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"It has been the settled law in England, since the case of Lane v. Cotton,& that the rule respecting common carriers does not apply to post-masters, and there is no analogy between them. The post-office establishment is a branch of the public police, created by statute and the government have the management and control of the whole concern. The post-masters enter into no contract with individuals, and receive no hire, like common carriers in proportion to the risk and value of the letters under their charge, but only a general compensation from government. In the case referred to, the post-master general was held not to be aswerable for the loss of exchequer bills stolen out of a letter while in the defendant's office. The subject was again elaborately discussed in Whitfield v. Lord Le Despencer, and the same doctrine asserted. The post-master general was held not to be responsible for a bank note stolen by one of the sorters, out of a letter in the post-office. But a deputy post-master or clerk in the office, is still answerable in a private suit for misconduct or negligence; as, for wrongfully detaining a letter an unreasonable time. The English law on this subject was admitted, in Dunlop v. Munroe,d to be the law of the United States; and a post
court of appeals, in 1847. In Pennsylvania, the English law, as to carriers by land, is admitted in the full extent; but with respect to carriers by inland navigation, the law was considered, in Gordon v. Little, 8 Serg. 4 Rawle, 533, to be unsettled in respect to its application in that state. The carrier on inland waters was held to be clearly liable for every accident which skill, care and diligence could have prevented; but beyond that point it was competent for the common carrier to prove a usage different from the common law. In Harrington v. M'Shane, 2 Watts' Penn. Rep. 443, it was, however, adjudged, that under the usage of trade on the western waters, (the river Ohio,) the owners of steamboats carrying goods on freight were common carriers, and liable as such for all losses, except those occasioned by the act of God, or the public enemy.
:1 Ld. Rayn. 646.
master was considered to be liable in a private action for damages arising from misfeasance or for negligence, or want of ordinary diligence in his office, in not safely transmitting a letter. Whether he was liable himself for the negligence of his clerks or assistants, was a point not decided ; b though if he were to be deemed *responsible in that case, it would only result *611 from his own neglect, in not properly superintending the discharge of his duty in his office.c
The general doctrines of agency and lien have a material bearing on this subject of bailment; but as they are essentially connected with mercantile transactions, their extent and importance will require a separate discussion.
a See, also, Schroyer v. Lynch, in the supreme court of Pennsylvania, cited in Story on Bailments, 302, 2d edit.
b In Conwell v. Voorhees, 13 Ohio Rep. 523, it was held that a mail contractor was not liable to the owner of a letter for money lost by the mail by the carelessness of the contractor's agents carrying the mail.
c Since the first edition of this work, my learned and estimable friend, Mr. Justice Story, in the discharge of his duties as Dane Professor of Law in Harvard University, has favoured the public with Commentaries on the Law of Bailments, with Illustrations from the Civil and Foreign Law; and in 1840, he gave to the public an improved and enlarged edition of that work. I would strongly recommend that volume to the student, who wishes to pursue more extensively than the plan of the present lecture permitted, the refined distinctions and practical illustrations which accompany this branch of the law. I have availed myself of the lights which that work has afforded, and the confidence which it has inspired, while engaged in the revision of my own more brief and imperfect survey of the subject. This excellent treatise is the most learned and the most complete of any that we have on the doctrine of bailment. It aims to lay down all the principles appertaining to the subject, both in the civil, the foreign, the English and the American law, with entire accuracy; and I beg leave to say, after a thorough examination of the work, that in my humble judg. ment, it has succeeded to an eminent degree.
OF PRINCIPÁL 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.
1. 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. Though the statute of frauds of 29 Charles II.,
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 & Physe v. Trout, 1 Hall's N. Y. Rep. 336. M'Comb v. Wright, 4 Johns. Ch. Rep. 667.
*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.a The agency may be inferred from the relation of the parties, and the *nature of the employment, without proof of any
614" express appointment.b 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. The sta. tute of frauds does not require that the authority of the agent contracting even for the sale of land, should be in writing. But if an agent is to convey or complete the conveyance of real estate or any interests in land, or to make livery of seisin, the appointment, must be in writing;e and where the conveyance or 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.
· Rucker v. Cammeyer, 1 Esp. N. P. Rep. 105. Chitty on Contracts, 213. Lord Eldon, in Coles v. Trecothick, 9 Vesey, 250.
Whitehead v. Tuckett, 15 East's Rep. 400. Hooe v. Oxley, 1 Wash. U. S. Rep. 19. Long v. Colburn, ub. sup. c Judson v.
Sturges, 5 Day's Rep. 556. d Clinan v. Cooke, 1 Sch. f Lef. 27. 31. Barry v. Lord Barrymore, cited in 1 Sch. f 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. Gray, 10 Robinson's Rep. 35.
• 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.
i Co. Litt. 52. a. Horsley v. Rush, cited in 7 Term Rep. 209. Cooper v. Rankin, 5 Binney's Rep. 613. Plummer v. Russell, 2 Bibb's R. 174. Sedgwick, J., 5 Mass. Rep. 40. Shamburger v. Kennedy, 1 Badg. f. 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. Too
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 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 re*615 ceived the goods but embezzled *the cash, the
master was held answerable for the goods; for he had given credit to his servant by adopting his former act. 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 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, and is equally so in the law
mer, J., Ibid. 153. Rogers, J., 6 Serg. f Rawle, 331. Davenport v. Sleight, 2 Dev. of Battle, 381. Paley on Agency, by Lloyd, 158—160.
· Hazard v. Treadwell, 1 Str. Rep. 506. Rusby v. Scarlett, 5 Esp. R. 76. Todd v. Robinson, 1 Ryan of Moody's Rep. 217.
b Neal v. Irving, 1 Esp. Rep. 61. Hooe v. Oxley, 1 Wash. U. S. Rep. 19. So, also, if a confidential clerk had been accustomed to draw checks for his principal, and had occasionally been permitted to endorse for him, the jury would be warranted to inser a general authority to endorse. Prescott v. Flinn, 9 Bing. Rep. 19.
• Dig. 17. 1. 6. 2. Ibid. 50. 17. 60.