. The alleged contract is so unusual, extraordinary, and unique that it is not to be assumed that said Shucker had authority to In this case, the extent of the contract, make it. It was no function of his position. which may be twenty years, and the amount If it were, Shucker, a superintendent of of the compensation which, it is claimed by logging holding at will, with authority to the defendant, may aggregate $60,000, and have the timber cut as needed, could bind the admission of the plaintiff that the durahis employers by a verbal contract not ap- tion and amount are not limited in the proved by the company or its general man- terms of the contract, on its face requires ager, which might last for twenty years, such unusual authority in the temporary dence tending to show knowledge by the agent of the company that the plaintiff Annotation-Liability of a principal for services performed under servants. § 1. Introductory, 10. I. Right of recovery considered with reference to the scope of the powers of the agents who contracted for the services in question: 2. General agent in respect of real estate transactions, 11. 3. Agent in respect of the sale of real property, 12. 4. Agent in respect of the leasing of real property, 13. S 5. Agent in respect of the sale of personal property, 13. 6. Agent in respect of the purchase of personal property, 14. 10 7. Agent for collection of debt, 14. § 10. Agent to procure persons to perform certain work, 17. § 11. Agent appointed to procure contracts for street work, 17. § 12. Caretaker of building, 17. § 13. Employee permitted to occupy building free of rent, 17. § 14. Consignee of ship, 18. § 15. Master of ship, 18. § 16. Co-owner of property, 19. § 17. Agent of mortgagor, 19. § 18. Husband as agent of wife, 20. § 19. Wife as agent of husband, 25. § 20. Agency arising out of a domestic relation other than that of hus- § 21. Directors of a corporation; generally, 32. § 22. President of corporation, 33. § 23. General manager acting for a principal other than a corporation, § 24. General manager of a corporation, 41. § 25. Assistant manager of a private corporation, 50. § 25a. Manager of a department of a business, 50. § 26. General superintendent, 50. § 27. Superintendent of a department of a business, 55. § 28. Manager of tug boat, 57. § 29. Foreman, 58. § 30. Treasurer, 59. § 31. Secretary, 59. § 32. Claim agent of railway company, 60. § 33. Station master, 60. § 34. Freight agent of railway company, 63. § 35. Roadmaster of railway company, 64. § 36. Trainmaster of railway company, 64, § 37. Conductor of railway train, 64. § 38. Superior officer of railway police, 65. § 39. Inspector on street railway, 66. § 40. Physician or surgeon, 66. § 41. Route agent of express company, 68. I. continued. § 42. Local agent of person operating stagecoaches, 69. § 43. Agent of theatrical company, 69. § 44. Clerk, 69. § 45. Agent of executive committee, 70. § 46. Building committee, 71. § 47. Agent in charge of construction work; generally: c. Person superintending work for contractor, 73. § 48. Same description of agent. and alterations, 73. a. Civil engineer in service of railway company, 73. b. Architect or other agent supervising the construction of a building, 75. § 49. Same description of agent. Authority considered with reference to express stipulation as to extra work, 77. a. Civil engineer in service of railway company, 77. b. Architect or other agent supervising the construction of a § 50. Independent contractor as agent of the principal employer, 79. II. Effect of an emergency in enlarging the ordinary powers of agents: § 52. Enlargement of authority considered with reference to the en- a. Contracts made by agents of individual employer, 85. c. Managing agents of corporations other than railway com- d. Subordinate agents of railway companies, 88. e. Subordinate agents of corporations other than railway companies, 91. § 52a.Same subject. 92. Limits of the enlarged authority as predicated, § 53. Same subject. Rationale of the enlarged authority as predicated, 94. III. Effect of Mechanics' Lien Laws: § 53a. Generally, 96. § 54. Enactments not providing specifically for contracts made by agents of the owner, 96. § 55. Enactments expressly applicable to claims founded on contracts made with an agent of the owner, 98. § 56. Enactments specifically applicable to the claims of subcontractors, 102. IV. Right of recovery considered with reference to the question whether the contract of employment was adopted by the principal: § 57. Generally, 105. § 58. Principal's acceptance of the benefits of the services rendered, 111. § 59. Estoppel as a ground imputing liability to the principal, 117. V. Right of recovery considered with reference to the question of liability as between principal and agent: § 60. Claimant employed under sealed contract, 118. § 61. Claimant employed under written contract not sealed, 119. § 62. Claimant employed under oral contract made by agent professedly acting for a disclosed principal, 123. § 63. Same subject further discussed, 131. § 64. Claimant employed by professed agent acting in excess of his authority, 132. § 65. Claimant employed by agent who did not disclose his agency, 135. Introductory. As is indicated by its title, the following monograph contains a review of the cases which belong to one subdivision of that general category which has been discussed, with relation to another of its subdivisions, in. the note appended to Brutinel v. Nygren, post, That is to say, it deals with the circumstances under which an action to recover compensation for services may be maintained by a person whose claim is based upon a contract of employment which was made with an agent of the party benefited, and which was of such a nature that it did not place the claimant in the position either of a subagent or of a servant.1 It is believed that, as a complement to the other monograph just mentioned, one which discusses fully the decisions relating to the operation of certain general principles of the law of agency in their application to an unusually important description of contracts will be found to be of much practical value to the profession, affording, as it does, a ready means of consulting, within the limits of a single dissertation, an immense body of cases which hitherto have been scattered through a large number of separate treatises. In the effort to render the collection of authorities as exhaustive as possible no labor has been spared. The writer wishes to direct particular attention to that large and important class of cases in which the subject considered was the right of recovery in respect of medical or similar services rendered, in pursuance of a contract with an agent of the defendant, to a person injured by reason of conditions or events incidental to the operation of the defendant's business. An examination of the American cases belonging to this class indicates that those which have a bearing upon the extent of the power of an inferior agent to bind his principal by a contract of this descrip tion are founded, either directly or indirectly, on an English decision. In so far as it turned upon the conception that such a contract is, under ordinary circumstances, beyond the powers of an inferior agent like the one in question (a station master), that decision has never been impugned in England. But in so far as it constituted a precedent adverse to the theory that those powers may be enlarged by the existence of an emergency creating a necessity for prompt action, it has been discredited by remarks made by Bramwell, B., Grove, J., and Denman, J., in a case which came before the Exchequer Chamber. Strangely enough, that case has been almost entirely overlooked by American judges. It was one in which a district inspector of police, named Locke, who is said to have been a superior of the station master and representative of the railway company, promised payment to an innkeeper for care of persons injured in a railway accident. Bramwell, B., in discussing the question of liability, said: "I think there is very little doubt that what Locke did was done with the object of binding the railway company if he had power to do so. "The question is, had he authority to do so?" He had what might be called a necessary authority to do so. He was the chief person there. It was the interest of the company that the mischief resulting from the accident should be the smallest possible, if the company were liable, and the company might be. Then there is a necessity, under circumstances such as these, for what might be called instantaneous action." It will be observed that the essence of the conception which this passage reflects is that the implied power of the agent in question might warrantably be regarded as a necessary incident of a duty, assumed to be incumbent upon him, of protecting the defendant company provisionally against a purely contingent liability to which it might or might not be found 1 For full information as to cases involv-yers' Co-op. Pub. Co. has recorded only a ing the remedial rights of servants hired by agents the practitioner is referred to 2 Labatt's Master & Servant, 114-122. 2 These cases form a portion of the matter included in §§ 6, 8, and 22 to 42 and 52, infra. 3 Cox v. Midland Counties R. Co. (1849) 3 Exch. 268, 154 Eng. Reprint, 844, 18 L. J. Exch. N. S. 65, 13 Jur. 65. See § 33, infra. 4 Langan v. Great Western R. Co. (1874; Exch. Ch.) 30 L. T. N. S. 173. See §§ 38 and 52(d), infra. 5 The Citation Department of the Law single case in which it has been mentioned,-Vandalia R. Co. v. Bryan (1915) 60 Ind. App. 223, 110 N. E. 218; and this, it will be observed, is one of very recent date. That there should have been no reference to it in any of the numerous cases in which, during a period of more than thirty years after it was decided, the questions upon which it has a bearing were frequently considered, is a very remarkable fact, which can be only partially accounted for by the circumstance that it is not reported in any series except the Law Times amenable after the circumstances had been further investigated. It is not wholly clear from the language used by Grove, J., and Denman, J., whether they adopted a theory of this broad scope; but the effect of an emergency in enlarging the normal authority of an employing agent was distinctly recognized by him. It is certainly not an unreasonable supposition that the views of at least some of the American courts would have been greatly modified if they had been aware that a conception of so broad a scope as that which is embodied in the passage quoted above had been treated by one, if not, two, eminent English judges as the rationale of the agent's implied authority in cases of this type. How profoundly the leavening effect of such a conception might have influenced the development of the law will be at once realized if we advert to the fact that its adoption would have excluded all controversy as to any of the subsidiary but much mooted questions of which each one of the following considerations is suggestive: (1) That the conception, although it was invoked in the English case merely as the basis of the specific doctrine that the powers of inferior agents are enlarged by an emergency, is equally appropriate as a criterion of the extent of the powers of managing agents; (2) that, although it was applied with reference to an action in which the defendant was a railway company, it is so entirely general in its character as to be relevant, irrespective of the nature of the business carried on by the defendant; (3) that this generality also serves to render it relevant irrespective of whether the injured person was or was not an employee of the defendant; and (4) that it operates so as to render wholly immaterial the question whether the injury treated by the claimant was or was not caused by negligence imputable to the defendant. If the tests of liability which it furnishes had been adopted by the American courts, a notable simplification of the whole subject would have resulted, and the accumulation of extraordinarily conflicting decisions by which the practitioner is now embarrassed would have been notably diminished. The responsibility of the principal would have been determined with reference to a single fundamental consideration, without any regard to the question whether the contracting party was a managing or an inferior agent; and the only difference recognized in respect of the binding quality of the contracts of each description of agent would have been that predicated on the theory that, in a case where a contract of the kind now under discussion was shown to have been made by a managing agent, the power so exercised would have been viewed as an ordinary incident of the functions delegated to him; while, in a case where the claimant was employed by an inferior agent, the validity of the contract would have been regarded as being conditioned upon the existence of an emergency necessitating immediate action. I. Right of recovery considered with reference to the scope of the powers of the agents who contracted for the services in question. § 2. General agent in respect of real estate transactions. The right to maintain against the principal an action for legal services rendered with respect to matters arising in the course of the business intrusted to an agent of this description was affirmed in the cases reviewed below.1 6 The notion that the prospect of a 1 In Mason v. Taylor (1887) 38 Minn. merely contingent liability might be suffi- 32, 35 N. W. 474, the action was brought cient to invest an agent with the power to for compensation in respect of legal serengage a doctor was evidently not present vices, rendered at the request of the firm to the mind of the court when it remarked, of M. & M., who had been appointed as in Spelman v. Gold Coin Min. & Mill. Co. the American agents of a resident of Scot(1901) 26 Mont. 76, 55 L.R.A. 640, 91 Am. land, under a written contract which was St. Rep. 402, 66 Pac. 597, that, if a man-construed by the court as bestowing upon ager has the power to enter into a contract the firm plenary power to invest in town when the injured person has a valid claim lots and farm lands in Minnesota and for damages, this power must "rest upon Dakota such sums of money as defendant the assumption or theory that, in appointing a general manager, the company impliedly delegates to him authority to lessen the extent of the injuries inflicted by the principal's wrong, and thereby diminish the amount of damages for which the latter would otherwise be liable." and his undisclosed constituents might see fit to transmit through one H.; to erect buildings thereon, rent the same, and collect said rents; to insure said buildings; and to sell such property, without consulting their principal, whenever they could do so at a profit. The right of the claimant to |