« AnteriorContinuar »
any express appointment. 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. If an agent, however, is to convey real estate, or any interest in land, or to make livery of seisin, the appointment must be in writing according to the statute of frauds of 29 Charles II., and adopted with us; and where the conveyance 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.d
The agency must be antecedently given, or be subse quently 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 receives the goods, but embezzles the cash, the master was held answerable for the goods, for he had given credit to his
a Whitehead v. Tuckett, 15 East, 400.
Long v. Colburn, ub. sup.
b Judson v Sturges, 5 Day, 556.
c Laws of N. Y. sess. 10. ch. 44 sc. 10.
Hooe v. Oxley, 1 Wash. 19.
d Co. Litl. 52. a. Horsley v. Rush, cited in 7 Term Rep. 209. Cooper v. Rankin, 5 Binney, 613. Plummer v. Russel, 2 Bibb. 174. Sedgwick, J. 5 Mass. Kep. 40. Shamburger v. Kennedy, 1 Badg. & Dec. 1. Metlen, Ch. J. in 2 Greenleaf, 260.
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. 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 of modern Europe, and in the jurisprudence of this country.4 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 premi um 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 us, the authority would be implied from the duty
a Hazard v. Treadwell, 1 Str. 506. Rusby v. Scarlett, 5 Esp. Rep. 76. 6 Neal v. Irving, 1 Esp. Rep. 61. Hooe v. Oxley, 1 Wash. Rep. 16. e Dig. 17. 1. 6. 2. id. 50. 17. 60..
d Emerigon, Traité des Assurances, tom. 1. 144. Nickson v. Brohan, 10 Mod. 109. Williams v. Mitchell, 17 Mass Rep. 93. Bryan v. Jackson, 4 Conn. Rep. 283.
of the consignee, without the aid of the subsequent silence, though 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 where done without authority, or even contrary to instructions. Omnis ratihabitio mendato 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."
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. But the English law has never gone to that extent; and, therefore, if A. owes a debt to B., and C. chooses to pay it without authority, the law will not raise a promise in A. to indemnify C., for if that were so, it would be in the power of C. to make A. his debtor nolens volens.If there be any relation between the parties, a payment without authority may be binding on the person for whose use it was made, if it be made under the pressure of a situation in which one party was involved by the other's breach of faith. A surety, from his relation to the principal debtor, has an interest, and a right to see that the debt be paid, and if he pays to relieve himself, it is money paid to and for the use of the
a Towle v. Stevenson, 1 Johns. Cas. 110. Cairns & Lord v. Bleecker, 12 Johns. Rep. 300. Erick v. Johnson, 6 Mass. Rep. 193. Frothingham v. Haley, 3 Mass. Rep. 70. Clement v. Jones, 12 Mass. Rep. 60. b Dig. 3. 5. 45. Tid. 3. 5 10. 1.
c Lord Kenyon, 3 Term Rep. 310.
other." So, in the case mentioned by Lord Kenyon, from Rolle's Abridgment, where a party met to dine at a tavern, and all except one went away after dinner without paying their quota of the tavern bill, and the one remaining paid the whole bill; he was held entitled to recover from the others their aliquot proportions. The recovery must have been upon the principle, that as a special association they stood in the light of sureties for each other, and each was under an obligation to see that the bill was paid.
(2.) Of the power and duty of agents.
An agent who is intrusted with general powers, müst exercise a sound discretion. If his powers are special and limited, he must strictly follow them. If A. authori50 dolla zes B. to buy an estate for him at dollars per acre, and he gives 51 dollars an acre, A. is not bound to pay that price; but the better opinion is, that if B. offers to pay the excess out of his own pocket, A. is then bound to take the estate. This case is stated in the civil law, and the most equitable conclusion among the civilians is, that A. is bound to take the estate at the price prescribed. Majori summæ minor inest." So, where an agent was directed to cause a ship to be insured at a premium not exceeding three per cent., and the agent not being able to effect insurance at that premium, gave three and a quarter per cent. The assured refused to reimburse any part of the premium, under the pretence that his correspondent had exceeded his orders; but the French admiralty decreed, that he should refund the three per cent.; and Valin thinks they might have gone further, and made him pay the quarter per cent.
a Exall v. Partridge,
Term Rep. 303.
c Inst. 3 27.8. Ferriere, sur Inst. h. t. Pothier, Contrat de Mandat, No. 94. and n. 96.
ex bono et æquo, because, he says, it is permitted, in the usage of trade, for factors to go a little beyond their orders when they are not very precise and absolute. The decree was undoubtedly correct, and the injustice of the defence disturbed in some degree the usually accurate and severe judgment of Valin.
If the agent executes the commission of his principal in part only, as if he be directed to purchase fifty shares of bank stock,and he purchases thirty only; or if he be directed to cause 2,000 dollars to be insured on a particular ship, and he effects an insurance for 1,000 dollars, and no more, it then becomes a question, whether the principal be bound to take the stock, or pay the premium. The principal may perhaps be bound to the extent of the execution of the commission in this case, though it has not been executed to the utmost extent; and this seems to have been the conclusion of the civil law. But a distinction is to be made according to the nature of the subject. If a power be given to buy a house, with an adjoining wharf and store, and the agent buys the house only, the principal would not be bound to take the house, for the inducement to the purchase has failed. So, if he be instructed to purchase the fee of a certain farm, and he purchase an interest for life or years only, or he purchases only the undivided right of a tenant in common in the farm, in these cases the principal ought not to be bound to take such a limited interest, because his object would be defeated. It might be otherwise, if the agent was directed to buy a farm of 150 acres, and he buys one corresponding to the directions as nearly as possible, containing 140 acres only. The Roman lawyers considered and discussed those questions with their usual sagacity and spirit of equity; and whether the principal would or would not be bound by an act executed in part
a Valin's Com. sur l'ord. de la Mer. tom. 2. p. 32, 33. b Dig. 17. 1. 33.