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only, depends in a measure upon the reason of the thing, and the nature and object of the purchase.a
the agent does what he was authorized to do, and something more, it will be good, as we have seen, so far
he was authorized to go, and the excess only would be oid. If an agent has a power to lease for twenty-one 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 ¿wenty-one years, according to a late English 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 the subject of
a Dig. 17. 1. 36 Pothier. Contrat de Mandat. 95. 1 Livermore on the Law of Principal and Agent, p. 100. 101.
b Sir Thomas Clarke, in Alexander v. Alexander, 2 Vesey, 644. Campbell v. Leach, Amb. 740. Sugden on Powers, p. 545.
c Roe v. Prideaux, 10 East, 158.
d Dig. 17. 1. 5. 2. Pothier, Contrat de Mandat, No. 97 Jure B & P. b. 2. c. 16. s. 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 some 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 judginent when it had not been required.
the powers of an agent, between a general agent and one appointed for a special purpose. The acts of a general agent will bind his principal so long as he keeps within the general scope of this 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 his power. The special authority must be strictly pursued; and whoever deals with an agent constituted for a special purpose, deals at his peril, when the agent passes the precise limits of his power. Thus, where the 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 B., who was a special agent under a limited authority not to endorse the bill. So, in the case of Batty v. Carswell,c A. authorized 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, and he 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
a Munn v. Commission Company, 15 Johns. Rep. 44. Beals v. Allen, 18 Johns. Rep. 363. Thompson v. Stewart, 3 Conn. Rep 172. Andrews V. Kneeland, Cowen, 324. Buller, J. 3 Term Rep. 762. East India Company v. Hensley, 1 Esp. Rep. 11. Allen v. Ogden, Wharton's Dig. tit, Agent and Factor, A. 1. Blane v. Proudât, 3 Call. Rep. 207. b Fenn v. Harrison, 3 Term Rep. 757.
e 2 Johns. Rep. 48.
servant." So, if a broker, whose business it is to buy and
The presumption of an authority to sell in these cases,
A factor or commission merchant may sell on credit, without any special authority for that purpose. It is now the well settled usage, that a factor or agent employed to sell, may sell in the usual way, and consequently, he may sell on credit without incurring risk, provided he be not restrained by his instructions, and does not unreasonably extend the term of credit, and provided he uses due diligence to ascertain the solvency of the purchaser.
a Ashburst, J. in 3 Term Rep. 757. Bailey, J. in 15 East, 45.
b Pickering v. Busk, 15 Erst, 38.
c Lord Ellenborough, 15 East, supra.
d Van Allen v. Vanderpool, 6 Johns. Rep. 69. Goodenow v. Tyler, 7 Mass. Rep. 36. James & Shoemaker v. M·Credie, 1 Bay's S. C. Rep. 294. Emery v. Gerbier, and other cases cited in Wharton's Dig. of
factor cannot sell on credit in a case in which it is not the usage, as the sale of stock for instance, unless he be expressly authorized, because this would be to sell in an unusual manner. Nor can he bind his principal to other modes of payment, than a payment in money at the time of sale, or on the usual credit. He cannot bind his principal to allow a set-off on the part of the purchaser. If the factor, in a case duly authorized, sells on credit, and takes a negotiable note payable to himself, the note is taken in trust for his principal, and subject to his order; and if the purchaser should become insolvent before the day of payment, the circumstances of the factor having taken the note in his own name, would not render him personally responsible to his principal. Even if the factor should guarantee the sale, and undertake to pay the purchaser failed, or should sell without disclosing his principal, the note taken by him as factor would still belong to the principal, and he might waive the guaranty, and claim posses sion of the note, or give notice to the purchaser not to pay it to the factor. In such a case, if the factor should fail, the note would not pass to his assignees to the prejudice of his principal; and if the assignees should receive payment from the vendee, they would be responsible to the principal; for the debt was not in law due to them, but to the principal, and did not pass under the assignment.
Penn. Rep. tit. Agent and Factor, art. 2. Burrill v. Phillips, 1 Gallison, 360. Willes, Ch. J. in Scott v. Surman, Willes' Rep. 400. Leverick v. Meigs, 1 Cowen. 645. Greenly v. Bartlett, 1 Greenleaf, 172.
a Wiltshire v. Sims, 1 Campb. N. P. Rep. 258.
b Guy v. Oakley, 13 Johns. Rep. 332.
c Messier v. Amery, 1 Yeates' Rep. 540. Goodenow v.
Tyler, 7 Mass.
d Kip v. Bank of N. Y. 10 Johns. Rep 63. Garrett v. Cullam, cited in Scott v. Surman, Willes' Rep 405. and also by Chambre, J. in 3 Bes. & Pul. 490.
Though payment to a factor, for goods sold by him, be valid, the principal may control the collection, and sue for the price in his own name, or for damages fo. non-performance of the contract; and it is immaterial whether the agent was an auctioneer or a common factor."
There are some cases in which a factor sells on credit at his own risk. When he acts under a del credere commission, for an additional premium, he becomes liable to his principal when the purchase money falls due; for he is substituted for the purchaser, and is bound to pay, not conditionally, but absolutely, and in the first instance. The principal may call on him without looking to the actual vendee. This is the language of the case of Grove v. Dubois, and it seems to have been adopted and followed in Leverick v. Meigs; and yet there is some difficulty and want of precision in the cases on the subject. It is said, that a factor under a del credere commission, is a guarantor of the sale, and that the notes he takes from the purchaser belong to his principal, equally as if he had only guarantied them. If he sells under a del credere commission, he is to be considered, as between himself and the vendee, as the sole owner of the goods; and yet he is considered only as a surety. In some late cases in the C. B. in England," the doctrine of the case of Grove v. Dubois was much questioned; and it was considered to be a vexata quæstio, whether a del credere commission was a contract of guaranty merely on default of the vendee, or one altogether distinct from it, requiring a previous resort to the purchaser.
Though a factor may sell and bind his principal, he
a Girard v. Taggart, 5 Serg. & Rawl. 19.
b 1 Term Rep. 112.
c1 Cowen, 645.
d Chambre, J. 3 Bos. & Pul. 489.
e Gall v. Comber, 7 Taunton, 558. Peele v. Northcoke, ibid. 478