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principal would or would not be bound by an act executed in part only, depends in a measure upon the reason of the thing, and the nature and object of the purchase.a

If the agent does what he was authorized to do, and something more, it will be good, as we have seen, so far as he was authorized to go, and the excess only would be void. If an agent has a power to lease for twentyone years, and he leases for twenty-six years, the lease, in equity, would be void only for the excess, because the line of distinction between the good execution of the power and the excess, can be easily made. But, at law, even such a lease would not be good, pro tanto, or for the twenty-one years, according to a late English *620 *decision in the K. B. If, however, the agent does a different business from that he was authorized to do, the principal is not bound, though it might even be more advantageous to him; as, if he was instructed to buy such a house of A., and he purchased the adjoining house of B. at a better bargain; or, if he was instructed to have the ship of his correspondent insured, and he insured the cargo. The principal is not bound, because the agent departed from the subject matter of the instruction.d

There is a very important distinction on this subject

Dig. 17. 1. 36. Pothier, Traité du Contrat de Mandat, No. 95. 1 Livermore on the Law of Principal and Agent, 100, 101.

b Sir Thomas Clarke, in Alexander v. Alexander, 2 Ves. 644. Campbell v. Leach, Amb. Rep. 740. Sugden on Powers, 545. Roe v. Prideaux, 10 East's Rep. 158.

a Dig. 17. 1. 5. 2. Pothier, Traité du Contrat de Mandat, No. 97. Grotius, de Jure B. & P. b. 2. ch. 16. sec. 21, says, that the famous question stated by Aulus Gellius, whether an order or commission might be executed by a method equally or more advantageous than the one prescribed, might easily be answered, by considering whether what was prescribed was under any precise form, or only with soine general view that might be effected as well in some other way. If the latter did not clearly appear, we ought to follow the order with punctuality and precision, and not interpose our own judgment when it had not been required.

of the powers of an agent, between a general agent and one appointed for a special purpose. The acts of a general agent, or one whom a man puts in his place to transact all his business of a particular kind, or at a particular place, will bind his principal, so long as he keeps within the general scope of his authority, though he may act contrary to his private instructions; and the rule is necessary, to prevent fraud, and encourage confidence in dealing. But an agent, constituted for a particular purpose, and under a limited power, cannot bind his principal if he exceeds that power. The special authority *must be strictly pursued. with an agent constituted for a deals at his peril, when the agent passes the precise limits of his power, though if he pursues the power as exhibited to the public, his principal is bound, even if private

Whoever deals 621* special purpose,


Whitehead v. Tuckett, 15 East, 400. Walker v. Skipwith, 1 Meig's Tenn. Rep. 502. Lightbody v. N. A. Ins. Co., 23 Wendell's Rep. 22. Lobdell v. Baker, 1 Metcalf's Rep. 202. Attorneys having a discretionary power to collect a debt, may, in the exercise of their discretion, assent to an assignment for the benefit of creditors, and bind their clients thereto. Gordon v. Coolidge, 1 Sumner's Rep. C. C. U. S. 537. But a law agent is responsible for the consequences of professional error when the injury thereby to his client arises from the want of reasonable skill or diligence on his part, both of which qualities he assumes to have and duly employ. Hart v. Frame, house of lords, June, 1839. A general agent is to act for his principal as he would for himself, and is bound to exercise a sound discretion. A special agent has no discretion. Master of the rolls, in Bertram v. Godfray, 1 Knapp's Cases on Appeal, 383. Anderson v. Coonley, 21 Wendell, 279.

b Munn v. Commission Company, 15 Johns. Rep. 44. Beals v. Allen, 18 Ibid. 363. Thompson v. Stewart, 3 Conn. Rep. 172. Andrews v. Kneeland, 6 Cowen's Rep. 324. Buller, J., 3 Term Rep. 762. East India Company v. Hensley, 1 Esp. Rep. 111. Allen v. Ogden, Wharton's Dig. tit. Agent and Factor, A. 1. Blane v. Proudfit, 3 Call. Rep. 207. If possession of goods be given for a specific purpose, as to a carrier or wharfinger, the property is not changed by the sale of such a bailee, and the owner may recover them from the bona fide buyer. Wilkinson v.

King, 2 Campb. N. P. Rep. 335.

• Gordon v. Buchanan, 5 Yerger's Tenn. Rep. 71.

instructions had still further limited the special power. Thus, where a holder of a bill of exchange desired A. to get it discounted, but positively refused to endorse it, and A. procured it to be endorsed by B., it was held, that the original holder was not bound by the act of A., who was a special agent under a limited authority not to endorse the bill. So, in the case of Batty v. Carswell, A. au

The principle that pervades the distinction on this subject rests on sound and elevated morality. There must be no deception any where. The principal is bound by the acts of his agent, if he clothe him with powers calculated to induce innocent third persons to believe the agent had due authority to act in the given case. On the other hand if there be no authority, nor the show or colour of authority from the principal to do an act beyond his powers, the party who deals with the agent in any such transaction must look to the agent only. In the case of Williams v. Walker, decided by the Ass. V. Ch. of New-York, in January, 1845, 2 Sandford's Ch. R. 325, it was held after a learned discussion of the authorities, that the agent or money scrivener for defendant, who had possession of her bond and mortgage, and received interest for her and part of the principal, was entitled to receive the same, and the payments were valid; but that after the bond was withdrawn from his possession, and delivered to the owner of it, payments of the principal afterwards to him were not good against the owner of the bond, for he was not her general agent, for the inference of agency was founded on the possession of the securities.

b Fenn v. Harrison, 3 Term Rep. 757. Unless the manner of doing a particular business be prescribed, even a special agent will be deemed clothed with the usual means of accomplishing it, and if he make false representations on the subject to induce purchasers to enter into the contract, the principal is affected by them and responsible for the deceit. He who created the trust and not the purchaser ought to suffer. Hern v. Nichols, 1 Salk. 289. Sandford v. Handy, 23 Wendell's Rep. 260. Patnam v. Sullivan, 4 Mass. Rep. 45. N. River Bank v. Aymar, 3 Hill. 262. The power of the agent to affect the contract in the name of his principal by an innocent misstatement was elaborately discussed in Cornfoot v. Fowkes, 6 Meeson & W. 358. A. by his agent leased a house to B. which had a nuisance adjoining it, of which A. was apprized, but did not communicate the fact to his agent who was ignorant of it, and said in answer to the inquiry of the lessee if there were any objections to the house, that there were not. There was no fraudulent intention on the part of the owner for he was merely passive, and gave no directions to the agent who acted in good faith. The court held that the contract was valid as there

• 2 Johns. Rep. 48.

thorized B. to sign his name to a note for 250 dollars payable in six months, and he signed one payable in sixty days; and the court held, that A. was not liable, because the special authority was not strictly pursued. On the other hand, if the servant of a horse dealer, and who sells for him, but with express instructions not to warrant as to soundness, does warrant, the master is held to be bound; because the servant, having a general authority to sell, acted within the general scope of his authority, and the public cannot be supposed to be acquainted with the private conversations between the master and servant. So, if a broker, whose business it is to buy and sell goods in his own name, be intrusted by a merchant with the possession and apparent control of his goods, it is an implied authority to sell, and the principal will be concluded by the sale. There would be no safety in mercantile dealings if it were not so. If the principal sends his goods to a place where it is the ordinary business of the person to whom they are confided to sell, a power to sell is implied. If one sends goods to an auction room it is not to be supposed that they were sent there merely for safe keeping. The principal will be bound, and the purchaser safe, by a sale under those cir


was no fraud in either principal or agent and the representation of the latter collateral to the contract, could not affect the principal in a case free from fraud. Lord C. B. Abinger strongly dissented on the ground that the knowledge of the principal was the knowledge of the agent, and I think he was sustained by strong principles of policy.

a Ashhurst, J., in 3 Term Rep. 757. Bailey, J., in 15 East's Rep. 45. If an agent be appointed to sell personal property, the law implies an authority to warrant the soundness of the article in behalf of his principal. Hunter v. Jameson, Iredell's N. C. Rep. for June, 1846. Ch. J. Ruffin, contra. The declarations of an agent, acting within the scope of his authority, and made in the course of the transaction, are evidence as part of the res gesta. Franklin Bank v. Steam Navigation Co., 11 Gill & Johns. 28.

b Saltus v. Everett, 20 Wendell, 267.

• Pickering v. Busk, 15 East's Rep. 38. An implied agency is never

*The presumption of an authority to sell in these cases, is inferred from the nature of the business of the agent; and it fails when the case will not warrant the presumption of his being a common agent for the sale of property of that description. If, therefore, a person intrusts his watch to a watchmaker to be repaired, the watchmaker is not exhibited to the world as owner, and credit is not given to him as such, merely because he has possession of the watch, and the owner would not be bound by his sale.a

A factor or merchant who buys or sells upon commission, or as an agent for others, for a certain allowance, may, under certain circumstances, sell on credit, without any special authority for that purpose, though as a general rule an agent for sale must sell for cash, unless he has express authority to sell on credit. He may sell in the usual way, and, consequently, it is implied that he may

construed to extend beyond the obvious purposes and the general usage, scope and course of the business for which it is apparently created, yet the incidental powers of certain agencies, such for instance as those of the master of a ship and the cashier of a bank, are not easily reduced to precise limits. Good sense, sound discretion, and the necessary purposes of the trust, must guide the application of the implied power according to the circumstances of the case. Mr. Justice Story, in his Commentaries on Agency, 2d edit. p. 127-138, has collected and digested, with his usual care, the leading cases in which the application of this implied authority in the cases of cashiers and masters of vessels has been sustained.

a Lord Ellenborough, 15 East's Rep. supra.

An agent is a nomen generalissimum, and includes factors and brokers, who are only a special class of agents. A factor is distinguished from a broker by being intrusted by others with the possession and disposal, and apparent ownership of property, and he is generally the correspondent of a foreign house. A broker is employed merely in the negotiation of mercantile contracts. He is not trusted with the possession of goods, and does not act in his own name. 1 Domat, b. 1. tit. 17. sec. 1. art. 1. Story on Agency, 2d edition, 31. 34. Baring v. Corrie, 2 B. § Ald. 137. 143. 148. His business consists in negotiating exchanges, or in buying and selling stocks and goods; but in modern times, the term includes persons who act as agents to buy and sell, and who charter ships and effect policies of insurance. A stock broker cannot sell upon credit, for that is not the usual course of his business.

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