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MECHEM Author of Mechem on Agency, Mechem on Public Officers, etc.; Tappan Professor of Law in thb uni itershy of michigan CHICAGO OALLAGHAN & COMPANY 1893 Entered according to Act of Congress, In the year 1898, by FLOYD R. MECHEM In the office of the Librarian of Congress, at Washington. [ ^ PREFACE. The following collection of cases has been prepared, at the request of several leading edncators, to accompany the writer's treatise on the law of agency, the purpose being to illustrate the text by object lessons gathered from the reports. Nothing in the way of annotation has been attempted, beyond an occasional refer- ence to similar cases, as it is thought that the text of the treatise supplies all that is needed in that direction. To make a selec- tion of cases from the great number upon the subject is a difficult task and one in reference to which opinions will necessarily differ. The attempt here has been to select such as contained clear state- ments of the principles or furnished striking illustrations of them, and were not too much involved with other matters or too long for reproduction. Some cases which might otherwise have appeared have been omitted because the substance of them has been suffi- ciently stated in the text or notes of the treatise. In many cases matters irrelevant to this subject have been omitted. Cases on the law of master and servant have also been omitted, as they sufficiently appear in other available collections. Many of the cases given are too recent to constitute what may be termed lead- ing cases, nor has there been any attempt to include all that might properly be so designated. As the volume is intended primarily for the use of students, for whom the making of their own abstracts is a most valuable exercise, the cases are printed with- out head notes. It is believed, however, that they will be thereby rendered no less useful to others who may desire to consult them, as a full index furnishes a ready guide to their contents. Acknowledgments are especially due to Professor Francis M. Burdick, of Columbia College, who kindly volunteered to furnish a list of the cases used by him in that institution. F. E. M. University op Michigan, Ann Arbor, October 1, 1893. Ill OASES EEPOBTED. PAGB Addison vs. Gandasequi, 4 Taunt. 573... _ 547 Ahekn vs. Baker, 34 Minn. 98 288 Alworth vs. Seymour, 42 Minn. 526 _ 314 Appleton Bank vs. McGilvray, 4 Gray, 518 229 Ash vs. Guie, 97 Penn. St. 493 45 Atlee vs. Fink, 75 Mo. 100 14 Baker vs. New York Bank, 100 N. Y. 81 596 Baldwin vs. Burrows, 47 N. Y. 199 196 Bank of Batavia vs. New York, etc., R. R. Co., 106 N. Y. 195 576 Bank of Owensboro vs. Western Bank, 13 Bush, 526 206 Barnard vs. Coffin, 141 Mass. 307 249 Bass Furnace Co. vs. Glasscock, 82 Ala. 452 291 Bell vs. McConnell, 37 Ohio St. 396. 538 Bell's Gap Railway Co. vs. Christy, 79 Penn. St. 54 131 Benjamin vs. Benjamin, 15 Conn. 347 72 Benjamin vs. Dockham, 134 Mass. 418 71 Bennett vs. Gillette, 3 Minn. 423 79 Beymervs. Bonsall, 79 Penn St. 298 554 Bickford vs. Menier, 107 N. Y. 490 93 Billings vs. Mason, 80 Me. 496 408 Birdsall vs. Clark, 73 N. Y. 73 231 Blackstone vs. Buttermore, 53 Penn. St. 206 255 Boinest vs. Leionez, 2 Rich. L. 464 655 Bolton Partners vs. Lambert, 41 Ch. Div. 295 222 Boston vs. Simmons, 150 Mass. 461 598 Bradford vs. Kimberly, 3 Johns. Ch. 431 523 Breckenridge vs. Lewis, 84 Me. 349 103 Briggs vs. Partridge, 64 N. Y. 357 436 Brockway vs. Mullin, 46 N. J. L. 448 419 Brown vs. Bradlee, 156 Mass. 28 454 Bryant vs. Moore, 26 Me. 84 855 Bush vs. Cole, 28 N. Y. 261 650 Butler vs. Maples, 9 Wall. 766 340 Byington vs. Simpson, 134 Mass. 169 558 Byrd vs. Hughes, 84 111. 174 23 Camden Safe Deposit Co. vs. Abbott, 44 N. J. L. 257 876 T vi Cases Reported. PAGE! Chambers vs. Seat, 73 Ala. 372 252 Claflin vs. Leniieim, 56 N. Y. 3U1 294 Clark vs. Cumming, 77 Ga. 64 668 Cleveland vs. Pearl, 63 Vt. 127 556 Combs vs. Scott, 12 Allen, 493 146 Constant vs. University of Rochester, 111 N. Y. 604 560 Cook vs. Tullis, 18 Wall. 332 160 Cooley vs. Betts, 24 Wend. 203 702 Cort vs. Lassard, 18 Oreg. 221 816 Cox vs. Hoffman, 4 Dev. & Bat. 180 39 Craighead vs. Peterson, 72 N. Y. 279 373 Crane vs. Gruenewald, 120 N. Y. 274 87 Cummins vs. Heald, 24 Kans. 600 247 D'Arcy vs. Lyle, 5 Binney, 441 542 Davis vs. Hamlin, 108 111. 39 461 Davis vs. Kobe, 36 Minn. 214 700 Davison vs. Holden, 55 Conn. 103 47 Delaney vs. Rochereau, 34 La. Ann. 1123 514 Deaktn vs. Underwood, 37 Minn. 98 68 Devall vs. Burbridqe. 4 Watts & Serg. 305 _. 499 Dieringer vs. Meyer, 42 Wis. 311 2S9 Dodge vs. Hopkins, 14 Wis. 6S6 215 Dolan vs. Thompson, 126 Mass. 183 684 Durkee vs. Gunn, 41 Kans. 496 812 Drdry vs. Foster, 2 Wall. 24 120 Eberts vs. Selover, 44 Mich. 519 150 Elkhart County Lodge vs. Crary, 98 Ind. 238 18 Exchange National Bank vs. Third National Bank, 112 U. S. 276 239 Fairlie vs. Fenton, L. R. 5 Excheq. 169 669 Farmers' & Mechanics' Nat'l Bank vs. King, 57 Penn. St. 202.. 590 First National Bank vs. Mt. Tabor, 52 Vt. 87 62 Forbes vs. Hagman, 75 Va. 168. 122 Foster vs. Bates, 12 Mees. & Wels. 225 127 1 i;l£DLANDKU Vi. TEXAS & PACIFIC RAILWAY CO., 130 U. S. 416... 579 Gardner vs. Gardner, 5 dish. 483. 100 Gardner vs. Ogden, 22 N. Y. 327 465 Gilbert vs. How, 45Minn. 121 380 Goodrich vs. McDonald, 112 N. Y. 157 633 '■■ vs. AM i km, Ins. Co., 60 Mo. 116 _ 238 VSHOB iin.66 82 4 Allen. 417. 110 ■ vs. SIMONS, L33 Mass. 415 476 GRiaasvs.1 537 Bai N. Y. 827 136 Cases Keported. vii PAGE Harralson vs. Stein, 50 Ala. 347 236 Harris, vs. Nickerson, L. R. 8 Q. B. 286 659 Hatch vs. Squires, 11 Mich. 185 106 Hatch vs. Taylor, 10 N. H. 538 345 Hatcher vs. Comer, 73 Ga. 418 098 Hawkins vs. McGroarty, 110 Mo. 546 167 Hawley vs. Keeler, 53 N. Y. 121 50 Hazard vs. Spears, 4 Keyes, 469 182 Heath vs. Nutter, 50 Me. 378 91 Henry vs. Heeb, 114 Ind. 275... 115 Herrick vs. Gallagher, 60 Bart*. 566 512 Heyn vs. O'Hagen, 60 Mich. 150 186 Hibbard vs. Peek, 75 Wis. 619 4f-3 Higgins vs Lodge, 68 Md. 229 656 Higgins vs. Senior, 8 Mees. & Wels. 834 456 HOBSON vs. Hassett, 76 Cal. 203 442 Howard vs. Daly, 61 N. Y. 362 526 Howe Machine Co. vs. Clark, 15 Kans. 492 107 Hubbard vs. Tenbrook, 124 Penn. St. 291 367 Hunt vs. Rousmanier, 8 Wheat. 174 322 Huntington vs. Knox, 7 Cush. 371 587 Huntley vs. Mathias. 90 N. C. 101 408 Hyatt vs. Clark, 118 N. Y. 563 177 Innerarity vs. Merchants' National Bank, 139 Mass. 332 5G9 Insurance Co. vs. Davis, 95 U. S. 425 336 Insurance Co. vs. Kiger, 103 U. S. 352 686 Insurance Co. vs. McCain, 96 U. S. 84 299 Ironwood Store Co. vs. Harrison, 75 Mich. 197 125 Irvine vs. Watson, L. R. 5 Q. B. Div. 414 550 Jackson vs. National Bank, — Tenn. — 415 Jacobs vs. Warfield, 23 La. Ann. 395 287 Jett vs. Hempstead, 25 Ark. 462 496 Johnson vs. Hurley, nn Mo. 513 84 Johnson vs. Martin, 11 La. Ann. 27 495 Johnson vs. Stone, 40 N. H. 197 78 Jones vs. Atkinson, 68 Ala. 167 192 Kayton vs. Barnett, 116 N. Y. 625 553 Ktewert vs. Rindskopf, 46 Wis. 481 497 KlLLINGSWORTH VS. PORTLAND TRUST CO., 18 Ore. 351 40 King vs. Sparks, 77 Ga. 285 418 Kirk's Appeal, 87 Penn. St. 243 621 Knapp vs. Alvord, 10 Paige, 205 328 Knight vs. Clark, 48 N. J. L. 22 431 Komorowso vs. Krumdick, 56 Wis. 23 413 Kroeger vs. Pitcairn, 101 Penn. St. 311 _ 001 Laverty vs. Snethen, 68 N. Y. 522 4S6 viii Oases Reported. PAGB Leach vs. Hannibal & St. Joseph R. R. Co., 86 Mo. 27 480 Lehman vs. Pritchett, 84 Ala. 512 693 Leroy vs. Beard, 8 How. 451 3b2 Levi vs. Booth, 58 Md. 305 - 391 Lewis vs. Atlas Met. F. Ins. Co., 61 Mo. 534 269 Lewis vs. Brehme, 33 Md. 412 706 Lewis vs. Tilton, 64 Iowa, 220 510 Liddell vs. Chidester, 84 Ala. 508 - 535 Liebsoter vs. Kraus, 74 Wis. 387 - 448 Long vs. Hartwell, 34 N. J. L. 116 92 Loudon Savings Fund Society vs. Hagerstown Sav. Bank, 36 Penn. St. 498 871 Lucas vs. Bank of Darien, 2 Stew. 280 27 Lumpkin vs. Wilson, 5 Heisk. 555 390 Lyon vs. Kent, 45 Ala. 656 37 Lyon vs. Pollock, 99 U. S. 668 378 Massachusetts & Southern Const. Co. vs. Township of Gill's Creek, 48 Fed. Rep. 175 646 Mattiii. ssen & Weichers Refining Co. vs. McMahon's Admr., 38 N. J. L. 536 - 335 Mayor, etc., of Salford vs. Lever, (1891) 1 Q. B. 168 _ 601 ucniuR vs. Times Printing Co., 48 Minn. 319 128 McClintock vs. South Penn Oil Co., 146 Penn. 144 219 McClure vs. Herring. 70 Mo. 18. 429 Mc racken vs. San Francisco, 16 Cal. 591 109 McGraft vs. Rugee, 60 Wis. 406 717 McIntyre vs. Park, 11 Gray, 102 170 McKindly vs. Dunham, 55 Wis. 515... 39 McLaren vs. Hall, 2G Iowa, 297. 77 "eil vs. Boston Chamber of Commerce, 154 Mass. 277 63 Mills vs. Mills, 40 N. Y. 543.. 17 Missouri, ex rel. Walker vs. Walker, 125 U. S. 339 277 Mosness, Matter of, 39 Wis. 509 613 Moulton vs. Bowker, 115 i;ass. 86 619 Naltner vs. Dolan, 108 Ind. 500 623 ! vs. Mitchell, 71 N. Y. 199 33 7ork Iron Mine vs. Negaunee Bank, 39 Mich. 644 423 ON vs. Bogin, 20 s. C. 611 492 Norton vs. Cowell, G5 Md. 359 281 Osborne vs. Morgan, 130 Mass. 102 518 Page vs. Wells, 87 Mich. 415 493 Passano vs. Acosta, 4 La. 26 - 490 PatebSON VS. Gak i, 15 Past. 62 545 Patterson vs. Li rr, '7 N. J. L. 457 507 People vs. Township Board, 11 Mich. 222 459 Peters vs. Farnsworth, 15 Vt. 155 387 Peterson vb Cbristensen, 26 Minn. 877 234 Casks Reported. ix PA OH Phelps vs. Sullivan, 140 Mass. 86..... 101 Phillips vs. Moir, 69 111. 155 671 PlCKERT vs. Marston, 68 Wis. 465 - 411 Pinkham vs. Crocker, 77 Me. 563 676 Plant vs. Thompson, 42 Kan. 664 666 Pole vs. Lease, 33 L. J. Ch. 155 81 Reeve vs. First National Bank, 54 N. J. L. 208 446 Reqina vs. Walker, Dearsley & Bell, 600 1 Reynolds vs. Fleming, 30 Kans. 106 615 Rhoades vs. Blackiston, 106 Mass. 334 584 Rhodes vs. Forwood, 1 App. Cas. 256 259 Rice vs. McLarren, 42 Me. 157 ISO Rice vs. Wood, 113 Mass. 133 12 Roberts vs. Rumlet, 58 Iowa, 301 143 Rochester vs. Levering, 104 Ind. 562 478 Rockford, etc., R. R. Co. vs. Sage, 65 111. 328 134 Rowe vs. Rand, 111 Ind. 206 257 School-District vs. JEtna Insurance Co., 62 Me. 330 194 Scott vs. Middleton, etc., R. R. Co., 86 N. Y. 200 148 Shoninger vs. Peabody, 57 Conn. 42 - - 172 Sibbald vs. Bethlehem Iron Co., 83 N. Y. 378 301 Simmons vs. More, 100 N. Y. 140 505 Singer Mfg. Co. vs. Rahn, 132 U. S. 518 8 Smith vs. Clews, 105 N. Y. 283 396 Smith vs. Tracy, 36 N. Y. 79 154 Standard Oil Co. vs. Gilbert, 84 Ga. 714 273 St. Andrews Bay Land Co. vs. Mitchell, 4 Fla. 192 26 Stanton vs. Embrey, 93 U. S. 548 631 Stephens vs. Elwall, 4 Maule & Sel. 259 226 St. Johnsbury etc., R. R. Co. vs. Hunt, 55 Vt. 570 608 Stout vs. Smith, 98 N. Y. 25 623 Talcott vs. Chew, 27 Fed. Rep. 273 689 Thacher vs. Pray, 113 Mass. 291 201 Thomas vs. Joslin, 30 Minn. 388 427 Thompson vs. Davenport, 9 B. & C. 78 647 Thompson vs. Kelley, 101 Mass. 291 — 653 Towle vs. Leavitt, 23 N. H. 360 358 Trueblood vs. Trueblood, 8 Ind. 195 29 Turner vs. Goldsmith (1891) 1 Q. B. 544 266 Vescelius vs. Martin, 11 Colo. 391. 422 Vicksburg & Meridian Railroad vs. O'Brien, 119 U. S. 99 572 Vinton vs. Baldwin, 88 Ind. 104 664 Wakefield vs. Fargo, 90 N. Y. 213... 4 Wallace vs. Floyd, 29 Penn. St. 184 625 Warner vs. Martin, 11 How. 209 678 Watteau vs. Fenwick, (1893) 1 Q. B. 846 369 x Cases Reported. PAOB Webb vs. Smith, 30 Ch. Div. 192 661 Wbbeb vs. Bridgman, 113 N. Y. 600 331 . ks vs. Wayne Circuit Judges, 73 Mich. 236 648 WetsbrOD vs. Railway Co. 18 Wis. 35 - 31 WHEELER vs. McGuire, 86 Ala. 398 362 Wheeler vs. Northwestern Sleigh Co. 89 Fed. Rep. 347 138 Wheeler & Wilson Mfg. Co. vs. Auguey, 144 Penn. St. 398 152 Whitney vs. Merchant's Union Express Co., 104 Mass. 152 484 Whitney vs. Wyman, 101 U. S. 392 432 Wilcox & Gibbs Sewing Machine Co. vs. Ewing, 141 U. S. 627. 283 Wilson & Greig, In re, 12 Fed. Rep. 235 638 Wilson vs. Damje, 5s N. H. 392 626 Wilson vs. Owens, 16 L. R. Ir. 225 9 Woodward vs. Harlow, 28 Vt. 338 165 230 Cases. OASES CITED EN OPINIONS, BRIEFS AND NOTES. A. PAGE Abbe vs. Rood, 6 McL. 106 620 Abbott ve. Hapgood, 150 Mass. 248.129, 135 Abbott vs. Rose, 62 Me. 194 105 Aberdeen R. R. Co. vs. Blakie, 1 Macq. 461 472 Abrams vs. Sheeban, 40 Md.446 658 Ackernian vs. Ackerman, 14 Abb. Pr. 229 643 Adams vs. Boies, '-'4 Iowa, 96 414 Adams vs. Fox, 40 Barb. 442 641 Adams vs. Hannibal, etc. R. R. Co., 74 Mo. 553 575 Adams vs. Mills, 60 N. Y. 539 179 Adams vs Paige, 7 Pick. 542 699 Adams vs. Pittsburgh Ins. Co., 95 Penn. 348 406 Adams vs. Power, 52 Miss. 828 169 Adams Express Co. vs. Trego, 35 Md. 47 290,377 Adams Mining Co. vs. Senter, 26 Mich. 73 540 Adamson vs. Jarvis, 4 Bing. 66 228 Addison vs. Gandesequi, 4 Taunt. 574. 648 .aStua Ins. Co. vs. Alton City Bank, 25 111.243 239 ^Etna Ins. Co. vs. Church, 21 Ohio St. 492 483 Agricultural Bank vs. Commercial Bank, 7 S. & M. 592 240 Ahern vs. Goodspeed, 72 N. Y. 108 . 412 Akin vs. WasBon, 24 N. Y. 482 6 Alba vs. Morarity, 36 La. 680 276 Albany vs. Cuniiff, 2 Comst. 165 620 Albro vs. Agiwam Canal, 6 Cush. 75.. 618 Albro vs. Jaquith, 4 Gray, 99 618 Aldrich vs. Cooper, 8 Ves. 383 663 Alexander vs. Alexander, 2 Ves. 640.. 428 Alexander vs. Gibson, 2 Camp. 555 887 Alexander vs. J< nes, 64 Iowa, 207 180 Alexander vs. Northwestern Univer- sity, 67 Iiid. 466 540, 665 All JSaints Church vs. Lovett, 1 Hall, 191 388 PAQB Allen vs. Merchants* Bank, 23 Wend. 215 240,241 Allen vs. Ogden, 1 Wash. 174 38, 360 Allen vs. Suydam, 20 Wend. 321 245 Allen vs. Withrow, 110 U. S. 128 122 American Linen Th. Co. vs. Worten- dyke, 24 N. Y. 650 297 Ames vs. Union Ry., 117 Mass. 641 520 Amon vs. Fearon, 9 Ad. & E. 548 290 Ancona vs. Marks, 7 H. & N. 686.. .225, 226 Anderson vs. Cox, 16 Xeb. 10 667 Anderson vs. Moncrieff, 3 Des 126... 498 Andrews vs. Kneeland, 6 Cow 350 354, 384, 650 Andrews vs. Morse, 12 Conn. 444 649 Andrus vs. Howard, 36 Vt.248 610 Angle vs. Insurance Co., 92 U. S. 330.. 105 Anonymous, 1 Stra. 527 76 Archard vs. Hornor, 3 C. & P. 849 630 Armfleld vs. Nash, 31 Miss. 361 634 Armitagevs. Widoe, 36 Mich. 124.. 81, 119 Armour vs. Mich. Cent. R. Co., 65 N. Y. 11 677 Armstrong vs. Lowe, 76 Cal. 616 811 Armstrong vs. Stokes, L. R. 7 Q. B. 598 653 Armstrong vs. Wann, 29 Minn. 128 667 Arnold vs. Spurr, 130 Mass. 347 78 Arnott vs. Webb, 1 Dill. 362 618 Arrington vs. Cary, 5 Baxt. 609 „ 667 Arrott vs. Brown, 6 Whart. 9 600 Ash vs. Guie, 97 Penn. 493 511 Ashburner vs. Smock, 81 Penn. St. 53. 20 Ashe vs. DeRossett, 6 Jones, 299 697 Ashley vs. Harrison, Peake, 194 611 Aspdin vs. Austin, 5 Q. B. 671 266, 530 Atkin vs. Acton, 4 C. & P. 208 291 Atkins vs. Brown, 59 Me. 90 448 Atlantic Bank vs. Savery, 82 N. Y. 291. 564 Atlantic National Bank vs. Harris, 118 Mass. 147 570 At lee vs. Bartholomew, 69 Wis. 43... 218 Attorney General vs. Davy, 2 Atk. 212 65,59 XI ill Oases Cited. PAGH Attrill vs. Patterson, 68 Md. 226.. ..255, 311 Attwood vs. MuDnings, 7 B. & C. 278 374, 375, 377 Atwood vs. Small, 6 C. & F. 449 202 Austin vs. Helms, 65 N. C. 560 68 Ayer vs. Bell Mfg. To., 147 Mass. 46... 68 Ayrault vs. Pacific Bank, 47 N. Y. 670 240 B. Babb vs. Reed, 6 Rawle, 151 .... 46 Babcock vs. Lamb, 1 Cow. 233.... 68 Bagnall vs. Carlton, 6 Ch. D. 371 603 Bailey vs. Bagley, 19 La. Ann. 172 620 Balrd vs. Mayor, 86 N. Y. 567 334 Baird vs. Shipman, 132 111. 16 617 BaldwiD vs. Bank of Louisiana, 1 La. Ann. 13 240 Baldwin vs. Burrows. 47 N. Y. 199 .... 141 Baldwin vs. Leonard, 39 Vt. 260 124 Baldwin vs. Merrill, 8 Humph. 132.390,620 Baldwin vs. Munn. 2 Wend. 399 651 Ball vs. Dunsterville, 4 T. R. 313 101 Ballingalls vs. Gloster, 3 East, 481 .... 246 Ballston Spa Bank vs. Marine Bank, 16 Wis. 120 451 Baltimore Turnpike, In re, 5 Binn. 481 68 Baltzen vs. Nicolay, 63 N. Y. 467 503,506,508 Bank vs. Bank, 75 N. C. 534. 409 Bank vs. Bugbee, 1 Abb. Ch. App. 86.. 414 Bank vs. Butler, 41 Ohio St. 519 240 Bank vs. Kimball, 10 Cush. 373 105 Bank vs. Neal, 22 How. 96 105 Bank vs. Vanderhorst, 32 X. Y. 353.... 332 Bank of Beloit vs. Beale, 34 N. Y. 473. 156 Bank of Louisville vs. First National Bank, 8 Baxt. 101 239 Bank of Metropolis vs.Guttschlick, 14 Pet. 27 26 Bank of Mobile vb. Andrews, 2 Sneed, 540 390 Bank of Northern Liberties vs. Jones, 42Penn. 536 692 Bank of Orleans vs. Smith, 3 Hill, 560 240 Bank of Bt. Mary's vs. Calder, 3 Strobh.403 209 Bank of CJtica vs. McKinster, 11 Wend 473 243 Bank of U. S. vs. Davis, 2 Hill, 451 180,424, 563 Bank of Washington vs. Triplett, 1 Pet. 25 241-245 Banks vs. Evans, 10 S. & M. 35 619 Banner Tobacco Co. vs. Jenison, 48 U. 459 29 Barinu vs. Corrie, 2 B. & Aid. 143 385, 402 Barker vs. Mechanics' Bank, 3 Wend. U> 439 Barker vs. St. Quintin, 12 M. & W. 441 634, 636, 646 PAGH Barnett, Ex parte, 7 Jur. 116 475 Barnes vs. Roberts, 5 Bosw. 73 304 Barr vs. Schroeder, 32 Cal. 609 253, 315 Barry vs. Merchants' Ex. Co., 1 Sandf. Ch. 280 43 Barry vs. Schmidt, 67 Wis. 172 665 Bartlet vs. Tucker, 104 Mass. 336 116 Bartlett vs. Hamilton, 46 Me. 435 626 Bartlett vs. Palmer, 8 N. Y. 398 238 Bar wick vs. English Joint Stock Bank L. R. 2 Ex. 259 682 Basford vs. Pearson, 9 Allen, 387 103 Baston vs. Clifford, 68 111. 67 692 Bateman vs. Phillips, 15 East, 272 457 Battelle vs. Pavement Co.,37 Minn. 89 130 Batty vs. Oarswell, 2 Johns. 48 354, 650 Baudouine vs. Grimes, 64 Iowa, 370... 298 Baugh vs. Kilpatrick, 54 Penn. 84 659 Bay vs. Cook, 2 Zab. 343 608 Bayley vs. Wilkins, 7 C. B. 886 544 Bayliffe vs. Butterworth, 1 Ex. 425. 412 Baynard vs. Norris, 6 Gill, 483 658 Baxter vs. Lamont, 60 111. 237 668 Beach vs. Branch, 57 Ga. 363 _. 644 Beal vs. Polhemus, 67 Mich. 130_ 23 Beals vs. Allen, 18 Johns. 363 159, 854 Bean vs. Pioneer Mln. Co., 66 Cal. 451 444, 448, 450 Beaubien vs. Poupard, Har. Ch. 206... 460 Beaugillott vs. Callemer, 33 Sirey 322 . 517 Beck vs. Thompson, 4 H. & J. 631 715 Beckham vs. Drake, 2 H. L. Cas. 606.. 631 Beckham vs. Drake, 9 M. & W. 79 _ 29, 438, 439 Beckwith vs. Sibley, 11 Peck. 483 685 Bedford R. R. Co. vs. Bowser, 48 Penn. 29 132 Beebe vs. Mead, 83 N. Y. 687 718 Beekman, In re, 1 Abb. Pr. 449 6 Beers vs. Hendrickson, 46 N. Y. 666 620 Beeson vs. Beeson, 9 Penn. 284. 474 Eeeston vs. Collyer, 4 Bingh. 809 276 Beidman vs. Goodell, 66 Iowa, 692. 145, 175 Bell vs. Cunningham, 3 Pet. 69 140, 159 Bell vs. Day, 83 N. Y. 166 168 Bell vs. Gardiner, 4 M. & G. 11 231 Bell vs. Josselyn, 3 Gray, 309 619 Bell vs. Kaiser, 60 Mo. 160 667 Bell vs. McConnell, 37 Ohio St. 396.... 665 Bellefontaine Ry. Co. vs. Hunter, 32 Ind. 335 675 Benedict vs. Lansing, 6 Den. 283 423 Benedict vs. Smith, 10 Paige, 126 619 Bennecke vs. Insurance Co., 105 U. S. 360 HO Bennett, Ex parte, 10 Ves. 881 475 Bennett vs. Judson, 21 N. Y. 238.156.167,203 Bennett vs. Stout, 98 111. 47 78 Bennett vs. Vansyckle, 4 Duer, 462 464 Bennington vs. Parks, 68 Vt. 178 62 Cases Cited. Xlll pa an Bentley vs. Domett, 51 Wis. 224 ...410, 411 Bergen vs. Bennett, 1 Caine's Cas. 19 . 473 Bergen vs. Bennett, 1 Caine's Cas. 1.. 330 Berkey vs. Judd, 22 Minn. 287 70, 381 Berkshire Glass Co. vs. Wolcott, 2 Al- len, 227 176 Berry vs. Barnes, 23 Ark. 411 414 Berry vs. Williamson, 8 How. 495 682 Besse vs. Dyer, 9 Allen, 151 455 Bibb vs. Allen, 149 U. S. 481 544 Billings vs. Mason, 80 .Me. 490 174 Billings vs. Morrow, 7 Cal. 171 379 Billings vs. Prinu, 2 Bl. 1017 54 Bird vs. Brown, 4 Ex. 786 163, 225 Bird vs. Daggett, 97 .Mass. 494 377 Bird vs. Randall, 3 Burr. 1345 602 Birdsall vs. Russell, 29 N. Y. 220 297 Bixby vs. Parsons, 49 Conn. 483 291 Black vs. Woodrow, 39 Md. 194 271 Blachford vs. Preston. 8T. R. 89 20 Blackstone vs. Buttermore, 53 Penn. St. 266 254 Blackwell vs. Ketcfeam, 53 Ind. 184.... 419 Bland vs. O'Hagen, 64 N. C. 472 103 Blevins vs. Pope, 7 Ala. 371 365 Bliss vs. Clark, 16 Gray, 60 195, 280 Bloomfleld vs. Bank, 121 U. S. 135 140 Blove vs. Sutton, 3 Mer. 237 679 Bloyes' Trust, Inre, 1 M. & G. 488 473 Blunden vs. Desart, 2 D. & W. 423 639 Bodine vs. Exchange Ins. Co., 51 N. Y. 123 238 Bodine vs. Killeen, 53 N. Y. 93 35 Bohart vs. Oberne, 36 Kan. 284 141 Bollman vs. Loomis, 41 Conn. 581.. .25, 539 Bolton vs. Hlllersden, 1 Ld. Raym. 224 156 Bone vs. Eckless, 19 L. J. Ex. 438 498 Bonney vs. Smith, 17111. 531 254 Booge vs. Pacific R. R. Co., 33 Mo. 212 534 Booth vs. Jacobs, 3 ST. & M. 351 716 Botts vs. McCoy, 20 Ala. 578 38 Bouck vs. Enos, 61 Wis. 604 411 Bou^ field vs. Wilson, 16 M. & W. 185 408 Bowles vs. Wathan, 54 Alo. 264 85 Bowling vs. Arthur, 34 Miss. 41 240 Bowling Green Savings Bank vs. Todd, 52 N. Y. 489 641, 642 Bowne vs. Hyde,6B^rb. 392 619 Bozon vs. Bolland, 4 M. & O. 354..639, 640 Braden vs. Ward, 42 N. J. L. 518 636 Bradford vs. Justices, 33 Ga. 333 61 Brndstreet vs. Everson, 72 Penn. St. 122 -242, 248 Brady vs. Mayor, 16 How. Pr. 432 110 Brady vs. Todd, 159 Brahn vs. Jersey City Forge Co., 38 N. J. L. 74 218 Brantly vs. Insurance Co., 53 Ala 554 380, 419 Branwell vs. Penneck, 7 B. & C. 530 .. 7 PA OB Bray vs. Gunn, B3Ga. 148 691 Breed vs. First Nat. Bank, 4 Colo. 481. 419 Brewer vs. Broadwood, 22 Ch. Div. 105 223 Brewstervs. Carnes, 103 N. Y.656 88 Briggs vs. Georgia, 10 Vt. 68 620 Brigham vs. Palmer, 8 Allen, 450 152,175,407 Brigham vs. Peters, 1 Gray, 147 Ill Brinckerhoof vs. Phelps, 24 Barb. 100. 651 Brinsmead vs. Harrison, L. R. 7 C. P. 547 602 British Mutual Banking Co. vs. Charnwood Ry., 18 Q. B. D. 714 582 Britton vs. Niccolls, 104 U. S. 757 242 Brock vs. Parker, 5 Ind. 530 30 Bronson vs. Green, Walk. Ch. 66 151 Brooke vs. Hook, 24 L. T. 34 118 Brooke vs. Railroad Co., 108 Penn. 629 583 Brooks vs. Jameson, 55 Mo. 512 107 Brooks vs. Martin, 2 Wall. 79 498 Broomhead, In re, 6 D. & L. 62 639 Brown, In re, 1 N. Y. Leg. Obs. 69 639 Brown vs. Feeter, 7 Wend. 305 651 Brown vs. Hiatts, 15 Wall. 177 339 Brown vs. McGran, 14 Pet. 479 702, 717 Brown vs. Tarkington, 3 Wall. 371.... 37 Brownell vs. Bonney, 1 Q. B. 39 716 Browning vs. Ins. Co., L. R. 6 O. P. 263 439 Browning vs. Magill, 2 H. & J. 308.... 393 Bruce, Town of vs. Dickey, 116 111. 527 119, 633 Bryan vs. Reynolds. 5 Wis. 200 22 Bryant vs. Moore, 26 Me. 84 140, 360 Bryce vs. Brooks, 29 Wend. 374 717 Buchanan vs. Curry, 19 Johns. 141 337 Buck vs. Jones, 16 Tex. 461 193 Buckland vs. Johnson, 15 C. B. 145 602 Buford vs. Neeley, 2 Dev. Eg.. 481 313 Bull vs. Sibbs, 8 T. R. 327 71 Buller vs, Harrison, Cowp. 565 613 Bunce vs. Gallagher, 5 Blatch. 481.335, 336 Bundy vs. Monticello, 84 Ind. 119 626 Burden vs. Burden, 1 V. & B. 170 523 Burgan vs. Lyell, 2 Mich. 102 29 Burlingame vs. Brewster, 79 111. 516... 445 Burnham vs. Holt, 14 N. H. 367 80 Burns vs. Lynde, 6 Allen, 305 103 Burrows vs. Coke & Gas Co., L. R. 6 Ex.67 611 Burt vs. Lathop, 52 Mich. 106 47 Burton vs. Holley, 29 Ala. 318 697 Burton vs. Marshall, 4 Gill, 487 319 Burton vs. Ry. Co., 9 Ex. 607 266, 275 Hush Exparte, 7 Vin. Abr. 74 646 Bush vs. Buckingham, 2 Vent. 88 158 Butcher vs. Bank, 2 Kan. 70 617 Butcher vs. Krauth, 14 Bush, 713 470 Butler vs. Gable, 1 W. & S. 108 174 Butler vs. Galletti, 21 How. Pr. 465.318,320 Butler vs. Hildreth, 6 Mete. 49 176 XIV Cases Cited. PAGE Butler vs. Price, 110 Mass. 97 40 Butterfield vs. Beal, 3 Ind. 203 433 Bj ington vs. Simpson, 134 Mass. 169 .. 45o C. Cady vs. Shepherd, 11 Pick. 400 171 Cage vs. Wilkinson, 3 S. & M. 223 641 Cairncross vs. Lorituer, 7 Jur. 149 187 Cairnes vs. Blecker, 12 Johns. 300.. 210, 489 Cairo, etc., R. R. Co. vs. Mahoney, 83 111. 73 127 Calder vs. Dobell, L. R. 6 C. P. 486 439,455,560 Caldicott vs. Griffiths, 8 Ex. 898 47 Caldwell vs. Waters, 18 Penn. 79 33 Calhoua vs. Millard, 121 N. Y. 69 110 Callander vs. Oelrichs, 5 Bing. 58 5(0 Callo vs. Brouncker, 4 C. & P. 518 291 Campbell's Appeal, 29 Penn. 401.. .620, 622 Campbell vs. Philps, 1 Pick. 63 555 Campbell vs. Portland Sugar Co., 62 Me. 562 617 Campbell vs. Smith, 71 N. Y. 26 103 Cane vs. Martin, 2 Beav. 584 646 Canty vs. Latterner, 31 Minn. 239 316 Capron vs. Strou\ 11 Nev. 304 276 Card vs Hope. 2 B. & C. 661 20 Carley vs. Jenkins, 46 Vt. 731 29 Carmichael vs. Bnck, 10 Rich. 333 355 Carpenter vs. Farnsworth, 106 Mass. 661 445 Carpenter vs. Hrlcomb, 105 Mass. 284 5.61 Carpenter vs. Marnell, 3 P. & P. 40 685 Carter vs. Webster, 79 111. 435 667 Carver's Case, 7 N. & II. 499 6)6 Carving vs Southland, 3 Hill, 552 193 Casco Bank vs. Keene, 53 Me. 103 117 Case vs. Bank, 100 U. S. 446 68 Case vs. Reeve, 14 Johns. 83 610 Ca-^sady vs. Seeley, 69 Iowa, 609. 311 Cassidy vs. McKei zie 333 Castle vs. Belfast Foundry Co., 72 Me. 167 448, 460 Ca-trique vs. Batligieg, 10 E. F. Motf. 94. 714 Cave vs. Cave, 15 Ch. D. 639 570 Cedar Rapids R.R.vs.Stewart,25Iowa, 116 62 Chamberlain vs. Dover, 13 Me. 474 195 Chamberlain vs. Morgan. 68 Penn. 168 532 Chamberlin vb.McCallister,6 Dana,352 630 Chambers vs. Miller, 7 \Vatt N 63 620 Charles vs.Eehleman, 5 Colo 107 29 Charles vs. Hoboken, 3 Dutch. 203 66 \ -. Pattberg, 13 Duly, 171 _ 450 f'hi-flterfleld Mfg. Co vs. Dehon, 6 PIok.7 596 I ago, B. & Q. R. R. Co. vs. Riddle, 60 111.534 575 Chicago & N, W. Ry. Co. vs. Fillmore, 67 111.265 675 PAQB Child vs. Eureka Powder Works, 44 N. H. 354 620 Chouteau vs. Goddin, 39 Mo. 229 124 Church vs. Landers, 10 Wend. 79 76 Churchward vs. Queen, L. R. 1 Q. B. 173 266, 271 City Bank vs. Barrow, 6 A pp. Cas. 664 394 Claflin vs. Lenheim, 66 N. Y. 301 365 Clark vs. Kingsland, 1 S & M. 248.... 620 Clark vs. Little, 41 Iowa, 497 618 Clark vs. Marsiglia, 1 Den. 317 255, 530 Clark vs. Moody, 17 Mass. 145 704 Clark vs. Smith, 88 111. 298 402 Clark vs. Van Riemsdyk, 9 Cr. 153.193,218 Clark's Case, 1 Blackf. 122 316 Clark's Lessee vs. Courtney, 5 Pet. 349 384 Clealand vs. Walker, 11 Ala. 1058.. 364, 553 Cleaves vs. Lord, 3 Gray, 66 71 Ciippinger vs. Hepbaugh, W. & S. 315 18,21,22 Clossman vs. Lacoste, 28 Eng. L. & E. 140 533 Clough vs. Whifcomb, 105 Mass. 482.. 408 Clme vb. Barron, 2 Mich. 192 460 Cobb vs. Becke, 6 Ad. & El. 930 242 Cobb vs. Knapp, 71 N. Y. 348 556 Cock vs. Emmerling 668 Cocke vs. Jennor, Hob. 66. 602 Codding vs. Mansfield, 7 Gray, 272 456 Codwise vs. Hacker, 1 Caines, 626 355 Coffin vs. Landis, 46 Penn. 426 266 Coffin vs. Reynolds, 37 N. Y. 640 6 Colbnrn vs. Phillips, 13 Gray, 64 684 Cole vs. Northwestern Bank, L. R. 10 C. P. 354 393 Coleman vs. Bank, 53 N. Y. 393 439 Coleman vs. Garrigues, 18 Barb. 60 651 Coles vs. Kinder, Cro. Jac. 571 388 Coles vs. Trecothick, 6 Ves. Jr. 236 678 Collins vs. Price, 4 Bing. 132 630 Collins vs. Selden, L. R. 3 C. P. 495.... 530 Colmer vs. Ede, 40 L. J. 185 639 Colonial Bank vs. Cady, 15 App. Cas. 267_ 108 Columbia Bridge Co. vs. Geisse, 38 N. J. L. 39 107 Combes' Case, 9 Co. 766 326 Combs vs. Scott, 12 Allen, 895 140, 182 Corning vs. Culvert, 2 Hill, 56 304 Coml. Bank vs. Kortright, 22 Wend. 348.. 344 Commercial Bank vs. Norton, 1 Hill, 601 238, 66/ Commercial Bank vs. Union Bank, 11 N.Y. 203 240,;241, 248 Commercial Bank vs. Warren, 16 N. i.677 114, 117 Commercial Fire Ins. Co. vs. Capital Ins. Co., 81 Ala. 330 638 Commonwealth vs. Canal Commis- sioners, 9 Watts, 466 66 Cases Cited. XT PAOB Commissioners vs. Lecky, 6 8. & Ii. 166 66 Commissioners vs. Perry, 5 Ohio, 56... 21 Condit vs. Baldwin. 21 N.Y. 219.. ..142, 157 Conger vs. Weaver, 20 N. Y. 140 651 Conkling vs. Krakauer, 70 'Tex. 735 311 Conn vs. Penn, Pet. C. C. 496 887 Cook vs. Berlin, etc., Co., 43 Wis. 433.. 470 Cooley vs. O'Connor, 12 Wall. 391 57 Coons vs. Renick, 11 Tex. 134 29 Cooper vs. Clegborn, 50 Wit*. 113 450 Cooper vs. Jenkins, 33 Beav. 431 636 Cooper vs. Lampeter Twp., 8 Watts, 125 56 Coppin vs. Walker, 7 Taunt. 237 589 Cormack vs. Digby, I. R. 9 C. L. 657... 10 Corn Ex. Ins. Co. vs. Babcock, 42 N. Y. 614 85 Corning vs. Southland, 3 Hill, 552 218 Cornwall vs. Wilson, 1 Ves. Sr. 609 355 Corser vs. Paul, 41 N. H. 24 117 Corson vs. Mulvaney, 49 Penn. 88 218 Cort vs. Ambergate, etc., R. R. Co., 17 A. & E. 127 631 Costlgan vs Mohawk R.R.Co.,2Denio, 609 632 Cothren vs. Connanghton, 24 Wis. 154 614 Coughtry vs. Globe Woolen Co.,56 N.Y. 124 620 Courcier vs. Ritter, 4 Wash. 549 210 Coutourier vs. Hastie, 8 Ex. 39 711 Cowaejee Nanathoy vs. Lallbhoy Vul- lubhoy, 3 Ind. Ap. 200 268 Cowdrey vs. R. R. Co., 93 U. 8. 854 647 Cowell vs. Simpson, 16 Ves. 279 647 Cowen vs. Boone, 48 Iowa, 350 _ 636 Cox vs. Bruce, 18 Q. B. D. 147 681 Cox vs. Hoffman, 4 Dev. & Bat. 180 ... 410 Cox vs. Livingston, 2 W. & S. 103 249 Cox vs. Prentice. 3 M. & S. 345 512 Cragie vs. Hadley, 99 N. i. 131 663 Crane vb. Baudouine, 65 N. Y. 256 334 Cravens vs. Gillilan, 63 Mo. 28 114 Crawford vs. Baikley, 18 Ala. 270 193 Crawford vs. Redus 54 Miss. 700 78 Crawshaw vs. Roxbury, 7 Gray, 874... 455 Cresson vs. Miller, 2 Watts, 272 622 Crocker vs. Crane, 21 Wend. 211 67 Croutvs. DeWolf, 1 H.I. 393 117 Crowe vs. Ballard, 3 Bro. C. 0. 117 469 Croy vs. Busenbark, 72 Ind. 48 101 Critchfleld vs. Porter, 3 Ohio 518 618 Culver vs. Ashley, 19 Pick. 301 112 Oumminus vs. McLain, 2 Ark. 412- 496 Curtis vs. Williamson, L. R. 10 Q. B. 67 656 Cushing vs. Longfellow, 28 Me. 306 195 Cutler vs. Thurlo,20Me. 213 191 Cutter vs. Demmon, 111 Mass. 474 599 D. PAOB Daly vs. Butchers' & Drovers' Bank, 66 Mo. 94 239 Daly vs. Smith, 49 How. Pr. 160.. ..819. 820 Damon vs. Granby, 2 Pick. 345 60, 64 Dana vs. Kemble, 19 Pick. 113 628 Danaher vs. Garlock, 33 Mich. 295 126 Danby vs. Coutts, 29 Ch. Div. 500 873 Dangerfleld vs. Thomas, 9 A. & E. 292. 585 Daniels vs. Ballantine, 23 Ohio St. 532. 697 Danville vs. Railroad Co., 43 Vt. 144.. 63 Darling vs. Stan wood, 14 Allen, 504 .238.260 D'Arnay vs. Chesneau, 13 M. & W. 796 685 Darrow vs. St. George, 8 Colo. 692 255 Daugherty vs. Telegraph Co., 76 Ala. 168 697 Davenport vs. Sleight, 2 D. & Bat. 881 103 Davenport, etc., Association vs. Insur- ance Co., 16 Iowa, 74 145 Davis vs. Ayers, 9 Ala. 292 637 Davis vs. England, 141 Mass. 587 446 Davis vs. Lane, 10 N. H. 156 835, 336 Davis vs. Preston, 6 Ala. 83 537 Davis vs. School District, 24 Me. 349.. 195 Davis vs. Windsor Sav. Bank, 46 Vt. 778 333 Davoue vs. Fanning, 2 Johns. Ch. 252 470, 474 Dawson vs. Lawly, 5 Es. Ca. 65 384 Day vs. Holmes, 103 Mass. 306 406 Day Land & Cat.Co. vs. Texas, 68 Tex. 626 226 Daylight Burner Co. vs. Odlin, 61 N. H. 56 408 Dayton vs. Warne, 41 N. J. L. 659 435 Dean vs. DeWolf, 16 Hun, 186, 82 N. Y. 626 6 DeCaters vs. De Chanmont, 3 Paige, 178 474 DeOordova vs. Knowles, 37 Tex. 19 379 Degg vs. Midland Ry, 1 H. & N. 773... 522 Denning vs. Smith, 3 Johr.8. Ch. 344 354. 359 Denny vs. Railroad Co., 13 Gray, 481.. 698 Deringer vs. Deringer, 5 Houst. 416... 42 De Rivaflnoll vs. Corsetti, 4 Paige, 264 316, 318 Deny vs. Flitner, 118 Mass. 131 611 Derwort vs. Loomer, 21 Conn. 215 620 Desmond vs. Stebbins, 140 Mass 339... 311 Despatch Line vs. Bellamy Mfg. Co., 12 N. H. 205 92, 168 Devallvs. Burbridge, 4 W. & S. 305.. 464 Devinney vs. Reynolds, 1 W. & S. 328 70 Devoss vs. Gray, 22 Ohio St 169 47 DeWitt vs. Walton, 9 X. Y. 570 439 Dexter vs. Adams, 2 Den. Hii 208 Dicas vs. Stockley, 7 C. & P. 5S7 647 Dickerman vs. Ashton.21 Mil n. 538... 423 XVI Cases Cited, Dickinson vs. Conway, 12 Allen, 491... Dietriok vs. Baltimore R. R., &8 Md, 347_ Dillaway vs. Butler, 135 Mass. 479 Dillon vs. Anderson, 43 N. Y. 231 Distilled Spirits, The, 11 Wall. 356 Dobbin vs. Dupree, 39 Ga. 394 PAGE 140 575 570 532 562 618 Dobson vs. Racey, 8 N. Y. 216 474 Dodd vs. Wakeman, 26 N. J. Eq. 484... 476 Dodds vs. Dodds, 9 Penn. 395 620 Dodge vs. Hopkins, 14 Wis. 630 381 Dodge vs. Perkins, 9 Pick. 368 704 Doe vs. Goldwin, 2 Q. B. 143 218 Doe vs. Roberts, 17 M. & W. 778 30. 31 Doe vs. Walters, 10 B. & C. 625 218 Dolan vs. Scanlan, 57 Cal. 261 667 Donaldson vs. Farwell, 93 U. S. 631.... 393 Doonan vs. Ives, 73 Ga. 295 667 Dorchester Bank vs. New England Bank. 1 Cush. 177 239 Dorrance vs. Scott, 3 Whart. 313 33 Douville vs. Merrick, 25 Wis. 688 499 Dowell vs. Williams, 33 Kan. 319 108 Downing vs. Rugar, 21 Wend. 178 57 DuBols vs. Canal Co., 4 Wend. 285 .... 440 Dudgeon vs. Haggart, 17 Mich. 275 151 Duff vs. Russell, 14 N. Y. S. 134 322 Dufresne vs. Hutchii son, 3 Taunt. 117 488 Duguid vs. Edwards, 50 Barb. 290 597 Duluth Nat. Bank vs. Insurance Co., 85 Tenn.76 238 Duncan vs. Gilbert, 29 N. J. L. 521 .... 377 Dunn vs. Sayles, 5 Q. B. 685 266 Durgin vs. Somers, 117 Mass. 55 29 Durkee vs. Mott, 8 Barb. 423 530 Dutton vs. Willner, 52 N. Y. 312 476 Drake vs. Trustees, 11 Iowa, 54 511 Draper vs. Massachusetts Steam Heat Co., 5 Allen, 338 448,450 Drayton vs. Reid, 5 Daly, 442. 291 Dresser vs. Norwood, 17 C. B. 446 562 Drew vs. Nunn, 4 Q. B. Div. 661 336 Driggs vs. Dwight, 17 Wend. 71 651 Drinkwater vs. Goodwin, Cowp. 251 .. 524 Drury vs. Foster, 2 Wall. 24 122 Dwight vs. Blackmar, 2 Mich. 330 400 Dyer vs. Pearson, 3 B. & C. 42. „ 859 Dykers vs. Townsend, 24 N. Y. 61 439 EL Eadle vs. Ashbaugh, 44 Iowa, 519 145 Earl of Sheffield's Case, 13 App. Cas. 333 104 Earp vs. Cummlnns, 54 Pewn. St. 894.. 255 EastCOtt vs. Mil ward, 7 T. R. 361 679 East In K. R. Co. vs. Benedict, 5 G 566 439,559 East Haikiam Bank vs. Scovil, 12 Conn. 303 239 PADS East India Co. vs. Hensley, 1 Esp. 112 354, 668 East River Bank vs. Kennedy, 9 Bosw. 543 619 Edens vs. Williams, 36 111. 252 313 Edgar vs. Fowler, 3 East, 225 499 Edgerly vs. Emerson, 23 N. H. 555 64 Edinboro Academy vs. Robinson, 37 Penn. 210 132 Edmunds vs. Bushell, L. R. 1 Q. B. 97. 370 Edwards vs. Golding, 20 Vt. 31 688 Edwards vs. Grand Junction Ry. Co., 1 M. & C. 650 135 Eggleston vs. Boardman, 37 Mich. 14.. 633 Eggleston vs. Wagner, 46 Mich. 610... 101 Eichbaum vs. Irons, 6 W. & S. 67 47 Ekins vs. Maclish, Ambl. 186 384 Elderton vs. Emmens, 6 C. B. 178 530 Ellicott vs. Barnes, 31 Kan. 170 626 Ellis vs. McNaughton, 76 Mich. 237 ... 517 Ellis vs. Turner, 8 T. R. 531 243 Elwell vs. Chamberlain, 31 N.Y.611.156,158 Elwell vs. Shaw, 16 Mass. 42 431 Ely vs. Cooke, 28 N. Y. 373 613 Emery vs. Fowler, 39 Me. 226 555, 610 Emery vs. Hapgood, 7 Gray, 55 599 Emma Silver Min. Co. V3. Grant, 11 Ch. D. 918 603 Emmel vs. Hayes, 102 Mo. 193 85 Emmons vs. Elderton, 4 H. L. Cas. 646 532 Empres Eng. Co., in, re, 16 Ch. Div. 128 130,135 Enoch vs. Wehrkamp, 3 Bosw. 398 ... 718 Ensworth vs. Life Ins. Co., 7 Am. L. Reg. 332 272 Episcopal Church vs. Varian, 28 Barb. 644 651 Episcopal Society vs. Episcopal Church, 1 Pick. 372 218 Erie, etc., ITankroad Co. vs. Brown, 25 Penn. 156 133 Etheridge vs. Price, 73 Tex. 597 78 Ether ing ton vs. Parrott, 1 Salk. 118 .. 74 European Bank, In re, L. R. 5 Ch. 358. 570 Evans vs. Wells, 22 Wend. 340 ..169,201,440 Everett v.-,. Saltus, 15 Wend. 474 359 Everhart vs. Searle, 71 Penn. 256 53» Exchange Bank vs. Lewis Co., 28 W. Va. 273 415 Exchange Bank vs. Rice, 107 Mass. 37 559 Eystra vs. Capelle, 61 Mo. 580 78 F. Fabers vs. Mercantile Bank, 23 Pick. 330.. 239 Fairbanks vs. Snow, 145 .Mass. 153 31 Fairfield vs. Adams 16 Pick. 383 684 Falrlie vs. Fenton, L. K. 6 Kx. 769 506 Fairman vs. Bavin, 29 111. 75 464 Fairthorne vs. Blaquire, 6 M. & S. 73. 83 Cases Cited. xvn PAGE Falk vs. Moebs, 127 U. S. 507 450 Farebrother va. Ausley, 1 Camp. 343.. 228 Farmer vs. Russell, 1 B. & P. 296 498 Farmer's Co-operative Trust Co. vs. Floyd, 47 Ohio St. 525 605 Farmers', etc., Bank vs. Butchers' Bank, 16 N. Y. 133 424 Farmers', etc., Bunk vs. Colby, 64 Cal. 352 444 Farmers', etc., Bank vs. Kir g, 57 Penn. St. 202 626 Farmers' Loan & Trust Co. vs. Wal- worth, 1 N. Y. 446 156, 203 Farnam vs. Brooks, 9 Pick. 212 479 Farnsworth vs. Hemuier, 1 Allen, 494 12, 539 Farrington vs. Meek, 30 Mo. 581 524 Farwell vs. Boston & W. R. R., 4 Mete. 49 518 Fawcett vs. Cash, 5 B. & Ad. 908 282 Fay vs. Noble, 12 Cush. 1 68 Feild vs. Farrington, 10 Wall. 141 691, 692, 702 Fellows vs. Steamboat Co., 38 Conn. 197 298 Fenn vs. Harrison, 3 D. & E. 760...354. 360 Fereira vs. Sayres, 5 W. & S. 210... 328, 538 Ferguson vs. Crawford, 70 N, Y. 263... 618 Ferris vs. Paris, 10 Johns. 285 704 Fewings vs. Tisdal, 1 Ex. 295 530 Field vs. Stagg, 52 Mo. 534 103, 122 Fifth Nat. Bank vs. Hyde Park, 101 111.596 695 Finch vs. Mansfield, 97 Mass. 89 408 Firemans' Ins. Co. vs. McMillan, 29 Ala. 147 193 First Nat. Bank vs. Concord, 50 Vt. 281 62 First National Bank vs. Gay, 63 Mo. 33 114, 419 First Nat. Bk. vs. Loyhed, 28 Minn. 396 70 Fischer vs. Bell, 91 lud. 243 311 Fisher vs. School District, 4 Cush. 494. 195 Fisher's Appeal, 34 Penn. 29 480 Flsk vs. Heuarie, 13 Oreg. 156 311 Fitzhugh vs. backett, 36 N. Y. 61 166 Fitzpatrick vs. School Commsr., 7 Humph. 224 116 Fitziinimons vs. Southwestern Ex. Co., 40 Ga. 330 640 Fleet vs. Murton, L. R. 7 Q. B. 126 606 Flemyng vs. Hector, 2 M. & W. 172.46, 47 Floyd Acceptances, The, 7 Wall. 666.. 423 Fonda vs. VanHorn, 16 Wend. 631 31 Ford vs. William, 21 How. 289 439 Fordyce vs. Pepper, 16 Fed. Rep. 616.. 692 Foreman vs. Carter, 9 Kan. 674 617 Forrer vs. Nash, 35 Beav. 167 223 Forsyth vs. Day, 41 Me. 382 70 Forsythe vs. Day, 46 Me. 176 113, 117 B PAOH Forsythevs. Bonta 6Bnch. 647....114, 117 Poster vs. O.ifford, 44 Wis. .%!) 400 Foulki-s vs. Metropolitan Ry., 4 C. P. D.267 520 Fowler vs. Armour, 24 Ala. 194 534, 5J7 Fowler vs. Miearer, 7 Mass. 13 431 Fox vs. Mackreth, 2 Bro. C. C 400 .... 469 Foxcraft vs. Wood, 4 Kuss. 487 830 Fradley vs. Hyland, 37 Fed. Rep. 49 .. 553 F.anehot vs. Leach, 6 Cow. 506 631 Franklin vs. Ezell, 1 Snted, 497 376 i r.aiklin vs. Insurance Co., 62 Mo. 461 107 Fraiiklin vs. Robinson, 1 Johns. Ch. 157 623 Franklin Fire Ins. Co. vs. Hart, 31 Md. 69 136 Frazier vs. Erie City Bank, 8 W. & S. 18 691 Fredenhall vs. Taylor, 26 Wis. 286 .... 511 Fredericks vs Mayer, 13 How. Pr. 666 318.320 Freeman vs. Buckingham, 18 How. 182 581 Freeman vs. Kosher, 66 E. C. L. 787... 159 French vs. Price, 24 Pick. 13 656 French vs. Wade, 35 Kan. 391 108 Frenkelvs Hudson, 82 Ala. 158 366 Fretz vs. Stover, 22 Wall. 193 339 Frink vs. Roe, 70 Cal. 296 255 Fritz vs. Finnerty, 10 C. J. L. 487 693 Frost vs. Belmont, 6 Allen, 159 18 Frost vs. Lawler, 34 Mich. 235 126 Frostburg M. B. Assn. vs. Brace, 51 Md. 508 44 Frye vs. Saunders, 21 Kans. 26 2» Fullum vs. West Brookfield, 9 Allen, 1 455 Fuller vs. Dame. 18 Pick. 472 12, 10, 18 G. Gage vs. Gage, 10 N. H. 424 92 Gale vs. Kalamazoo, 23 Mich. 314 234 Gall vs. Comber, 7 Taunt. 558 710 Gallup vs. Tracy, 25 Conn. 10 60 Gandell vs. Poutigny, 4 Camp. 375 630 Garard vs. Basse, 1 Dall. 119 29 Gardner vs. Buckbee, 3 Cowen, 120_.. 636 Gardner vs. McCutcheon, 4 Beav. 634. 290 Garland, Ex parte, 4 Wall. 3o3 614 Garland vs. Wells, 15 Neb. :98 103 Garrard vs. Haddan, 67 Penn. St. 82.. 355 Garrard vs. Pittsburgh, etc., R. R. Co., 29 Penn. 164 474 Garrett vs. Handley, 4 B. & C. C44..457, 689 Geiger vs. Harris, 19 Mich. 209. 483 General Share T. Co. v. Chapman, 1 C. P. Div. 771 644 George vs. School District, 6 Mete. 497 60 George vs. Skivington, L. K. 6 Ex. 1... 620 Gibson vs. Colt, 7 Johns. 490 . ..364, 386, 389 Gibson vs. Colt, 8 N. Y. 398 850 Gilbert vs. Holmes, 64 HI. 649 203, 315 rvm Oases Cited. PAGB Gilbert ts. James, 80 N. O. 244_ 107 Gilbert vs. Welch, 75 Ind. 557 627 Gilbraith va. Linebeiger, 69 N. C. 145. 409 Oilman vs. Eastern R. R. f 10 Allen, 233,13 Id. 433 518 Gllman, etc., R. Co. vs. Kelly, 77 111. 426 : 464 Gilmann vs. Henry, 53 Wis. 470 450 Gllei.waters vs. Miller, 49 Miss. 150... 464 Gillett vs. Newmarket Savings Bank 7 111. App. 4«9 450 Gilliam vs. Brown, 43 Miss. 641 493 Givens vs. Briscoe, 3 J. J. M. 529 619 Glenn vs. Smith, 2 G. & J. 493 713 Glentworth vs. Lmher, 21 Barb. 147... 303, 305 Godfrey vs. Furz.2 P. Wm. 185 717 Godin vs. London, Assur. Co., 1 Burr, 464 624 Gofle vs. Gibson, 18 Mo. App. 1 667 Gold Mining Co. vs. National Bank, 96 U. S. 644 188 Gonsolis vs. Gearheart, 31 Mo. 585 292 Goodall vs. Dolley, 1 T. R. 712 245 Gooday vs. Railway Co., 17 Beav. 132. 135 Goodenow vs. Tyler, 7 Mass. 36 676 Goodman vs. Kennell, 3 C. & P. 167... 10 Goodman vs. Pocock, 15 A. & E. 582.530, 532 Goodtitle vs. Woodward, 3 B. and Aid. 689 218 Gordon vs. Brewster, 7 Wis. 355_ 534 Gordon vs. Buchanan, 6 Yerg. 71, 70 Gordon vs. Jennings, 9 S. B. Div. 45... 6 Gorman vs. Wheeler, 10 Gray, 362 677 Goss vs. Steven?, 32 Minn. 472 311 Gould vs. Lead Co., 9 Cush. 338 108 Graham vs. Institution, 46 Mo. 186 417 Grant vs. Norway, 10 C. B. 665 681 Graves vs. Legg, 2 H. & N. 210 412 Greely vs. Bartlett, 1 Me. 172 676 Green vs. Early, 39 Md. 229 658 Green vs. Lucas, 33 L. T. 681 665 Green vs. Reed, 3 F. & F. 226 666 Greenfield Bank vs. Crafts, 4 Allen, 447 116 Greenfield Bank vs. Stowell, 123 Mass. 10H 104 Greenlaw vs. King, 5 Jar. 19 464 Greve vs. Coffin, 14 Minn. 345 880 Grit.b vs. Swann, 13 Johns. 381 611 Griffin vs. Randall, 71 In.!. 440 78 Griffiths vs. Griffiths, 2 H*re, 592 639 Griffiths vb. Wolfram, 22 Minn. 185... 622 Grig b vs. Swift, 82 Ga. 893 328 Grlndley vs. Barker, l B. & P. 229 .... 65 Grinnell vs. Cook, 8 Hill, 486 624 ,.11 vs. W. U. Tel. Co., 113 Mass. em 620 rold va Haven, 28 N. Y. 695 677 Oroton v.i. Hut -Ihurt, 22 Conn. 178 68 Grove vs. Dubois, 1 T. R. 112 708 PAOH Grumley vs. Webb, 44 Mo. 446 464 Gu< lich vs. National State Bank, 56 Iowa, 434 238 Guest vs. Opera House Co., 74 Iowa, 457 556 Guichard vs. Morgan, 4 Moo. 36 681 Gulick vs. Grover, 33 N. J. L. 465 377 Gunn vs. London Ins. Co., 12 Com. B. 694 135 Gunter vs. Astor, 4 J. B. Moore, 12 611 Gurney vs. Behrend, 3 E. & B.622 581 Gurney vs. Ry. Co., 58 N. Y. 367 6 Guthrie vs. Armstrong, 5 B. & Aid. 628 52 H. Hadden vs. Clark, 2 Grant, 107 620 Hadwin vs. Fisk, 1 La. Ann. 43 687 Hagedorn vs. Oliverson, 2 M. & S. 485. 225 Hahn vs. Concordia Society, 42 Md. 465 320 Haight vs. Badgeley, 15 Barb. 499 316 Haight vs. Holcomb, 7 Abb. Pr. 210... 643 Hale vs. Woods, 10 N. H. 470 432 Hall vs. Cockrell, 28 Ala. 507 456 Hall vs. Harper, 17 111.82 80 Hall vs. Hinks, 21 Md. 406 393 Hall vs. Huse, 10 Mass. 39 114 Hall vs. Laver, 1 Hare, 671 640 Hall vs. Noyes, 3 Bro. C. C. 4£3 409 Hall vs. Railroad Co., 25 Yt. 401 134 Hall vs. Wisconsin, 103 U. S. 5 280 Hamblin vs. Dinneford, 2 Edw. Ch. 629 316 Hamilton vs. Lycoming Mut. Ins. Co. 5 Penn. 339 230 Hamilton vs. McPherson, 28 N. Y. 76.. 533 Hamilton vs. Yonght, 34 N. J. L. 187.. 377 Hamilton vs. Wright, 9 C. & F. 111... 464 Hamilton vs. Schulte, 34 Minn. 534 311 Hammerslough vs. Cheatham, 84 Mo. 13 12« Hammond vs. Bank, Walk. Ch. 214... 203 Hammond vs. Hanuin, 21 Mich. 874... 1.0 Hammonds vs. Barclay,2 East, 277 524 Hampton vs. Speckenagle, 9 S. & R. 212 503 Handyslde vs. Cameron, 21 111. 588 .... 101 Hanford vs. McNair, 9 Wend. 54 92 Hanks vs. Drake, 49 Barb. 202 210 Hanson vs. Dexter, 36 Me. 516 60 Hanson vs. Wolcott, 19 Kan. 207 617 Hare vs. Mclntire, 82 Me. 240 622 Hargreaves vs.Rothwell, 1 Keen, 154.. 562 Harner vs. Dipple, 31 Ohio St. 72 31 Harper vs. Devene, 10 La. Ann. 724 — 114 Harper vs. Hampton, 1 H. & J. 709 431 Harper vs. Harvey, 4 W. Va. 539 620 Harrington vs. Dock Co., 3 Q. B. Div. 649 16 Cases Cited. XIX PAGE Harrlsburg Bank vs. Forster, 8 Watts, 16 497 Harrold vs. Gillespie, 7 Humph. 67.... 390 Harrow vs. Farrow, 7 If. Mon. 126 620 Harshey vs. Blackmarr, 20 Iowa, 161.. 618 Hart vs. Hoffman, 44 How. Pr. 168 665 Hartford F. Ins. Co. vs. Wilcox,57 111. ISO 62, 373 Hartley's Appeal, 53 Penn. St. 212.. 253, 315 Hartop vs. Hoare, Stra. 1187 681 Harvey vs. McAdams, 32 Mich. 472 29 Harvey vs. Turner, 4 Rawle, 223 500 Ha-telow vs. Jackbon, 8 B. & C. 221.... 498 Hastings vs. Bangor House Proprie- tors, 18 Me. 436 140, 201 Hastings vs. Lovering, 2 Pick.214 689 Hatch vs. Codo'.ingion, 95 U. S 48 298 Hatch vs. Taylor, 10 N. H. 538. 359, 360, 526 Hauptmann vs. Catlin, 20 N. Y. 217.... 32 Haven vs. Lowell, 5 Mete. 35 64 Hawker vs. B. & O. R. R. Co., 15 W. Va.628 675 Hawkesworth vs. Thompson, 98 Mass. 77 520 Hawley vs. Cramer, 4 Cow. 717 .... 474 Hawley vs. Keeler, 53 N. Y. 114 69 Hawley vs. Smith, 45 Ind. 183 313 Hawiayne vs. Bourne, 7 M. & VV. 595.. 96 Hayes vs. WilHo, 11 Abb. Pr. 167 319 Hay ward vs. Pilgrim Society, 21 Pick. 270. 64 Hearsay vs. Pruyn, 7 John. 179 512 Heald vs. Kenworthy, 10 Ex. 739 552 Heath vs. Goslin, 80 Mo- 310. 47 Heath vs. Paul, 81 Wis. 533 100 Heffner vs. Brownell, 70 Iowa, 591 450 Hefner vs. Vandolah, 62 111. 483 ...114, 116 Hegenmyer vs Marks, 37 Minn. 6 601 Hektograph Co.vs.Fourl, 11 Fed. Rep. 844 641, 646 Helyear vs. Hawke, 5 Esp. 72 384 Henderson vs. Mayhew, 2 Gill, 393 556 Hern vs. Nichols, 1 Salk. 289 203, 359 Herring vs. Skagu'8, 63 Ala. 180 412 Heslop vs. Metcalfe, 3 M. & O. 183.... 616 Hess vs. Rau, 95 N. Y. 359 332 Hetheringtou vs. Kemp, 4 Camp. 192.. 528 Heyn vs. O'Hagen, 60 Mich. 150 180 Hicks vs. Beaufort, 4 Bing. 229 715 Hicks vs. Hankin, 4 Esp. 114 351 HIesiand vs. Runs, 8 Blackf. 345 81 Higgins vs. Armstrong, 9 Colo. 38 180 Higgins vs. Moore, 34 N. Y. 417 401 Higgins vs. Senior, 8 M. & W. 834 439, 559, 588 Hightstown Bank vs. Chrietopher, 40 N.J. L. 435 571 Hill vs. Day, 34 N. J. Eq. 150 836 Hill vs. Frazier, 22 Penn. 820 464, 474 Hill vs. Perrott, 3 Taunt. 274 458 Hinds vs. Harbou, 68 Ind. 121 622 PAOB Hinds vs. Overacker, 66 Ind. 547 622 Hoag vs. Graves, 81 Mich. 628. 251 Hol'by vs. Wisconsin Hank, 17 Wis. 167 32 Hodge vs. Combs, I Black, L92 375 Hodges vs. Thacher, 23 Vt. 455 61 Hodskinson vs.Kellj-,1 Hogan,808 610, 648 Hodtcson vs. Dexter, 1 Cranch. 846 435 Holcomb vs. Weaver, 136 Muss. 26")... 25 Ho'.den vs. Fitchburg R. R., 129 Mass. 268 618 Holden vs. New York, etc., Bank, 72 N. Y. 286 _ 663 Holker vs. Parker, 7 franch. 436 620 Holladay vs. Daily, 19 Wall. 606 381 Hollingworth vs. Tooke, 2 EL 151. 501 . 718 Hollins vs. Fowler, L R. 7 H. L. 757.. 228 Holioway vs. Talbot, 70 Ala. 389 537 Holly vs. Gosling, 3 E. D. Smith, 263.. 304 Holmes vs. Trumper, 22 Mich. 427 424 Hoover vs. Wise, 91 U. S. 208 241 Hopkins vs. Gallaton Turnp. Co., 4 Humph. 412 43 Horn vs. Baker, 2 Sm. L. Cas. 243 231 Horner vs. Lawre.ice, 8 Vr. 46 519 Horton vs. Champliu, 12 R. I. 550 637 Horton vs. McMurtry, 5 H. & N. 667.. 290 Hough vs. Edwards, 1 H. & N. 171 .... 639 Houghton vs. First Nat. Bank, 26 Wis. 663 451 Houghton vs. Matthews, 3 B. & P. 489 709 Hovey vs. Ten Brotck, 3 Rob. 316 7 Howard vs. Baillie, 2 H. Bl. 618 384 Howe vs. Lawrence, 2 Zab. 99 619 Howe vs. Thayer, 17 Pick. 91 297 Howe Machine Co. vs. Simler, 59 Ind. 307 298 Hoyt vs. Thompson, 19 N. Y. 207 180 Hubbard vs. Elmer, 7 Wend. 446 375 Hubbard vs. Marshall, 50 Wis 322.... 450 Hubbert vs. Borden, 6 Whart. 91 439 Hughes vs. McDonough, 14 Vroom, 459 612 Hull vs. Jones, 69 Mo. 587 107 Hull vs. Pickersgill, 1 B. & B. 283 128 Hunt vs. DeBlaquire, 5 King. 550 74 Hunt vs. Rousmanier, 8 Wheat 174 254, 257, 279, 315, 330, 333 Hunter vs. Giddings, 97 Mass. 41 659 Hunter's Adm. vs. Miller, 5 B. Mon. 613 483 Huntington vs. Clafiin, 10 Bosw. 262... 293 Huntington vs. Knox, 7 Cnsh. 371 439,441,559 Huntington vs. Ogdenburgh R. EC, 33 How. Pr.416 633 Hurlbut vs. Marshall, 62 Wis. 590 27 Hussey vs. Thornton, 4 Mass. 405 191 Huston vs. Mitchell, 14 S. & R. 307 620,622 Hutchinson vs. Howard, 15 Yt. 644 649 Hutton vs. Eyre, 6 Taunt. 289 603 Hyatt vs. Clark, 118 N. Y. 665 148 XX Oases Cited. PAGE Hyde vs. Planters' Bank, 17 La. Ann. 560 240 Hydes vs. Jones, 4 Bush. 464 234 I Illinois vs. Delafleld 8- Paige, 527 195 Illinois vs. Delatield, 26 Wend. 192.... 195 Ingalls vs. Lord. 1 Cow. 240 639 Ingalls vs. Morgan, 10 N. Y. 178 180 Ingerson vs. Starkweather, Walk. Ch. 346 460 Insurance Co. vs. Iron Co., 21 Wis. 458 1« Insurance Co. vs. McCain, 96 U. S. 84. 68 Ireland vs. Todd, 36 Me. 149 620 Iron Age Pub. Co. vs. Western Union Tel. Co., 83 Ala. 498 316 Iron Mt. Ry. vs. Knight, 122 U. S. 79„ 581 Irwin vs. Workman, 3 Watts. 357 257 J. Jackson vs. Badger, 35 Minn. 52 70 Jackson vs. Bank of U. S., 10 Penn. 61 593, 626 Jackson vs. Union Bank, 6 H. & J. 146 239 Jackson vs. Van Dalfsen, 5 Johns. 43.. 474 Jacobs vs. Kolf, 2 Hilt. Ill 304 Jaffray vs. King, 34 Md. 217 290 James E.E parte, 8 Ves. 33" 475 Janvrin vs. Exeter, 48 N. H. 83 455 Jaques vs. Todd, 3 Wend. 83 364, 414 Jaques vs. Weeks, 7 Watts, 261 622 Jefferson County vs. Slagle, 66 Penn. 202 58 Jeffrey vs. Aiken, 4 Ses. Oas. 729 472 Jeffrey vb. Bigelow, 13 Wend. 518.354, 384 Jeffries vs. Insurance Co., 110 U- S. 305 _ 70, 280 Jefts vs. York, 10 Cush. 392 503 Jefts vs. York, 4 Cu&h. 371 456 Jenkins vs. Hutchinson, 13 Q. B. 744.. 608 Jenkins vs. Walter, 8 G. & J. 218 626 Jenney vs. Delesdernier, 20 Me. 183 620 Jennings vs. McConnel, 17 111. 150 497 Jeter vs. Haviland, 24 Ga. 253 620 Jewett vs. Alton, 7 N. B. 253 66 Jewett vs. Miller, 10 N. Y. 402 474 Joel vs. Morrison, 6 C. & P. 501 10 Johnson vs. Credit Lyonnals, 2 C. P. Dlv.224 393 Johnson vs. Cunningham, 1 Ala. 249.. 238 Johnson vs. Dodd, 56 N. Y. 76 58 JolmHon vs. Filkington, 39 Wis. 62 401 Johnston vs. Wright, 6 0al 373 381 Jon« s vs. Andover, 9 Pick. 145 57 Jones vs GHlmore, 91 Penn. 310 698 Jones vs. Glass, 18 ired. 305 410 Jones vs. Llttledale, « Ad. & El. 486... 457 Jones vs. Ransom, 8 Ind. 327 620 Jordan vs. James, ■> Ohio, 99 717, 719 Jordan vs. Stewart, 23 Penn. 8t. 247... 372 PAQB Joslin vs. Cowee, 56 N. Y. 626 640 Junklns vs. School District, 39 Me. 520 64 K. Kinney vs. Tahor, 62 Mich. 517 619 King vs. Brown, 2 Hill, 488 653 Kirkham vs. Marter, 2 B. & Aid. 613.. 421 King vs. Steiren, 44 Penn. 99 532 King vs. McLean, 15 N. H. 9 555 King vs. Forrest, 3 T. R. 38 54 Kingsbury vs. School District, 12 Mete. 99 56 King vs. Beeston, 3 T. R. 592 54 Kitchen vs. Shaw, 6 A. & E. 729 7 Kincaid vs. Dwinelle, 59 N. Y. 548 7 Kingsbury vs. Smith, 13 N. H. 110 361 King vs. Lnngnor, 1 N. & M. 576 101 King vs. Berdbrooke, 4 T. R. 245 282 Kansas & P. Ry. Co. vs. Pointer, 9 Kan. 620 575 Kansas Pac. Ry. vs. Streeter, 8 Kan. 133 617 Kasson vs. Noltner, 43 Wis. 637 400 Katzenstein vs. Railroad, 84 N. O. 688. 409 Kean vs. Davis, 21 N. J. L. 683 447 Keeler vs. Salisbury, 33 N. Y. 653 156 Keech vs. Sanford, 1 Eq. Cas. 63. ...464, 469 Keidan vs. Winegar, — Mich. — 451 Keller vs. Singleton, 69 Ga. 703 556 Keller vs. Tracy, 11 Iowa, 530 611 Kelley vs. Neburyport R. R. Co., 141 Mass. 496 178, 1S1 Kelley vs. Scott, 2 S. & M. 81 620 Kellogg vs. Curtis, 65 Me. 61 105 Kellogg vs. Gilbert, 10 Johns. 220 619 Kelly vs. Calhoun, 95 U. S. 711 44 Kelly vs. Dutch Church, 2 Hill, 116... 651 Kelly vs. Solari, 9 M. & W. 54 231 Kelner vs. Baxter, L. R. 2 C. P. 185.130, 136 Kemble vs. Kean, 6 Sim. 333 318 Kennebec Co. vs. Insurance Co., 6 Gray, 204 70 Kennedy vs. Green, 3 M. & K. 699 570 Kennett vs. Chambers, 14 How. 38 87 Kenny vs. Hazeltine, 6 Humph. 63.... 390 Kent vs. Dawson Bank, 13 Blatchf. 237 240, 248 Kenton Ins. Co. vs. McClellan, 43 Mich. 564 38 Kent vs. Ricards, 3 Md. Ch. 392 620 K^tchum vs. Evertson, 13 Johns. 885.. 886 Keyser vs. Chicago, etc., Ry. Co., 66 Mich. 390 676 Knapp, In re, 85 N. Y. 284 637, 644, 646 Knapp vs. A'.vord, 10 Paige, 206 332 Knapp vs. Smith, 27 N. Y. 877 36 Knatchbull vs. Uallet, 13 Ch. D.696... 697 Knox vs. Flack, 22 P tnn. 337 31 Kock VS. Emmerling, 22 How. 72 804 Koruoniunn VS. Mouaghan,24 Mich. 36 403 Kruger vs. Wilcox, Amb. 252.. 330, 524, 717 Cases Cited. xxi PAGE Kupper vs. South Parish, 12 Mass. 185. 64 Lacy vs. Obaldiston, 8 O. & P. 80 290 La Farge vs. Kneeland, 7 Cow. 456 512 Laffels vs. Catterton, 1 Mod. 67 888 Lafferty v. Jelley, 22 Ind. 471 470 Lafond vs. Deans, 81 N. Y. 514_ 47 Laing vs. Butler, 87 Hun, 144 553 Lalande vs. Aldrich, 6 S. Rep. 28 276 Lambert vs. Sanford, 2 Blackf. 137.... 620 Lancaster vs. Knickerbocker Ice Co., 153 Penn. St. 427 441 Lancaster vs. Walsh, 4 M. & W. 16 455 Land vs. Church, 4 Madd. 207 640 Lane vs. Albright, 49 Ind. 275 665 Lane vs. Bryant, 9 Gray, 245 575 Langley vs. Sturtevant, 7 Pick. 214.... 704 Larkin vs. Hapgood, 56 Vt. 597 513 Latham vs.Houston Mills,68 Tex. 127. 450 Laugher vs. Pointer, 5 B. & C. 547 559 Lavassar vs. Washburne, 60 Wis. 200. 78 Lawrence vs. Jarvis, 32 111. 304 618 Lawrence vs. McArter, 10 Ohio, 37 31 Lawrence vs. Stonington Bank, 6 Conn. 621 239 Lawrence vs. Taylor, 5 Hill. 107 93, 169. 217,372,428, 440 Lawson vs. Pettison, 7 Eng. 401 620 Layng vs. Stewart, 1 W. & S. 222 603 Lazarus vs. Bryson, 3 Bin. 54 460 Lee vs. Fontaine, 10 Ala. 755 193 Lee vs. Soames, 36 W. R. 884 223 Lefevre vs. Lloyd, 5 Taunt. 749 457 LeNeve vs. LeNeve, 1 Amb. 436 568 Lenox ts. Cook, 8 Mass. 460 246 Lerned vs. Johns, 9 Allen, 419 659 LeRoy vs. Beard, 8 How. 451 386 Lester vs. Webb, 1 Allen, 34 68 Leuthold vs Fairchild, 35 Minn. 111... 617 Leuthold vs. Young, 32 Minn. 122 316 Leverick vs. Meigs, 1 Cow. 645 712 Levi vs. Booth, 4 Ex. 588 621 Levy vs. Lord Herbert, 7 Taunt. 314 .. 631 Lewis vs. Hillman, 3 H. L. Cas. 607 ... 473 Lewis vs. Lee, 3 B. & C. 291 33 Lewis vs. Mason, 94 Mo. 651 659 Lewis vs. Nicholson, 18 Q. B. 603 608 Lewis vs. Peck, 10 Ala. 143 242 Lewis vs. Read, 13 M. & W. 834 124 Lewis vs. Sumner, 13 Mete. 269 620 Lewis vs. Woodruff, 15 How. Pr. 639.. 620 Llckbarrow vs. Mason, 6 East, 23.. 524, 581 Liebscher vs. Kraus, 74 Wis. 387 448 Lightbody vs. N. A. Ins. Co., 23 Wend. 22 860 Lime Rock Bank vs. Plimpton, 17 Pick. 159 205 Llmpus vs. London Gen. Omnibus Co., 1 H. & C. 526 682 Lincoln vs. McClatchie, 38 Conn. 186.. 667 PAOl Lincoln Savings Bank vs. Ewing, 12 Lea, 602 42 Linnehan vs. Rollin«. 137 Mass. 123.... 9 Lister vs. Allen, 81 Md. 543. 344,394 Lister vs. Kiubbs, 45 Ch. I). 1 603 Livings vs. Wiler 32 111.387 117 Lloyd vs. Loarintc, 6 Ves. 773 45 LI yd vs. Matthews, 51 N. Y. 132...304, 6P,6 Lobdellvs Baker, 1 Mete. 202 360 Lockhart vs. Barnhart, 14 M. & W. 674 455 Lockhart vs. Wyatt, 10 Ala. 231 620 Lockwood vs. Thorne, 11 N. Y. 173 691 Lodge vs. Simo?iton, 2 P. & W. 439.... 622 Lomax vs. Cartwright, 3 Wash. 151... 385 Long vs. Hartwell, 34 N. J. L. 116 428 Long vs. Hebb, styles 341 128 Lord v. Womleighton, 1 Jac. 580 639 Loring v. Brodu-, 131 Mass. 453 670 Louck vs. Wooda, 15 111.256 68 Louisville Coffin Co. vs. Stokes, 78 Ala. 372. 40, 363 Love vs. Miller. 53 Ind. 294 665 Lovelock vs. Franklyn, 8 Ad. & E. 371 529 Low vs. Railroad Co., 45 N. H. 375.133, 526 Low v. Railroad Co., 46 N. H.284 134 Luby vs. Railroad, 17N.Y.31 675 Lucas vs. Peacock, 9 Beav. 177 640 Lumley vs. Wagner, 1 De G., M. & G. 604 818, 320 Lundie vs. Robertson, 7 East, 231 715 Lyell vs. Kennedy. 10 Q. B. Div. 796... 225 Lyman vs. Bridge Co., 2 Aik. 255 27 Lynch vs. Fallon, 11 R. I. 311 640, 692 Lynn vs. Burgoyne, 13 B. Mon. 400.... 238 Lyon vs. Jerome, 26 Wend. 485 234 Lyon vs. Mitchell, 36 N. Y. 235... 17, 18, 304 M. Maanss vs. Henderson, 1 East, 337 681 Macdonnell vs Harding, 7 Sim. 178... 626 Mackenzie vs. Scott, 6 Bio. 280 709 Mackersy vs. Ramsays, 9 C. & F. 818 241 Mackreth vs. Fox, 4 Brown P. C. 258.. 469 Maclean vs. Dunn, 4 Bing. 722 220 Maclure Ex parte, L. R. 5 Ch. 737 266 Magee vs. Atkinson, 2 M. & W. 440.457, 588 Maguire vs. Seldon, 103 N. Y. 642 678 Maguire vs. Smock, 42 Ind. 1 20 Mahoney vs. McLean, 26 Minn. 415 441 Malnprlce vs. Westley, 6 B. & S. 420.. 660 Maitland vs. Martin, 86 Penn. St. 120. 643 Mamlock vs. Fairbanks. 46 Wis. 416.. 403 Manby vs. Scott, 1 Mod. 125 74 Manhattan B. & M. Co. vs. Thomp- son, 58 N. Y.80 _ 86 Manhattan L. Ins. Co. vs. Warrick, 20 Gratt. 614 - 339 Mansfield vs. Mansfield, 6 Conn. 659.. 264 Marquand vs. Mfc. Co., 17 Johns. 625. 313 Marr vs. Given, 23 Me. 65 379 xxu Cases Cited. PAOH Marseilles Extension Ry. In re, L. R. 7Ch. 161 570 Marsh vs. Pier, 4 Rawle, 273 176 Marshall vs. Meech, 51 N. Y. 140... 637, 643 Marshall vs. Nugle, 1 Bail. 308 619 Marshall vs. Railroad Co., 16 How. 314 18,22 Marshall vs. Rutton, 8 T. R. 515 33 Martin vs. Almond, 25 Mo. 133 432 Martin vs. Rector, 101 N. Y. 77 40 Martin vs. Lemon, 26 Conn. 193 59 Martini vs. Coles, 1 M. & S. 140 681 Mason vs. Whitthorne, 2 Cold. 242.... 626 Massie vs. Wat's, 4 Cranch. 148 467 Masterson vs. LeClalre, 14 Minn. 163.. 620 Mastin vs. Gray, 19 Kan. 458 617 Mathias vs. Sellers, 86 Penn. St. 486... 524 Matthews vs. Alexandria, 60 Mo. 115.. 234 Matthews vs. Menedger, 2 McL. 145... 717 Maxwell vs. Owen, 7 Cold. 630 620 May vs. W. U. Tel. Co., 112 Mass. 90 .. 520 Mayenborg vs. Haynes, 50 N. Y. 675... 578 McAfee vb. Crofford, 14 How. 447 611 McAllister vs. Commonwealth, 30 Penn. 536 626 McAllister vs. Hoffman, 16 S. & R. 147 498 McBratney vs. Chandler, 22 Kan 692. 18 McCabe vs. Fogg, 60 How. Pr. 488 645 McCantsvs. Wells, 4 S. C. 381 251 McCaull vs. Braham, 16 Fed. Rep. 37. 320 McClelland vs. Whitely, 15 Fed. Rep. 322 140 McComas vs. Long, 85 Ind.549 626 McComhie vs. Daviee, 6 E ist, 538 681 McConn vs. Lady, 10 W. N. 493 603 McCormick vs. Joseph, 83 Ala. 401 366 McCormick vs. Malin, 6 Blackf. 509... 479 McCracken vs. San Francisco, 16 Cal. 624 162 McCrea vs. Purmort, 16 Wend. 469.... 440 McCullongh Iron Co. vs. Carpenter, 67 Md. 554 276 McCullongh vs. Moss, 6 Den. 567 423 McCullouiih vs. Thompson, 45 N. Y. Hnper. 449 653 McDonald vs. Eggleston, 26 Vt. 154.... 171 McDonald vs. Potter, 8 Barr, 189 497 McDowell vs. Simpson, 3 Watts, 129 .. 222 McFarland vs. Wheeler, 26 Wend. 467. 635 McGavock vs. Woodlief, 20 How. 221 . 3U4 McGregor vs. Gardner, 14 Iowa, 326... 254 McHugh vs. Schuylkill County, 67 Penn. 391 118 Mclntyre vs. Carver, 2 W. A S. 392 ... 624 McKee vs. Kent, 24 Miss. 131 40 McKee vs. U. 8., 8 Wall. ltJ3 37 McKenzie vs. Linen Co., 6 App. Cas. 82 117 McKenzie v. Nevius, 22 Me. 138 524 McKiuster vs. Bank of Utica.O Wend. 4A_ 243 PAOB McLaren vs. Hall, 26 Iowa, 297 36 McLain vs. Wallace, 103 Ind. 562 626 McLendon vs. Wilson, 62 Ga. 48 691 McMillan vs. Arthur, 98 N. Y. 167 600 McMorris vs. Simpson, 21 W r end. 610.. 489 McMurtry vs. Brown, 6 Neb. 368 101 McPherson vs. Cox, 96 U. S. 404 647 McVey vs. Cantrell, 70 N. Y. 293 35 Mead vs. Spalding, 94 Mo. 43 78 Meason vs. Kaine, 63 Penn. 335 220 Meehan vs. Forrester, 52 N. Y. 277 .180, 193 Mechanics' Bank vs. Bank of Colum- bia, 6 Wheat. 326 385, 444,589 Mechanics 1 Bank vs. Railroad Co., 13 N. Y. 633 94 Meguire vs. Corwine, 101 U. S. 108... 22, 25 Meister vs. Birney, 24 Mich. 405. ...187, 188 Melhado vs. Railway Co., L. R. 9 C. P. 505 130, 135 Mercer vs. Graves, L. R. 7 Q. B. 499... 646 Merchants' Bank vs. State Bank, 15 Wall. 604 424 Merchants* Nat. Bank vs. Goodman, 109 Penn. 422 240 Merket vs. Smith, 33 Kan. 68 626 Merrick's Estate, 5 W. & S. 17 555 Merrifleld vs. Parrett, 11 Cush. 591.111, 171 Merrill vs. Kenyon, 48 Conn. 314. ..550, 556 Merrill vs. Norfolk Bank, 19 Pick. 32. 596 Metropolitan Exhib. Co. vs. Ward, 3 N. Y. S. 779 323 Meyer vs. Hanchett, 43 Wis. 248 540 Meyer vs. Hehner, 96 111. 400 2'J8 Michigan C. R. R. Co. vs. Coleman, 28 Mich. 440 675 Michoud vs. Girod, 4 How. 603 474 Mickelberry vs. Harvey, 58 Ind. 523... 40 Millar vs. Roach, 150 Mass. 140 448 Millay vs. Whitney, 63 Me. 522 373 Miller vs. Edmonston, 8 Blackf. 291... 620 Miller vs. Larson, 19 Wis. 483... 499 Miller vs. Louisville R. R. Co., 83 Ala, 274 601 Miller vs. Newell, 20 S. C. 123 647 Miller vs. Schneider, 19 La. Ann. 300 . 687 Miller vs. Watt, 70 Ga. 385 40 Mills vs. Hunt, 20 Wend. 431 6M Mills vs. Hunt, 17 Wend. 333 708 Mills vs. Mills, 40 N. Y. 541 22 Mills vs. O'Hara, 1 S. & R. 32 714 Mining Co. vs. Anglo Cal. Bank, 104 U. S 192 68 Mltchum vs. Dunlap, 98 Mo. 418 106 Mobile, etc., R. Co. vs. Ashcraft, 48 Ala. 15 575 Monro© vs. Hamilton, 60 Ala. 226 313 Montague vs. Flocton, L. R. 16 Eq. 189 319 Monte Allegre, The, 9 Wheat. 618 384 Montgomery County Bank vs. Albany City Bank, 3 Seld. 459 340, 241 Montgomery vs. Dorion, 6 N. H. 250... 92 Cases Cited. XX111 PAGE Montieth vs. Printing Co., 16 Mo. App. 450 659 Moody vs. Leverlch, i Daly, 401....530, 533 Moouey vs. Elder, 56 N. Y. 238 665 Moore vs. Hill, 38 Fed. Rep. 330 227 Moore vs. Lockett, 2 Bibb. 67 191 Moore vs. Mandlebaum, 8 Mich. 433... 479 Moore vs. Moore, 5 N. Y. 256 474 Moore Hardware Co. vs.Towers Hard- ware Co., 87 Ala. 206 135 Morgan vs. Tener, 83 Penn. 305 248 Morgan vs. Vale of Neath Ry., 5 B. & ij.670 618 Morris vs. Cleasby, 4 M. & S. 566 709 Morris vs. Wallace, 3 Penn. 319 628 Morrison vs. Davis, ^'0 Peun. 171 698 Morrison vs. Thompson, L. R. 9 Q. B. 4M> 639 Mortimer vs. Cornwell, Hoff. Ch. 351 . 650 Moses vs. Bierling, 81 N. Y. 462.303, 305, 665 Moss vs. Rot-sie L. Min. Co., 6 Hill, 137 218 Mott vs. Hicks, 1 Cow. 536 608 Mound City Ins. Co. vs. Hath, 49 Ala. 630 127 Mouutford vs. Scott, 1 T.& R. 274. 561 Mowattvs. McLelan, 1 Wei.d. 173 612 Mowrey vb. Walsh, 8 Cow. 238 393 Mulchey vs. Methodist Society, 125 Mas?. 487 520 Muller vs. Pondlr, 55 N. Y. 325 624 Mui-dine v. Puts, 14 Ala. 84 366 Mundorf vs. Wickersham, 63 Penn. 87 153 Muim vs. Commission Co., 16 Johns. 44 341,351, 360 Monro vs. Allaire, 2 Caine.'s Cas. 183.. 473 Murray vs. Binninger, 36 N. Y. 61 156 Murray vs. East India Co., 5 B. & Aid. 204 423 Mussey vs. Scott, 7 Cush. 216 431 Myers vs. Gilbert, 18 Ala. 467 255 Myers vs. Mutual L. Ins. Co., 99 N. Y. 1_ 180 Mynn vb. Joliffe, 1 M. & R. 326 401 N. Naaon vs. Blaisdell, 16 Vt. 171 611 National Bank vs. Matthews, 98 U. S. 621 464 National Bank vs. Insurance Co., 104 U.S. 54 695 National Bank of Commerce vs. < hl- cago, B. & Q. Ry. Co., 44 Minn. 224.. 683 National Ins. Co. v. Allen, 116 Mass. 398 659 National Security Bank vs. Cushman, 121 Mass. 490 570 Navigation Co. vs. Dandridge, 8 G. & J. 248 140 Neal vs. Patten, 40 Ga. 863 107 Ntilson vs. Lee, 60 Cal. 555 311 Nelson vs. Albrldge, 3 Stark, 435 656 PAGE Nelson vs. Cowing, 6 Hill, 836 888 Nelsou vs. Plimpton Co., 65 N*. Y. 480 . 181 Nesbitt, Expmte, 2 S. & L. 279 639 New Rami sb ire Iron Factory v. Rich- ardson, 5 N. H. i.'94 275 New York Iron Mine vs. Ne^aunee Bank, 39 Mich. 644 418 New York L. Ins. Co. vs. Statham, 93 U. S. 24 339 New York L. & T. Co. vs. Staats, 21 Barb. 570 68 New York, etc., R. Co. vs. Ketchum, 27 Conn. 170 134 New York, etc., R. R. Co. vs. Schuy- ler, 34 N. Y. 30 94,425, 677 Newell vs. Borden, 128 Mass. 31 47 Newell vs. Hurlburt, 2 Vt. 351 173 Newell vs. Keeth, 11 Vt. 214 61 N-well vs. Suiitb, 49 Vt. 255 238 Newman vs. Insurance Co., 17 Minn. 123 70 Newman vs. Reagan, 65 Ga. 512 291 Newson vs. Thornton, 6 East, 17 681 Newton vb Bronson, 3 Kern, 594 217 Nichol vs. Marty n, 2 Esp. 733 290 Nind vs. Marshall, 1 B. & B. 319 383 Nixon vs. Hamilton, 2 n. & W. 364.562. 5C8 Nixon vs. Hyserott, 5 Johns. (N. Y.)58 381, 388 Nixon vs. Palmer, 8 N. Y. 398..159, 200, 650 Noel vs. Drake, 28 Kan. 265 25 Norris vs. Hero, 22 La. Ann. 605 626 North Carolina R. R. Co. vs. Swepson, 71 N. C. 350.. 63 North River B;ink vs. Aymar, 3 Hill, 263 — 38, 877 Norton Vs. Fazan, 1 B. & P. 227 _ 74 Norton vs. Sewell, 106 Mass. 143 630 Norwood vs. Harness, 98 Ind. 134 625 No well vs. Wright, 3 Allen, 166 619 o. Ohert vs. Hammell. 3 Har. 74 4R0 Odineal vs. Barry, 24 Miss. 9 21 Odiorne vs. Maxcy, 13 Mass. 178 844 Oil Co. vs. Van Etten, 107U. S.884— 691 Olcott vs. Tioga R. Co.. 27 N. Y. 646.... 84 Oliver vs. Holt, 11 Ala 574 638 O'Neal vs. Brown, 21 Ala. 483 538 Ontario Bank vs. Mumf id, 2 Barb. Ch. 596 686 Ormerod vs. Dearrnan. 100 Penn. 661.. 22 Orr vs. Ward, 73 111. 31S 266. 878, 2V1 Os. 500 58 Pemberton, Ex, parte, 18 Ves. 282 639 Pendexter vs. Vernon, 9 Humph. 84... 620 Peninsular Bank vb. Hanmer, 14 Mich. 208 175 Penn vs. Evans, 28 La. Ann. 576 126 Penn Match Co. vs. Hapgood, 14 Mass. 145 135 Pennell vs. Deffell, 4 DeG. M. & G. 572 692, 620 Pennsylvania Nav. Co. vs. Dandrid ;e, 8G. & J. 323 200, 201 Pennsylvania R. R. vs. Books, 67 Peuu 339 57", Pennywitvs. Fo^te. 27 Ohio St. 600 .. 018 Pentz vs. Stanton, 10 We/id. 271....4 >9, 414 People vs. Coghill, 47 Oal. 361 . 58 People VH. I iller, 2o Wend. 696. 61 People vs. Hayes, 7 How. Pr. 848 CI People vs. Lanborn, 1 Scam 12'J 620 People vb. Nichols, 63 N. Y. 478 59 People vs. Vernon, o"> I !aL 49 676 People vs. VVn lker, 23 Barb. 30* 58 PAGB Perie8 vs. Ayciena, 3 W. & S. 7& 372 Perkins vs. Boothby, 71 Me. 91 426 Perkins vs. Bradley, 1 Hare, 219 640 Perkins vs. Hart, 11 Wheat. 256 691 Perkins vs. State, 60 Ala. 154 694 Perkins vs. Thompson, 3 N. H. 144 .... 460 Perry vs. Holl, 2 DeG. F. & J. 38 374 Peters vs. Farnsworth, 15. Vt. 155 387 Peters vs. McKeon, 4 Denio, 546 651 Philadelphia, etc., R. R. Co. vs. Cowell, 28 Penn. 337 373 Philadelphia, etc., R. R Co. vs. Derby 14 How. 468 8 Phillips vs. Foxall, L. R. 7 Q. B. 666... 291 Phillipps vs. Stagg, 2 Edw. Ch. 108... 641 Philpot vs. Bingham, 55 Ala. 435 31 Phosphate of Lime Co. vs. Green, 7 C. P. 43 178, 183 Physioc vs. Shea, 75 Ga. 466 291 Pickard vs. Perley, 45 N. H. 188 218 Picken vs. Graham, 1 C. & M. 728 716 Pickering vs. Busk, 15 East, 38 40,359,384,393 Pickett vs. Pearson, 17 Vt. 470 210 Pickle vs. Muse, 88 Tenn. 380 417 Pierce vs. Strickland, 2 Story, 292 631 Piercy vs. Hendrlck, 2 W. Va. 458 108 Pittsburgh Mining Co. vs. Spooner, 74 Wis. 307 _ 135 Poillon vs. Martin, 1 Sandf. Ch. 569... 475 Polk vs. D;tly, 4 Daly, 411 633 Pollard vs. Gibbs, 55 Ga. 45 168, 170 Pollard vs. Vinton, 105 U.S. 7 581 Pope vs. Armstrong, 3 S. & M. 214 641 Pope vs. Meadow Co., 20 Fed. Rep. 35. 556 Portage vs. Cole, 1 Wm. Saund. 319... 271 Porter vs. Woodruff. 36 N. J. Eq. 174.. 479 Pott vs. Turner, 6 Bing. 702 303 Potter vs. Hunt, C8 Mich. 242 649 Potvin vs. Curran, 13 Neb. 302 311 Poulter vs. Cornwall, 1 Salk. 9 704 Powel vs. Bradlee, 9 G. & J. 278 657 Powell vs. McHeury, L7 Ala. 612 33 Powell vs. State, 27 Ala. 61 38 Powell vs. Tuttle, 3 Comst. 396 68 Power vs. First Nat. Bank, 6 Mont. 251 240 Powers vs. Briggs, 79 111. 493 444, 445 Powers vs. Skinner, 84 Vt. 281 18 Pownall vs. Blair, 78 Penn. 403. 250 Pratt vs. Montegriffo, 10 N. Y. S. 903.. 322 Precious, vs. Abel, 1 Esp. 350 156 Preston vs. Hull, 23 Gratt. 600 103 Prebton vs. Liverpool, eta, R. R. Co., 1 Sim. 586 133 1 »res1 wick vs. Marshall, 7 Bing. 666 39 on vs. Railway Co., L. R. 7 Eq. 135 1 vs. Seydel, 48 Iowa, 699... Price va. Ward, 1 Dutch, 225.... Prickett vs. Badger, 1 O. B. 296. 78 618 665 Cases Cited. xxv PAGE Prince vs. Clark, 1 B. & 0. 185 184 Pritchard vb. Coiner, 71 Ga. 18 700 Protection L. Ins. Co. vs. Foote, 79 111, 861 27 Providence vs. Miller, 11 R. I 272 450 Pugsley vs. Murray, 4 E. D. Smith, 245 540 Purinton vs. Insurance Co., 72 Me. 22. 70 Putnam vs. French, 63 Vt. 402 403, 411 Putnam vs. Sullivan, 4 Mass. 45 104 Q. Quarles vs. Porter, 12 Mo. 76 830 R. Razan vs. Chenault, 78 Ky. 548 168 Railroad Co. vs. Burrows, 33 Mich. 6 . 698 Railway Co. vs. Derhy, 14 How. 468... 8 Railroad Co. vs. Hanning, 15 Wall. 649 8, 9 Railror.d Co. vs. Lockhart, 79 Ala. 315. 697 Railroad Co. vs. McGuire, 79 Ala. 395. 696 Bailioad Co. vs. Reeves, 10 Wall. 176.. 698 Railway Co. vs. Railway Co., 75 Wis. 224 18 Raisin vs. Clark, 41 Md. 158 540, 692 Rakes vs. Pope, 7 Ala. 161 536 Ramey vs. Holeombe, 21 Ala. 667.. 537 Ramsden vs. Ambrose, 1 Stra. 127 71 Ranck \b, Albright, 36 Penn. 367 275 Randall vs. Kt-hlor, 60 Me. 37 406 Randall vs. Van Vechten, 19 Johns. 60 169 Rankin vs. West, 25 Mich. 195 78 Ranney vs. Donovan, 78 Mich. 318 13 Ransom vs. Miner, 3 Sandf. 692 639 Rapson vs. Cubitt, 9 M. & W. 710 6'J0 Rathbun vs. Ingalis, 7 Wend. 320 704 Rathbun vs. Steamboat Co., 78 N. Y. 376 214 Ray vs. Powers, 134 Mass. 22 47 Raymond vs. Crown, etc.. Mills, 8 Met. 319 656 Raymond vs. Squire, 11 Johns. 47 830 Rayner vs. Mitchell, 3 C. P. Dlv. 857.. 10 Read vs. Dunsmore, 9 O. & P. 583 290 Re;d vs. Dupper, 6 T. R 361 640 Redfield vs. Tegg, 38 N. Y. 212 665 Redlon vs. Churchill, 73 Me. 146 104 Reese vs. Wedlock, 27 Tex. 120 107, 376 Reeves vs. State Bank, 8 Ohio St. 405 2-10, 211, 248 Regina vs. Bailey, D & B. 121... 2, 4 Reglna vs. Callaghan, Gow. N. P. Cas. 168 4 Regina vs. Cleworth, 4 B. & S. 927 7 Regina vs. Goodbury, 8 C. & P. 605.... 2 Regiua vs. Turner, 11 Cox O. C. 651.... 8 Regiua vs. Wortley, 2 Den. C. C. 88.... 8,4 Reichwald vs. Commercial Uotel, 106 111. 439 185 Rendell vs. Harriman, 75 Me. 497 445 Renwick vs. Foster, 60 Iowa, 527 238 Rex vs. Carr, R. & R. 198 2,3 »AGK Rex vs. Ward, 8 O. & P. 154 4 Rejman vs. Moaner, 71 Ind. 606 666 Reynolds vs. Ferree, (-'6 111. 576 141 Rhines vs. Evans, 66 Penn. 192 249 Rhodes vs. For wood, 1 App. Caa. 250.. 26*. 275 Rice vs. Barnard, 127 Mass. 241 M-i Rice vs. Groffman, 66 Mo. 434 86 Rice vs. Peninsular Club, 52 Mich. 87. 47 Rice vs. Tavernier, 8 Minn. 248.. ..379, 880 Rice vs. Wilkins, 21 Me. 558 620 Rice vs. Wood, 113 Mass. 133.. .639, 599, 088 Rice vs. Yocum, — Penn St. — 227 Ricketts vs. Bennett, 4 M. G. & S. 686 46 Riddle vs. Murphy, 7 S. & R. 235 Ridgeway vs. Market Co., 3 Ad. & E. 171 Riehl vs. Evansville Foundry ABsn., 104 Ind. 70 - Right vs. Cuttrell, 5 East, 491 Rimell vs. Sampayo. 1 C. & P. 254 Ringo vs. Binns, 10 Pet. 269 Roach vs. Turk, 9 Heisk. 708 Roberts vs. Burks, Litt. Sel. Cas. 411.. Robinson vs. Ames, 20 Johns. 146 Robinson vs. Kanawha Valley Bank, 44 Ohio St. 441 Robinson vs. Life Assur., 42 N. Y. 54_. Roberts vs. Rumley, 68 Iowa, 301 Robinson vs. Rutter, 4 E. & B. 954 Robinson vs. Ward, 2 C. & P. 60 Rockwell vs. Elkhorn Bank, 13 Wis. 053 Roe vs. Pierce, 2 Camp. 95 Rogers, Ex parte, 7 Cow. 526 Rogers vs. Kneeland, 10 Wend. 219 Rogers vs. Nichols, 20 Tex. 719 Rogers Mfg. Co. vs. Rogers, 68 Conn. 350. Rolling Mill vs. Railway Co, 5 Fed. Rep. 852 Rolling Stock Co. vs. Railroad Co., 34 Ohio St. 460 Rollins vs. Phelps, 5 Minn. 463 Rome vs. Stevens, 35 N. Y. Super. 189. Rooney vs. Second Ave. R. Co., 18 N. Y. 373 litock vs. Tormey, 83 Md. 169.... Ross vs. Noel, Bull. N. P 186. Rossiter vs. Rosr-iter, 8 Wend. 494 96,341. 374, 380, Rt.tch vs. Mile?, 2C0Dn.638 Rountree vs. Denson, 69 Wis. 522 Rowe vs. Btevi as, 68 N. V. 6.'1 Rowe vs. Ware, 3u Ga -T*. Rowell vs. Klein. 44 1 d. 290 Rowland V8. -late, 5- Penn. 190 Roxburghe vs. Cox, 17 Oh. I>. 620 Royster vs. M'Agcveny, 9 Lea, 148 Roze nberger's Appeal, 26 Penn. 67 497 290 595 218 156 476 228 675 248 445 339 141 662 628 451 218 67 383 313 316 140 510 69 540 643 663 71 426 74 O.J 605 ;« 620 667 474 xx rt UABES uited. PA OB Ruffner vs. Hewitt, 7 W. Va. 685 644 Runquist vs. Di.chell, 3 Esp. 65 854 Rupp vs. Sampson, 16 Gray, 398 13,539, 665 Russell vs. LangstanV, 2-Doug. 514 105 Rust vs. Larue, 4 Litt. 411 316 Ryman vs. Gerlach, 153 Penn. 197 228 S. Sadler vs. Leigh, 4 Camp. 195 689 Safety Life D. Ins. Co. vs. Smith, 66 111. 309 135 Sage vs. Sherman, Lalor's Sup. 147 ... 169 Salisbury Mills vs. Townsend, 109 Mass. 115 139 Saltus vs. Everett, 20 Wend. 263 228 Sanderson vs. Caldwell, 2 Ark. 195 610 Sandiord vs. Handy, 23 Wend. 260 359, 381,385 San-Mman vs. Breach, 7 B. & O. 96.... 7 Sands vs. Arthur, 84 Penn. 479 220 Sands vs. Life Ins. Co., 50 N. Y. 626... 339 Sanger vs. Dun, 47 Wis. 615 249 Sanquerico vs. Bendettl, 1 Barb. 315 316,318 Sarjeant vs. Blunt, 16 Johns. 74 488 Sargent vs. Webster, 13 Mete. 497 64 Satterthwaite vs. Vreeland, 8 Hun, 152 306 Saveland vs. Green, 40 Wis. 438 189 Savings Bank va. Railroad Co., 20 Kans. 519 683 Savings Institution vs. Chinn, 7 Bush, 639 619 Sayre vs. Nichols, 7 Cal. 535 238, 444 Scanlan vs. Keith, 102 111. 634 450 Scharl ck vs. Oland, 1 Rich. L. 20 .... 647 Schenck vs. Peay, 1 Woolw. 175 68 Schimmelpennick vs. Bayard, 1 Pet. 264 349,359,414 Schintz vs. McManamy,33 Wis. 299... 103 School District vs. First Nat. Bank, 102 Mass. 174 626 Schultz vs. Griffin, 121 N. Y. 294 386 Schwartz vs. Schwartz, 21 Hun, 32 642 Scott vs. Detroit Society, 1 Doug. 119 . 66 Scott vs. Kenton, 81 111. 96 611 Scott vs. Mtddletown, etc., R. R. Co., 86 N. Y. 200 180 Scott vs. Rogers, 31 N. I. 676 488 Scrlbner vs. Collar, 40 Mich. 375 692 Seago vs. Martin, 6 Hoisk. 308 193 Sedgwick vs. Staunton, 14 N. Y 289 ... 18 Seiple vs. Irwin, 30 Penn. 613 872 Seneca County Bank vs. Neass, 6 Denio,82» 671 Sequin vs. Peterson, 45 Vt. 225 80, 226 Bevlervs. Hollld 1 y, 2 Ark. 612 496 Sewanee Mining Co. vs. McCall, 8 Head. 619 „ 426 PAQH Seymour vs. Wyckoff, 10 N. Y. 213 ._ 159,200,238 Shackmanvs Little. 87 Ind. 187 376 Shanks vs. Lancaster, 5 Gratt. 110 432 .•-haver vs. Inch ,m, 58 Mich. 649 291 Shaw vs. Railroad Co., 101 U. S. 657— 681 Shelton vs. Tiffin, 47 U. S. 163 618 Shepard vs. Palmer, 6 Conn. 100 173 Shepherd vs. Hedden, 29 N. J. L. 334.. 667 Sherman vs. New \ ork Cent. R. R. Co. 22 N. Y. 239 _ 651 Sherwood vs. Hauser, 94 N. Y. 626 334 Sherwood vs. Stone, 14 N. Y. 267 711 Shinier vs. Vandike, 92 Penn. 447 118 Shores vs. Caswell, 13 Met. 413 619 Short vs. Stone, 8 Ad. & E. 358 529 Siegel vs. Gould, 7 Lans. 177 639 Simonds vs. Heard, 23 Pick. 120 455 Simonton vs. Barrell, 21 Wend. 362.... 619 Sims vs. Bond, 5B.& Ad. 389 692 Sims vs. Smith, 99 Ind. 469 40 Simpson vs. Carson, 11 Oreg. 361 255 Simpson vs. Lamb, 17 C. B. 603 254 Simpson vs. Waklby, 63 Mich. 439 240 Sines vs. Superintendents. 68 Mich. 103 276 Singer vs. McCormick, 4 W. & S. 265.. 290 Singleton vs. Mann, 3 Mo. 464 40 Sioux City K. R. vs. First National Bank, 10 Neb. 656 683 Slade vs. YanVechten, 11 Paige, 26.... 474 Smedes vs. Bank of Utica, 20 Johns. 372 243 Smith vs. Binder, 75 111. 492 _ 613 Smith vs. Craig, 3 VV. & S. 20 257 Smith vs. Denuie, 6 Pick. 263 191 Smith vs. Hayward, 7 A. & E. 644 630 Smith vs. Hodson, 4 T. R. 211 166, 173 Smith vs. KIdd, 68 N. Y. 130 88, 141 Smith vs. Lindo, 6 C B. 587 644 Smith vs. People, 47 N. Y. 337 7 Smith vs. Plummer, 5 Whart. 89 175 Smith vs. Smith, 45 Vt. 433 698 Smith vs. Sorby, 3 Q. B. Div. 653.... 16, 608 Smith vs. Sublett, 28 Tex. 163 238 Smith vs. Thompson, 8 C. B. 444 533 Smith vs. Townsend, 109 Mass. 600 539 Smith vs. Tracy, 36 N. Y. 79 141, 142,200,203, 412 Smith vs. Tramel, 68 Iowa, 488 117 Smock vs. Dade, 6 Rand. 639 620 Snedicor vs. Mobly, 47 Ala. 607 237 Snow vs. Perry, 9 Pick. 642 849, 359 Solly vs. Forbes, 4 Moore, 448 384 Solly vs. Rathbone, 2 M. & S. 299 680 South, etc., R. R. Co. vs. Henleln, 63 Ala. 606 107, 536 Knuthcoto vs. Stanley, 1 H. & N. 247- 621 Sowerby vs. Butcher, 2 O. & M. 871... 467 Spencer vs. Blackman, 9 Wend. 167... 487 Spencer vs. Field, 10 Wend. 88 488 Cases Cited. xxvn PA OB Spencer vs. Harding, L. R. 5 O. P. 661. 660 Spencer ve. Tisue, Addis. 313 76 Spinks vs. Davis, 32 Miss. 152 16 Spooner vs. Holmes, 102 Mass. 503 205 Spragie vs. Train, 34 Vt. 150 557 Squires vs. Barber, 37 Vt. 55 176 8tackhouse vs. O'Hara, 2 Harr. 88.... 622 Stackhouse vs. O'Hara 620 Stackpole vs. Arnold, 11 Mass. 27.-439, 444 Stacy vb. Dane County Bank, 12 Wis. 629 240 Stainback vs. Read, 11 Gratt. 281 .. 377 Stainer vs. Tysen, 3 Hill, 279 377 Stansbury vs. United States, 1 Ct. of Ch. 123 483 Stanley vs. Kelson, 28 Ala. 514 38 Stair vs. York Nat. Bank, 55 Penn. 364 693 Stanton vs. Camp, 4 Barb. 274 453 Stanton vs. New York, etc., Ry. Co., 59 Conn. 272 135 State vs. State Bank, 5 Ind. 353 30 State vs. Bell, 34 Ohio St. 194... 234 State vs. Greensdale, 106 Ind. 364 625 State vs. Houser, 63 Ind. 155 234 State vs. Jersey City, 3 Dntch. 493 64 State vs. Johnson, 52 Ind. 197 21 State vs. Murray, 28 Wis. 96 614 State vs. Smith, 14 Wis. 497 614 State vs. Spartansburg R. R. Co., 8 S. C. 129 170 State vs. Torinns, 26 Minn. 1 119 State of Illinois vs. Delafleld, 8 Paige, 627 195 State of Illinois vs. Delafleld, 26 Wend. 192 195 State Treasurer vs. Cross, 9 Vt. 289... 21 Stearns vs. Felker, 28 Wis. 594 316 Stenton vs. Jerome, 54 N. Y. 484 691 Sterling, Ex parte, 16 Nev. 258 639 Stetson vs. Gurney, 17 La. 168 687 Stetson vs. Patten, 2 Greenl. 359 92 Stevens vs. Babcock, 3 B. & Ad. 354... 250 Stevens vs. Weston, 3 B. & C. 538 640 Stevenson vs. Bay City, 20 Mich. 44... 671 Stewart vs. Mather, 32 Wis. 344 31, 668 Stewart vs. Woodward, 50 Vt. 78. 176 Stillman vs. Fitzgerald, 37 Minn. 186.. 191 St John vs. Diet endorf, 12 Wend. 261 637, 641 St. John vs. Redmond, 9 Port. 428 199, 366 St. Louis, etc., R. R. Co. vs. Mathers, 104 111. 257 19 Stockhy vs. Robinson, 10 Casey. 315.. 622 8toddard vs. Mcllvain, 7 Rich. 525 ... 414 Stokeley vs. Robinson, 34 Penn. :>15... 620 Storey vs. Ash ton, L. R. 4 Q. B. 478.... 10 Strachan vs. Muxlow. 24 Wis. 1...298, 401 Stratton vs. Allen, 1 C. E. Gr. 229 571 Strauss vs. Meertief, 64 Ala- 299 637 PAQB Strelssguth vs. National Bank, 43 Minn. 50 240 Strong vs. Stewart, 9 Heisk, 137 376 Stryker vs. Oassidy, 76 N. Y. 53. « Sturdevaut vs. Hull,69 Me. 172 444 Summerviller Railroad Co.. 88 Mo. 331 86 Sumner vs. Sanders, 61 Mo. S9. 106 Sussdorff vs. Schmidt, 56 N. Y. 319.255,3:1 Swaimion vs. Northeastern Ry, 3 Ex. D.341 522 Swan vs. Nesmith, 7 Pick. 220 711 Swan vs. Stedman, 4 Mete. 548 171 Swartwoutvs. Evans, 37 111. 442 80 Swartz vs. Ballou, 47 Iowa, 188 ....103, 117 Sweet vs. Bartlett,4Sandf. 661 645 Swinfen vs. Swinfen, 27 L. J. Ch. 85... 620 Syeds vs. Hay, 4 T. R. 260 487 T. Taber vs. Perrott, 2 Gall. 565 240 Tabor vs. Cannon, 8 Mete. 456 414 Taftvs. Buffum, 14 Pic*. 3^2 3 3 Taggart vs. Stanberry, 2 Mc! ean, 543. 887 Taintor vs. Prendergast, 3 Hill, 72 588 Tallom vs. Mining Co., 55 Mich. 147... 276 Tankersley, vs. Anderson, 4 De=s. 45.. 619 Taileton vs. McGawley, Peake, 205 — 611 Tarner vs. Walker, L. R. 1 Q. B. 641... 455 Tassel vs. Cooper, 9 C. B. 609 r>92 Tasker vs. Shephi rd, 6 H & N. 575.828, 588 Tatterson vs. Suffolk Mfg. Co., 106 Mass. 66 276 Taylor vs. Bates, 5 Cow. 376 701 Taylor vs. Bradley, 39 N. Y. 129 533 Taylor vs. Caldwell, 3 B. & s. 826 268 Taylor vs. PI. '.ruber, 3 M. & S. 562 164 Taylor vs. Robinson, 14 Cal. 396 162 Taylor vs. Spears, 6 Ark. 381 496 Temple vs. Pomroy, 4 Gray, 128 414 Tenant vs. Elliott, 1 P. & P. 3 498 Terhune vs. Colton, 2 Stock. 21 619 Thacher vs. Pray, 113 Mass. 291 140 Thames Iron Works vs. Patent Derrick Co., 1 J. & H. 93 639 Thatcher vs. England, 3 0. B. 234 455 Thayer vs. Meeker. 86111.470 108 The Arab, 6 Jnr. 417 662 The B. F. Wooleey, 4 Fed. 1 .. 63*.) The Lady Franklin, 8 Wall. 325 681 The Ouachita Cotton, 6 Wall. 681 87 Third Nat. Bank vs. Harrison, 10 Fed. Rep. 243 671 Third National Bank vs. Vicksburgh Bank, 61 Miss. 112 8*0 Thomas vs. Atkinson, 38 Ind. 248 663 Thomae vs ■. 22 Wis. 807 614 Thomas vs. Winchester, 6 N. Y 3i>7.. 620 Thompson vs. Craig, 16 Abb. 2"J 187 Thompson vs. Davenport, 9 B. & C. 78 661 XXV1U Cases Cited. PAGE Thompson vs. Havel ock, 1 Camp, 527... 290 Thompson vs. Lyon, 20 Mo. 155 81 Thomp-on vs. Perkins, 3 Mason, 232. : 597, 710 Thompson vs. Schermerhorn, 6 N. Y. 93 233 Thompson vs. Stewart, 3 Conn. 183.. 351 Thompson vs. Wood, I Hilt. 96 533 Thornton vs. Proctor, 1 Anst. 94 523 Thorpe vs. Stalhvood, 12 L. J. 241... 127 Thurston vs. Percival, 1 Pick. 4 316 Tier vs Lampson, 35 Vt. 179 298 Tiernan vs. Commercial Bank, 7 How. 648 240 Tilden vs. Barnard, 43 Mich. 376 445 Tillier vs. Whitehead, 1 Dall, 269.... 29 Titus vs. Mechanic's National Bank, 35 N. J. L. 588 240 Todd vs. Emly, 7 M. & W. 427, 8 Id. 505 47 Toledo, etc., R. R. Co. vs. Rodrigues, 47 111. 188 127 Tool Co. vs. Norris, 2 Wall. 45 20, 21, 632 Topham vs. Braddock, 1 Taunt. 572. 704 Torrey vs. Bank of Orleans, 9 Paige, 649, 7 Hill, 260 474 To ilmin vs. Steere, 3 Mer. 209 568 Townsend vs Cornimr, 23 Wend. 435 216 Townsend vs. Hubbard, 4 Hill, 351 — 216, 433, 438 Townsend vs. Ingles, Holt, 278 40 Townsley vs. Sumrall, 2 Pet. 170 245 Trainor vs. Morrison, 78 Me. 160 403 Trevor vs. Wood. 36 N. Y. 307 527 Trigg v--. .Tones, 46 Minn. 277 214 Trimmer vs. Bayne, 9 Ves. 209 663 Tripp vs. Bi.shop, 56 Penn.424 220 Tnst vs. Child, 21 Wall. 441 18, 22, 633 Trudo vs. Anderson, 10 Mich. 357 126 Trueman vs. Loder, 11 Ad. & El. 589 439, 560, 588, 679 Truesdail vs. Ward, 24 Mich. 117 187 Trull vs. Granger, 8 N.Y. 115 651 Trumbull vs. Nicholson, 27 III. 149 .... 620 Tru dy > s. New York * H. S. Co., « Robt. 312 304 Tucker vs. Lawrence, 58 Vt. 467 255 Tu< >lsey,64Barb 143 99 'i ii i -. Co. vs. Fairbanks, 98 444, 445 Tyler \ -n, 3 Cush. 261 664 Tyler vs. H< Imes, 88 Me. 238 191 Tyler vs. Parr,52 Mo. 249 667 Tyson vs. Suite Bank, 6 Blackf. 225... 240 u. Union Bank vs. Campbell. 4 Humph. 891 672 PAGE Union Bank vs. Govan, 10 S. & M. 333 619 Union Bank vs. Middlebrook, 33 Conn. 95 117 United States vs. Parmele, Paine, 252 589 United States vs. State Bank, 96 U. S. 30.... 599 United States vs. Yillalonga, 23 Wall. 42 719 United States Bank vs. Davis, 2 Hill. 4.11 572 United States Rolling Stock Co. vs. Railroad Co., 34 Ohio St. 450 601 Upham vs. Lefavour, 11 Mete. 174 .... 685 Upton vs. Archer, 41 Cal. 85 103 Upton vs. Suffolk County Mills, 11 Cush. 586 406,412 Utica Ins. Co. vs. Lynch, 11 Paige, 520 636 Utley vs. Donaldson, 94 U. S. 29 454 V. Vail vs. Jersey, etc., Co., 82 Barb. 571 275 Vallette vs. Tedens, 122 111. 607 461 Vanada vs. Hopkins, 1 J. J. Marsh, 255 376, 385, 380, 387, 388 Van Alen vs. American Nat. Bank, 52 N.Y.I 597 Vanderberg vs. Truax, 4 Denio, 464... 611 deventer vs. Ford, 60 Ala. 610... 307 Van Duzen vs. Howe, 21 N. Y. 531 .. 355 Van Eppes vs. Smith, 21 Ala. 317.— 3S Van E;>ps vs. Van Epps, 9 Paige, 237 47* Van Eps vs. Schenectady, 12 Johns, 436 - 386, 339 Van Etta vs. Evenson, 28 Wis. 33.103, 123 Van Lien vs. Burns, 1 Hilt. 134.. .304, 305 Van Wart vs. Wooley, 3 B. & C. 439 241 Varnum vs. Bellamy. 4 McL. 87 620 Varnum vs. Evans, 2 McMul. 409 — 4:33 Vassar vs. Camp, 11 N. Y. 441 627 Veazie vs. Parker, 72 Me. 443 311 V. izle vs. Williams, 8 How. 134. .203, 203 Ventross vs. Smith, 10 Pet. 175 393 Vermilye vs. Express Co., 21 Wall. 139 416 Vila, vs. Bryants, 12 Wis. 702 210 Vilas vs. Downer, 21 Vt. 419 6a3 Vinton vs. Baldwin, 95 Ind. 433 524 VIolett vs. Patton, 5 Cr. 142 105 Virginia, etc., R. Co. vs. Sayres, 26 i. 828 575 V i • ■!• vs. Yates, 11 Johns. 30 499 v ; ei vs. Ray, 131 Mi ss. 489 47 V. orheea \ . ait, 3 Green, 313 509 Vosevs. Do] ass. 155 103 Voss vs. Bachop, IS Kans. 69 248 W. Wade vs. Witkington, 1 Allen, 662.... 104 Cases Cited. XXIX PAGE Walker vs. Bank of State of N. Y., 6Seid. 582 21", Walker vs. Oigood, OS Mass :U8 ...539, 599 Walker vs. Rogan, 1 Wis. 607 68 Walker vs. Scott, 8 Eng. 644 620 Walker vs. Stevens, 79 111. 193 248 Walker vs. Walker, 5 Hcisk. 426. 8)9, 214 Wallace vs. DeTonng, 08 111. G38 483 Wallace vs. Floyd, 29 Penn. 184 275 Wallis vs. Warren, 4 Ex. 361 531 Wallrath vs. Whittekind, 26 Kan. 482. 698 Walsh vs. Shnmway, 65 111. 471 316 Walsh vs. Stille, 2 Pars. 17 622 Walton vs. Torrey, Har. Ch. 259. 460 Ward vs. Evans, 2 Salk. 442 355 Ward vs. Smith, 7 Wall. 447 339 Ward vs. Syme, 9 How. Pr. 16 643 Ward vs. Williams, 26 111. 451 188 Warlow vs. Harrison, 1 E. & E. 295 659 Warner vs. Bridges, 6 Ark. 383 496 Warner vs. Martin, 11 How. 209. 15 Warren Bank vs. Suffolk Bank, 10 Cush. 582 250 Warrick vs. Warrick, 3 Atk. 291 561 Washburn vs. R. R. Co., 3 Head. 638 27 Washington Bank vs. Lewis. 22 Pick. 24 671 Watkins vs. Vince, 2 Stark. 368 Ill Watson vs. Swann, 11 C. B. 756 137 Watts vs. Kavanaugh, 35 Vt. 34 298 Web&ter vs. Scales, 4 Doug. 7 685 Webster vs. Wray, 17 Neb. 579 355 Weed vs. Adams, 37 Conn. 378 717 Weed vs. Black, 2 McAr. 268 18 Weed vs. Carpenter, 4 Wend. 219.... 218 Weigle, Succession of, 18 La. Ann. 49 619 Weise vs. Supervisors, 61 Wis. 564... 276 Welland Canal Co. vs. Hathaway, 8 Wend. 480 424 Wells vs. Elsam, 40 Mioh. 218 649 Wellington vs. Jackson, 121 Mass. 157 114,116 Wells vs. Foster, 8 M. & W. 149 20 Wells vs. Martin, 32 Mich. 478 126 Wells vs. Rahway Rubber Co., 4 O. E. Green, 402 84 Welsh vs German American Bank. 73 N. Y. 434 664 Welsh vs. Hartford InB. Co., 73 N. Y. 10 »4 Welsh vs. Hole, 1 Dong. 238 634 Wentworth vs. Day, 3 Mete. 852 455 West vs. Ball, 12 Ala. 354 620 West vs. Camden, 135 U. S. 507 25 Westerlo vs. DeWitt, 96 N. Y. 840... 334 Wetherby vs. Wetherby, 20 Wis. 526. 618 Weymouth, etc.. District, vs. Com- missioners, 108 Mass. 142 64 Wharton vs. King. 69 Ala. 365 636 Wheatley vs. Tutt, 4 Kan. 240 _ 29 PAQB Wheelock vs. Wheelwright, ft Mass. 104 488 Whe'pdale vs. Co'kson, 1 Vcs. 8 470 Whichcote vs. Lawrence. 8 Ve*. Tin. 409 Whltaker vs. 8andifer, 1 Duvall, 26L. 580 White vs. Corlles, 4»i N. Y. 4(17 687 White vs. Dugian, 140 Mass. 18 102 White vs. Langdon, 30 Vt. 599 . r ,:,7 White vs. Madison, 26 N. Y. 117 508 White vs. Sanders, 32 Me. 188 195 White vs. Skinner, 13 Johns. 307 651 White vs. Wager, 25 N. V. 328 32, 33 White vs. Westport Cotton Mfg. Co., 1 Pick. 215 423 Whitehead vs. Tucket, 15 East, 400 40, 372, 360 Whitehead vs. Walker 9 M. & W.506. 246 Whitlock vs. Heard, 3 Rich. 88 175 Whitney vs. Dutch, 14 Mass. 457 ...31, 609 Whitney vs. Martine, 88 N. Y. 535 667 Whitney vs. Wyman, 101 U. S. 392.... 136 Whittle vs. Newman, 34 Ga. 377 636 Whitworth vs. Hart, 22 Ala. 313 40 Wickersham vs. Chicago Zino Co. 18 Kans. 41 571 Wickham vs. Wickham, 2 K. & J. 478 712 Wlggett vs. Fox, 11 Exch. 832 622 Wleland vs. White, 109 Mass 392 620 Wiggins vs. Burkham, 10 Wall. 120 ... 691 Wilcox vs. Railroad Co., 24 Minn. 269. 83 Wilkins vs. Carmichael, 1 Doug. 104.. 634 Wilkinson vs. Black, 80 Ala. 329 637 Williams vs. Bailey, L. K. 1 H. L. 200. 119 Williams vs. Boyd, 75 Ind. 286 117 Williams vs. Carwardine, 4 B. & Ad 62L. 660 Williams vs. Crutcher, 5 How. 71 — 103 Williams vs. Getty, 31 Penn. St. 461 344,372 Williams vs Golding. L. R. 1 C. P. 69 7 Williams vs. Jones, 3 H. & O. 602... 659 Williams vs. Leslie, 111 Ind. 70 667 Williams vs. Robbins, 16 Gray, 77... 444 Williams vs. School-District, 21 Pick. 75 60,63 Williams vs. Walker, 2 Sandf. Ch. 325 88 Williams vs. Williams, 55 Wis. 300.. 626 Williams vs. Windley, 86 N. 0. 107 101 Williams vs. Woods, 16 Md. 220 238 Williamson vs. Chicago, etc., R. Co., 53 la. 126 19 Wlllinks vs. Hollingsworth, 6 Wheat. 241 218 Wills vs. Noyes, 12 Pick. 326 609 Wilson, In re, 12 Fed. Rep. 235 646 Wilson, In re, 2 MoCar 631 Wilson vs. Hart, 7 Taunt. 295 457 Wilson vs. Hayes, 40 Minn. 631 HO Wilson vs. Jennings, 3 Ohio St. 628.. 619 XXX Cases Cited. PAGE Wilson vs. Kymer, 1 M. & 8. 157- 635 Wilson vs. Stratton, 47 Me. 120 408 Wilson vs. Troup, 2 Cow. 195 386, 388 Wilson vs. Tubman, 6 M. & G. 236 117, 123, 137, 158 Wilson vs. Wadleigh, 36 Me. 4ti6 620 Wlnans vs. Jaques 10 Daly, 487 667 Win Stone, for defendant. Allen, J. (After determining that there was evidence upon which the first finding might be sustained.) The defendant 64 Cases on Agency. [ Book I further contends, that the building committee were joint agents of the defendant, and that the four members who were present at the conference of March 15 could not execute the power which was delegated to the whole committee, consisting of five members, jointly. It does not clearly appear that this point was taken at the trial, and it is not noticed in the charge of the presid- ing judge; but we have considered it. Where special agents are appointed to act jointly in the execution of a particular power, it has often been held that the action of all is necessary, in order to execute the power properly. This rule, however, is subject to many qualifications or exceptions. It is well understood that public agents may usually act by a majority. So, also, it has been settled that a majority of the directors of a corporation constitute a quorum and a majority of the quorum may act. Sargent vs. Webster, 13 Met. 497, 504; 46 Am. Dec. 743; Edgerly vs. Emerson, 23 N. H. 555; 55 Am. Dec. 207; Wells vs. Rahway White Rubber Co., 4 0. E. Green, 402. Generally speaking, a committee of a corporation is subject to the same rules as the directors. State vs. Jersey City, 3 Dutch. 493; Junhins vs. Union School District, 39 Maine, 220. It would be very inconvenient in practice if a committee of this character, whose duties involve many acts in carrying out the general purpose of their appointment, could do nothing if a single member should be absent. There is sufficient precedent for holding that a majority may act, and such is the better rule. Kupper vs. South Parish in Augusta, 12 Muss. 185; Damon vs. Granby, 2 Pick. 345; Hayward vs. Pilgrim Society, 21 Pick. 270, 275, 277; Haven vs. Lowell, 5 Met. 35, 42; Weymouth & Braintree Fire District vs. County Com- missioners, 108 Mass. 142. Moreover, there was evidence from which the jury might infer the assent of Mr. Speare, the absent member of the committee, to what was done by his associates. He went away, temporarily, to New Orleans, leaving the busi- ness in their hands. But on his return it expressly appears that he had a conference with them, or with some of them, and that they undertook to tell him what had been done. He denies, to be sure, that what they told him was in accordance with what the plaintiff contends and what the jury have found to be the fact. The significant fact, however, that they undertook to tell him the result of the conference in respect to the right of the committee to reject any and all bids, is testified to by Mr. Speare. lie says: " They told me they had expressly reserved that." li, Chap. Ill] McNeil vs. Ohambbb of Commerce. C5 in point of fact, the reservation of this right was accompanied with the qualification that they would accept the lowest bid in case they should build substantially in accordance with the plans and speci- fications submitted, the jury might think it a natural inference that at that time, before any controversy had arisen as to accepting the plaintiffs bid, Mr. Speare's associates told him all that had been agreed to on this head, though Mr. Speare Lad forgotten a part of it at the time of testifying. Mr. Lothrop's testimony tends to support such an inference. He said: "Before the meeting, I stated to Mr. Blaney (a member of the building committee) and Mr. Speare, that in my opinion the right to reject any and all bids passed [ceased?] after they had selected live from the many mechanics who had been recommended; and I was assured by them that if any one of these parties whom they had selected, and whom they supposed to be responsible, should be the lowest bidder, his bid would be accepted, and it was on that condition that I esti- mated, and I should not have figured on any other." He further testified that, in a private conversation, perhaps a different one, before that meeting, Mr. Speare said he would not consent to give up the right to reject all bids. It is further to be observed, that the chief reason assigned by the members of the committee who were present at the conference why they did not wish to give up the right to reject any and all bids was, that they were not willing to be bound absolutely; that the cost of the building might be too much for their means, so that a substantial change of plan might be necessary, or possibly the erection of the building given up entirely; and that the lowest bid might be entirely above the views of the committee, so that they were unwilling to consent to accept it unconditionally. Mr. Speare himself testifies that he gave to Mr. Lothrop two reasons why the committee would not give up the right to reject all bids. The first was, that the lowest bid might be a sum which the directors would not think advisable to spend to erect a building. The second was, that it was the directors who would be the final arbitrators whether the committee should award the contract, and therefore the committee would have no right to give up the right to reject any and all bids. Mr. Lothrop, on the other hand, testified very explicitly and in detail, that while Mr. Speare in conversation had mentioned the names of the committee to him, he (Mr. Lothrop) did not know then, nor, at the time of testifying, whether the action of the committee must be approved 5 66 Cases on Agency. [Book I by any other board or body. Looking at all the testimony, if the objection now urged had been distinctly presented, as a question of fact at the trial, it must have been left to the jury to determine whether Mr. Speare assented to the terms of the contract, by which, as found by the jury, his four associates purported to agree to accept the lowest bidder, in case the building should be built sub- stantially in accordance with the plans and specifications submit- ted. Their finding that the contract was approved by the directors must have involved the finding that it was approved by Mr. Speare. And this finding might well be reached without implying any intentional misstatement on his part. The remaining questions are whether there was sufficient evi- dence to warrant the second and third findings, or either of them, that such contract, if made by the committee, was approved bj the directors, and was within the ostensible authority of the com- mittee. If either of these was supported by the evidence, it it enough for the plaintiff's purposes, and most if not all, of the evi- dence relating to the second finding bears also upon the third. The plaintiff contends that it was within the ostensible authority of the committee to fix the terms upon which it would receive bids, and to make the agreement which is embodied in the first finding of the jury without any reference to an approval by the directors. He urges that this was within the ordinary province of a building committee; and that in this instance the directors knew that there was to be a competition for bids; that this competition was to be limited to five selected builders, and that the com- mittee would fix the terms of it; that the directors were well aware that the committee was going on to attend to all these matters; that a vote had already been passed by the directors, authorizing the committee to make leases in the new building; that they also knew that the architects had been selected, that the plans were hanging up in the office; that the erection of the new build- ing was the most important subject which the board of directors or the chamber of commerce had under consideration during this ueriod, that it was a subject of constant talk; and that no director ever objected to the committee's undertaking to fix the terms of the competition among the builders, or questioned its power to do so, till after a letter from the plaintiff's attorney threatening an action at law. There was testimony in support of these various propositions. So far as appears, no one of the bidders doubted the power of the committee to act in the matter. The Chap. Ill] McNeil vs. Chamber of Commerce. 67 committee assumed to make changes in the terms of competition at its own will. There is nothing to show any suggestion to any of the bidders in respect to the need of consulting the directors, except in Mr. Speare's testimony, already referred to, of his conver- sation with Mr. Lothrop. The notice to bidders held out the building committee as having the power to act in the premises. No mention of the directors was made in it. The board of directors had regular monthly meetings. Mr. Speare was presi- dent of the board, and was upon the building committee. lie testified: "It was known to the drectors, in a general way, that specifications, notice to bidders, and other details preliminary to obtaining bids and making the contract, were being attended to by the committee and the architects/' " Was it not the understand- ing of the directors that there was to be a competition? " " Yes, 6ir." "How was that known to them?" "Simply in a general way; I presume at a meeting of the directors I had told them." He added later, that the board of directors knew that the commit- tee was trying to get bids, and that no effort was made to inform bidders that they could not safely deal with the committee. According to the strict letter of the original vote, the committee could not even procure plans and specifications except subject to the approval of the directors. It was allowed, however, not only to procure plans and specifications, but to employ the architects with- out formally consulting the directors. Without dwelling further upon details of evidence, the jury might properly find that the committee itself, believed that it was authorized to go on, as it did, without consulting the directors as to the details, and that the directors were aware in a general way of what the committee was doing. It seems to us that the jury, as a result of the whole testimony, might properly come to the conclusion that the contract was within the ostensible authority of the commit- tee, and that the bidders had a right to assume that the defendant would be bound by the contract of the committee as to the terms of the bidding. The doctrine as to ostensible authority is thus stated in Bronson vs. Choppell, 12 Wall. 681, 683: "Where one, without objection, suffers another to do acts which proceed upon the ground of author- ity from him, or by his conduct adopts and sanctions such acts after they are done, he will be bound, although no previous author- ity exist, in all respects as if the requisite power had been given in the most formal manner." Circumstances may warrant an inference 68 Cases on Agency. [Book I that acts of a committee, openly done and extending over a con- Bid erable period of time, were known and assented to by those who appointed the committee. The directors represented the corpora- tion, and if the directors knew and by silence acquiesced in the acts of the committee, that is enough. The vote of the stockholders would show what in the first instance was the actual authority of the committee, but the course of the directors might be considered in determining its ostensible authority. A secret or unknown lim- itation of authority imposed by the stockholders would not control an apparent authority from the directors, since the business was within the scope of the general authority of directors. This was clearly left to the jury by the presiding judge, in terms to which the defendant did not except, and which appear to be unexception- able. The decisions cited by the plaintiff afford various illustrations of the application of the rule of law as to apparent authority in an agent. The rule itself is not open to doubt. Fay vs. Noble, 12 Cush. 1, 17, 18; Lester v. Well, 1 Allen, 34; Ayer vs. R. W. Bell Manuf. Co., 147 Mass. 46; Insurance Co. vs. McCain, 96 U. S. 84 (post, ); Mining Co. vs. Anglo. California Bank, 104 U. S. 192. See, also, Case vs. Bank, 100 U. S. 446, 454. The defendant does not now insist that the evidence did not warrant the fourth find- ing of the jury. The result is, that there should be, judgment for the plaintiff on the finding. (37 Minnesota, 98, 5 Am. St. Rep. 827.) DEAKIN vs. UNDERWOOD. ("Supreme Court of Minnesota, June, 1887. J Action for specific performance. The opinion states the facts. John B. <& W. H. Sanborn, for appellant. Uri L. Lamprey, for respondent. Mitchell, J. This was an action to compel specific perform- ance of a contract for the sale of real estate. Plaintiff alleges that the defendant made the contract "by A. B. "Wilgus, his duly authorized agent and attorney in fact." The contract is attached Chap. Ill ] Deakin vs. Undekwood. C9 as an exhibit to the complaint, and is signed, " 0. W. Under- wood, by A. B. Wilgus, Agent." 1. It appears from the evidence that the authority to sell was given to the firm of A. B. Wilgus & Brother, a partnership com- posed of A. B. "Wilgns and E. P. Wilgns. It is claimed that, npon this state of facts, there was a failure of proof. But the material allegation of the complaint was that defendant had made this contract with plaintiff. It was not necessary to allege that it was made through an agent. It would have been enough to declare npon it generally as of the personal act of the principal. The Bubstance of the issue was not whether defendant had made the contract through an agent, but whether he had made it at all. Hence it cannot be said that there was a failure of proof. The most that can be possibly claimed is, that there was a variance between the allegation and proof, but which could not, in this case, have misled the defendant to his prejudice, and therefore is not material. 2. Defendant further contends that the authority to sell being to the firm of A. B. Wilgus & Brother, which was composed of two members, this authority could only be executed by the two jointly, and not by one separately, so as to bind the principal. In support of this contention, he invokes the well-known general rule of the common law, that where authority to do an act is conferred upon two or more agents, the act is valid to bind the principal only when all of them concur in doing it; the power being joint and not several. Rollins vs. Phelps, 5 Minn. 463. Even where the authority is given to several agents, this rule is not so rigid and inflexible as to overcome the apparent intention of the parties to the contrary. Story on Agency, §§ 42, 43; Hairtey vs. Keeler, 53 N. Y. 114 {ante, 50). But we think the rule has no application where the authority is given to a partnership as such. Each member of a partnership is the agent of the firm, and all the partners are jointly accountable for the acts of each other; and where a person appoints a partnership as his agent, he must be deemed to have done so with reference to these rules of law. When a person delegates authority to a firm, it is an appointment of the partner- ship as his agent, and not of the individual members as his several and separate agents. Hence each partner may execute, and the act of one is the act of the firm, and in strict pursuance of the power. Gordon vs. Buchanan, 5 Yerg. (Tenn.) 71. But it is claimed that, conceding this, he must do it in the name 70 Oases on Agency. [Book I of the firm, and that if, as in the present case, he nses his individ- ual name, it is not the act of the partnership, and will not bind it. The defendant seems to overlook the fact that the contract is the act of the principal, and not of the agent, and that the party to be bonnd is the former, and not the latter. Hence the important question is, whether the principal's name has been signed to the contract by one having authority to do so. That in this case A. B. Wilgus, as a member of the firm of A. B. Wilgus & Brother, had, by virtue of the authority given the firm, power to execute this contract in the name of the defendant, cannot be questioned, and it is wholly immaterial whether to that name he added " by A. B. Wilgus & Brother/' or "by A. B. Wilgus," or nothing at all. An agent, authorized to sign the name of his principal, effectually binds him by simply fixing to the instrument the name of his princi- pal, as if it were his personal act. The particular form of the execu- tion is not material, if it be done in the name of the principal, and by one having authority in fact to execute the instrument: Berhey vs. Judd, 22 Minn. 287, 302; First National Batik vs. Loylied, 28 Id. 396; Devinney vs. Reynolds, 1 Watts & S. (Penn.) 328; Forsyth vs. Day, 41 Me. 382. 3. The authority to the firm was to sell for one-half cash, and the other half payable on or before one year. They sold for one- half cash and the other half payable in one year. It is claimed that this was unauthorized, and therefore the principal is not bound. The terms of the contract as executed, so far as they affect the rights of the defendant, were in legal effect the same as those authorized. By each he would be entitled to demand pay- ment in one year, and not before. The distinction between this case and one where the facts are exactly reversed (such as Jack- son vs. Badger, 35 Minn. 62) will be apparent on a moment's reflection. * * * We therefore think that the evidence shows a binding contract by the defendant to eell and convey, and shows no valid reason why he ought not to and cannot perform. Order reversed. Note — As to the acts of one of a firm of insurance agents; Purinton vs. Insurance Co., 72 Me. 22; Gordon vs. Buchanan, 5 Yerg. (Tenn.)71; Kenne- bec Co. vs. Insurance Co., 6 Gray (Mass.) 204; Neurman vs. Insurance Co., 17 Minn. 123. As to acts of one of a firm of attorneys, Jeffries vs. Insurance Co., 110 U. S. 305. Chap. IV ] Benjamin vs. Dockham. 71 CHAPTER IV. OF THE APPOINTMENT OF AGENTS AND THE EVIDENCE . THEREOF. I. AUTHORITY IMPLIED BY LAW. (134 Massachusetts, 418.) BENJAMIN vs. DOCKHAM. {Supreme Judicial Court of Massachusetts, March, 18S3.J Action for milk sold to defendant's wife. The opinion states the facts. Judgment below for plaintiff. O. P. Weston, for defendant. S. H. Dudley and W. P. Dudley for plaintiff. Holmes, J. The plaintiff's declaration was for milk delivered to the defendant by the plaintiff at the defendant's request. His proof was of a delivery to the defendant's wife, who was living apart from her husband, without means of support, by reason of his cruelty. The only ground of exception which we are asked to consider is, that there was a variance between the declaration and the proof. If there were such a variance, as the case has been tried on its merits, and it appears from the statement of the defendant's counsel himself that there can have been no surprise, an amend- ment would be allowed. Peck vs. Waters, 104 Mass. 345, 351; Cleaves vs. Lord, 3 Gray 66. But we think no amendment is necessary. The allegation of delivery to the defendant would seem to be sufficient in a common count, even when the delivery was to a third person at the defendant's request. Bull vs. Sibbs, 8 T. R. 327, 328; 2 Chitty PI. (7th ed.) 47 n. 1.; (6th ed.) 56 n. w. A fortiori when it was to the defendant's wife, who at common law is one person with her husband. Poss vs. Noel, Bull. N. P. 136; Kamsden vs. Ambrose, 1 Stra. 127. And in those cases where 7.2 Cases on Agency. [Book 1 the law authorizes a wife to pledge her husband's credit, even against his will, it creates a compulsory agency, and her request is his request. Exceptions overruled. (15 Connecticut, 347, 39 Am. Deo. 384.) BENJAMIN vs. BENJAMIN. (Supreme Court of Errors of Connecticut, June, 1843. ) Trespass for cutting, removing and selling certain grass growing on plaintiff's land. Defendant justified on the ground that the act was authorized by plaintiff's wife. Defendant offered evidence tending to show that in 1836 plaintiff left the state and remained absent until 1840; that he left his wife and children living on the farm in Connecticut, on which the grass in question was grown, making little provision for their support, and that he wrote to them only twice during his absence; that he left some stock on the farm; that he did not commit the management of the farm to any other person than his wife, bnt that she alone managed the same during his absence, employing laborers, who were paid by the plaintiff on his return, took care of the cattle and hired them out or lent them at pleasure, cultivated the land, kept up the fences, etc., and that plaintiff had not disapproved of any of her acts in that regard since his return; that she agreed that defendant might cut and remove the grass under an attachment taken out against the plaintilf, sell the same on execution and apply the proceeds to his debt, for the reason that she had no means of caring for the hay herself. Verdict for plaintiff, and defendant moved for a new trial. Hungerford and Chapman, for the motion. Toucey, contra. Storrs, J.: The justification set up by the defendant, for doing the acts complained of, in respect to the cuttiug and carry- ing away the grass in question, depends on the validity of the authority given by the wife of the plaintiff. It is not claimed by the defendant, that such authority is valid, by virtue of the power which the wife has, in certain cases, to charge her husband, in Chup. IV ] Benjamin vs. Benjamin. 73 procurement of necessaries for herself or the family. For it was not for the relief of any part of the family, that she, in the present case, authorized or procured the defendant to do the acts com- plained of, nor could they, in any measure, contribute to that pur- pose. Neither the grass, nor its avails, went to their use; nor was the arrangement respecting it, made with any such view; but solely for the benefit of others. Although, therefore, it should be con- ceded, that the wife, under the circumstances claimed to be proved by the defendant, would have had the right, if necessary for the support of herself or the family, to dispose of the grass and apply the avails to that purpose; and that her husband would have been bound by such an appropriation of his property; it would not go to show, that the disposition of the property, in the present case, was valid or binding on him, no such cause existing, and the disposi- tion being for no such purpose. Hence it is wholly unnecessary to consider the subject of the liability of the husband, in any case, for contracts entered into, through the instrumentality of the wife, for necessaries furnished on his credit. The case has not been attempted to be placed on the principles applicable to those cases. The question here, therefore, does not respect the liability which the law imposes on the husband, independent of any express assent on his part, or notwithstanding his express dissent; but is purely one of agency — of an authority possessed by the wife, to act on his behalf, in relation to his general concerns. A wife, as such, has no original or inherent power to mate any contract, which is obligatory on her husband. No such right arises from the marital relation between them. If, therefore, she possesses a power in any case, to bind him, by her contracts made on his behalf, it must be by virtue of an authority derived from him, and founded on his assent — although such assent may be pre- cedent or subsequent, and express or implied; and this is the light in which such contracts are universally viewed. "When such author- ity is conferred, the relation between them and the consequences of that relation, are analogous to those in the ordinary case of principal and agent. And that she has the capacity to be con- stituted, by the husband, his agent, and to act as such, equally with any other person, there is no doubt. In Fitz. N. B. 120 G, the law is thus laid down: "A man shall be charged in debt for the contract of his bailiff or servant, where he giveth authority unto the bailiff or servant to buy or sell for him; and so the contract of the wife, if he give such authority to his wife, otherwise not." In 74 Cases on Agency. [Book I Manly vs. Scott, 1 Mod. 125, it is said by Mr. Justice Hyde, that "&feme covert can not bind or charge her husband, by any contract made by her, without the authority or assent of her husband, pre- cedent or subsequent, express or implied." The law on this subject is stated, with great clearness and precision, by Selwyn, in his Nisi Prius, page 288, where he treats of the liability of the husband as to contracts made by the wife during coverture. After stating that the relation of husband and wife is, in respect of the wife's contracts, binding the husband, analogous to the relation of master and servant, he says: " Indeed, in contemplation of law, the wife is the servant of the husband; " and, after citing the above passage from Fitzherbert, he says: "From this passage it appears that the husband is not liable to his wife's contracts, unless he has given his authority or assent;" and adds, "it is incumbent, there- fore, on a creditor, who brings an action against the husband upon a contract made with his wife, to show, that the husband has given such assent, or to lay before a jury such circumstances as will enable them to presume that such assent has been given; and in the latter case, if such presumption is not rebutted by contrary evi- dence, the jury may find against the husband, but not otherwise; for the wife has not any power originally to charge the husband." These principles are so plainly in accordance with the whole current of the authorities, that a reference to some of them only is necessary; Vin. Abr. tit. Baron & Feme, E. A.; 5 Pow. on Con. 57, 58; Hunt vs. Be Blaquiere, 5 Bing. 550; Rotch vs. Miles, 2 Conn. 638; 1 Bac. Abr. 489; Manly vs. Scott, 1 Lev. 4; Bull. N. P. 136; Norton vs. Fazan, 1 Bos. & Pul. 227, N. by Day; Etherington vs. Parrot, 1 Salk. 118; s. c. 2 Ld. Raym. 1006; Clancy 23. But, although these principles are universally acknowledged, it is not always easy to determine what amounts to proof of the hus- band's assent, where it is claimed to be implied merely, as will be obvious, by looking at those cases especially in which questions have arisen as to the liability of the husband for supplies furnished to his wife, when the husband had abandoned or deserted her, or turned her from his doors, or where there was an agreement for a separation between them, with an allowance for her support. What- ever diiliculty there may be, in the present case, is of that char- acter. In this case, no authority to make the contract, claimed to bo proved respecting the hay, was conferred expressly, by the plaintiff upon his wife. This question of fact was submitted to the jury Chap. IV] Benjamin vs. Benjamin. 75 who found, that he did not constitute her his agent generally, to manage his business, nor specially authorize her to make the con- tract in question, nor subsequently ratify such contract. The question, then, and indeed the only one made on the argument, is, whether, from the facts claimed to be proved by the defendant, the law implies any power in the wife of the plaintiff to make the contract in question in his behalf. The defendant claims, in the first place, that such a power is implied, because it is, in its nature, necessarily incidental to the authority conferred on the plaintiff's wife to take charge of his farm, and manage and superintend it. It is a familiar principle of the law of agency, that every authority given to an agent, whether general or special, express or implied, impliedly includes in it, and confers on such agent, all the powers which are necessary, or proper, or usual to effectuate the purposes for which such authority was created. It embraces the appropriate means to accomplish the desired end. This principle is founded on the manifest intention of the party conferring such authority, and is in furtherance of such intention. The rule is most fully and minutely illustrated, by examples and authorities, in Judge Story's treatise on Agency, to which it is only necessary to refer. As applicable to the case before us, the plaintiff's wife, on the ordinary principle of agency, would have the power to do whatever is necessary or proper, in the care and management of the farm intrusted to her, such as keeping in order the buildings, fences and implements of husbandry, cultivating the land, and preserving the crops, and perhaps dis- posing of such crops, if necessary to enable her to do these things; and generally to do whatever is necessary and proper in order to execute the trust reposed in her; and the usual course of such an employment might be shown, in order to ascertain what was thus necessary and proper, and the character and design of the trust. Further than this, her power would not extend. It is scarcely necessary to say that, within these principles, she has no right to dispose of her husband's property in her possession, in the extraordinary and injurious manner, and for the purpose claimed to be proved by the defendant. If it should be held that such an agent might make such a contract, it would be difficult to stop short of investing her with a general and unlimited authority as to all his affairs. The very case of intrusting another with the superintendence of a farm, is put in the books on the civil law, under which it was held, that an agency of that description does 76 Cases on Agency. [Book I not authorize the agent to sell the property of the principal for any purpose, unless it be of a perishable nature. Whether we should restrict his powers within limits so narrow, it is unnecessary to inquire; but on no principle can we extend them as is claimed in the present case. It is next claimed by the defendant, that from the marital relation between the plaintiff and his wife, the law implies a larger authority than from the ordinary relation between principal and agent, and that the power to make the contract in question is implied from such relation. We have seen that a wife, by virtue of such rela- tion, possesses no original power to bind her husband, by her con- tracts made on his behalf; and that her power for that purpose must, therefore, be derivative. It appears, nevertheless, from the authorities, that the law will, in some cases, presume the wife to be the agent of her husband, when no such presumption would exist as to another person; and also will, in some cases, imply a larger authority to the wife than to an ordinary agent, and this, perhaps, whether the husband be absent from home or not; and that, in other cases, where he is absent, a presumption would arise that his wife has authority to act in his behalf, which would not exist if he were at home. But it will be found that in all such cases, these inferences are founded on the fact that it is usual and customary to permit the wife to act in such cases. It is a presump- tion arising from the state of society. Thus, in Anonymous, 1 Stra., 527, "Peatt, C. J., allowed the wife's declaration that she agreed to pay four shillings per week, for nursing a child, was good evidence to charge the husband; this being a matter usually transacted by the women." Judge Reeve, in Domestic Relations, p. 79, says: " The husband is bound to fulfill the contract of his wife, when it is such an one as wives, according to the usage of the country, commonly make. If a wife should purchase, at a mer- chant's store, such articles as wives in her rank of life usually pur- chase, the husband onght to be bound, for it is a fair presumption that she was authorized so to do, by her husband. If, however, she were to purchase a ship or a yoke of oxen, no such presumption would arise, for wives do not usually purchase ships or oxen/' On the same grounds in Church vs. Landers, 10 Wend. 79, the wife, in the husband's absence, was presumed to have been left an agent for the hiring out of his horses: 2 Cow. Ph. on Ev. 294, n. 298. In Spencer vs. Tisue, Addis. (Pa.) 316, payment to the wife of a debt due to the husband in his absence, was held good for the same Chap. IV ] Benjamin vs. Benjamin. 77 reason. We do not find any adjudged case which sanctions the doctrine that the wife, whether the husband is abroad or at heme, is presumed to be the agent of her husband generally, or to be entrusted with any other authority as to his affairs, than that which it is usual and customary to confer upon the wife. It would be not only unreasonable, and, as it respects the husband's interest, unsafe, but it would be going beyond what could fairly be pre- sumed to be his intention, to extend the powers of the wife by implication or presumption further than this principle warrants; and that it justifies the contract in question cannot be claimed. We think, therefore, that the defendant's justification, founded on the authority of the plaintiff's wife, fails. * * * New trial denied. (26 Iowa, 297.) MoLAEEN vs. HALL. (Supreme Court of Iowa, December, 1868. J Action for work, labor and material furnished. The transac- tions were had with William Hall who was claimed to be the agent of the defendant Sarah G. Hall. Defendant appeals. Roberts & Foake, for appellant. Beach & Gray, for appellee. Cole, J. * * * The husband may act as agent for the wife. In order to bind her, however, he must be previously authorized to act as her agent, or she must subsequently, with express or implied knowledge of his act, ratify it. The evidence necessary to establish a ratification by the wife, of a contract made by her husband as her agent, must be of a stronger and more satis- factory character than that required to establish a ratification by the husband of the act of the wife as his agent, or than as between independent parties. And this for the reason that (in the general experience of the past at least, if not in the philosophy of the present), the wife is under the control of, and subordinate to, the husband; and neither good law nor sound reason will require the wife to destroy the peace of her family and endanger the marriage relation by open repudiation or hostile conduct towards her husband, in order to save her property from liability for his unauthorized contracts. 78 Cases ok Agency. [Book I Of course it is neces?ary in every case, in order to bind her, that he should at least claim to act as her agent; and her ratification should be shown by those unmistakable acts or declarations which evince a knowledge of the contract by which she is sought to be bound, and an intention to adopt or ratify it as her own. * * * Note — Husband has no implied authority to act as agent for his wife. Price vs. Seydel, 46 Iowa, 69G; Crawford vs. Redus, 54 Miss. 700; Eystra vs. Capelle, 61 Mo. 580; Mead vs. Spalding, 94 Mo. 43; Etheridge vs. Price, 73 Tex. 597. With her authority, however, he may act as her agent. Rankin vs. West, 25 Mich. 195; Arnold vs. Spurr, 130 Mass. 347; Lavassar vs. WasKburne, 50 Wis. 200; Griffin vs. Ransdell, 71 Ind. 440; Bennett vs. Stout, 98 111. 47. (40 New Hampshire, 197, 77 Am. Deo. 706.) JOHNSON vs. STONE. ('Supreme Judicial Court of New Hampshire, January, 1860.) Trespass for taking and carrying away the plaintiff's yoke. Defense, inter alia, permission from plaintiff's son. The court instructed the jury that the son would have no authority to lend the yoke unless his father had authorized or ratified it. Burns and Fletcher, for plaintiff. Benton and Ray, for defendant. Bell, C. J. * * * The charge, as to the supposed per- mission given by the boy to the officer to take the yoke, was correct. A son has no authority as such to lend his father's property, and there is no presumption that such authority has been given to a son. It may be shown that authority to lend tools and the like has been given to a 6on expressly, or such an authority may be inferred from the conduct of the father, tending to show that he reposed such con- fidence and intrusted such discretion to the son, as by showing that on other occasions the son had lent the father's property of a similar kind, and the father, upon the facts coming to his knowledge, approved what he had done; but without such proof the son stands in the same position as a stranger. • • • Note — See following case. Chap. IV ] Bennett vs. Gillette. 79 (3 Minnesota, 423; 74 Am. Deo. 774.) BENNETT vs. GILLETTE. (Supreme Court of Minnesota, December, 1S59.J Plaintiff's son had driven his horses and carriage into town to bring home the plaintiff's daughter Leodora. The son hitched the horses in front of the house where his sister was and left them there while he went to attend to some other matters. "While he was gone, plaintiff's daughter, who was about 19 years of age, requested defendant, a friend of hers, to drive herself and a lady friend to a church. Defendant assented, and while driving, the horses became frightened, ran away, threw out the occupants of the carriage, demolished the carriage and killed themselves. The father brought this action against the defendant to recover for the loss. Defendant had judgment below. Sanborn, French and Lund, for appellant. Brislin and Bigelow, for respondent. Flandeau, J. (After stating the facts.) The relation of parent and child, existing between the plaintiff and Leodora Ben- nett, conferred upon her the right to use in a careful and proper manner, such property of her father as was customarily applicable to family purposes; as, for instance, the furniture of his house, and we think, the family carriage and horses, subject, of course, to those regulations which parental wisdom should dictate, and parental authority enforce. Where one person uses the property of another who is as to him a stranger, the law implies a promise to pay an equivalent for its use. Yet, where members of the same family do the same thing in the ordinary intercourse of life, no such implication will follow, but if an action can be sustained at all, an express promise must be averred and proved. In the same way, where one person performs work, labor, or services for another, with his knowledge and assent, the law will imply a promise to pay a fair remuneration for the benefit received, whereas no such presumption will arise between members of the same family in similar cases, and under similar circumstances. Can there be any doubt that the child may use the books in the father's library, hunt with his gun and dogs, sail in his yacht, and even invite a friend to participate with him in these pursuits or amusements? 80 Cases on Agency. [Book I We think not. The law of the land imposes the obligation npon the parent to furnish the child with the necessaries of life; and the law of nature prompts him to supply those comforts and lux- uries compatible with his social position, which will refine and ele- vate his mind, improve and develop his body, and fit him to assume the responsibilties and duties of the citizen. When a parent furnishes an establishment for his family, the law will presume an authority in the several members thereof to enjoy it, and refer all questions concerning the internal policy of the domestic circle to the arbitrament of the social code, so long as its differences do not trench upon the rights of others. In this case we cannot see how there wa8 any impropriety in the daughter of the plaintiff using the carriage which had been sent into the city for her for any of the general purposes which such property is devoted to in families, either in conveying her to a friend's, or to church, as in this instance; nor do we think she exceeded the limits of a prudent exercise of her privileges, by extending them to her friends who were present. She certainly did not by so doing vio- late any known law of courtesy, but we think exhibited a degree of forethought and prudence in securing the services of the defendant to drive the horses, which was commendable to her judgment. We do not think the defendant can be said to have taken the property at all, or to have had it under his control, or in his custody, or possession, but he was simply a passenger at the invitation of the plaintiff's daughter, who had competent and adequate author- ity, by virtue of her relation to the plaintiff, to use the carriage and horses for the purpose to which they were being applied. The case does not make out any negligence on the part of the defendant in the manner in which he drove or otherwise, and we see no principle upon which he can be made liable for the loss the plaintilf has sustained. It is one of those unfortunate accidents for which the law furnishes no redress. The judgment of the court below is affirmed. Note — See further on authority of child to act as agent for the parents; Sequin vs. Peterson, 45 Vt. 225, 12 Am. Rep. 194; Burnham vs. Holt, 14 N. H. 367; Hall vs. Harper, 17 111. 82; Swartwout vs. Evans, 37 111. 442; Paul vs. Hummell, 43 Mo. 122; Owen vs. White, 5 Port. (Ala.) 435, 30 Am. Doc 572. Chap. IV] Pole vs. Lease. 81 II. AUTHORITY CONFERRED BY ACT OP PARTIES. (33 Law Journal Reports, Eq. 155.) POLE vs. LEASK. {English House of Lords, April, 1SG3.J Lord Cranworth. My lords, before I examine in detail the facts of this case, I desire to advert very shortly to one or two gen- eral propositions connected with the law of agency, which, I think, were sometimes lost sight of in the argnment of this case at your lordships' bar. First, then, as to the constitution by the principal of another to act as his agent. No one can become the agent of another person except by the will of that other person. His will may be manifested in writing or orally, or simply by placing another in a situation in which, according to ordinary rules of law, or perhaps it would be more correct to say, according to the ordi- nary usages of mankind, that other is understood to represent and act for the person who has so placed him; but, in every case, it is only by the will of the employer that an agency can be created. This proposition, however, is not at variance with the doctrine, that where one has so acted as from his conduct to lead another to believe that he has appointed some one to act as his agent, and knows that that other person is about to act on that behalf, then, unless he interposes, he will, in general, be estopped from disputing the agency, though in fact no agency really existed. It is, how- ever, necessary to bear in mind the difference between this agency by estoppel, if I may so designate it, and a real agency, however constituted. Another proposition to be kept constantly in view is, that the burden of proof is on the person dealing with any one as an agent, through whom he seeks to charge another as principal. He must show that the agency did exist, and that the agent had the authority he assumed to exercise, or otherwise that the principal is estopped from disputing it. Unless this principle is strictly acted on, great injustice may be the consequence; for, any one dealing with a person assuming to 6 82 Cases ox Agency. [Book I act as agent for another, can always save himself from loss or diffi- culty by applying to the alleged principal to learn whether the agency does exist, and to what extent. The alleged principal has no similar mode of protecting his interests; he may be ignorant of the fact that any one is assuming to act for him, or that persons are proposing to deal with another under the notion that that other is his agent. It is, therefore, important to recollect constantly where the burden of proof lies. • • • (38 Minnesota, 66.) GRAVES vs. HORTON. {Supreme Court of Minnesota, December, 1887.) Smith & Reed, for appellant. C. H. Childs, for defendant. Mitchell, J. This action was brought to recover the value of certain property, which plaintiff had exchanged with defendant for a skating rink, skates, boats, etc., situated at Spirit Lake, Iowa. Plaintiff's claim is that there was an entire failure of title to this (latter) property, because defendant had previously sold it to one McCurdy. It is not claimed that defendant had personally sold it to McCurdy, whatever was done in that regard having been done by one F. M. Horton, assuming to act as her agent. Hence, unless F. M. Horton had authority as defendant's agent to sell to McCurdy, there could have been no such sale, and plaintiff has no cause of action. The burden was on plaintiff to prove such agency. It is axiomatic in the law of agency that no one can become the agent of another except by the will of the principal, either expressed or implied from particular circumstances; that an agent cannot create in himself an authority to do a particular act by its performance, and that the authority of an agent cannot be proved by his own statement that he is such. Applying these elementary principles, and stripping the evidence of all that is immaterial or incompetent, and giving to what remains all the force that can be claimed for it, all there is that was brought home to defendant tending to prove any such agency is that, when F. M. Horton was Chap. IV] Graves vs. Horton. 83 in Spirit Lake, he transmitted and submitted to her in Minneapolis what purported to be a proposition from McCurdy to give for this property $1,090 in goods, and assume a mortgage on it for $385, and that she agreed to accept this proposition; that McCurdy being unable to carry this out, F. M. Horton submitted to her another proposition as coming from McCurdy, viz., to give in place of the goods 80 acres of land in Iowa; that defendant declined to accept this last proposition, and so notified McCurdy; that about two weeks after this she apthorized F. M. Horton to negotiate the sale of this property to plaintiff on the terms which were finally agreed on, she herself making the transfer by executing the bill of sale described in the complaint. We have, on the other hand, the flat denials of both defendant and F. M. Horton that he ever had any authority from her to sell this property or ever was her agent for this or any other purpose. This is really all the competent evidence there is at all bearing upon this question of agency. The acceptance of McCurdy's first proposition, which he was unable to carry out, certainly does not tend to prove authority to F. M. Horton to sell on the terms of the second, which defendant expressly declined to accept; and if any sale ever was made to McCurdy, it was on the basis of this last proposition. Hence the evidence of agency is reduced down to the fact that defendant authorized F. M. Horton to nego- tiate the sale to plaintiff, which she herself consummated by the execution of a bill of sale. It certainly cannot be that this is sufficient. It is true that agency may be proved from the habit and course of dealing between the parties; that is, if one has usually or frequently employed another to do certain acts for him, or has usually ratified such acts when done by him, such person becomes his implied agent to do such acts, as, for example, the case of the manager of a plantation in buying supplies for it, or the superintendent of a saw-mill, in making contracts for put- ting in logs for the use of the mill, which are the cases cited by respondent. It is also true, as was said in Wilcox vs. Chicago, Ml. & St. Paul R. Co., 24 Minn. 2G9 (which involved the ques- tion of the authority of the person to whom goods were delivered to receive them), that a single act of an assumed agent, and a single recognition of it, may be of so unequivocal and of so posi- tive and comprehensive a character as to place the authority of the agent to do similar acts for the principal beyond question. It ia also true that the performance of subsequent as well as prior acts, 84 Oases on Agency. [Book I authorized or ratified by the principal, may be evidence of agency, where the acts are of a similar kind, and related to a continuous series of acts embracing the time of the act in controversy, as indi- cating a general habit and course of dealing; as, for example, the acts of the president of a railway company in making drafts in the name of the company, which were honored by it, which was the case of Olcott vs. Tioga R. Co., 27 N. Y. 540; 84 Am. Dec. 298, cited by counsel. But we think the books will be searched in vain for a case where it was ever held that authority to negotiate for the sale of property to one person at one time, on certain terms, the transfer to be made by the principal in person, was evidence of authority to sell and transfer the same property at some former time to another person on different terms. A new trial, would, however, have to be granted on the ground of error in the admission of evidence. The general statement of the witness McCurdy that Frank M. Ilorton did quite an extensive business at Spirit Lake trading in real estate, and frequently bought and sold in the name of Jennie L. Horton and Carolina W. Horton, with- out identifying the transactions, or describing them, or in any way bringing them home to the notice or knowledge of defendant, was inadmissible to prove agency. The court also erred in allowing the same witness to testify that F. M. Horton was publicly and gener- ally known at Spirit Lake as the agent of Jennie L. Ilorton. Agency cannot be proved by general reputation. Judgment reversed, and new trial ordered. (115 Missouri 513, 22 S. TV. Rep. 492.) JOHNSON vs. HURLEY. (Supreme Court of Missouri, Division No. 1. May 8, 1S03.J Action by John M. Johnson and another against John M. Hurley to recover the possession of lands. The answer set up an equitable defense, to the effect that defend- ant had purchased the land from the duly-authorized agent of the plaintiffs, had received from said agent deeds purporting to be duly executed and acknowledged by plaintiffs, and purporting to convey to him said lands; that he had paid to said agent the entire purchase price for the land, to wit, £1,G50, its fair value, and had been put in possession under his said purchase; that he had, in good Chap. IV] Johnson vs. IIukley. 85 faith, fenced said land, and erected thereon a dwelling honse and other valuable and permanent buildings and improvements, — and prayed specific performance. The reply denied the new matter of the answer. The evidence showed that the deeds were forged by plaintiffs' agent, Finley A. Johnson, who received the money and absconded. The cause was tried as a suit in equity for specific performance of a contract for the conveyance of land, and a decree entered for defendant according to the prayer of the answer, and plaintiffs appealed. Harrison and Mahan, for appellants. Geo. W. W Mtecotton and Jas. P. Wood, for respondent. Macfaklane, J. (After stating the facts): 1. The evidence leaves no doubt that plaintiffs' agent made the contracts with defendant for the sale of the land, assuming to act for them; that he received the purchase money, delivered a deed, to which their names were signed, and to which an acknowledgment certified in due form by the said agent as notary public was attached; and that under said transaction, and relying on it, defendant, in good faith, went into the possession and made valuable and lasting improvements. Under these circumstances, if said agent was authorized to make the sale, it would be the grossest injustice and fraud on defendant to deny him the benefit of the contract for the reason that it was not in writing, as required by the statute of frauds. To prevent such injustice courts of equity have uniformly held that such part performance relieves the contract of the infirm- ity created by the statute, and specific performance will not be denied. Emmel vs. Hayes, 102 Mo. 193; Bowles vs. Wathan, 54 Mo. 264. 2. The question then is whether Finley A. Johnson had author- ity from plaintiffs to make a sale of these lands. It may be stated, in the first place, as a general rule, that an agent can only act within the circumscribed authority given him by his principal, and one who deals with him is put upon his guard by the very fact that he is dealing with an agent, and he must ascertain for himself the nature and extent of his authority. The burden is, therefore, always cast upon one claiming the benefit of a contract made with another who assumes to act as the agent of a third person to estab- lish by satisfactory evidence that the contract relied upon was within the scope of the agent's authority. Mcchem, Ag. §§ 27G- 289, and cases cited. 86 Cases on Agency. [Book I 3. The evidence, we think, fails to establish an express authority from the plaintiffs to the said Finley A. Johnson to conclude con- tracts for the sale of these Missouri lands, or to make the particular contract in question. Both of them, in testifying in the case, very emphatically deny such authority, and no evidence was introduced by defendant showing directly that any was given. The authority, then, if any existed, must be implied or presumed from the con- duct of the parties. The general rule, which accords with the decisions in this State, is given by Mechem, in his work on Agency (section 84), as follows: "It may therefore be stated as a general rule that whenever a person has held out another as his agent authorized to act for him in a given capacity, or has knowingly and without dissent permitted such other to act as his agent in such capacity, or where his habits and course of dealing have been such as to rea- sonably warrant the presumption that such other was his agent, authorized to act in that capacity, whether it be in a single trans- action or in a series of transactions, his authority to such other to act for him in that capacity will be conclusively presumed, so far as it may be necessary to protect the rights of third persons who have relied thereon in good faith, and in the exercise of reasonable prudence; and he will not be permitted to deny that such other was his agent, authorized to do the act that he assumed to do, pro- vided that such act is within the real or apparent scope of the pre- sumed authority/' Rice vs. Groffmann, 56 Mo. 434; Summerville vs. Railroad Co., 62 Mo. 391. We are of the opinion that author- ity to make these sales is clearly implied from the conduct of the parties. One of the owners of the land, a preacher, lived in the state of Illinois; the other two, unmarried ladies, lived in the state of New Jersey. So far as appears, no one of them ever visited the land or gave any personal attention to it. From 1868 to 1883, it was in the hands of agents for sale. For most of this time the said Finley A. Johnson, a son of one of the owners, and a nephew of the other two, a lawyer, a notary public, and a judge of a court, who lived in the state of New Jersey, was one of the agents. The acknowledgment of deeds was made before him; lie paid taxes; he delivered deeds to purchasers; he collected purchase money, and took notes and deeds of trust in his own name for deferred pay- ments; he removed other local agents and made settlements with them, — he was, in fact, for years the medium through whom all the business was transacted. * • * The manner in whioh this business was transacted through this Chap. IV ] Johnson vs. Hurley. 87 agent for 10 or more years was known in the community and to defendant. All inquiries in regard to the land were made of this agent; prices were given by him; purchase money paid to and deeds received from him; lands leased and rents collected by him,— and all under express authority. There was also evidence that a former agent, the one removed by Finley A., made sales and exe- cuted contracts upon which plaintiffs afterwards made deeds. That agent was removed for withholding money, and Finley A. was appointed, with express authority to collect purchase money. Why this agent, with all these express powers, should have been restricted only in the matter of making sales, is not explained by the evidence. We think the conduct of plaintiffs in the transac- tion of this business such as would reasonably have induced defend- ant to believe that the agent with whom he dealt had authority to make the sales, and after having acted upon that belief, paid the purchase price, and expended large sums in improvements, plaint- iffs will not now be heard to dispute the authority. We are well satisfied with the conclusions reached by the circuit judge, and affirm the judgment. (120 New York, 274.) CRANE vs. GRUENEWALD. (New York Court of Appeals, April, 1890.) Action for the foreclosure of a mortgage. Mrs. Crane, through an attorney named Baker, loaned defendant $8,000 on bond and mortgage, for five years, from December 2, 1875, with interest annually at seven per cent. The papers were left in Baker's pos- session, and he was authorized to collect the interest but not the principal. After the principal became due, Baker received from the defendant two payments of $1,000 each to apply on the prin- cipal, the bond and mortgage being each time produced by Baker. On a subsequent occasion $1,000 more was paid to Baker to apply on the principal, but the bond and mortgage wero not produced, thongh Baker then had them in his possession and told the defend- ant so. Baker then sold the bond and mortgage, and forged an assignment of them to the purchaser. After that Baker received from defendant the balance due upon the mortgage. The trial 88 Cases on Agency. [Book I court held that defendant was entitled to credit for the first two payments of $1,000 each, but for no more, and rendered judgment of foreclosure and sale for the remaining $6,000 and interest. Defendant appealed. Gibson Putzel, for appellant. Joseph F. Stier, for respondent. Parker, J. A mortgagor who makes a payment to one, other than the mortgagee, does so at his peril. If the payment be denied, upon him rests the burden of proving that it was paid to one clothed with authority to receive it. There is, however, one exception to this general rule. If payment be made to one having apparent authority to receive the money, it will be treated as if actual authority had been given for its receipt. (Paley on Agency, 3d ed., 275; Story on Agency, sec. 98; Williams vs. Walker, 2 Sandf. Ch. 325; Smith vs. Kidd, 68 N. Y. 130; 23 Am. Rep. 157; Brewster vs. Carnes, 103 Id. 556-564.) So, if a mortgagee permits an attorney, who negotiates a loan, to retain in his possession the bond and mortgage after the principal is due, and the mortgagor, with knowledge of that fact, and relying upon the apparent authority thus afforded, shall make a payment to him, the owner will not be permitted to deny that the attorney possessed the authority which the presence of the securities indi- cated that he had. This rule comprises two elements: First, possession of the securities by the attorney with the consent of the mortgagee; and second, knowledge of such possession on the part of the mortgagor. The mere possession of the securities by the attorney is not sufficient. The mortgagor must have knowledge of the fact. It would not avail him to prove that subsequent to a payment he discovered that the securities were in the actual custody of the attorney when it was made. For he could not have been misled or deceived by a fact, the existence of which was unknown to him. It is the information which he acquires of the possession which apprises him that the attorney has apparent authority to act for the principal. It is the appearance of authority to collect, furnished by the custody of the securities, which justifies him in making payment. And it is because the mortgagor acts in reliance upon such appearance, an appearance made possible only by the act of the mortgagee in leaving the securities in the hands of an attorney that estops the owner from Chap. IV] Ceane vs. Geuenewald. 89 denying the existence of authority in the attorney which such possession indicates. Now, applying that rule to the facts found hy the learned trial court in this case, the attorney Baker negotiated the loan of $8,000, which was made to this defendant on his bond secured by a mort- gage on real estate. The mortgagor and mortgagee never saw each other. The securities were permitted to remain in the possession of the attorney. He had authority to collect the interest, but was not authorized to collect the principal or any part of it. After the principal became due he received from the mortgagor two payments of 81,000 each, on each occasion exhibiting the bond and mortgage to the mortgagor. Clearly as to these two items the attorney had apparent authority to receive the principal and the mortgagor could not deny to them the effect of payment pro tanio by proof that he did not have actual authority. Subsequently, and while the bond and mortgage still remained in the possession of the attorney, this defendant paid to him a further sum of $1,000, to be applied as a payment on account of the principal due. True, he did not at this time see the bond and mortgage, but it was actually in the pos- session of the attorney and the attorney so informed him. Here then was possession and information of the possession. It was information upon which he acted, and inasmuch as it was true, it constituted apparent authority. If it had turned out to be untrue it could not have availed the defendant. We see no ground for insisting that a party must actually see and examine the securities in order to entitle him to the protection of the doctrine of apparent authority; if he have trustworthy information of the fact which he believes and relies upon and it shall prove to be true, there seems to be no reason why it should not avail him as well as a personal examination of the securities. It follows, that the defendant should have been credited with the third payment of $1,000. The remaining $5,000, was paid to Baker after he had parted with the possession of the bond and mortgage and the question presented is, whether the defendant is entitled to be credited with the payments made by him while the attorney Baker did not have actual posses- sion of the securities. It will be observed that Baker was not deprived of the possession by any act of Mrs. Crane. She believed that they were still in the custody of Buker. So far as she is concerned, therefore, or the plaintiff in this action who occupies no better or other attitude, she is not in position to deuy such responsibility as her conduct imposes. She cannot say that by any act of hers she 90 Cases on Agency. [Book I is relieved from the operation of the estoppel which prevents her from denying that the first three payments of $1,000 each were effectual as such. If then the defendant is not entitled to be credited with the payments aggregating $5,000, it is because he is not in a situation to insist upon the estoppel. We are of the opinion that a proper application of this doctrine of apparent authority, requires us to hold that the defendant's failure to take the precaution of ascertaining whether the attorney was actually in the possession of the securities when he paid the several sums aggregating $5,000, deprives him of the right to assert that he was induced to make the payments because it appeared to him that the attorney had the right to receive the money. For, as we have already observed, it cannot appear to the mortgagor that an attorney has authority to receive the principal, save where he has present possession of the securities. Information of the physical fact of possession by the attorney is alone effectual for protection. And he must have such knowledge when every payment is made, for no presumption of a continuance of possession can be indulged in for the purpose of giving support to an apparent authority on the part of an attorney to act, where no actual authority exists. This knowledge he did not have, for it was not the fact. By his own wrongful act, the attorney had parted with posses- sion, and as a necessary consequence had deprived himself of the power to longer misrepresent his authority in respect thereto to the detriment of the mortgagee. The mortgagor thereafter placed his trust solely in the assertions of the attorney and was deceived. In so doing he was legally as much at fault as the mortgagee, who also relied upon the attorney's trustworthiness. Therefore, he cannot invoke in support of his contention the doctrine of apparent author- ity. A rule which undoubtedly had its foundation in the equitable principle, that if one of two innocent persons must suffer, he ought to suffer in preference whose conduct has misled the confidence of the other into an unwary act. (Sic.) The judgment should be reversed and a new trial granted with costs to the appellant; unless within thirty days the plaintiff stipu- lates to modify the judgment by deducting therefrom, $104.50, that being the amount of costs of General Term, and the further sum of $1,000, with interest thereon from July 1, 1882, to date of entry of the judgment together with any other sum paid by Gruene- wald to Baker whether for principal or interest prior to July 20, Chap. IV] Oeane vb. Geuenewald. Ul 1883, for which he was not credited by the trial court; in which event the judgment as modified is affirmed with costs of this court to appellant. (50 Maine 378.) HEATH vb. NUTTER. (Supreme Judicial Court of Maine, 1868. Action to recover lands. Both parties claimed under one Bobbins, the plaintiff under a quitclaim deed direct from him and defendants under a deed from him by Samuel G. Eich, his attorney. The power of attorney held by Eich authorized him to demand and receive all sums of money due him from certain persons " and to settle and compromise all matters in dispute in the premises," and " to grant any and all discharges by deed or otherwise, both per- sonal and real/' etc. Defendants also offered to prove by Eich that the power of attor- ney was given to him for the purpose of conveying the real estate; that Bobbins had received part of the consideration; that at the time Bobbins executed the quit claim deed to plaintiff, he said he did not consider that he had any interest in the premises because he had given Eich a power of attorney to convey them; and that Bobbins had ratified the conveyance by Eich both verbally and by letter and by receiving part of the consideration. This evidence the court rejected and plaintiff recovered. Defend- ant appealed. Hathaway & Drinlcwater, for plaintiff. Wiswell, for defendants. Appleton, 0. J. The power of attorney to Eich did not empower him to convey the demanded premises. * * * The authority "to grant any and all discharges by deed or otherwise, both personal and real," as fully as the principal might do, cannot be fairly construed as enabling the agent to convey by bill of sale, or by deed of warranty, all the personal and real estate of his prin- cipal. Nor can the authority to convey by deed be found else- where. Whenever an act of agency is required to be done in the name 92 Oases on Agency. [Book I of the principal under seal, the authority to do the act must be conferred by an instrument under seal. A power to convey lands must possess the same requisites, and observe the same solemni- ties, as are necessary in a deed directly conveying the land, Gage vs. Gage, 10 N. II. 424. Story on Agency, §§ 49, 50; Montgomery vs. Dorion, 6 N. H. 250. So the ratification of an unauthorized con- veyance by deed must be by an instrument under seal. Story on Agency, § 252. A parol ratification is not sufficient. Stetson vs. Fatten, 2 Greenl. (Me.) 359, 11 Am. Dec. Ill; Paine vs. Tucker, 21 Me. 138, 38 Am. Dec. 255; Hanford vs. McXair, 9 Wend. (N. Y.) 54; Despatch Line vs. Bellamy Manufacturing Co., 12 N. H. 205, 37 Am. Dec. 203. The plaintiff received his conveyance with a full knowledge of the equitable rights of the tenants. The remedial processes of a court of equity may perhaps afford protection to the defendants. At common law their defense fails. (34 New Jersey Law, 116.) LONG vs. HARTWELL. (New Jersey Supreme Court, February, 1870.) John H. Piatt, as agent for Nathaniel 0. Carpenter, on the 15th of March, 1866, executed an agreement in writing, under seal, with Patrick Long, by which Carpenter agreed to convey two lots of land, on terms therein stated. Carpenter conveyed one lot and the action was brought against his administrator to recover damages for not conveying the other. Piatt's authority to make the con- tract was by parol. J. Dixon, Jr., for plaintiff. J. Harvey Lyon, for defendant. Van Syckel, J. * * * The authority to the agent to execute the written agreement having been by parol, it is insisted that it does not bind the principal. Our statute of frauds does not require the agent's authority to make a contract to convey land to be in writing; it exacts a written contract, not a written power to the agent. The distinction is clearly drawn in the terms of the statute, between conveying and contracts to convey laud. In the former case, Chap. IV ] Long vs. Hartwell. 93 under the tenth section the power to the agent mnst bo in writ- ing; while in the latter, under the fourteenth section, the words " in writing" are omitted, and the cases, both in England and this country, agree that the appointment may be by parol. 2 Kent's Com. 613; 10 Paige (N. Y.) 386; Story on Agency § 50; Brown on Frauds, § 370, note 2. The fact that the contract in this case was sealed by the agent does not vitiate it. There is no doubt about the general rule that a power to execute an instrument under seal must be conferred by an instrument of equal solemnity. If the writing given by the agent be under seal and that be essential to its validity, the authority of the agent must be of equal dignity or it cannot operate. Here a seal was not vital to the contract; there was no authority to the agent to attach a seal, therefore the seal is of no value, but the power to execute the contract without Beal having been ample, so far it becomes the act of the principal, and inures as a simple contract. 2 Kent's Com. 613; Lawrence vs. Taylor, 5 Hill (N. Y.) 107. * * * Note. — That unnecessary seal maybe disregarded, see also: Wagoner vs. Watts, 44 N. J. L. 126; Morrow vs. Higgins, 29 Ala. 448; Thomas vs. Joslin, SO Minn. 388; Adams vs. Power, 52 Miss. 828; Worrall vs. Munn, 5 N. Y. 229, 55 Am. Dec. 330; Dutton vs. Warsehauer, 21 Cal. 609, 82 Am. Dec. 765. See, also, post, -^— . (107 New York, 490.) BICKFOKD vs. MENIER. (New York Court of Appeals, December, 1SS7.J 8. P. Nash, for appellant. J. B. Pannes, for respondent. Euger, Ch. J. This action was brought by the plaintiff to recover of the defendants the sum of £1,200, alleged to have been loaned to them by her in the following sums at the times mentioned, viz., £200 in November, 1878; £200 in March, 1879, and £800 in May, 1879. Previous to these loans the plaintiff does not appear to have had any personal or written communication with the defendants in respect thereto, but alleges that she loaned the money to one Edward Biekford, an alleged agent of the defendants. The loans were made at the city of New York, of which place the plaintiff and Edward Biekford, who were brother and sister, were both residents, and the defendants resided at Paris, in France. It is not claimed that Edward Biekford had any written power of attorney to borrow money for the defendants, or any positive 94 Cases on Agency. [Book I unwritten or verbal authority to do so, but it is argued that the plaintiff bad the right to imply such authority, from the power which Edward Bickford appeared to exercise as the agent of the defendant. The power which such agent really possessed and the scope of his agency is left, by the case, altogether to be inferred from the course of business pursued by the agent, and the verbal agreement between the parties under which he entered into the employment of the defendants. That he was an agent for certain purposes is not disputed, but it is strenuously contended by the defendants that he had no power to borrow money. The evidence as to the terms of the contract of employment and as to the methods of transacting the business carried on under it, is quite vague and inconclusive, and we have been unable to dis- cover therefrom any facts from which an intention, on the part of the defendants, to vest the agent with authority to borrow money in their names, for the purpose of the business in which he was employed, can reasonably be derived. It was said by Judge Com- btock in Mechanics' Bank vs. New York <& New Haven llailroad Company, 13 N. Y. 632, "that underlying the whole subject there is this fundamental proposition that a principal is bound only by the authorized acts of his agent. This authority may be proved by the instrument which creates it, and beyond the terms of the instru- ment or of the verbal commission, it may be shown that the prin- cipal has held the agent out to the world in other instances as hav- ing an authority which will embrace the particular act in question. I know of no other mode in which a controverted power may be established." This doctrine was somewhat extended in the case of the New York & New Haven Railroad Company vs. Schuyler, 34 N. Y. 30, where it was held, " that when the authority of an agent depends upon some fact outside the terms of his power and which from its nature, rests particularly within his knowlege, the princi- pal is bound by the representations of the agent, although false, aa to the existence of such fact." Such extension of the rule, however, has no application to this case, as the facts proved, do not bring it within the principle stated. It would seem to be the general rule that no acts of an agent can be resorted to, to establish a power, not included within the terms of his commission, except those which are brought to the knowledge of his principals and are approved or acquiesced in by them. It was said by Judge Andrews, in Welsh vs. Hartford Insurance Chap. IV] Bickford vs. Mknikh. 95 Co., 73 N. T. 10, that " the authority of an agent is not only that conferred upon him by his commission, but also as to third persons* that which he is held out as possessing. The principal is often bound by the act of his agent in excess or abuse of his actual author- ity, but this is only true between the principal and third persons who, believing and having a right to believe that the agent was acting within and not exceeding his authority, would sustain loss if the act was not considered that of the principal." A reference to t t *ie undisputed evidence in the case, will show the nature of the agency intended to be created by the defendants, and the extent of the power which may fairly be implied therefrom. The rule that a principal is bound not only by the acts of his agent, which are expressly authorized by his commission, but also for the exercise of all powers which are necessary and essential to the execution and performance of the express purposes described in his commission, is assented to by the courts below and by both parties to the action. In view of this rule, let us look ab the case for the pur- pose of discovering the real authority conferred. The defendants were chocolate manufacturers, carrying on their business and residing in the city of Paris, France. They also had a branch factory and agency in the city of London, under the charge and management of the Emile Guenin. In and subsequent to 1868 Edward Bickford was a clerk in their employ in London, and in 1872, for certain reasons, deeming it desirable to establish an agency for the sale of their goods in New York, they made overtures to him, to proceed there and receive consignments and make sales of their manufactures upon a salary. In relation to the original employment, Mr. Bickford testified as follows: "I came from London to New York to establish the house of Choco- late Menier for these defendants; at first I opened an office at 45 Beaver street; cleared the goods from the ship, and commenced selling their goods, and from that time forward, up to 1882, I con- tinued in business in New York for them; during that time I made my returns and received goods from the London house; * * * when I came from London to New York to open this chocolate establish- ment, I brought no power of attorney with me; I had several cases of goods, chocolate, and I opened in the name of Edward Bick- ford and the business was carried on in that name; I sold choco- late and other manufactured goods on a salary. • * • I opened books of account and made returns from time to time; rendered accounts to Mr. Guenin, of London; • • • from that 96 Cases 03- Agency. [Book I time down to 1S79, I kept regular books of account, and a bank account in James G. King's Sons, also in the Bank of the Metropolis, in the Merchants' and Manufacturers', the Irving, and the New York National Exchange Bank; those accounts were all kept in the name of Edward Bickford." These extracts from Bickford's evidence embrace all of the facts proved by the plaint- iff relating to the character of the original employment, and the nature of the agency intended to be conferred upon Bickford. It will be seen therefrom, that the sole authority actually conferred was the right to receive the property of the defendants, to store and sell it. An implied power may be derived, from the express powers mentioned, to apply each part of 'the proceeds of sale as was neces- sary to pay his salary and legitimate expenses required in carrying on the business. It follows as a necessary consequence that it was his duty to remit the balance to his princij^als. There is certainly nothing in the performance of these duties which rendered it necessary that Bickford should borrow money on the credit of his principals. It is idle to argue that an authority to borrow money may be implied from a naked power to receive and sell property and remit proceeds. The duties of an agent in snch a case are analogous to those of a factor, and it is well settled that such an agent has no authority to borrow money in the name of his principal. 1 Parsons on Contracts, 42, note e; 1 Chitty on Contracts, (1 1 Am. ed.) 293; liossiter vs. Rossiter, 8 "Wend. 494; 24 Am. Dec. 62; Haivtayne vs. Bourne, 7 M. & "W. 595. If we examine the evidence relating to the course of the business actually carried on under this employ- ment, we shall fail to find any exercise of a power to bind his princi- pals for borrowed money, or any similar power which would author- ize the implication that he possessed such a power. No evidence appears authorizing the inference that the defendants held Bick- ford out to the American public as an agent of theirs for any purpose. The business was all carried on in the individual name of Edward Bickford, and it does not appear that the names of the defendants were in any way used in the business. There was evidence that Bickford was in some way introduced by the defend- ants to the banking firm of John G. King & Sons, but nothing was shown authorizing the inference that he was thereby empowered to borrow money generally of them in the name of his principals. It is quite significant that in a course of correspond- ence extending over a period of ten years between the agent and Chap. IV] Bickford vs. Mestiee. 97 his principals, bo allusion is made to the existence of any such power, and neither is there any apparent ratification by the principals of the exercise of such power on the part of the agent. From a settlement of the accounts of the parties made as of the date of May 1, 1879, it appeared that the New York agency had run behind and become indebted to the defendants over and above the property remaining on hand at the agency in the sum of £1,013, 18s. This sum represented the accumulated deficiencies of Bickford for a long period of time, and was chargeable to him as so much cash, which he was liable to account for to the defendants on demand. In other words, he had, up to that time, appropriated to his own use the moneys of the defendants and failed to liquidate his obligations to them. He was enabled to square his accounts at this time by the generosity of his principals in voluntarily writing off therefrom the sum of £1,574, 18s, 3d. Bickford then, accord- ing to his own statement, started to continue the business dis- charged from any pecuniary liability to the defendants. Although £400 of the sum recovered in this action had been previously bor- rowed by Bickford, no part of it entered into the statement of May 1, 1879, and no report of such borrowing had been made by Bick- ford to his principals at that time. It is obvious if this sum had entered into that statement, as it should have done if it was then in truth a liability of the defendants, Bickford's deficit had been untruly represented to the defendants, and it ought to have been increased nearly $2,000. It is an incontrovertible inference from the evidence that from a time anterior to these alleged loans down to a time subsequent thereto, Bickford was largely indebted to the defendants and liable immediately to be called upon for the pay- ment of such indebtedness. A series of ten drafts dated on different days and running from October 5, 1878, to January 19, 1879, drawn by Guenin upon Bick- ford for small sums aggregating about £200, appear in evidence, and were apparently drawn to recover from Bickford some part of his indebtedness to his principals. Although no other drafts appear in the case, it is fairly inferable from the evidence that such drafts were generally used, and that the mode of remitting the proceeds of the goods sold by Bickford, to which defendants were entitled, was by the payment of the drafts drawn upon him by the defendants. To infer that it was within the apparent scope of Bickford *B 7 98 Cases on Agency. [Book 1 agency to borrow money in the name of his principals to pay his own debt to them, involves a manifest absurdity. The subject of borrowing was, on one or two occasions, referred to in the corres- pondence between Bickford and Guenin, but a careful examination shows that it invariably referred to a borrowing by Bickford of a particular firm to discharge his obligation to defendants, and no inference can be drawn therefrom that Guenin contemplated a loan upon the credit of the Meniers. It is not claimed that the plaint- iff knew of these letters or transactions under them, or was thereby induced to loan the money in question, and she apparently relied altogether upon the actual authority possessed by Bickford. It is also quite clear that the references in the letters related to specific transactions, when, if anything, a special authority alone was con- ferred, and afford no basis for an inference that any general authority was possessed by, or intended to be given to the agent to use the credit of his principals. Bickford testified that in the course of his agency he probably borrowed and remitted to his principals from $15,000 to $20,000, but there is no evidence in the case showing that he borrowed this money upon the credit of the Meniers, or that he did so at all until after special authority was given therefor, or that he did it for any other purpose except to discharge his obligations to his principals. If we come to the particular transaction in question we find no evidence of any loan by the plaintiff to the Meniers, or upon their credit. No representation was made by the agent that he had authority to borrow for the Meniers, and no note or memorandum was given by him to the plaintiff at the time of the loan. The drafts through which the loans were made were drawn by the plaintiff, and made payable to Edward Bickford individually. All proof of the transaction was confined to the oral evidence of Miss Bickford and her brother given on the trial. Their evidence does not materially vary as to the circumstances of the loan and is most concisely stated in the testimony of the plaintiff. She says: " When I came over from England in November, I loaned £200 to him for the business of Menier; I loaned the next £200 in March the next year; my brother was going to England to see Mr. Guenin, and he required the money for the drafts, and I was to be left in charge of the business, and I could not be left without money to pay the drafts; I loaned it for that purpose entirely; the £800 was loaned when he returned from England; he returned the end of Chap. IV] Bickford vs. Menier. 99 April some time, and in May it was advanced; it was loaned for the same purposes as the other money was loaned." This evidence does not show that Bickford claimed to the plaint- iff to have authority to horrow money in the name of the Meniers, or that he in fact, did horrow it upon their credit, or to discharge their obligation. It is probably true, in a general sense, that he wanted it for the business of Menier, but that was a business which he was carrying on in his own name and had incurred an indebtedness to them in performing. It was this indebtedness that the drafts were drawn to recover, and the plaintiff seems to have been cognizant of this fact. It is difficult to see how she could have supposed that she was lending money to the Meniers, when she was obviously supplying money to pay the obligations of her brother to them. The plaintiff has been allowed to recover in the action, upon the theory that the borrowing in question was within the apparent scope of the agent's authority, and this question was left, as one of fact, to be determined by the jury. We are of the opinion that the court erred in this respect, and that there was no evidence in the case authorizing a verdict for the plaintiff. The aj^parent authority in this case was precisely co-extensive with the actual authority. The agent's real authority was confined to the duty of receiving consignments from the Meniers, storing and caring for them, selling them, and, after paying the expenses of the business from the receipts, to remit the balance to the Meniers. If the transaction of this business absolutely required the exer- cise of the power to borrow money in order to carry it on, then that power was impliedly conferred as an incident to the employ- ment, but it does not afford a sufficient ground for the inferenee of such a power, to say that the act proposed was convenient or advantageous, or more effectual in the transaction of the business provided for; but it must be practically indispensable to the execu- tion of the duties really delegated in order to justify iis inference from the original employment. "We are of the opinion that the case of Tucler vs. Woolsey, 64 Barb. (N. Y.) 142, is in point. The facts of that case are the counterpart of those existing here. There the agent was furnished with goods to sell in New York for a principal in Fiance. He there hired a place to store and show his goods. He also received special authority on several occasions to borrow money, as perhaps Bickford did here, but it was there 100 Cases on Agency. [Book I held that the general power to borrow money was neither within the actual authority of the agent or its apparent scope. We think the motion to non-suit the plaintiff at the close of her evidence should have been granted, and that it was error to deny it. The judgment of the courts below should be reversed, and a new trial ordered, with costs to abide the event. All concur. Judgment reversed. Nora— See also Heath vs. Paul, (1892) 81 Wis. 5321 (5 Gushing, 483; 52 Am. Deo. 741.) GARDNER vs. GARDNER. {Supreme Judicial Court of Massachusetts, March, 1850. ) Action to foreclose a mortgage. It appeared that the name of Polly Gwinn, the mortgagor, was written by her consent, in her presence, by her daughter. O. Bunker, for demandant. T. O. Coffin, for the tenant. Shaw, 0. J. The only question is upon the sufficiency of the execution of a mortgage deed, as a good and valid deed of Polly Gwinn. The execution of the deed is objected to, on the ground that when a deed is executed by an agent or attorney, the authority to do so must be an authority of as high a nature, derived from an instrument under the seal of the grantor. This is a good rule of law, but it does not apply to the present case. The name being written by another hand, in the presence of the grantor, and at her request, is her act. The disposing capacity, the act of mind, which are the essential and efficient ingredients of the deed, are hers, and she merely uses the hand of another, through incapacity or weakness, instead of her own, to do the physical act of making a written sign. Whereas, in executing a deed by attorney, the disposing power, though delegated, is with the attorney, and the deed takes effect from his acts, and therefore the power is to be strictly examined and construed, and the instrument conferring it is to be proved by evidence of as high a nature as the deed itself. Chap. IV] Gabdneb VS. Gardner. 101 To hold otherwise, would be to decide, that a person having a clear mind and full capacity, but through physical inability incapable of making a mark, could never make a' conveyance or execute a deed; for the same incapacity to sign and seal the principal deed would prevent him from executing the letter of attorney under seal. It appears to us, that the distinction between writing one's name in his presence and at his request, and executing a deed by attor- ney, is obvious, well founded, stands on satisfactory reasons, and is well sustained by authorities; Ball vs. Dunsterville, 4 T. K. 313; TJte King vs. Longnor, 1 Nev. and M. 576, s. c. 4 Barn, and Adol. 647; 2 Greenl. Ev. sec. 295. We think the deed was well executed by Poll)' Gwinn; and the judgment must therefore stand for the demandant. Note. — See also Wood vs. Goodridge, 6 Cush. (Mass.) 117, 52 Am. Deo. 771; Handyside vs. Cameron, 21 111. 588, 74 Am. Dec. 119; Croy vs. Busen- bark, 72 Ind. 48; Eggleston vs. Wagner, 46 Mich. 610; McMurtry vs. Brown, 6 Neb. 863. (140 Massachusetts, 36, 54 Am. Rep. 442.) PHELPS vs. SULLIVAN. {Supreme Judicial Court of Massachusetts, June, 1885. J Action to foreclose a mortgage. The opinion states the facts. 0. H. Stevens, for demandant. S. Bancroft, for tenant. Morton, C. J. This is a writ of entry to foreclose a mortgage. The demandant claims under a mortgage from the tenant to Nathan P. Pratt, and an assignment thereof by said Pratt. It appeared at the trial that said Pratt executed and acknowledged the assignment in blank, and orally authorized his son, when he could find a person to purchase the mortgage, to write in the name of such person as the grantee, and to deliver the assignment. The son negotiated the mortgage to one Simonds, filled in his name as grantee, and then delivered to him the assignment. lie afterwards reported what he had done to Nathan P. Pratt, who replied, "It is all right." The only question presented by the bill of exceptions 102 Cases o:s Agexcy. [Book i is whether, upon these facts, there was a valid assignment to Simonds. The tenant contends that the assignment was invalid, relying npon the rule of the common law that an authority to an agent to execute a deed or other specialty must be under seal. But we do not think the case is governed by this rule. Where a deed pur- ports to be executed by an agent, or where the person with whom an agent is dealing knows that he is acting as agent, it may be that Buch person must see to it at his own peril that the agent has legal authority. But in this case the assignment did not disclose, and Simonds did not know, that the son was acting as agent in any respect except to deliver the assignment. It is settled that an authority to deliver a deed or other specialty may be by parol. Parker vs. Hill, 8 Mete. (Mass.) 447. A deed takes effect from its delivery, and it may well be held that the authority to deliver, which may be oral, is an authority to deliver the deed in the con- dition in which it is when delivered, if there are no circumstances of suspicion to put the grantee upon inquiry. When a grantor signs and seals a deed, leaving unfilled blanks, and gives it to an agent with authority to fill the blanks and deliver it, if the agent fills the blanks as authorized, and delivers it to an innocent grantee without knowledge, we think the grantor is estopped to deny that the deed as delivered was his deed. Other- wise he may, by his voluntary act, enable his agent to commit a fraud upon an innocent party. Whether if the agent violates the instructions in filling the blanks, the grantor would not in like manner be bound, we do not discuss, as it is not involved in this case. To hold that such deeds are invalid, because the authority to fill the blanks is not under seal, would tend to unsettle titles, and would be mischievous in its results. Few deeds are written by the grantors. Most are written by scriveners, and a grantee to whom a deed is delivered has no means of determining whether the body of the deed was written before or after the signature was affixed. It would be very dangerous to allow titles to be defeated by parol proof, that a deed, without suspicion on its face, duly signed and sealed by the grantor, which he authorized to be delivered, was in fact written in some part after he had executed it, by an agent having only oral authority. We think a person taking such a deed in good faith has a right to rely upon it, and that the grantor cannot be permitted to aver that it is not his deed. White is. Dugyariy 140 Mass. 18, 54 Am. Rep. 441. * * * (Dis- Chap. IV] Phelps vs. Sullivan. 103 tingnishing Burns vs. Lynch, 6 Allen, (Mass.) 305, and Basford vs. Pearson, 9 Allen, 387, 85 Am. Dec. 7G4.) Upon the facts presented in the bill of exceptions, we are of opinion that the assignment to Simonds was valid. * * * Exceptions sustained. Note.— See post, Drury vs. Foster, p. See also in accord with the principal case: VanEtta vs. Evenson, 28 Wis. 33, 9 Am. Rep. 486; Schintz vs. McManamy, 83 Wis. 299; Field vs. Stagg, 52 Mo. 534, 14 Am. Rep. 435; Swartz vs. Ballon, 47 Iowa, 188, 29 Am. Rep. 470; Campbell vs. Smith, 71 N. Y. 26, 27 Am. Rep. 5; Vose vs. Dolan, 108 Mass. 155, 11 Am. Rep. 331; Garland vs. Wells, 15 Neb. 298. Contra.— Upt on vs. Archer, 41 Cal. 85, 10 Am. Rep. 266; Preston vs. Hull, 23 Gratt. (Ya.) 600, 14 Am. Rep. 153; Williams vs. Crutcher, 5 How. (Miss.) 71, 85 Am. Dec. 422; Davenport vs. Sleight, 2 Dev. and Bat. L. (N. C.) 881, 81 Am. Deo. 420; Bland vs. O'Hagan, 64 N. C. 472. (84 Maine 349, 30 Am. St. Rep. 353.) BKECKENEIDGE vs. LEWIS. ( Supreme Judicial Court of Maine, March ZS, 1892.) Assumpsit by Joseph Breckenridge against Mary, A. H. Lewis. There was a verdict for plaintiff, and defendant moves to set the same aside, and excepts. F. V. Chase, for plaintiff. Edward Avery and A. A. Strout, for defendant. Haskell, J. The plaintiff indorsed the defendant's promissory note for the accommodation of one Morse, the payee, who then negotiated the same, and, when it fell due, the plaintiff paid it, and now sues to recover the amount of the note from the defendant. 1. The signature of defendant to the note was claimed to he a forgery. The court ruled that a defense. 2. The note was claimed to have been fraudulently written by the payee, Morse, over the defendant's name, signed on blank paper, to enable Morse to write an order on a savings bank, where defendant had funds, as the necessities of her business entrusted to Morse might require; and the court ruled that contention no defense. It is contended that defendant's negligence in the premises 101 Cases on Agency. [Book I should have been submitted to the jury; but that was not neces- sary, inasmuch as the question of negligence, as matter of fact, need not be considered an element required to charge the defend- ant under the facts of this case. The payee of the note, Morse, was intrusted with defendant's name in blauk, to draw funds nec- essary to meet the calls of her business, intrusted to the care of her agent, Morse. He was authorized to write an order above defend- ant's signature, but instead of so doing he wrote a promissory note, and obtained the amount of it from a stranger. He fraudulently used his apparent authority for his own gain instead of his princi- pal's. His relation to his principal is the same as if he had pro- cured the money on an order that he was authorized to write, and then embezzled it. The defendant may be held under the plain rules of agency. By intrusting her signature to her agent for use, the defendant gave him an apparent authority to use it in the manner he did. The limited authority, only known to themselves, cannot be held to reach strangers, who neither knew, nor had means of knowing, of that secret limitation. The note, when presented for discount, gave no suggestion of infirmity. The signature was genuine, and apparently the payee, defendant's agent, who indorsed it, had authority to negotiate it. It was apparently the defend- ant's genuine promise, and she, by intrusting her name to her agent for commercial purposes, held him out as an agent with gen- eral powers in relation to it. She clothed him with apparent authority, and cannot now deny it to the loss of any person who innocently relied upon it. It is better that she bear the conse- quences of misplaced confidence than that an equally innocent per- son shall suffer. She selected the agent; the plaintiff did not. The apparent authority of the agent makes his act her own, in this case, as effectually as if her authority had been real. That is the doctrine of Young vs. Orote, 4 Bing. 253, and of Putnam vs. Sullivan, 4 Mass. 45, 3 Am. Dec. 206, cited with approval in Wade vs. With- ington, 1 Allen, 5G2, and in Greenfield Lank vs. Stowell, 123 Mass. 198, 199, 25 Am. Rep. 67, where all the cases, both English and American, are reviewed. See, also, licdlon vs. Churchill, 73 Me. 146, 40 Am. Eep. 345. The same doctrine is held in the Earl of Sheffield's Case, L. R. 13 App. Cas. 333, (1888.) The earl authorized his agent to pro- cure a loan for a limited amount, and transferred to him in blank certain stocks, and delivered to him certain bonds for the purpose. The agent procured the loan, and delivered the securities to a broker, Chap. IV] Beeckeneidgb vs. Lewis. 105 who in turn pledged them for his entire indebtedness to certain banks. The earl sought to redeem, but the banks (the broker be- ing insolvent) refused him, relying upon their legal title to the securities. At the first trial redemption was denied upon the ground that the agent was master of the stocks, and had actual authority to convey them. On appeal it was held that the agent had not actual authority to dispose of the stocks as he pleased; that his actual authority was limited to the amount of the loan author- ized; but that the banks became owners of the stocks and bonds, having acquired the legal title, without notice of infirmity, through an agent who apparently had full authority to give it. On final appeal, the lords approved the doctrine of the court of appeals, that if the banks as purchasers of the stocks took the legal title from an agent having apparent authority to give it, without notice of his actual limited authority, such title would become absolute; but reversed the judgment of the court of appeals, for the reason that the banks had actual notice of the limited authority of the broker over the stocks, and allowed the earl to redeem. See, also, Colo- nial Bank vs. Cady, L. R. 15 App. Cas. 267. Is is the same doctrine held where the signature is placed to a blank instrument to be filled by the person intrusted with it, only the blank is a patent limitation of the agent's authority. He may fill the blank as may suit him best, and the principal will be held. The blank form carries with it an implied authority to complete it, but not to alter it. Russell vs. Langstaffe, 2 Doug. 514; Violett vs. Patton, 5 Cranch, 142; Bank vs. Neal, 22 How. 96; Batik vs. Kimball, 10 Cush. 373; Angle vs. Insurance Co., 92 U. S. 330; Abbott vs. Rose, 62 Me. 194, 16 Am. Rep. 427, approved in Kellogg vs. Curtis, 65 Me. 61. * * * Motion and exceptions overruled. 106 Cases on Agency. [Book I III. EVIDENCE OF THE AUTHORITY. (11 Michigan, 185.) HATCH vs. SQUIEES. ("Supreme Court of Michigan, January, 1863.) Sqnires replevied property which one Hatch had taken posses- sion of as the agent of McCormick. On the trial considerable evidence was given by plaintiff of the acts, declarations and promises of one Walker whom plaintiff alleged to be the agent of McCor- mick. Defendant objected to this evidence npon the gronnd that there was no evidence that Walker was such agent. Judgment for plaintiff and defendant brought error. H. J. Bealces, for plaintiff in error. 0. Hatuhins, for defendant in error. Martin, 0. J. This case hinges almost entirely upon the admis- sibility of the acts and declarations of Walker — who purported to act as the agent of McCormick — without proof of such agency. The authority of an agent must be positively shown, either by proving his authority to act, or by proving his acts with the knowl- edge and recognition of his principal. In this case nothing of the kind was accomplished or attempted. The only attempt to prove the agency of Walker was by proving his own acts and assertions. This is insufficient. As these would not bind McCormick, so they would not bind the plaintiff in this cause. It is too obvious to need demonstration that an agent's authority cannot be proved by his own assertion alone. There must be some evidence of author- ity beyond his assertion, or of ratification of his acts before any party can be bound by such acts. There was error, therefore, in admitting evidence of the acts, declarations and promises of Walker; and the judgment must be reversed, with costs, and a new trial granted. Note— In Mitchum vs. Dunlap, 98 Mo. 418, it is said: "The law is well Bettled that the declarations of one who assumes to act as the agent of another are not admissible to establish the agency. Peck vs. Ritchey, 66 Mo. 114; Whart. on Ev. (2d ed.) § 1183; Sumner vs. Sanders, 51 Mo. 89. Chap. IV] Hatch vs. Squires. 107 But the authority of the agent need not be proved by an express contract of agency; it may be proved by the habit and course of business of the principal. Franklin vs. Ins. Co., 52 Mo. 461; Brooks vs. Jameson, 55 Mo. 512. So, too, the agency and extent of authority may be inferred from circumstances. Hull vs. Jones, 69 Mo. 587." Before the statements or admissions of the agent can be proved, the fact of the agency must first be shown by other evidence. Peck vs. Bitchey, vupra; Gilbert vs. James, 86 N. C. 244; South, etc.,R. R. vs. Henlein, 52 Ala, 606. Agency can not be proved by general reputation. Graves V8. Horton, ante, p. 82. Where the authority is conferred by written instrument, the writing is the best evidence. Neal vs. Patten, 40 Ga. 363; Columbia Bridge Co. vs. Geisse, 88 N. J. L. 89; Reese vs. Medlock, 27 Tex. 120, 84 Am. Dec. 611. (15 Kansas, 492.) THE HOWE MACHINE CO. vs. CLARK. ("Supreme Court of Kansas, July, 1875. J Replevin by the company against Clark. The plaintiff origin- ally owned the property in question which it had leased to one Tracy, Tracy sold it to defendant, without plaintiff's knowledge or consent. The authority of Tracy became the material matter in controversy. Defendant had judgment and plaintiff brings error. Devenney & Green, for plaintiff. St. John & Parker, for defendant. Valentine, J. * • * It was error for the court to permit defendant to prove the statements of Tracy formerly made by him concerning this and other property. The defendant claimed that Tracy had authority from the Howe Machine Company to sell this identical property; and for the purpose of proving that Tracy hud such authority, introduced evidence over the objections of the plaintiff, but with the permission of the court, showing that Tracy had at different times stated that he had such authority, and that he had authority to sell not only this but other property belonging to the company. Now it is competent to prove a parol agency, and its nature and scope, by the testimony of the person who claimes to be the agent. It is competent to prove a parol authority of any person to act for another, and generally to 108 Cases on Agency. [Book I prove any parol authority of any kind, by the testimony of the person who claims to possess such authority. But it is not com- petent to prove the supposed authority of an agent, for the purpose of binding his principal, by proving what the supposed agent has said at some previous time. Nor is it competent to prove a supposed authority of any kind, as against the person from whom such authority is claimed to have been received, by proving the previous statements of the person who it ia claimed had attained such authority. • • • Judgment reversed. Note.— See also Thayer vs. Sleeker, 86 HI. 470; French vs. Wade, 85 Kan. 391; Piercy vs. Hendrick, 2 W. Va. 458, 98 Am. Dec. 774: Gould vs. Norfolk Lead Co., 9 Cush. (Mass.) 338, 57 Am. Deo. 50; Dowdl vs. Williams, 33 Kan 819. Chap. V] McCracken vs. San Francisco. 103 CHAPTER V. OF RATIFICATION. WHAT IS MEANT BY RATIFICATION. (16 California, 591.) MoCRAOKEN vs. CITY OF SAN FRANCISCO. (Supreme Court of California, October, 1860. J Field, 0. J. * • * To ratify is to give validity to the act of another. A ratification is equivalent to a previous authority. It operates upon the act ratified in the same manner as though the authority had been originally given. It follows, as a consequence, that where the authority can originally be conferred only in a par- ticular form or mode, the ratification must follow the same form or mode. Thus, if an authority to execute a deed of a private person must be under seal, the ratification of the deed must be also under seal; and where an authority to do any partic- ular act on the part of a corporation can only be conferred by ordinance, a ratification of such acts can only be by ordinance. * * * It follows, also, from the general doctrine, that a ratifi- cation is equivalent to a previous authority, that a ratification can only be made when the principal possesses at the time the power to do the act ratified. He must be able, at the time, to make the contract to which, by his ratification, he gives validity. The rati- fication is the first proceeding by which he becomes a party to the transaction, and he cannot acquire or confer the rights resulting from that transaction, unless in a position to enter directly upon a similar transaction himself. Thus, if an individual, pretending to be the agent of another, should enter into a contract for the sale of land of his assumed principal, it would be impossible for the latter to ratify the contract if, between its date and the attempted ratification, he had himself disposed of the property. He could not defeat the intermediate sale made by himself, and impart 110 Cases on Agency. [Book I validity to the sale made by the pretended agent, for his power over the property or to contract for its sale would be gone. So, also, contracts made npon an assumed agency for a single woman cannot be ratified by her after marriage, without the consent of her husband, for her power to contract alone ceases with her mar- riage. • * * Note. — "An individual having power to make a contract may ratify or affirm it, when made by one who without authority assumes to be his agent; but if the individual have himself no such power, he can no more bind him- self retroactively to its performance by affirmance or ratification than he could have done so prospectively in the first instance. The power to ratify ex vi termini implies a power to have made the contract, and the power to ratify in a particular manner implies the power to have made the contract in that manner." Brady vs. Mayor, etc., of New York, 16 How. Pr. (N. Y.), 432, quoted with approval in Zottman vs, San Francisco, 20 Cal. 96, 81 Am. Dec. 96. So, in Calhoun vs. Millard (1890), 121 N. Y. 69, 81, involving the question of the ratification of municipal bonds, it is said: " Municipal cor- porations, since they possess no general authority to issue such bonds, can- not, by recognition or subsequent ratification, validate obligations which they had no power to create." II. WHAT ACTS MAY BE RATIFIED. (4 Allen, 447.) GREENFIELD BANK vs. CRAFTS. (Supreme Judicial Court of Massachusetts, September, 1862.) This was an action upon a note bearing the name of Thomas Crafts as joint maker with Martin Crafts, and three drafts drawn by Martin Crafts and bearing the name of Thomas Crafts as indorser. There was evidence tending to show that the signatures of Thomas Crafts were forgeries. Plaintiffs, however, claimed that they were written with his express or implied authority; that the act had been ratified by him; and, that he had so conducted as to lead plaintiffs to believe the signatures were genuine and was hence estopped to assert the contrary. Other facts appear in the opinion. The verdict was for the plaintiff upon the note and two of the drafts. Both parties alleged exceptions. Chap. V] Geeenfilld Bank vs. Ceaet3. Ill J. Wells, for defendants. C. Allen, for plaintiffs. Dewey, J. It is apparent from the finding of the jury, that the plaintiffs failed to prove that the signature of Thomas Crafts' name was placed upon these various instruments with his previous authority. The right of the plaintiffs to maintain their verdict rests upon proof of ratification and adoption by Thomas Crafts of the act of signing, or upon the ground of an estoppel to deny the signature thereto, by reason of his acts In reference to the same, when brought to his knowledge. As to the question of estoppel, and what was necessary to be shown to prove such estoppel, the court adopted the instructions asked for by the defendants, and no objection under that head can now be made the subject of inquiry, unless it be that of the refusal of the court to adopt the ruling asked for as to the sufficiency of all the evidence to warrant a verdict for the plaintiffs, which may be the subject of a distinct consideration. This leaves us, as the first and most important question, that which arises upon the rulings asked for by the defendants upon the matter of adoption and ratification by Thomas Crafts of the use of his name on these instruments. The case was put to the jury under instructions that the plaintiffs might maintain their action, if they established the fact of an adoption and ratification of the signatures by Thomas Crafts, the judge at the same time giving to the jury full and proper instructions as to what was necessary to be shown to establish such adoption and ratification in the ordinary cases of a signature of a note without a previous authority. But it is now urged on the part of the defendants, that these signatures were incapable of such adoption or ratification. As to this objection, it is clear that it cannot be maintained upon the ground of the form of the signatures merely. This form of signature, though not the more usual manner of signing by an agent, does not prevent the person whose name is placed on the note from being legally holden, upon proof that the signature was previously authorized, or subsequently adopted. Various similar cases will be found, where the party has been charged, where the name of the principal appears upon the note accompanied with no indication of the fact of its having been signed by another hand. It was so in Watkins vs. Vince, 2 Stark. R. 368; in Merrifield vs. Parritt, 11 Cush. (Mass.) 591, and Brigham vs. Peters, 1 Gray, 112 Cases on Ageuoy. [Book I (Mass.) 147. Wherever such signature by the hand of another was duly authorized, and also where a note was thus executed under an honest belief by the party signing the name that he was thus authorized we apprehend that there can be no doubt that it would be competent, in the case first stated, to maintain an action upon the same, upon proof of the previous authority thus to sign the name, or, in the latter, upon proving that the signature, although at the time unauthorized, was subsequently adopted and ratified by the party whose name appears as promisor. Nor is it necessary to establish a ratification, that there has been any previ- ous agency created. An act wholly unauthorized may be made valid by a subsequent ratification. This may be so, although the actor was an entire stranger as to any business relations. Culver vs. Ashley, 19 Pick. (Mass.) 301. The only question upon this part of the case is, whether a signa- ture, made by an unauthorized person under such circumstances as show that the party placing the name on the note was thereby committing the crime of forgery, can be adopted and ratified by any acts and admissions of the party whose name appears on the note, however full, and intentionally made and designed to signify an adoption of the signature. The defendants insist that it cannot, by such evidence as would in other cases warrant the jury in find- ing an adoption; and that nothing short of an estoppel, having the element of actual damage from delay or postponement, occa- sioned by the acts of the person whose name is borne upon the note, misleading the holder of it, will have this effect. As to the person himself whose name is so signed, it is difficult to perceive any sound reason for the proposed distinction, as to the effects of ratifying an unauthorized act, in the two supposed cases. In the first case, the actor has no authority any more than in the last. The contract receives its whole validity from the ratification. It may be ratified, where there was no pretence of agency. In the other case, the individual who presents the note thus signed passes the same as a note signed by the promisor, either by his own proper hand, or written by some one by his authority. It was clearly competent, if duly authorized, thus to sign the note. It is, as it seems to us, equally competent for the party, he knowing all the circumstances as to the signature and intending to adopt the note, to ratify the same, and thus confirm what was originally an unauthorized and illegal act. We are supposing the case of a party acting with full knowledge of the manner the note was signed, and Chap. V] Greenfield Bank vs. Crafts. 113 the want of authority on the part of the actor to sign his name, but who nnderstandingly and unequivocally adopts the signature, and assumes the note as his own. It is difficult to perceive why such adoption should not bind the party whose name is placed on the note as promisor, as effectually as if he had adopted the note when executed by one professing to be authorized, and to act as an agent, as indicated by the form of the signature, but who in fact had no authority. It is, however, urged that public policy forbids sanctioning a ratification of a forged note, as it may have a tendency to stifle a prosecution for the criminal offense. It would seem, however, that this must stand upon the general principles applicable to other con- tracts, and is only to be defeated where the agreement was upon the understanding that if the signature was adopted the guilty party was not to be prosecuted for the criminal offense. In the case of Forsyth vs. Day, 46 Maine, 176, it was held that there might be a ratilication and adoption of a forged note, by the person whose name appears as promisor. We perceive no valid objections to the ruling of the court, and instructions given to the jury on this point. The further inquiry is, whether the court properly declined to adopt the prayer of the defendants, that the court should rule and instruct the jury that all the facts proved and relied upon by the plaintiffs were not sufficient to amount to an estoppel, or to show such an adoption of the signatures by Thomas Crafts, as will warrant a verdict for the plaintiffs. The question upon this point is not whether in the opinion of the court, upon the facts proved, and such inferences as they might draw from them, the verdict should have been returned for the defendants, but whether there were not such facts presented in evidence as authorized the submission of the case to the jury, under proper instructions from the court as to the law, and from which facts the jury might infer and find an adoption of the signa- tures. This question, though presented by the bill of exceptions, seems hardly raised upon the brief of the defendants. The judge was, in our opinion, authorized to submit the evi- dence that had been introduced to the jury, under proper instruc- tions. The evidence was not of that decided character that would exist under a case of an express declaration that the party 8 114 Oases on Agency. [Book I would adopt the signature; but it had many facts, tending to sat- isfy the jnry that he recognized and adopted the signatures as his own, and assumed the liability of an original promisor. There were shown the relationship of Thomas Crafts to the party who had signed his name; his knowledge of various similar acts on previous occasions, not disclaimed by him; his silence when the claim was made on him, as the party liable by reason of such sig- nature; his statement that he knew that the paper was overdue and ought to have been attended to, that it should be arranged or settled, and that he had property enough to pay all the notes, but had not the ready money. The evidence also precluded any mis- take of the fact on his part, as to the character of the notes, and whether or not it was his personal signature upon them; and it did not therefore present the case of admissions or silence under a mis- taken belief that the signatures were genuine. In this respect, a marked difference exists between the present case and that of Hall vs. Huse, 10 Mass. 39. In that case, the ground of defense was wholly that of a mistake on the part of the defendant as to the real character of the note. He had supposed the note to bear a genuine signature of his, and all his acts of adoption and ratifi- cation proceeded upon that false assumption. In the present case, the acts and admissions of the defendant were with full knowledge that the signatures were not in his hand-writing. In addition to the evidence already alluded to, there was evidence of the plaintiffs' withholding any proceedings to enforce their claims against other parties, after the alleged adoption of the sig- natures, and the fact that Martin Crafts left his place of residence for the time, and other circumstances to be considered by the jury upon the questions submitted to them. Without expressing any opinion upon the weight of the evidence, so far as the same is presented by the bill of exceptions, it is suffi- cient on this point to say, that the case was properly submitted to the jury to pass upon. Defendants' exceptions overruled. Note.— See also Hefner vs. Vandolah, 62 111. 483, 14 Am. Rep. 106; Commercial Bank vs. Warren, 15 N. Y. 577; Cravens vs. Oillilan, 63 Mo. 28; First National Bank vs. Cay, 63 Mo. 33; Harper vs. Devene, 10 La. Ann. 724; Wellington vs. Jackson, 121 Mass. 157; Forsythe vs. Bonta, 5 Bush (Ky.) 547. Contra. — See following case and notea. Chap. V ] Henry vs. Heeb. 115 (114 Indiana 275, 5 Am. St. Eep. 613.) HENKY vs. HEEB. f Supreme Court of Judicature of Indiana, November, 1887. J R. Conner, H. L. Frost, and J. I. Little, for the appellants. J. F. McKee, and D. W. McKee, for the appellee. Mitchell, 0. J. This was a suit by Nicholas Heeb against Henry Heeb, John F. Schonert, and James D. Henry, to recover the amount of two promissory notes signed by Heeb and Schonert, who were partners as principals, and by James D. Henry as surety. The controversy is between the plaintiff and the appellant Henry, and relates exclusively to the note described in the second para- graph of the complaint, the execution of which Henry denied under oath. To the denial of the latter, the plaintiff replied, in substance, that the defendant, after having obtained full knowl- edge that the plaintiff held the note in controversy, ratified and confirmed the same, and promised to pay it, and accepted a chat- tel mortgage covering the partnership property of Heeb and Scho- nert, the principal debtors, as indemnity against any liability which might exist on account of his having become surety on the note. This was held to be a sufficient reply. While there was much evidence tending to prove that the signa- ture of Henry, as it appeared on the note, was hia genuine signa- ture there was also evidence tending to prove that it was not genuine. The extent to which the evidence went in that regard was to affirm the genuineness of the signature on the one hand, and to deny it on the other. There was no evidence tending to incrim- inate any particular person, or directly pointing to any one as hav- ing perpetrated the crime of forgery in respect to the appellant's signature. Besides, there was evidence which tended to show that one of the principal makers of the note had, with the appellant's consent, filled out blank notes, which had been previously signed by the latter as surety, and upon which the firm subsequently obtained loans of money. The appellant testified that he neither signed nor authorized any one to sign his name to the note, "to the best of his knowledge." There was some evidence tending to show that Henry recognized the validity of the note, and his liability to pay it, and that he had 116 Cases on Agency. [Book I knowledge of the execution of a chattel mortgage by Schonert in the firm name to secure him and other creditors of the firm, and that the note in suit was one of the claims mentioned in the mort- gage as having been signed by Henry as surety for Heeb and Schonert. Relevant to the issue made by the plea of non est factum, and the reply thereto, and the evidence pertaining to that feature of the case, the court instructed the jury, in substance, that if the appellant, after having obtained full knowledge upon the subject of whether or not he executed the note, ratified and confirmed the same, a ad promised to pay it, he would be liable for the amount thereof. The judgment was favorable to the plaintiff below. The ruling on the demurrer to the reply, and the giving of the above instructions, are complained of as a cause for the reversal of the judgment. The reply and the instruction present substantially the same question. It does not appear that the promise of the appellant induced the plaintiff to change his position in any manner, or that in reliance thereon he surrendered any right or benefit whatever. There is, therefore, no element of estoppel in the case as presented either in the pleading or in the instruction of the court. The appellant contends that a person whose name has been forged to a note cannot ratify or adopt the criminal act, so as to become bound, unless facts have intervened which create an estop- pel, and preclude him from setting up as a defense that his signa- ture is not genuine. There appears to be an irreconcilable conflict in the decisions of the courts of last resort on this question. Thus in Wellington vs. Jackson, 121 Mass. 157, the supreme judicial court of Massachusetts, following its earlier decisions, held that one whose signature had been forged to a promissory note, who yet, with knowledge of all the circumstances, and intending to be bound by it, acknowledged the signature, and thus assumed the note as his own, was bound to the same extent as if the note had been signed by him originally, without regard to whether or- not his acknowledgment amounted to an estoppel in pais: Greenfield Bank vs. Crafts, 4 Allen, 447 {ante ); Bartlet vs. Tvchor, 104 Muss. 336 (341); 6 Am. Rep, 240. To the same effect is Hefner vs. Van- dolah, 62 111. 483, 14 Am. Rep. 106; Fitzpatrich vs. School Com- missioners, 7 Humph. 224, 46 Am. Dec. 76. There are other cases which, while seeming to lend support to the doctrine that a forged signature may be ratified, nevertheless turn Chap. V ] Hekey vs. Heeb. 11? upon the proposition that the holder of the note had in some way acted in reliance upon the promise or admission of the person whose name appeared on the note, or that the latter had received or partici- pated in the consideration for which the note had been given, and was therefore estopped to deny the genuineness of his signature. Still other decisions depend upon principles which distinguish them from cases involving the doctrine of ratification or adoption of forged instruments purely: Casco Bank vs. Keene, 53 Me. 103; Forsyth vs. Day, 46 Id. 176; Corser vs. Paul, 41 N. H. 24, 77 Am. Dec. 753; Woodruff vs. Munroe, 33 Md. 146; Union Bank vs. Middleorook, 33 Conn. 95; Livings vs. Wiler, 32 111. 337; Commer- cial Bank vs. Warren, 15 N. Y. 577; Crout vs. DeWolf, 1 R. I. 393; McEenzia vs. British Linen Co., L. R. 6 App. Cas. 82; Fur- syihe vs. Banta, 5 Bush, 548. It is a well-established rule of law that if one, not assuming to act for himself, does an act for or in the name of another upon an assumption of authority to act as the agent of the latter, even though without any precedent authority whatever, if the person in whose name the act was performed subsequently ratifies or adopts what has been so done, the ratification relates back and supplies original authority to do the act. In such a case the principal is bound to the same extent as if the act had been done in the first instance by his previous authority, and this is so whether the act be detrimental to the principal or to his advantage, or whether it be founded in tort or in contract. The reason is, that there was an open assumption to act as the agent of the party who subse- quently adopted the act. The agency having been knowingly ratified, the ratification becomes equivalent to original authority. Wilson vs. Tumman, 6 Man. & G. 236; Smith vs. Tramel, 68 Iowa, 488. So, if a contract be voidable on account of fraud practiced on one party, or if for any reason it might be avoided, yet if the party having the right to avoid the contract, being fully informed, deliberately confirms or ratifies it, even though this be done without a new consideration, and after acts have been done which would have released the person affected, the party thus rati- fying is thereby precluded from obtaining the relief he otherwise might have had. Williams vs. Boyd, 75 Ind. 286. The ratification or adoption of a forged instrument, or of a con- tract which is prohibited by law, or made in violation of a criminal Btatute involves altogether different principles. One who commits the crime of forgery by signing the name of another to a promis- 118 Cases on Agency. [Book I Bory note does not assume to act as the agent of the person whose name is forged. Upon principle, there would seem to be no room to apply the doctrine of ratification or adoption of the act in such a case. Where the act done constitutes a crime, and is committed without any pretense of authority, it is difficult to understand how one who is in a sense the victim of the criminal act may adopt or ratify it, so as to become bound by a contract to which he is to all intents and purposes a stranger, and which as to him was conceived in a crime and is totally without consideration. As has been well said, it is impossible in such a case to attribute any motive to the ratifying party but that of concealing the crime and suppressing the prosecution: "For why should a man pay money without consideration when he himself had been wronged, unless con- strained by a desire to shield the guilty party?" The distinction made in many well-considered cases seems to be this: Where the act of signing constitutes the crime of forgery, while the person whose name has been forged may be estopped by his admissions, upon which others may have changed their rela- tions, from pleading the truth of the matter to their detriment, the act from which the crime springs cannot, upon considerations of public policy, be ratified without a new consideration to support it. SHsler vs. Vandike, 92 Pa. St. 447, 37 Am. Rep. 702; McHugh vs. County of Schuylkill, 67 Pa. St. 391, 5 Am. Eep. 445; Work- man vs. Wright, 33 Ohio St. 405, 31 Am. Eep. 546, and note; Owsley vs. Philips, 78 Ky. 517; Brooke vs. Hook, 24 L. T. 34; 2 Daniel on Negotiable Instruments, 1351, 1353; 2 Randolph on Commercial Paper, sec. 629. In a case of a known or conceded forgery, we are unable to dis- cover any principle upon which a subsequent promise by the person whose name was forged can be held binding in the absence of an estoppel in pais, or without a new consideration for the promise. Workman vs. Wright, supra; Owsley vs. Philips, supra. Notwithstanding the elaborate argument of counsel, our conclu- sion is that neither the reply nor the instructions as applied to the evidence in the case before us presents the question of the ratifica- tion of a forged instrument. The case was contested upon the one side on the theory that the signature on the note was the appellant's genuine signature. There was no question of forgery involved in the case. There was no evidence pointing to the crime of forgery on the part of any one. The question was whether the note had been signed by the Chap. V] Henry vs. Heeb. 119 appellant, or by some one duly authorized by him. For anything that appears either in the reply or in the evidence, it may as well be assumed, if the appellant's name was not signed by himself that it was signed by another under pretense of authority. As we have seen, if the appellant's name was signed by some one who assumed to act as his agent, or under pretense or color of authority, ratification, understandingly, either by an express prom- ise to pay, or by accepting a chattel mortgage as indemnity, would be equivalent to previous authority. The ratification which the law interdicts relates only to such acts as clearly appear to have been done in violation of a criminal stat- ute, the motive of the ratifying party being presumably the con- cealment of the crime or the suppression of its prosecution. Where, however, as in the present case, the act ratified is of an ambiguous character, and may as well be attributed to a mistaken assumption of authority as to a purpose to commit a crime, public policy does not forbid the adoption or ratification of the act; nor can it be said to be without consideration, especially where, as in the present case, indemnity has been accepted. These conclusions lead to an affirmance of the judgment. Judg- ment affirmed, with costs. Note — See also Wilson vs. Hayes, 40 Minn. 531; William* vs. Bailey, LR. 1HLL 200. III. WHO MAT RATIFY. Ratification by state; see State vs. Torinus, 26 Minn. 1, 37 Am. Rep. 395. Ratification by corporations; see McArthur vs. Times Printing Co., post. 128 ; Bell's Gap R. R. Co. vs. Christy, post. p. 131. Ratification by municipal corporations; see lawn of Bruce vs. Dickey, 116 111. 527. Ratification by infant; see Armitage vs. Widoe, 36 Mich. 124; Trueblood vs. Trueblood, ante, p. 29; Patterson vs. Lippincott, post, p. . 120 Cases on Agency. [Book I (2 Wallace 24.) DRURY vs. FOSTER. ( United States Supreme Court, December, I864.J Mrs. Foster executed and acknowledged a mortgage on land which she owned with the name of the mortgagee and amount in blank, and entrusted it to her husband to secure a loan for a few hundred dollars. Her husband borrowed $12,800 of Drury, filling in the latter's name and the amount, Drury being ignorant that these items were not inserted before execution. Mrs. Foster was ignorant of the amount borrowed and received no benefit from it. In an action to foreclose the mortgage, she set up these facts on a defense and succeeded in the court below. Mr. Peckham, for Drury. Mr. Carlisle, contra. Mr. Justice Nelson delivered the opinion of the court. By the laws of Minnesota, an acknowledgment of the execution of a deed before the proper officers, privately and apart from her hus- band, by a feme covert, is an essential prerequisite to the convey- ance of her real estate or any interest therein. And she is disabled from executing or acknowledging a deed by procuration, as she cannot make a power of attorney. These disabilities exist by statute and the common law for her pro- tection, in consideration of her dependent condition, and to guard her against undue influence and restraint. Now, it is conceded, in this case, that the instrument Mrs. Fos- ter signed and acknowledged was not a deed or mortgage; that, on the contrary, it was a blank paper; and that in order to make it available as a deed or mortgage, it must be taken to have been signed and acknowledged with the design to have the blanks filled by the husband, or some other person, before the delivery. "We agree — if she was competent to convey her real estate by sign- ing and acknowledging the deed in blank, and delivering the same to an agent, with an express or implied authority to fill up the blank and perfect the conveyance — that its validity should not well be controverted. Although it was at one time doubted whether a parol authority was adequate to authorize an alteration or condi- Chap. V] Deuey vs. Fosteb. 121 tion to a sealed instrument, the better opinion, at this day, is that the power is sufficient. But there are two insuperable objections to this view in the present case. First, Mrs. Foster was disabled in law from delegat- ing a person, either in writing or by parol, to fill up the blanks and deliver the mortgage; and second, there could be no acknowl- edgment of the deed within the requisitions of the statute until the blanks were filled and the instrument complete, Till then there was no deed to be acknowledged. The act of the feme covert and of the officers were nullities, and the form of acknowledgment annexed as much waste paper as the blank mortgage itself, at the time of signing. It is insisted, however, that Mrs. Foster should be estopped from denying that she had signed and acknowledged the mortgage. The answer to this is, that to permit an estoppel to operate against her would be a virtual repeal of the statute that extends to her this protection, and also a denial of the disability of the common law that forbids the conveyance of her real estate by procuration. It would introduce into the law an entirely new system of conveyances of the real property of feme coverts. Instead of the transaction being a real one in conformity with established law, conveyances, by signing and acknowledging blank sheets of paper, would be the only formalities requisite. The consequences of such a system are apparent, and need not be stated. There is authority for saying, that where a perfect deed has been signed and acknowledged before the proper officer, an inquiry into the examination of the feme covert, embracing the requisites of the statute, as constituting the acknowledgment, with a view to contradict the writing, is inadmissible; that acts of the officer for this purpose are judicial and conclusive. We express no opinion upon the soundness of this doctrine, as it is not material in this case. The case before us is very different. There is no defect in the form of the acknowledgment, or in the private examination. No inquiry is here made into them. The defect is in the deed, which it is not made the duty of this officer to write, fill up or examine, and for the legal validity of which he is in no way responsible. The two instruments are distinct. The deed may be filled up without, any official authority, and may be good or bad. The acknowledgment requires such authority. The difficulty here is not in the form of the acknowledgment, but that it applied to a nonentity, and was therefore nugatory. The truth is that the 122 Cases on Agency. [Book I acknowledgment in this case might as well have been taken and made on a separate piece of paper, and at some subsequent period attached by the officer, or some other person, to a deed that had never been before the feme covert. The argument in support of its validity would be equally strong. Our opinion is that, as it respects Mrs. Foster, the mortgage i8 not binding on her estate. * * * Decree affirmed. Note.— In Allen vs. Withrovo, 110 U. S. at p. 128, the court speaking of a similar deed say: " The deed in blank passed no interest, for it had no grantee. The blank intended for the name of the grantee was never filled, and until filled the deed had no operation as a conveyance. It may be, and probably is, the law in Iowa, as it is in several States, that the grantor in a deed conveying real property, signed and acknowledged, with a blank for the name of the grantee, may authorize another party, by parol, to fill up the blank. Swartz vs. Ballou, 47 Iowa, 188, 29 Am. Rep. 470; Van Etta vs. Evenson, 23 Wis. 33, 9 Am. Eep. 486; Field vs. Stagg, 52 Mo. 534, 14 Am. Rep. 435. As said by this court in Drury vs. Foster, 2 Wall, 24 at p. 33. ' Although it was at one time doubted whether a parol authority was adequate to authorize an alteration or addition to a sealed instrument, the better opinion at this day is, that the power is sufficient.' But there are two conditions essential to make a deed thus executed in blank operate as a conveyance of the property described in it; the blank must be filled by the party authorized to fill it, and this must be done before or at the time of the delivery of the deed to the grantee named. Allen, to whom it is stated the deed was handed, with authority to fill the blank and then deliver the deed, gave it to his wife without fining the blank and she died with the blank unfilled." (75 Virginia, 168.) FORBES vs. HAGMAN. ( Court of Appeals of Virginia, January, 1881.) Action for false imprisonment brought by Hagman and others against Forbes and Allers. The prosecution complained of was instituted by one David Mann, who was agent of defendants, and grew out of certain contracts which Mann had marie with the plaint- iffs for the sale to him of bricks manufactured by defendants. Plaintiffs recovered and defendants brought error. Wise & Cosby and Guy & Gilliam, for appellants. Jos. Bryan and John B. Young, for appellee. Chap. V] Fokbes vs. Hagman. 123 Burks, J. * * * The defendants resided in Baltimore, Maryland, and Mann, who resided in Virginia, was their general agent in the management of their business, including the collec- tion of debts in this State. He acted by their authority in the institution and prosecution of the proceeding complained of, and they are as responsible for his conduct in the matter as if they had acted in person. His acts were their acts. It cannot be justly claimed for them that in the particular matter which is the ground of action he exceeded his authority, and that therefore they are not accountable; for it distinctly appears that after they had been apprised of the arrest and imprisonment through Mann's agency, they approved and adopted what had been done by him. Indeed, before any contract had been consummated between the plaintiffs and defendants for the sale and delivery of the bricks, one of the defend- ants (they being partners) cautioned their agent to be very careful, as "government contractors," he said, " were often slippery fellows; " and about ten days after the arrest he came to Richmond, and was there informed by the agent that he had two government contractors (the plaintiffs) in jail at the suit and on account of the firm. He made no inquiry as to the grounds cf the arrest, gave no directions and took no steps for their relief or discharge, but merely remarked " that it had resulted as he expected." This was a virtual ratification and adoption of what had been done by the agent on the principle omnis ratihabitio retrotrahitur et mandato priori aequiparatur, which applies as well to a tort, when done to the use or for the benefit of him who subsequently adopts it, as to a matter of contract. It was said by Lord Coke that " he that agreeth to a trespass after it is done is no trespasser, unless the trespass was done to his use or for his benefit, and then his agreement subsequent amounteth to a commandment." 4 Inst. 317. So that the test of liability in such a case is said to be the consideration whether the act was originally intended to be done to the use or for the benefit of the party who is afterwards said to have ratified it. Broom's Leg. Max. 837. (Marg). Chief Justice Tindall, in Wilson vs. Tumman, 6 Man. & Gr. (46 Eng. C. L. R.) 236, states the rule more fully thus: " That an act done for another by a person not assuming to act for himself, but for such other person, though without any precedent authority whatever, becomes the act of the principal if subsequently ratified by him, is the known and well established rule of law. In that case the principal is bound by the act, whether it be for his detri- 124 Cases 02* Agency. [Book I merit or advantage, and whether it be founded on a tort or a contract, to the same extent as by and with all the consequences which fol- low from the same act done by his previous authority. " For fur- ther illustrations of the application of the principle see Broom's Leg. Max. 866 et seg.; Cooley on Torts, 127-131. The case of Lewis vs. Head, 13 Mees & Welsh. 834, cited by both of these authors, has a strong bearing on the case in judg- ment. As stated, a landlord authorized bailiffs to distrain for rent due to him from the tenant of a farm, directing them not to take anything except on the demised premises. The bailiffs distrained cattle of another person (supposing them to be the tenant's) beyond the boundary of the farm; the cattle were sold, and the landlord received the proceeds. It was held that the landlord was not liable in trover for the value of the cattle, unless it were found by the jury that he ratified the act of the bailiffs with the knowledge of the irregularity, or that he chose, without inquiry, to take the risk upon himself, and to adopt the whole of their acts. Now, the defendants in the present case were partners in busi- ness and each therefore was agent for the other in the partnership matters, and when one of them received information from their common agent, that the latter had in their names and for their use and benefit instituted a suit against the plaint- iffs and caused them to be arrested and detained in prison, they chose, " without inquiry," (as it is expressly proved), to take the risk upon themselves, and to adopt their agent's acts as their own. They certainly ought to be in fact, as in law they are, bound by these acts. * * * * Affirmed. Note — See Chouteau vs. Ooddin, 39 Mo. 229, 90 Am. Dec. 462; Baldwin vs. Leonard, 39 Vt 260, 94 Am. Dec 324. (75 Michigan, 197.) THE IRONWOOD STORE CO. vs. HARRISON AND GREEN. (Supreme Court of Michigan, June, 1889.J Assumpsit, to recover for goods alleged to have been sold and delivered by the Store Company, a corporation, to Harrison and Green. The goods were ordered by one Nickolson, who, as the Chap. V] Stoee Co. vs. Harrison. 125 plaintiff alleged, was the agent of defendants for that purpose. There was some testimony offered to prove such agency, but plaintiff relied chiefly upon an alleged ratification of his acta. Plaintiff recovered and defendants bring error. M. M. Riley, for appellant. Hammond <& Buck and D. E. Corbett, for plaintiff. Champlin, J. (After holding that the statements of an alleged agent, made in a matter not connected with his principal, have no tendency to prove 6uch agency, and that orders not in controversy drawn by the alleged agent upon other parties, without the knowl- edge of the alleged principal and never recognized or paid by him, have no such tendency.) The main question turned upon the con- troversy whether Harrison and Green had ratified the act of Nick- olson in ordering the goods. To show ratification, the plaintiff introduced testimony tending to show that, after the goods had been furnished, plaintiff, through Atkinson, presented the bill thereof to one A. D. McDougal, who represented himself as agent of Harrison & Green. Atkinson testified that he presented three bills to McDougal, who looked them over, and told him to take the Guido & Warner bill to Nickolson, and have him K it, and he would pay it the next day; that he did present the bill to Nickolson, and he marked it " K" and signed his name; that he afterwards saw it in Har- rison & Green's office, in Bessemer, K'd by Nickolson. The bill was afterwards produced in court with the K of Nickolson upon it. Another bill called the " tie-bill/' McDougal handed to Mr. Chamberlain and told him "to see to that." For the small bill of $36.20, which had been ordered by McDougal, he told him he would have a check sent, which he did. It was admitted upon the trial by counsel for defendants that McDougal was agent for Harrison & Green. Mr. McDongal was also sworn as a witness of defendants, and he testified that in April and May that he was superintendent of the South Shore Road for Harrison & Green; that his authority was to represent them in everything connected with the construction of the road. Whenever it was necessary to obtain supplies, he was to get them. The plaintiff claims that this testimony tends to prove a ratifi- cation by Harrison & Green, through their agent McDougal, and by his promise to pay, plaintiff has been lulled into security, when 126 Cases on Agency. [Book I it might have commenced its attachment suit sooner, as Harrison & Green were non-residents. In some cases an agent may ratify the unauthorized act of another agent; as — " Where the act which, when done by one agent, was unauthor- ized, is within the general power of another agent of the same principal, the doing of the act by the first agent may be ratified by the second." Mechem Ag. sec. 121. Eatification by an agent depends upon certain facts, which must affirmatively be made to appear: " 1. The agent ratifying must have had general power to do him- self the act which he ratifies. " 2. They must both be agents of the same principal, and the agent whose act is in question must have professed to act as agent of the common principal." A stranger to a party, acting without authority, may do an act in the name of another, which that other may ratify, and so make it his own. But his general agent has no such authority to ratify the act of a stranger done in the name of the principal, unless power of appointing agents has been delegated to him by his prin- cipal. He cannot ratify without making the person for that act or occasion the agent of the principal, and this is beyond his general powers as agent. Nickolson did not represent himself to plaintiff as being an agent for defendants. There is no testimony in the case tending to 6how that Nickolson at the time he purchased the supplies was the agent of defendants. The act, so far as Harrison & Green are con- cerned, was the act of a stranger making the purchase without authority from them, and not even in their name. McDougal, therefore, had no authority to ratify or bind Harrison & Green by any promise of payment. Nor could he estop the defendants from denying their liability by promising to pay, if Nickolson would 0. K. the account. "We think the case comes within the principles of the following cases: Wells is Martin, 32 Mich. 4?8; Danaher vs. Oarlock, 33 Id. 295; Frost vs. Laiuler, 34 Id. 235; Hammer- slough vs. Cheatham, 84 Mo. 13. It follows that the judgment must be reversed, and a new trial granted. Note— See Trudo vs. Anderson, 10 Mich. 857, 81 Am. Dec. 795; Penn vs. Evans, 28 La. Ann. 576; Palmer vs. Cheney, 35 Iowa, 281; Mound City Chap. V] FoSTBB vs. Bates., 127 Mut. L. Ins. Co. vs. Huth, 49 Ala. 530; Cairo, etc., R. R. Co. vs. Mahoney, 82 111. 73, 25 Am. Eep. 299; Toledo, etc., It. It. Co. vs. Hodrigues, 47 I1L 188, 95 Am. Dec. 4S4. IV. CONDITIONS OF RATIFICATION. (12 Meeson & Welsby, 225.) FOSTER, ADMR. vs. BATES. (English Court of Exchequer, November, 184S.J Assumpsit by plaintiff as administrator of one Pollard, deceased, for goods sold and delivered by the intestate, and also for goods sold and delivered by the plaintiff after his death and before admin- istration was granted. Verdict for plaintiff with leave to defend- ants to move for non-snit, which was done. W. H. Watson & Greenwood, contra. Hoggins and Kelly, for the motion. Parke, B. In this case, which was argned a day or two ago, we delayed giving onr judgment, not on account of any doubt we entertained at the time, but in order that we might refer to the several authorities cited at the bar. We are of the opinion that the rule to enter a non-suit must be discharged. The only question is whether the plaintiff could sue for goods sold and delivered by him as administrator of one Pollard, upon the facts which were in evi- dence on the trial. It appeared that the goods were sold after the death of the intestate, and before the grant of letters of adminis- tration, by one who had been the agent of the deceased on the coast of Africa; and that they were there sold avowedly on account of the estate of the intestate. It is clear that the title of an administrator, though it docs not exist until the grant of administration, relates back to the time of the death of the intestate; and that he may recover against a wrong doer who has seized or converted the goods of the intestate after his death, in an action of trespass or trover. All the authorities on this subject were considered by the Court of Common Tleas, in the case of Thorpe vs. Stallwood, 12 Law J. N. S. 241, where an action of trespass was held to be maintainable. The reason for 128 Cases on Agency. [Book I this relation given by Rolle, C. J., in Long vs. Hell, Styles, 341, is that otherwise there would be no remedy for the wrong done. The relation being established for the benefit of the intestate's estate against a wrong-doer, we do not see why it should not bo equally available to enable the administrator to obtain the bene- fit of a contract intermediately made by suing the contracting party; and cases might be put in which the right to sue on the contract would be more beneficial to the estate than the right to recover the value of the goods themselves. In the present case, there is no occasion to have recourse to the doctrine that one may waive a tort and recover on a contract; for here the sale was made by a person who intended to act as agent for the person, whoever he might happen to be, who legally represented the intestate's estate; and it was ratified by the plaintiff, after he became admin- istrator; and, when one means to act as agent for another, the sub- sequent ratification by the other is always equivalent to a prior command; nor is it any objection that the intended principal was unknown, at the time, to the person who intended to be the agent; the case of Hull vs. Picker sgill, 1 Bro. and B. 282, cited by Mr. Greenwood, being an authority for that position. We are, there- fore, of the opinion that the plaintiff is entitled to recover. Eule discharged. (48 Minnesota, 319, 31 Am. St. Rep. 653.) McARTHUR vs. TIMES PRINTING COMPANY. {Supreme Court of Minnesota, February, 1S92.) Action by D. A. McArthur against the Times Printing Company to recover damages for a breach of contract. Judgment for plaint- iff. Defendant appeals. George F. Edwards, for appellant. F. B. Wright, for respondent. Mitchell, J. The complaint alleges that about October 1, 18S9, the defendant contracted with plaintiff for his services as advertis- ing solicitor for one year; that in April, 1890, it discharged him, in violation of the contract. The action is to recover damages for the breach of the contract. The answer sets up two defenses: (1) That plaintiff's employment was not for any stated time, but only from Chap. V] Mc Arthur vs. Times Printing Co. 129 week to week; (2) that he was discharged for good cause. Upon the trial there was evidence reasonably tending to prove that in September, 1889, one C. A. Nimocks and others were engaged as promoters in procuring the organization of the defendant company to publish a newspaper; that, about September 12th, Nimocks, as such promoter, made a contract with plaintiff, in behalf of the con- templated company, for his services as advertising solicitor for the period of one year from and after October 1st,— the date at which it was expected that the company would be organized; that the corporation was not, in fact, organized until October 16th, but that the publication of the paper was commenced by the promoters October 1st, at which date plaintiff, in pursuance of his arrange- ment with Nimocks, entered upon the discharge of his duties as advertising solicitor for the paper; that after the organization of the company he continued in its employment in the same capacity until discharged, the following April; that defendant's board of directors never took any formal action with reference to the con- tract made in its behalf by Nimocks, but all of the stockholders, directors, and officers of the corporation knew of this contract at the time of its organization, or were informed of it soon afterwards, and none of them objected to or repudiated it, but, on the contrary, retained plaintiff in the employment of the company without any other or new contract as to his services. There is a line of cases which hold that where a contract is made in behalf of, and for the benefit of, a projected corporation, the corporation, after its organization, cannot become a party to the contract, either by adoption or ratification of it. Abbott vs. Bap- good, 150 Mass. 248, 15 Am. St. Rep. 193; Beach, Corp. § 198. This, however, seems to be more a question of name than of sub- stance; that is, whether the liability of the corporation, in such cases, is to be placed on the grounds of its adoption of the contract of its promoters, or upon some other ground, such as equitable estoppel. This court, in accordance with what we deem sound reason, as well as the weight of authority, has held that, while a corporation is not bound by engagements made on its behalf by its promoters before its organization, it may, after its organization, make such engagements its own contracts, xlnd this it may do precisely as it might make similar original contracts; formal action of its board of directors being necessary only where it would be necessary in the case of a similar original contract. That it is not 9 130 Cases on Agency. [Book I requisite that sticli adoption or acceptance be express, but it may be inferred from acts or acquiescence on the part of the corporation, or its authorized agents, as any similar original contract might be shown. BatteUe vs. Pavement Co., 37 Minn. 89. See, also, Mor. Corp. § 548. The right of the corporate agents to adopt an agree- ment originally made by promoters depends upon the purposes of the corporation and the nature of the agreement. Of course, the agreement must be one -which the corporation itself could make, and one which the usual agents of the company have express or implied authority to make. That the contract in this case was of that kind is very clear; and the acts and acquiescence of the cor- porate officers, after the organization of the company, fully justified the jury in finding that it had adopted it as its own. The defendant, however, claims that the contract was void urider the statute of frauds, because, "by its terms, not to be performed within one year from the making thereof," which counsel assumes to be September 12th, — the date of the agreement between plaint- iff and the promoter. This proceeds upon the erroneous theory that the act of the corporation, in such cases, is a ratification, which relates back to the date of the contract with the promoter, under the familiar maxim that " a subsequent ratification has a retro- active effect, and is equivalent to a prior command." But the liability of the corporation, under such circumstances, does not rest upon any principle of the law of agency, but upon the immediate and voluntary act of the company. Although the acts of a corpo- ration with reference to the contracts made by promoters in its behalf before its organization are frequently loosely termed "ratifi- cation/' yet a "ratification," properly so called, implies an existing person, on whose behalf the contract might have been made at the time. There cannot, in law, be a ratification of a contract which could not have been made binding on the ratifier at the time it was made, because the ratifier was not then in existence. In re Empress Enrj. Co., 16 Ch. Div. 128; Melhado vs. Railway Co., L. E. 9 C. P. 505; Kelner vs. Baxter, L. R. 2 0. P. 185. What is called " adoption," in such cases, is, in legal effect, the making of a contract of the date of the adoption, and not as of some former date. The contract in this case was, therefore, not within the statute of frauds. The trial court fairly submitted to the jury all the issues of fact in this case, accompanied by instructions as to the law which were exactly in the line of the views we have expressed; and the evidence justified the verdict. Chap. V] McAkthub vs. Times Printing Co. 131 The point is made that plaintiff should have alleged that the contract was made with Nimocks, and subsequently adopted by the defendant. If we are correct in what we have said as to the legal effect of the adoption by the corporation of a contract made by a pro- moter in its behalf before its organization, the plaintiff properly pleaded the contract as having been made with the defendant. But we do not find that the evidence was objected to on the ground of a variance between it and the complaint. The assignments of error are very numerous, but what has been already said covers all that are entitled to any special notice. Order affirmed. Notb— See following case and notes. (79 Pennsylvania State, 54, 21 Am. Eep. 39.) BELL'S GAP RAILROAD COMPANY vs. CHRISTY. (Supreme Court of Pennsylvania, October, 1875,) Action of assumpsit to recover money expended by plaintiff in procuring the charter of the defendants, in payment of surveyors, etc., in making explorations and running the line of their road, etc., and also for his own services in the same matter. The whole occurred before the corporation came into existence, but plaintiff claimed that the defendants having accepted the results of his work, etc., they became liable to pay him. J). J. Neff, for plaintiff in error. S. S. Blair, for defendant in error. Paxson, J. This case lacks all the elements of a contract, either express or implied. The most that it amounts to is the expenditure by the plaintiff of a certain amount of his time and money in the furtherance of the scheme of constructing a railroad. He attended meetings; visited Harrisburg for the purpose of obtaining a charter; assisted in making a preliminary survey, and paid some of the expenses thereof. There was no contract with anyone for the pay- ment of his services, beyond the statement of some of the parties interested in the project that they would see him paid. All this 132 Cases on Agency. [Book I was prior to the charter, or to any organization of the company. The road which the plaintiff had in view when he made the survey, as appears from his own testimony, was a hroad gauge road, to run from BelPs Mills to Erie, and he evidently relied upon aid from New York capitalists to build it, with the expectation of retaining an important position in the company. He did not succeed in obtaining the required aid, and the road to Erie was never con- structed or even commenced. Instead thereof, a short local narrow-guage road, called the Bell's Gap Eailroad, was built, with the object in part to develop certain coal lands in the vicinity. The stock was principally taken in the neighborhood. The plaintiff, and others interested with him, were among those named as cor- porators in the act incorporating the company, but they failed to obtain the control of the organization. Subsequently, the plaintiff brought suit against the company to recover compensation for his services, as before stated, claiming that the company were bound by the promises of the original projectors of the enterprise, inas- much as said company had accepted the result of his labors and enjoyed its benefits. None of the cases cited by the defendant in error sustains his position. The Erie & Waterford Plankroad Company vs. Brown, 25 Pa. St. 156; and the Bedford Railroad Company vs. Bowser, 48 Id. 29, were snits upon subscriptions to stock. The case of the Edinboro' Academy vs. RoMnson, 37 Penn. St. 210, 78 Am. Dec. 421, was a subscription in aid of an academy. There is not the slightest analogy between either of these cases and the one under consideration. In Preston vs. The Liverpool, e'c, Junc- tion Railroad Company, 1 Sim. (N. S.) 586, 7 Eng. Law & Eq. Rep. 124, the contract was between the plaintiff and an organized company. This was a case where the projectors agreed to pay the complainant £5,000 for the land to be taken for the railway and incidental damages, and the plaintiff thereupon assented that his land should be so taken. The agreement was in writing between the plaintiff and the executive directors of Lanca- shire & North Yorkshire Railway Company, which was after united with another rival enterprise, under the name of the defendant corporation, and the two companies agreed to adopt the contract with the plaintiff. It is true the company Lad not yet obtained its charter, but it was still an organization in esse, had a board of directors who assumed to make contracts binding upon the company when it should become thereafter fully clothed with Chap. V] Bell's Gap It. R. Co. vs. Cheistt. 133 corporate powers. In Loio v. The Railroad Company, 45 N. H. (1 Hadley) 375, a charter had been obtained and the services for which the suit was brought were rendered in promoting the organ- ization of the company under the charter, procuring subscriptions to the capital stock, etc. It was held by the court in that case that, " where, after the charter and before the organization of a corpor- ation, services are rendered which are necessary to complete the organization, and after it has been perfected, the corporation elects to take the benefit of such services, knowing that they were ren- dered with the understanding that compensation was to be made, it will be held liable to pay for the services upon the ground that it must take the burden with the benefit; but that ' no promise to p;iy would be implied from the fact that such services were ren- dered at the request of any number of the corporators less than a majority/" We do not desire to controvert the principle, established in Eng- land, and to some extent recognized in this country, that when the projectors of a company enter into contracts in behalf of a body not existing at the time, but to be called into existence afterward, then if the body for whom the projectors assumed to act does come into existence, it cannot take the benefit of the contract without performing that part of it which the projectors undertook that it should perform. Conceding to this principle its full force and effect, we are unable to see its application to the facts of this case. It may very well be that where a number of persons not incorporated are yet informally associated together in the pursuit of a common object, and with the intent to procure a charter in the furtherance of their design, they may authorize certain acts to be done by one or more of their number, with an understanding that compensation shall be made therefor by the company when fully formed. And if such acts are necessary to the organization and its objects, and are subsequently accepted by the company, and the benefits thereof enjoyed by them, they must take such benefits cum onere, and make compensation therefor. But the projectors or promoters of the enterprise within the meaning of the rule referred to evidently must be a majority at least of such persons, and not one, two, or three, or a small minority thereof. Such minority can have no more authority to bind the association or corporation in its incipient or inchoate condition than they would have to bind it if fully organized. In this case the two or three persons who, it is alleged, promised 134 Cases on Agency. [Book I the plaintiff to see him paid, bound no one but themselves. They had no authority to speak for anyone else. In the absence of any such authority and of any satisfactory proof that the result of the plaintiff's labor and expenditure was accepted and enjoyed by the corporation, that it used the plaintiff's survey or located its road upon any considerable portion of the line thereof, the court below should have instructed the jury that the defendants were not liable. It is to be observed that in all the cases which were brought to the attention of the court, the services were either performed after the charter had been obtained, and there was therefore an inchoate corporation, or there was an informal organization, as in the case cited in 7 Eng. Law & Eq. Rep., preparatory to obtaining a charter, and the employment was authorized by the organization as such, and was not the mere employment by individuals having no authority, express or implied, to contract for any one. * * * The judgment is reversed and a venire facias de novo awarded. Note— In Rockford, etc., R. R. Co. vs. Sage, (1872) 65 111. 328, 16 Am. Eep. 587, it is said — " For services and expenses before the organization of the company, which, subsequently, the company acccepts and receives the benefit of and promises to pay for, we will not say that a party might not recover, in vir- tue of such express promise; but we are disposed to deny the right of recovery for such services and expenses upon any implied promise resulting from the fact, although the case cited by appellant's counsel, of Low vs. Conn. Passumpsic River R. R. Co., 46 N. H. 284, seems to sanction such a right of recovery; as does also the case of Hall vs. Vt. & 3Iass. R. R. Co., 28 Vt. 401, as respects services rendered subsequent to the act of incorpora- tion, and prior to perfecting the organization of the company, but not for services rendered prior to ttie act of incorporation. " A right of recovery against a corporation, for anyt hin g done before it had a proper existence, does not appear to rest upon any veiy satisfactory legal principle. "It appears more reasonable to hold any services performed or expenses Incurred prior to the organization of a corporation, to have been gratuitous, in view of the general good or private benefit expected to result from the object of the corporation. It seems unjust to stockholders, who subscribe and pay for stock in a company, that their property should be subject to the incumbrance of such claims, and which they had no voice in creating. " N. Y. & N. H. R. R. Co. vs. Ketchum, 27 Conn. 170, is an authority which denies the liability of a corporation on account of services rendered prior to the perfecting of its organization; and we accept the authority of that case as, in our judgment, establishing the more just and satisfactory rule. " In the language of that case, * it is soon enough for corporate bodies to enter into contracts, incumbering their property, when they are duly organ- ized according to their charters and have their chosen and impartial direct- Chap. V] Bell's Gap E. R. Co. vs. Christy. 135 ore to conduct their business.' To the same effect are Franklin Fire Insurance Co. vs. Hart, 31 Md. 59, and Safety Life Deposit Lis. Co. vs. Smith, 65 111. 309." See Stanton vs. New York, etc., Ry. Co., 59 Conn. 272, 21 Am. St. Rep. 110, note; Whitney vs Wyman, 101 U. S. 392 p>ost . In the note to Pittsburg Mining Co. vs. Spooner, 74 Wis. 307, 17 Am. St. Rep. 149 it is said: " In the note to Moore & H. H. Co. vs. Tovers H. Co., 13 Am. St. Rep. 23, the question of the liability of a corporation for con- tracts entered into by its promotors was considered, and the following con- clusions were announced as sustained by the authorities upon that subject: 1. That, as a general rule, a corporation cannot be bound by acts done or promises made in its name or on its behalf before it is in existence, and, therefore, that its promotors have no authority to act or contract for it nor in its name: Penn Match Co. vs. Hapgood, 141 Mass. 145; Abbott vs. Hap- good, 150 Mass. 248, 15 Am. St. Rep. 193. 2. That while contracts made in the name or for the benefit of a corporation before its organization are not binding upon it, yet it may adopt or ratify them either in express terms or by implication, as by acting upon them and receiving the benefits thereof, and when it does so, it is either bound by its express contract, or upon the ground of estoppel is not permitted to deny the validity of such contract, nor to refuse to discharge the obligations thereby imposed: Pax- ton Cattle Co. vs. First Nat. Bank, 21 Neb. 621, 59 Am. Rep. 852; Gooday vs. Colchester & S. V. Ry. Co., 17 Beav. 132; Preston vs. Liverpool & M. N. Ry., L. R. 7 Eq. 124; Wood vs. Wheeler, 93 111. 153; Edwards vs. Grand Junction Ry. Co., 1 Mylne & C. 650; 7 Sim. 337; 6 L. J. (N. S.) Ch. 47; Reichwald vs. Commercial Hotel, 106 111. 439. It is true that some of the authorities upon this subject deny that it is possible for a corporation to ratify a contract made before its organization, because, they say, the rati- fication of a contract makes it valid and binding from its inception, and that no contract as against a corporation can be deemed to have an incep- tion or existence before it was possible for the corporation to do any act or enter imo any contract; Abbott vs. Hapgood, suptra; In re Emp>rcss Engi- neering Co., L. R., 1G Ch. Div. 125; Kelner vs. Baxter, L. R. 2 Com. P. 175; Gunn vs. London Ins. Co., 12 Com. B. (N. S.)694; Melhadovs. Porto Allegre Ry. L. R. 9 Com. P. 503. The effect of these latter decisions, as we under- stand tbem, is to affirm th?t when a contract made by promoters in the name of a corporation is acted upon, and its benefit accepted by the corporation after its organization, this should be regarded, not as a ratifi- cation of the old contract, which the corporation had no capacity to make, but as an entering into a new contract of the same purport as the old one." 13ti Cases on Agency. [Book I (82 New Yoek, 327.) HAMLIN vs. SEABS. (New York Court of Appeals, October, 1880.) This was an action for the conversion of certain barley, admitted to have belonged to plaintiff's assignor, Stanley, but which defend- ants allege they bought from one Marsh who had authority to sell it. Marsh sold the barley without the knowledge or consent of Stanley, who had never clothed him with any apparent authority to act as his agent, and in making the sale Marsh did not assume to act as Stanley's agent. Defendants claimed that notwithstand- ing this, Stanley had so ratified the act as to make it his own. The facts relied upon to constitute a ratification were the following: The first car load of the barley was shipped to the defendants December 31, 1872, and the last car load March 7, 18i3. In the latter month, Stanley discovered that a large portion of his barley had been taken away; and he made inquiry of Marsh about it and was informed by him that it was in a malt-house in the same village, and he was thus induced to rest easy about it until July, when, by examination at the railroad office, he, for the first time, discovered that it had been shipped to Buffalo. This was about five months after the last barley had been shipped. It did not appear that Stanley thereafter, prior to May, 1874, made any efforts to follow or reclaim the barley, and in that month he made a general assign- ment for the benefit of his creditors. This claim against the defendants was not inserted in the schedule of Stanley's assets made after the assignment, but he testified that he mentioned it to his attorney at the time the schedule was made. The plaintiff testified that he did not hear of this claim until some time after the assign- ment was made, and that he first called upon the defendants and made claim upon them for the barley in January, 1875, and that was the first time that they learned of the claim that the barley belonged to Stanley and was wrongfully taken and sold to them. The referee held that these facts did not amount to a ratification; the General Term reversed his judgment, and plaintiff appealed. E. A. Nash, for appellant. Myron H. Peck, for respondents. Earl, J. (After stating the facts substantially as above.) The Chap. V] Hamlin vs. Seaus. 137 general doctrine that one may, by affirmative acts, and even by silence, ratify the acta of another who has assumed to act as his agent, is not disputed. It is illustrated by many cases to be found in the books, and set forth by all the text writers upon the law of agency. (Story on Agency, § 251a; 2 Greenl. on Ev., §§ 6G, G7; 2 Kent's Com. 616; Thompson vs. Craig, 16 Abb. [N. S.] 29; Wilson vs. Tumman, 6 Mann. & Gr. 236; Watson vs. Swann, 11 C. B. [N. S.] 756.) But the doctrine properly applies only to cases where one has assumed to act as agent for another, and then a subsequent ratification is equivalent to an original author- ity. One may wrongfully take the property of another not assuming to act as agent, and sell it in his own name and on his own account, and in such case there is no question of agency, and there is nothing to ratify. The owner may subsequently con- firm the sale, but this he cannot do by a simple ratification. His confirmation must rest upon some consideration upholding the confirmation, or upon an estoppel. ( Workman vs. Wright, 36 Ohio St. 405. ) Here Stanley did no act, and said no word ratifying the sale of his barley. The most that can be claimed is that after he discovered that the barley had been shipped to the defendants he made no efforts to reclaim it, and gave no notice of his title to the defendants. No estoppel can be claimed, as the defendants did not rely upon Stanley's silence, and were not, so far as appears, dam- aged thereby. So that it comes down to this: When the property of one man is wrongfully taken and sold by another, in his own name and for his own benefit, must the owner, when he after- ward discovers the wrong, make efforts to reclaim his property, or notify the purchasers of his claim at the risk of losing his prop- erty? There is no authority holding that such a duty rests upon the owner of property wrongfully taken and converted. The mere silence of the owner, under such circumstances, will not bar his claim, if it be short of the time prescribed in the statute of limita- tions. The rule of caveat emptor applies, and the purchaser must see to it that he buys of one who owns the property or has author- ity to sell. We have carefully examined all the authorities cited by the learned counsel for the defendants, and it is sufficient to say of them, that they in no degree sustain the novel doctrine contended for by him. The maxim that " he who has been silent when in con- science he ought to have spoken, shall be debarred from speaking when conscience requires him to be silent," cannot be invoked in 138 Oases on Agency. [Book I this case. It would have been applicable if Stanley had stood by and in silence permitted Marsh to deal in or sell his property, or if hearing that he had taken his property, he had in silence seen the defendants pay him for the property. When he first heard of this wrong, the property had been taken and paid for, and the time when conscience required him to speak was passed. His silence induced no act and did no wrong. Order reversed and judgment affirmed. (39 Federal Reporter, 347.) WHEELER vs. NORTHWESTERN SLEIGH 00. (United States Circuit Court, Eastern District of Wisconsin, August, 18S9, Before Gresham and JenJcins, JJ.J The plaintiff sued to recover a dividend declared by defendant upon stock in its company then owned by plaintiff. After the dividend had been declared, plaintiff authorized one Benjamin to sell the stock, expressly reserving the dividend, plaintiff retaining possession of the stock. Benjamin entered into an agreement with Chapman & Goss to sell them the stock with the dividend included. Benjamin wrote plaintiff that he had sold the stock at par, and plaintiff thereupon sent the stock to Benjamin, who delivered it to Chapman & Goss, who thereupon paid him the par value upon the strength of his agreement that the dividend should go with it. There was no formal transfer of the dividend. Plaintiff received the proceeds of the stock in ignorance of Benjamin's agreement that the dividend was to be included. Plaintiff and Chapman & Goss both claiming the dividend, the company paid it to the latter taking indemnity, and plaintiff brought this action. On the trial, Benjamin denied making the agreement, but the jury found against him on this point. A special verdict was taken upon which both parties moved for judgment. W. J. Turner, for plaintiff. J. V. & Chas. Quarles and /. 0. Flanders, for defendant. Jenkins, J. (After holding that the dividend did not pass as incident to the stock.) It is, of course, correct to say that if a principal puts his agent in a position to impose upon an innocent Chap. V] Wheeleii vs. Sleigh Co. 139 third person, by apparently pursuing his authority, he shall be bound by his acts. It is, however, equally true that one dealing with an agent must look to the extent and scope of his agency, and that an implied or ostensible agency is never construed to extend beyond the obvious purpose for which it is apparently created. Here the plaintiff had authorized his agent to sell his shares in the defendant company. He was bound by all such acts of his agent as were within the apparent authority arising from possession of the stock. But that possession did not clothe the agent with apparent authority to sell other property; did not authorize the disposition of a previously declared dividend. The ostensible, as well as actual, authority was limited to disposition of the stock, and that alone. The purchasers had no right to assume that the agent, because the possessor of the stock, was also authorized to sell the dividend, that was no part of and did not pass as an inci- dent to the stock. As to that they dealt with the agent at their peril. Supposing the agent to be acting for himself or his wife, and not for the plaintiff, they were bound to the greater caution to ascertain if there had been a transfer of the dividend by the plaintiff. It is clear that the plaintiff was not bound by any repre- sentation or agreement of his agent touching the dividend, because in respect thereto the agent was acting without authority, and beyond the apparent scope of authority flowing from the possession of the stock. The plaintiff received from Benjamin, and has since retained, the avails of the stock. This the defendant insists works a ratification by the plaintiff of the unauthorized act of the agent. It was doubt- less competent for the defendant to have interpleaded these rival claimants to the dividend. Salisbury Mills vs. Townsend, 109 Mass. 115. Instead of so doing, it paid to Chapman & Goss the dividend claimed by the plaintiff, and asserts a ratification of the contract to which it was not a party, and in behalf of those who are not before the court, nor bound by its decision. It may well be doubted if the defendant is in position to avail itself of the alleged ratification. Assuming, however, that such defense is availing to the defendant, is ratification shown? It is well estab- lished that a ratification of an unauthorized contract, to be effec- tual and binding upon the one sought to be bound as principal, must be shown to have been made by him with full knowledge of all the material facts connected with the transaction to which it relates, and that the existence of the contract, its nature and con- 140 Oases on Agency. [Book I sideration, were known to him. But if the material facts were suppressed, or were unknown to him, except as the result of his intentional and deliberate act, the ratification will be invalid, because founded upon mistake or fraud. wings vs. Hull, 9 Pet. 629; Bennecke vs. Insurance Co., 105 XL S. 360; Bloomfield vs. Bank, 121 U. S. 135, 7 Sup. Ot. Rep. 865; Rolling-Mill vs. Rail- way Co., 5 Fed. Rep. 852; McClelland vs. Whitely, 15 Fed. Rep. 322: Dickinson vs. Conway, 12 Allen (Mass.) 491. The defendant asserting such ratification, was therefore bonnd to show that it was made by the plaintiff under such circumstances as to be binding upon him, and that all material facts were made known to him. Combs vs. Scott, 12 Allen 495, (post^S'Z); Hardeman vs. Ford, 12 Ga. 205. Do the facts disclose ratification ? The plaint- iff authorized his agent to sell the stock, at par. He conferred upon the agent no apparent authority to dispose of anything else. As to the dividend, the purchaser had no right to assume that Ben- jamin could dispose of it. The possession of the actual ownership of the stock, subsequent to the declaration of the dividend, gave him no apparent authority to sell the dividend. As to that they dealt with Benjamin at their peril. A transfer of the stock vested no legal title to the dividend previously declared. There was no actual transfer of the dividend, and none was demanded. The purchasers are chargeable with knowledge of the law that the divi- dend did not follow the stock; that the dividend belonged to the plaintiff, and they were bound to inquire, supposing Benjamin to be acting for himself or his wife, as to his or her ownership of this dividend. So far, therefore, the purchasers were negligent; the plaintiff was innocent. Did the retention by the plaintiff of the avails of the stock amount to a ratification? The plaintiff received as avails of the stock the exact amount for which he had authorized his agent to dispose of his stock. He had no reason to suppose that any false representation had been made, or that his agent had assumed to dispose of any other property than the stock as the consideration for the money paid by the purchasers and received by him. Under such circumstances, the retention of the money cannot be held to be a ratification by him of the unauthorized acts of the agent, because it was retained without knowledge of the facts. Bell vs. Cunning- ham, 3 Pet. 69, 81; Hastings vs. Proprietors, 18 Me. 436; Bryant vs. Moore, 26 Me. 87; Timelier vs. Pray, 113 Mass. 291; Naviga- tion Co. vs. Dandridge, 8 Gill. & J. 248, 29 Am. Dec. 543; Smith Chap. V] Wiieeler vs. Sleigh Co. 141 vs. Tracy, 36 N. Y. 79 (post p. — ; Baldwin vs. Burrows, 47 N. Y. 199 (post p. ); Smith vs. Kidd, 68 N. Y. 130, 23 Am. Rep. 157; Reynolds vs. Fcrree, 86 111. 576; Roberts vs. Burnley, 58 Iowa, 301 (post p. ); Bohart vs. Oberne, 36 Kan. 284; Insurance Co. vs. Iron Co., 21 Wis. 458, 464. So far as the record discloses, the first notice which the plaintiff received that the purchasers of the stock claimed the dividend was about May 7th, when the treasurer of the defendant seems to have advised him thereof, and requested to know if the plaintiff made claim thereto. It does not appear that the grounds of the claim were then disclosed. It would seem probable that the plaintiff understood the claim to be bottomed upon the ground that by law the stock carried dividend previously declared and unpaid, — a ground insisted upon at the trial,— as the plaintiff in his letter of that date speaks of the purchaser undertaking to hold the dividend "under some technicality.-" There seems to have been no com- munication between Chapman & Goss and the plaintiff at any time touching their claim. They asserted no claim, and disclosed no ground of claim. They knew the false representation and agreement, of which the plaint- iff was ignorant, and were, I think, bound, if they sought to hold the plaintiff to a ratification of the unauthorized act of his agent, to possess the plaintiff with facts within their knowledge, and not in his, and to assert a claim founded thereon. This they did not do, but, knowing that the plaintiff claimed the dividend, remained passive so far as concerns getting information to him of the grounds of their claim. It cannot surely be said that under such circum- stances the retention of the money was an act of affirmance. To so hold would place every principal at the mercy of his agent with respect to matters as to which he had conferred no apparent author- ity. So that if one should authorize his agent to sell his house for $20,000, and the agent selling the house for that sum should include in the sale certain bank stock which he was not authorized to sell, and of which he had no possession, the principal, by the mere receipt and retention of the sum which he had authorized to be taken for the house, and in ignorance of the fact that the bank stock was part of the consideration running to the purchaser, would be bound to deliver the stock. I cannot yield assent to such doctrine. The purchaser, had, in the case supposed, no right to trust the agent with respect to the bank stock. He had not the possession of it, and was not clothed with any authority with respect to iu 142 Cases on Agency. [Book I The purchaser was bound to inquire into the authority of the agent in such case. The reception and retention of the exact sum author- ized to be taken for the house, in ignorance of the act of the agent with respect to the bank stock, is no ratification. Otherwise the principal is bound for every unauthorized act of the agent, and the purchaser may trust the agent, who can exhibit no authority. Such a principle would be ruinous. Upon maturity of the dividend, suit was at once brought against the company. Until the trial the plaintiff was not shown to have knowledge of the facts upon which the claim of the purchasers to the dividend is based. They had not communicated them to him. He could not have learned them from the agent, for he denied the representations and agreement. This was no acquiescence, working ratification of the unauthorized act of Benjamin. The cases relied upon by the defendant are of the class, either of recognized agency or of acts adopted by the principal as done for him, where a right obtained by the agent is sought to be enforced, or where the principal receives the avails of a contract either author- ized or adopted by him. The liability of the principal for the fraud of his agent is bottomed upon the principle that, by adopting the contract made by the agent, and receiving the avails, the principal assumes responsibility for the means adopted to effect the contract; but, as well observed in Baldwin vs. Burrows, supra, where the cases are ably reviewed, and the lines of distinction are sharply defined, " this responsibility for instrumentalities does not extend to collateral contracts made by the agent in excess of his actual or ostensible authority, and not known to the principal at the time of receiving the proceeds, though such collateral contract may have been the means by which the agent was enabled to effect the unauth- orized contract, and the principal retain the proceeds thereof after knowledge of the fact." The present case is not within the class of cases relied upon. The collateral contract for the transfer of the dividend was in excess of any authority, actual or ostensible. The proceeds of the authorized sale of the stock were received in ignorance of the fraud perpetrated by the agent. The amount of such proceeds was the exact amount authorized to be received for the stock. The plaintiff, by retaining the proceeds, adopted and ratified what he had authorized. Such action cannot be tortured into ratification of unauthorized acts. Smith vs. Tracy 36 N. Y. 79; Gondii vs. Baldwin, 21 N. Y. 219, 78 Am. Dec. 137. Gresham, J., concurs. Judgment for plaintiff. Chap. V] Robeilts vs. Rumley. 143 (58 Iowa, 301.) ROBERTS vs. RUMLEY. (Supreme Court of Iowa, June, 1882.) M. & J. Rumley, of La Porte, Ind., held three notes executed by J. IT. Hoffman and "W. H. Roberts, of Iowa. In form, these notes were joint, but Roberts was in fact surety for Hoffman. The Rumleys also held two other notes signed by Hoffman alone. These notes being due and unpaid, they put them into the hands of their local attorney, W. E. Higgins, and he sent them to Huff & Reed, attorneys, in Iowa, for collection. Huff & Reed put the notes in judgment and taking out execution upon the judgment against Hoffman and Roberts, they levied upon Roberts* stock of goods. In order to procure a release, Roberts suggested to Huff & Reed that he would procure Hoffman to execute a mortgage to the Rumleys upon his homestead to secure the judgments if an extension of time could be procured and the privilege of paying in installments. Huff & Reed wrote to Higgins and the latter advised them to accept the proposition provided $100 was paid at once to apply on fees. The mortgage was executed and Roberts paid in $100 "as surety," which Huff & Reed agreed should be applied on the judgment against Hoffman and Roberts, and they agreed further that the mortgage given by Hoffman to the Rum- leys "is assigned to said W. H. Roberts as security for the said sum of $100 he has paid as surety." These agreements were made without authority and without the knowledge of the Rumleys. Default being made in the terms of the mortgage a decree of fore- closure was had which directed that the proceeds should first be applied to paying taxes and costs, and the balance applied pro rata upon the judgments. Roberts brought this action to secure the application of the proceeds first to the judgment upon which he was surety, and also, that he be subrogated to the mortgage to the extent of the $100 paid by him. He alleged that provisions to this effect were agreed upon with Huff & Reed and were to have been inserted in the mortgage but were omitted by mis- take. Judgment was rendered in his favor and defendants appealed. E. W. Eastman, for appellant. W. V. Allen, for appellee. 1.44 Cases on - Agency. [Book I Day, J. (After stating the facts.) Whatever agreement was entered into between the parties, was made between plaintiff and Hnff & Reed. Huff & Reed, as attorneys, simply for the collec- tion of the notes, had no authority to release the levy upon plaint- iff's property and take the mortgage in question, extending the time of payment of one-half of the judgment for one year and seven months, and of the other half for three years and one month. Whatever authority Huff & Eeed had in the premises was specially conferred by the letter of Higgins above set out. They were special agents, for a particular purpose, with prescribed and limited powers. They were authorized to secure both judgments, the one upon which plaintiff was not liable as a surety, as well as the one upon which he was so liable. They were not authorized to take a security which should be primarily applied to and perhaps exhausted upon, the judgment which was already secured. If Huff & Eeed made the agreement which the plaintiff alleges, they transcended their powers as agents, and their agreement does not bind their principals. It was incumbent upon the plaintiff to ascertain the scope and extent of the powers of the agents with whom he dealt. See Story on Agency, sections 126-133 and notes. It is said, however, that, even if Huff & Reed transcended their agency, the defendants have adopted and ratified their acts. It does not appear, however, that the defendants ever had any inti- mation of the agreement which the plaintiff now alleges to exist, and which he is seeking to enforce, until the commencement of this suit. They could not have ratified and adopted an act about which they knew nothing. It is further claimed that the defend- ants cannot avail themselves of the benefits of the acts of their agents, without also being bound by whatever may be prejudicial to them. This principle applies to the doctrine of agency, with some limitations and qualifications. If the agents had incorpo- rated in the mortgage a provision that the proceeds of the mort- gaged property should first be applied to the satisfaction of the judgment upon which Roberts was surety, the defendants could not have accepted the benefits of the mortgage without being bound by this condition, even although the agents had no authority to agree to such conditions. So, too, if the defendants had known that their agents had agreed to incorporate such a condition in the mortgage, and that it was omitted by mistake, they would, probably, on acceptance of the mortgage, have been bound by the condition. But to hold that Chap. V] ROBERTS vs. Rumley. 145 the principal is bound by agreements between the special agent and the person with whom he contracts, not authorized by the agent's appointment, and of which he had no knowledge when he accepted the benefits of the contract would be entirely subversive of the whole doctrine of special agency, and instead of requiring the person dealing with the agent to ascertain, at his peril, that the agent has kept within his special authority, would require the principal to enquire, at his peril whether the agent had gone beyond it. The case of Eadie, Guilford, & Co. vs. Ashb wgli, 44 Iowa 519, and Beidman vs. Ooodell, 56 Iowa 592, are not inconsistant with this view. The majority opinion in Eadie, Guilford & Co. vs. Ashbaugh, is grounded upon the fact that Allen, who made the sale in question, was not the agent of the plaintiffs and had no authority to sell the machine, with a warranty, but that he assumed to act as agent and sold the machine with a warranty. In Beidman vs. Goodell, also, it appears from the opinion that the persons by whose acts the plaintiff was bound by ratification, acted entirely without authority. Where a person assumes without authority to act as the agent of another, the principal cannot be bound at all by the acts unless he ratifies the same. In such cases he cannot adopt the act in part, and repudiate it in part. " Where a contract is an entirety and is wholly unauthorized, and the principal takes the benefit of it, he must take it with the obligations which make a part of it." Bicdman vs. Goodell, supra, and cases cited; Davenport S. F. & Loan Associa- tion vs. The JS'orth American Fire Insurance Co., 16 Iowa, 74. This principle, however, does not apply when the agent is duly appointed and vested with special or limited powers. "Whatever he does in such case beyond his authority, is void unless ratified, and that, without affecting the validity of what was done within the scope of his powers/' Davenport S. F. & L. Association vs. N. A. Fire Ins. Co., supra. The doctrines which we have above announced apply to the claim of the plaintiff that he should be subrogated to the rights of the mortgagee, and have a first lien upon the mortgaged premises for the one hundred dollars which he paid upon the judgment. Huff & Reed had no authority to assign the mortgage to the plaintiff, and such assignment does not bind the defendants. The plaintiff, in our opinion, is not entitled to the relief asked, and his petition should have been dismissed. 10 Reversed. t4& Cases on Agency. [Book I (12 Allen, 493.) COMBS vs. SCOTT. (Supreme Judicial Court of Massachusetts, September, 1866.) Contract, brought to recover the price agreed to be paid to the plaintiff for his services in obtaining recruits for the U. S. military service. Plaintiff claimed to have been employed by one Dunton as the agent of defendants, and insisted that if there was no evidence of Dunton's authority to employ him, his employment had been ratified by the defendants. Verdict for plaintiff. Defendants allege exceptions. G. Allen ( W. Griswold and S. T. Field, with him), for defend- ants. D. Aiken, for plaintiff. Bigelow, C. J. (After overruling defendant's exceptions upon other points.) But, upon another point, we are of opinion that the exceptions of the defendants are well taken. In instructing the jury on the question of ratification by the defendants of the contract alleged to have been made by their agent in excess of the authority granted to him, the judge in effect told the jury that such ratification would be binding on the defendants, though made under a material apprehension of facts, if such misapprehension arose from the negligence or omission of the defendants to make inquiries relative to the subject matter. In the broad and general form in which this instruction was given, we are of opinion that it did not correctly state the rule of law, and that the jury may have been misled by it in the consideration of this part of the case. The general rule is perfectly well settled, that a ratification of the unauthorized acts of an agent, in order to be effectual and binding on the principal must have been made with a full knowl- edge of all material facts, and that ignorance, mistake or misap- prehension of any of the essential circumstances relating to the particular transaction alleged to have been ratified will absolve the principal from all liability by reason of any supposed adoption of or assent to the previously unauthorized acts of an agent. We know of no qualification of this rule such as was engrafted upon it in the instructions given to the jury in the present case. Nor Chap. V] Combs vs. Scott. 147 after considerable research, have we been able to find that snch qualification has ever been recognized in any approved text writer or adjudicated case; and upon consideration, it seems to us to be inconsistent with sound principle. Eatification of a past and completed transaction, into which an agent has entered without authority, is a purely voluntary act on the part of a principal. No legal obligation rests upon him to sanction or adopt it. No duty requires him to make inquiries concerning it. Where there is no legal obligation or duty to do an act, there can be no negligence in an omission to perform it. The true doctrine is well stated by a learned text writer: "If I make a contract in the name of a person who has not given me an authority, he will be under no obligation to ratify it, nor will he be bound to the performance of it." 1 Livermore on Agency, 44. See, also, Paley on Agency, 171, note o. Whoever, therefore, seeks to procure and rely on a ratification is bound to show that it was made under such circumstances as in law to be binding on the principal, especially to see to it that all material facts were made known to him. The burden of making inquiries and of ascertaining the truth is not cast on him who is under no legal obligation to assume a responsibility, but rests on the party who is endeavoring to obtain a benefit or advantage for himself. This is not only just, but it is practicable. The needful information or knowledge is always within the reach of him who is either party or privy to a transaction which he seeks to have ratified, rather than of him who did not authorize it, and to the details of which he may be a stranger. We do not mean to say that a person can be willfully ignorant or purposely shut his eyes to means of information within his own possession and control, and thereby escape the consequences of a ratification of unauthorized acts into which he has deliberately entered; but our opinion is that ratification of an antecedent act of an agent which was unauthorized cannot be held valid and binding, where the person sought to be charged has misapprehended or mis- taken material facts, although he may have wholly omitted to make inquiries of other persons concerning them, and his ignorance and misapprehension might have been enlightened and corrected by the use of diligence on his part to ascertain them. The mistake at the trial consisted in the assumption that any such diligence was required of the defendants. On this point, the instructions 148 Cases on Agency. [Book I were stated in a manner which may have led the jury to misunder- stand the rights and obligations of the parties. Exceptions sustained. Note— See, also, Hyatt vs. Clark, (118 N. Y. 565) post. p. — and note. (86 New Yoke, 200.) SCOTT vs. MIDDLETOWN, UNIONVILLE & WATEK-GAP KAILROAD COMPANY. (New York Court of Appeals, October, 1881.) Action to recover the purchase price of a quantity of iron rails, spikes, bolts, etc., alleged to have been sold and delivered by one Culver to defendant. It appeared that the materials in question were delivered to the defendant in pursuance of a contract made by Culver with the then president of defendant; that they were delivered to defendant and used for the purpose of laying the track on an extension of defendant's road. The defense was that the president had no authority to make the purchase. Plaintiff recovered and defendant appealed. Lewis E. Carr, for appellant. J, W. Culver, for respondent. Finch, J. That the president of the defendant corporation had no authority derived from his official position to incur the liability sought to be enforced, and that no express and formal action by the board of directors conferring such authority was shown, was con- ceded in the charge of the court to the jury, and in the approval of that charge by the General Term. By both tribunals the plaint- iff's right of recovery was put upon the ground that the iron bought by the president was used in an extension of the company's track, without protest or dissent from the board of directors, who acquiesced in, and thereby ratified the original purchase. The general rule is not here disputed, but the contention is that such ratification could not occur without knowledge by the directors of the terms of the contract, or, at least, of the fact that the purchase was upon the credit of the corporation. But there Okap. V] Scott vs. Kailkoad Company. 149 were no terms of the contract except what the law implies from the acceptance of the property sold, which is, that the vendee will pay the value. There was nothing else to know; no other fact remained; the only terms of the contract were those implied by the law, which the defendant was bound to know. The more plausible suggestion which, perhaps, to some extent, involves the other is, that the vendee who ratifies, only does so when his use of the pur- chased article is with knowledge that it was bought on his credit. But it is difficult to see how we can avoid assuming that the com- pany had 6uch knowledge or, at least, how a jury could resist such natural and necessary inference, There is the iron, being laid in the company's track and appropriated to the company's use. What must a director, looking on, necessarily understand? Evidently, that such iron is sold to the corporation, or given to it or loaned for its use. The supposition of a gift or loan would be so unlikely and improbable, in the absence of any such actually existing fact, that he could hardly avoid understanding a sale to the company upon its credit. The fact of the delivery of the iron and its appropriation and use by the corporation for its proper and ordi- nary purposes with his knowledge and assent is some evidence that the directors knew of its sale to the company, and justifies such inference by the jury, especially in case where there is proof of a sale in fact intended, and no shadow of evidence of either a loan or a gift. It is urged, however, that such directors might, under peculiar circumstances, have the right to suppose that the iron was fur- nished upon the credit of some other person or corporation, and that such peculiar circumstances existed in the present case. Still, if there was no gift or loan, the suggestion only changes the infer- ence as to who is the vendor entitled to receive payment, and not the inference that he who appropriates and uses the property does so with the knowledge that he must pay its fair value to the real owner. The circumstances relied upon as justifying the supposition were also shown to have occurred after the delivery and acceptance of the iron, and so could not have affected the inference to be drawn. The lease to the Oswego Midland, by which that company assumed the funded and floating debt of the defendant, was dated May 24, 1871, and finally executed on the 30th of that month. The plaint- iffs swear that all the iron was delivered before the execution ol that lease. In any point of view, therefore, there was evidence 150 Cases ox Agency. [Book I in the case tending to prove a ratification and which warranted ench a conclnsion by the jury. These views indicate the grounds of our opinion that the motion for a non-suit- was properly denied, and that the court correctly charged that if the defendant received the property bought by its president, and converted it to the use of the corporation, and used it for the corporate purposes for which the material was designed, that would be an adoption and ratification of the act of the officer, and that the directors using the materials purchased were bound to inquire and presumed to know whether it was paid for or not, and also that the court properly declined to charge that it was essential to an adoption of the act of the officer that the direc- tors should know the terms of his contract. * * * Affirmed. (44 Mich. 519, 38 Am. Rep. 278.) EBERTS vs. SELOVER. (Supreme Court of Michigan, October, 1880.) Assumpsit. Plaintiff brings error. The opinion states the case. Hiram Kimball, for plaintiff. John R. Champion, for defendant. Cooley, J. This is an action brought to recover the subscrip- tion price of a local history. The subscription was obtained by an agent of the plaintiffs, and defendant signed his name to a prom- ise to pay ten dollars on the delivery of the book. This promise was printed in a little book, made use of for the purpose of obtaining such subscriptions, and on the opposite page, in sight of one signing, was a reference to " rules to agents," printed on the first page of the book. One of these rules was that " no promise or statement made by an agent which interferes with the intent of printed con- tract shall be valid," and patrons were warned under no circum- stances to permit themselves to be persuaded into signing the sub- scription unless they expected to pay the price charged. From the evidence it appears that when Schenck, the agent, solicited his sub- scription the defendant was not inclined to give it, but finally told the agent he would take it provided his fees in the office of justice, Ohap. V] Ebekts vs. Selovbe. 161 then held by him, which should accrue from that time to the delivery of the book should be received as an equivalent. The agent assented, and defendant signed the subscription, receiving at the same time from the agent the following paper: " Cold water, April 29, 1878. "Mr. Isaac M. Selover gives his order for one copy of our history, for which he agrees to pay on delivery all the proceeds of his office as justice from now till the delivery of said history. "Eberts & Abbott, per Schenck." The plaintiffs claim that the history was duly delivered, and they demanded the subscription price, repudiating the undertaking of the agent to receive anything else, as being in excess of his author- ity and void. The defendant relies on that undertaking, and has brought into court $4.27 as the amount of his fees as justice for the period named. This statement of facts presents the questions at issue so far as they concern the merits. It may be perfectly true, as the plaintiffs insist, that this under- taking of the agent was in excess of his authority; that the defendant was fairly notified by the entries in the book of that fact, and that consequently the plaintiffs were not bound by it, unless they subsequently ratified it. Unfortunately for their case, the determination that the act of the agent in giving this paper was void does not by any means settle the fact of defendant's liability upon the subscription. The plaintiffs' case requires that they shall make out a contract for the purchase of their book. To do this, it is essential that they show that the minds of the parties met on some distinct and defi- nite terms. The subscription standing alone shows this, for it shows, apparently, that defendant agreed to take the book and pay therefor on delivery the sum of ten dollars. But the contemporan- eous paper given back by the agent constitutes a part of the same contract, and the two must be taken and considered together. Bronson vs. Green, Walk. Ch. 56; Dudgeon vs. Haggart, 17 Mich. 275. Taking the two together it appears that the defendant never assented to any purchase except upon the terms that the plaintiffs should accept his justice's fees for the period named in full pay- ment for the book. If this part of the agreement is void, the whole falls to the ground, for defendant has assented to none of which this is not a part. When plaintiffs discovered what their agent had done, two courses were open to them: to ratify his con- tract, or to repudiate it. If they ratified it, they must accept what 152 Cases ox Agency. [Book I he agreed to take. If they repudiated it, they must decline to deliver the book under it. But they cr.nnot ratify so far as it favors them and repudiate, so far as it does not accord with their interests. They must deal "with the defendant's undertaking as a whole, and cannot make a new contract by a selection of stipula- tions to which separately he has never assented. The judgment must be affirmed with costs. Note— In Brigham vs. Palmer, (1882) 3 Allen, (Mass.) 450, plaintiff's agent was authorized to sell a wagon for $75 cash, but sold it for part cash, another wagon and a note payable to the agent. Plaintiff sued as for goods sold and delivered. Held, that the action could not be maintained. "It seems to us very clear," said the court, " that if the plaintiff's property was sold by a person assuming to act for him, but without authority, in an action against the purchaser, if the plaintiff waives the tort and ratifies the contract, he must ratify it as the agent made it. Otherwise, he can only sue for the property itself, or in tort for damages for the unlawful conver- sion. He cannot ratify a part of the contract made on his behalf, and repudiate the rest." (144 Pennsylvania State, 398, 27 Am. St. Rep. 638.) WHEELER & WILSON MFG. CO. vs. AUGHEY. ("Supreme Court of Pennsylvania, October, 1891. ) Action on four notes signed by defendant, who alleged that he was induced to sign them by false representations made to him by one Landis, agent for the plaintiff company. Landis falsely rep- resented that he was not indebted to said company, that the notes were desired by it as collateral security for certain sewing-machines to be furnished by it to Landis, who was defendant's nephew. The machines were not furnished, and the notes were used by the com- pany to secure a prior indebtedness of Landis for machines pre- viously furnished him by said company. Judgment for defendant, and plaintiff appealed. F. M. M. Penned, John M. Gest, John Sparhawh, Jr., and Atkinson, for the appellant. Alfred J. Patterson, J. Howard Neely, and Jeremiah Lyons, for the appellee. Green, J. The learned court below distinctly charged the jury that if the notes in suit were given for a past indebtedness of Landis Chap. V] Manufacturing Co. vs. Aughey. 153 to the plaintiff, their verdict should be in favor of the plaintiff; but if they found that they were given for machines to be furnished thereafter, and the machines were not delivered, the verdict should be for the defendant. The jury found for the defendant, and thereby determined that the notes were given for machines to be furnished in the future. There was abundant testimony in support of the defendant's contention, and we must therefore regard it as an established fact that the notes were given in consideration that machines should be delivered to Landis by the plaintiff subsequently to the execution and delivery of the notes in question. It is beyond all question that Landis obtained the signature of the defendant to the notes, and that he delivered the notes so signed to the plaintiffs, who received and kept them, and affirmed their title to them by bringing suit upon them against the defendant. For the purpose of obtaining the notes, Landis most certainly acted as the representative of the plaintiffs, and they conclusively accepted the fruits of his act. That they cannot do this without being subject to the conditions upon which he obtained the notes, whether he had authority or not to make or agree to those condi- tions, is too well settled to admit of any doubt. The whole doctrine was well expressed by Shaeswood, J., in the case of Mundorff vs. Wickersham, 63 Pa. St. 87, 3 Am. Rep. 531: "If an agent obtains possession of the property of another, by making a stipulation or condition which he was not authorized to make, the principal must either return the property, or if he receives it, it must be subject to the condition upon which it was parted with by the former owner. This proposition is founded upon a principle which pervades the law in all its branches: Qui sentit commodum sentire debet et o> t us. The books are full of striking illustrations of it, and more especially in cases growing out of the relation of principal and agent. Thus where a party adopts a contract which was entered into without his authority, he must adopt it altogether. He cannot ratify that part which is beneficial to himself and reject the remainder; he must take the benefit to be derived from the transaction cum onere." This doctrine is so reasonable and so entirely just and right in every aspect in which it may be considered, and it has been enforced by the courts with such frequency and in such a great variety of circumstances, that its legal soundness cannot for a moment be called in question. It is of no avail to raise or discuss the question of the means of 154 Cases on Agency. [Book I proof of the agent's authority. The very essence of the rule is, that the agent had no authority to make the representation, condi- tion, or stipulation, by means of which he obtained the property, or right of action of which the principal seeks to avail himself. It is not because he had specific authority to bind his principal for the purpose in question that the principal is bound, but notwith- standing the fact that he had no such authority. It is the enjoy- ment of the fruits of the agent's action which charges the principal with responsibility for his act. It is useless, therefore, to enquire whether there is the same degree of technical proof of the authority of the agent, in the matter under consideration, as is required in ordinary cases where an affirmative liability is set up against a principal by the act of one who assumes to be his agent. There the question is as to the power of the assumed agent to impose a legal liability upon another person; and in all that clas3 of cases, it is entirely proper to hold that the mere declarations of the agent are not sufficient. But in this class of cases the question is entirely different. Here the basis of liability for the act or declaration of the agent is the fact that the principal has accepted the benefits of the agent's act or declara- tion. Where that basis is made to appear by testimony, the legal consequence is established. Mr. Justice Sharswood, in the case above cited, after enumerating many instances in which the doc- trine was enforced, sums up the subject thus: " Many of these cases are put upon an implied authority, but the more reasonable ground as it seems to me, is that the party having enjo}'ed a benefit must take it cum o?iere." We are of opinion that the learned court below was entirely right in the treatment of this case. Judgment affirmed in each of these cases. (36 New York, 79.) SMITH vs. TEACY. {New York Court of Appeals, January, 1S67.J Action for breach of warranty on a sale of bank stock. Tracy owned $28,000 of stock in the Hollister Bank of Buffalo. He authorized the president, Hollister, to sell it at par with interest Chap. V ] Smith vs. Tracy. 155 from the date of the preceding August dividend, and executed the proper assignments leaving blanks for the name of the purchaser. Hollister sold $10,000 worth to Smith, representing, what he believed to be true, that the bank was solvent and that the invest- ment would be a good one. Tracy received the pay for the stock from Hollister who sold the residue to other persons. Tracy knew nothing of Hollister's representations, though he believed the bank to be in good condition. It soon afterwards failed, its capital having been impaired at the time of the sale, and the stockholders were subjected to heavy personal liability. Tracy having died, the action was against his executor. Verdict for plaintiff and defendant appealed. John Ganson, for appellant. Chauncey Tucker, for respondent. Porter, J. "We concur with the court below in the opinion that Hollister had no authority to warrant the stock, which his princi- pal empowered him merely to sell. The rule applicable to such a case is stated with discrimination and accuracy in our leading text- book on the law of contracts: " An agent employed to sell, with- out express power to warrant, cannot give a warranty which shall bind the principal, unless the sale is one which is usually attended with warranty." (1 Parsons on Contracts, 5th ed,, 60.) It was proved that no such custom exists in connection with the sale of bank stocks, and that the special agent, in this instance, had noth- ing but a naked authority to sell. "We also concur in the conclusion of the able and learned judge, who delivered the prevailing opinion, that there was not a ratification of the contract by the principal with knowledge of the unauthor- ized act of the agent. No fraud is imputed by the plaintiff, either to the agent or the principal. He sued the executor on a contract which the testator did not make, and he took upon himself the burden of showing that another had power to make it for him. As the testator was chargeable with no negligence or wrong, and as he did nothing at any time to mislead the plaintiff or the public, or to accredit Hollister as empowered to make general engagements in his behalf, the only mode of connecting him with the warranty was by showing that he authorized it before it was given, or that he assented to it afterward. He did neither, but lived and died in utter ignorance that such a contract had ever been made. The recovery was obtained on the theory that the warranty was 156 Oases on Agency. [Book I within the terms of the authority. It was sustained by a divided court on the theory that although the testator neither authorized nor assented to the contract, and never knew of its existence, his act of receiving the proceeds of an authorized sale of his own property, estopped his executor from denying the collateral engage- ment, unlawfully entered into by another in his name. We think this view cannot be maintained. It is founded upon a misappre- hension of the principles, settled by a series of decisions in a class of cases to which this does not belong. When a party claims, receives and retains the property of another, knowing that it was obtained by an unauthorized use of his name, it is a ratification of the assumed agency, which evinces his assent to the contract or the wrong. The courts, however, have been careful in the leading cases of that class, to note, as the precise ground of legal liability, the knowledge of the facts by the party appropriating the benefit. {Murray vs. Binninger, 36 N. Y. 61; Fitzhugh vs. Sackett, Id.; Bank of Beloit vs. Beale, 34 Id. 473, 475; Keeler vs. Salisbury, 33 Id. 653; Farmers' Loan & Trust Co. vs. Walworth, 1 Id. 446; Palmerston vs. Huxford, 4 Denio, 166, 168.) So, when a party takes the benefit of an unauthorized loan on purchase, obtained on his credit by his known servant or employe, it is held that his sub- sequent adoption of the transaction is equivalent to an original authority. {Bolton vs. Hillersden, 1 Ld. Eaym., 224; Precious vs. Abel, 1 Esp. 350; Rimcll vs. Sampayo, 1 Carr. & Payne, 254.) The cases on which the respondent mainly relies, are those in which it has been held, that when an authorized agent, acting within the scope of his authority, perpetrates a fraud for the benefit of his principal, and the latter receives the fruits of it, he is liable as for his own wrong. . {Bennett vs. Judson, 21 N. Y. 238; Elwell vs. Chamberlain, 31 Id. 611.) These authorities rest upon the principle, that when a party clothes another with authority to speak in his behalf, and indorses him to third persons as worthy of trust and confidence, those who are misled by the falsehood and fraud of the agent are entitled to impute it to the principal. The latter will not be permitted to retain the fruits of a transaction infected with fraud, whether the deceit, which he seeks to turn to his profit, was practiced by him or by his accredited agent. In such a case he cannot separate the legal from the illegal elements of the contract, and appropriate the advantages it secures, while he rejects the corrupt instrumentali- ties by which they were obtained. Chap. V ] Smith vs. Teact. 157 But when, as in the present case, there is a mere special author- ity to sell particular property, of a kind not usually sold with warranty, the buyer, who alleges a warranty by the agent, must show that the engagement was one he was empowered to make in behalf of his principal. The receipt of the proceeds of the sale, in ignorance of any such undertaking, is neither an assent to the breach of duty nor an extension of the authority of the agent. The question is one as to the existence and extent of the power, and not as to a fraud practiced by an agent acting within the scope of his authority. The distinction between the different classes of cases, to which we have referred, is sharply defined in two leading decisions, both made by the same judges and at the same term of court. {Bennett vs. Judson, 21 N. Y. 238; Condit vs. Baldwin, Id. 219, 224, 225, 78 Am. Dec. 137.) In Bennett vs. Judson, the defend- ant employed an agent to negotiate sales of his western lands. The latter effected a sale by making representations as to the quality and location of the land, which proved to be grossly untrue. The principal, who received and retained the price, was prosecuted by the vendee for the fraud, and he insisted, by way of defense, that, though he authorized his agent to negotiate the sale, he did not instruct him to cheat the purchaser; that the statements ought not to be imputed to him, for he did not make them personally; and that they could not be deemed fraudulent, for when they were made, neither he nor the agent knew whether they were true or false. The court held, that the principal could not claim immunity on the ground that the fraud was perpetrated through the instru- mentality of his agent, and that a material misstatement, made by one who neither knows nor believes it to be true, is just as much a fraud on the party with whom he deals as if he knew it to be false. In Condit vs. Baldwin, the doctrine of involuntary ratification was sought to be extended to a case where the element of fraud was wanting, and where the principal, without knowledge of the facts, had received the fruits of a transaction, in which the special agent had exceeded the limits of his actual and apparent authority. The court held that, under such circumstances, the application of tli6 rule recognized in the case of Bennett vs. Judson would be inappro- priate and unwarranted. The question arose on a defense of usury. The plaintiff had intrusted money to a special agent for investment. The latter lent it in the name of his priucipal, but transcended his 158 Cases on Agency. [Book I power by contraction with the borrower for the payment of a bonns on the amount. The plaintiff, in ignorance of this, received the security taken for the loan, and was met, in an action afterwards brought to enforce it, with the defense, that, by accepting it, she had adopted the unknown and unauthorized act of the agent. The opinion of the court was delivered by the present chief judge, who aptly illustrated the distinction to which we have alluded, by a reference to the leading cases of Wilson vs. Turn man and Bush vs. Buckingham. "Where a landlord authorized a bailiff to distrain for rent due from his tenant, directing him not to take anything except on the demised premises, and the bailiff distrained cattle of another, supposing them to be the tenant's, beyond the boundary of the farm, and the cattle thus taken were sold, and the landlord received the proceeds, the landlord was held not to be liable in trover for the value of the cattle, unless it was found that he rati- fied the act of the bailiff with knowledge of the irregularity, or chose without inquiry to take the risk upon himself and to adopt the whole act; and it was also held that by adopting and ratifying what he had authorized, he did not adopt and ratify the unauthor- ized acts of his agent." In Bush vs. Buckingham (2 Vent., 83), the plaintiff made a loan of fifty pounds at a legal rate of interest. She referred the bor- rower to her scrivener, who would draw the bond to secure the loan; and the scrivener, in error and against her will, included therein more than lawful interest. In a suit on the bond, the defendant interposed the defense of usury, but it was overruled, as there was no intent on her part, to take or receive more than law- ful interest; and it was held that by commencing suit on the bond, she did not ratify the act of her agent in providing for the pay- ment of more than legal interest, but that she might recover the amount loaned with lawful interest. (21 N. Y., 225, 226.) The doctrine of the case of Bennett vs. Judson, in its legitimate application to frauds perpetrated through an agent, acting within the scope of his power, was afterwards reaffirmed in Elwell vs. Chamberlain (31 N. Y., 611). The rule announced in Condit vs. Baldwin, has since been recognized as that appropriate to a case, where the question arises on the authority of the agent to enter into a collateral contract in behalf of his principal. Bell vs. Bag, 32 N. Y., 165, 178.) There is no antagonism between the two classes of cases; and the distinction between the subjects to which Chap. V] Smith vb. Tracy. 15y they are respectively applicable and the principles on which they rest, is overlooked by those who suppose these decisions to be inharmonious. In the case before us, it is claimed that the receipt by the testa- tor of the proceeds of an authorized sale, is to be deemed an adoption of a contract, made without his authority, and to which he never knowingly assented. Such a ruling would be subversive of well-settled legal principles, and would open the door to illim- itable frauds by brokers, factors, attorneys and others, clothed with limited power and occupying strictly fiduciary relations. {Oivings vs. Hull, 9 Peters, 608, 629; Bell vs. Cunningham, 3 Id., 69, 76, 81; Brady v. Todd, 99 Eng. Com. Law, 591, 601, 605; Freeman vs. Rosher, 66 Id., 787; Seymour vs. WycJcoff, 10 N. Y., 213.) In the language of Judge Story, in the first of these cases, " no doctrine is better settled, both upon principle and authority than this; that the ratification of the act of an agent previously unauthorized, must, in order to bind the principal, be with a full knowledge of all the material facts." The plaintiff is chargeable with notice of the extent and limits of the power of the special agent from whom he purchased. {Nixon vs. Palmer, 4t Seld. 398; Sage vs. Sherman, Lalor's Supp., 147, 152; Beals vs. Allen, 18 Johns, 363, 366, 9 Am. Dec. 221.) He knew that Hollister was not the owner of the stock he assumed to sell; and he was content to take a warranty from one, who had neither actual nor apparent authority to bind his principal by such an engagement. It was a single and isolated transaction, unaided by any extrinsic fact or any antecedent relation; and upon its own merits it must stand or fall. The sole authority of Hollister was to sell the stock at par, with interest from the date of the last dividend, and to insert the name of the purchaser in the blank, left in the body of the transfer written and signed by Mr. Tracy. The representations to the plaintiff were not even made in the testator's name; and the purchaser who assumed the risk of bargaining without inquiry, cannot transfer to the defendant, a loss resulting from his own neglect and incaution. The judgment should be reversed and a new trial ordered with costs to abide the event. 160 Cases ojst Agexcy. [Book I (18 Wallace, 332.) COOK vs. TULLIS. (Supreme Court of the United States, October, 1873. J Cook and others, who were trustees in bankruptcy of one Homans, filed a bill in equity to set aside the transfer of a certain note for $7,000 secured by mortgage, alleged to have been made by Homans to defendant Tnllis in violation of the bankrupt act, on the ground that it was made for the purpose of giving Tullis a preference over other creditors. Homans had been a banker and had frequently purchased United States bonds for Tullis, and these bonds had been left in Homans* possession for safe keeping, in a separate package marked with Tullis' name. On one occasion Tullis had permitted Homans to use $20,000 worth of these bonds, on the latter's depositing in the package negotiable paper of like amount until the bonds were returned. Afterwards, and in March, 1869, Homans took, with- out permission, $6,000 of the bonds, depositing bills receivable in their place, and in April following he took out these bills receivable and substituted a note and mortgage of $7,000 belonging to him, made by one Hardesty, dated April 17, 1869, and payable in 90 days. This note and mortgage not being paid, Homans removed them from the package and placed them in the hands of his attor- neys, with instructions to give notice that if not paid suit would be begun. Afterwards, and on August 26, 1869, Homans failed. Tullis was soon afterwards informed of the substitution of the note and mortgage for his bonds, and signified his acceptance of them, and gave instructions to the attorneys to foreclose the mort- gage. On the day of his failure, also, Homans informed the attorneys that $6,000 of the proceeds of the note and mortgage belonged to Tullis, and directed them to account to him for that sum. Tullis had no notice that Homans was insolvent until the day of his failure, and Homans testified that at the time he took the bonds he did not comtemplate insolvency, and that he supposed Tullis would not object so long as he was secured. Homans was adjudged a bankrupt on September 20, 1869, on a petition filed September 13, and in December complainants were appointed trus- tees. Other facts appear in the opinion. The court below adjudged that defendant was entitled to $6,000 Ohap. V] Cook vs. Tult.ts. 161 of the proceeds of the note and mortgage, and complainants to the residue. Complainants appealed. George Iloadly and E. M. Johnson, for appellant. //. A. Morrill, contra. Mr. Justice Field, after stating the facts of the case, delivered the opinion of the court, as follows: (after dec, the trans- action did not present a case of preference made 03- a bankrupt to one creditor over another, within the meaning of the Bankrupt Act.) This suit must proceed, therefore, if at all, not on the ground of an alleged preference to a creditor, in violation of the Bankrupt Act, but upon the ground that the title to t".e note and mortgage never passed from the bankrupt, because the ratification of his unauthorized transaction was not made until after the period when the rights of the trustees attached; or on the ground that the note and mortgage never became subject in the hands of the bankrupt to the claim of the defendant as the investment of the latter'a property, because the bonds appropriated were not first sold and their proceeds used in the purchase ,;ote and mortgage. Both of these grounds were urged by counsel of the appellants and it is on their disposition that the case must be determined. The substitution of the note and mortgage in the place of the bonds was approved by the defendant immediately upon being made acquainted with the facts. Tl .oval constituted a rati- fication of the transaction. The general rule as to the effect of a ratification by one of the unauthorized act of another respecting the property of the former, is well settled. The ratification operates upon the act ra ied precisely as though authority to do the act had been previ ;iven, except where the rights of third parties have i :ween the act and the ratification. The retroactive efficacy of the ratification is subject to this qualification. The intervening rights of third persons can- not be defeated by the ratification. In other words, it is essential that the party ratifying should be able not merely to do the act ratified at the time the act was done, but also at the time the rati- fication was made. As said in one of the 1 1 by coumtl, " the ratification is the first procc he (the principal ratifying) becomes a party to 1 lie cannot acquire or confer the rights resulting from that transaction unless in a 11 162 Cases on Agency. [Book I position to enter directly upon a similar transaction himself. Thus, if an individual pretending to be the agent of another should enter into a contract for the sale of land of his assumed principal, it would be impossible for the latter to ratify the contract if, between its date and the attempted ratification, he had himself disposed of the property. He could not defeat the intermediate sale made by himself and impart validity to the sale made by the pretended agent, for his power over the property or to contract for its sale would be gone." McCracken vs. City of San Fran- cisco, 16 Cal. 624; ante, . On the same principle, liens by attach- ment or judgment upon the property of a debtor are not affected by his subsequent ratification of a previous unauthorized transfer of the property. Taylor vs. Robinson, 14 California, 396; Wood vs. McCain, 7 Alabama, 806, 42 Am. Dec. 612; Bird vs. Brown, 4 Exchequer, 799. The question, therefore, in this case is whether any rights of third parties did thus intervene between the act of substitution made by Homans and its adoption and ratification by Tullis, which defeated the retroactive efficacy of the ratification. And the test is, as already indicated, could the parties have made the transac- tion at the time of the ratification without contravening the pro- visions of the Bankrupt Act? It is asserted by the appellants that the rights of the trustees extend not only to all property of the bankrupt in his possession when proceedings in bankruptcy were instituted against him, but also to all property transferred by the bankrupt within four months previously to a creditor in order to give him a preference over other creditors, or transferred by the bankrupt within six months previously to any one to defeat or evade the operation of the Bank- rupt Act, the grantee in both cases knowing, or having reasonable cause to believe, that the grantor was, at the time, insolvent or that he then contemplated insolvency. Admitting this to be so, it does not follow that the trustees acquired any right to the note and mortgage in question. They were not trans- ferred to the defendant, as already stated, to give a preference to one creditor of the bankrupt over another, for the defendant was not a creditor of Homans at the time, nor were they trans- ferred to him to evade or defeat any of the provisions of the Bankrupt Act; the transaction was neither designed nor calcu- lated to have any such eifect. Homans was not insolvent at the Chap. V] Cook vs. Tullis. 1C3 time, nor did he contemplate insolvency. But even if he had been then insolvent, the transaction would not have been the subject of just complaint on the part of his creditors, if made with the approval of the defendant whose bonds were taken. There is no pretence that the property substituted was not equally valuable with that taken, or that the estate of the bankrupt was any the less avail- able to his creditors. A fair exchange of values may be made at any time, even if one of the parties to the transaction be insolvent. There is nothing in the Bankrupt Act, either in its language or object, which prevents an insolvent from dealing with his property, Belling or exchanging it for other property at any time before pro- ceedings in bankruptcy are taken by or against him, provided such dealings be conducted without any purpose to defraud or delay his creditors or give preference to any one, and does not impair the value of his estate. An insolvent is not bound, in the misfortune of his insolvency, to abandon all dealing with his prop- erty; his creditors can only complain if he waste his estate or give preference in its disposition to one over another. His dealing will stand if it leave his estate in as good plight and condition as previously. We do not think, therefore, that the rights of the trustees, though relating back four months so as to avoid preferences to creditors, and six months to avoid transfers to others, in fraud of the act, and thus going back of the ratification, touched the transaction in question or prevented the ratification from having complete retroactive efficacy. The position of counsel, that the ratification, if sustained, only extended to the conversion of the bonds, and merely operated to deprive the transaction of its tortious aspect, all else consisting of dealings by Homans with his own property, is not tenable. The answer to it is, that the ratification was of the whole transaction taken together; that of appropriation of the bonds upon substitut- ing and equivalent in value for them, not of a part without the rest, not of the appropriation without the substitution. * * * But if we lay aside the doctrine of ratification as inapplicable, and assume that the transaction could not have been made by the parties after the failure of Homans, and, therefore, that the previous substitution could not then have been ratified, and treat the cause as one of simple misappropriation of property of the defendant, still the trustees must fail in their suit. They took the property of the bankrupt subject to all legal and equitable 164 Cases on Agency. [Book I claims of others. They were affected by all the equities which conld be urged against him. Now, it is a rule of equity jurisprudence, perfectly well settled and of universal application, that where property held upon any trust to keep, or use, or invest it in any particular way, is misapplied by the trustee and converted into different property, or is sold and the proceeds are thus invested, the property may be followed wherever it can be traced through its transformations, and will be subject, when found in its new form, to the rights of the original owner or cestui que trust. In the case of Taylor, assignee of a bankrupt, against Plumber, 8 Maule & Selwyn, 5G2, this doctrine is well illustrated. There a draft for money was intrusted to a broker to buy exchequer bills for his principal, and the broker received the money and misapplied it by purchasing American stock and bullion, intending to abscond with them, and did abscond, but was taken before he quitted Eng- land. Thereupon he surrendered the stock and bullion to his principal, who sold the whole and received the proceeds. The broker became bankrupt on the day he received and misapplied the money, and his assignees sued for the proceeds of the stock and bullion. But the court decided that the principal was entitled to the proceeds as against the assignees, holding that if the property in its original state and form is covered with a trust in favor of the principal, no change of that state and form can divest it of such trust and give to the trustee, or those who represent him in right, any more valid claim in respect to it than he previously had; and that it makes no difference in reason or law into what other form, different from the original, the change may have been made, for the product of, or substitution for, the original thing still follows the nature of the thing itself, as long as it can be ascertained to be such, and that the right only ceases when the means of ascertain- ment fail. It is contended that the doctrine of this case does not apply because the note and mortgage were not purchased with the pro- ceeds of the bonds taken, but were substituted for them. We do dot think this fact takes the present case from the principle npon which the other proceeds, that property acquired by a wrongful appropriation of other property covered by a trust, is itself subject to the same trust. It cannot alter the case that the newly acquired property, instead of being purchased with the proceeds of the origi- nal property, is obtained by a direct exchange for it. The real question in both cases is, what has taken the place of the property Chap. V] Cook vs. Tullis. 165 in its original form? Whenever that can he ascertained, the prop- erty in the changed form may be claimed by the original owner or the cestui que trust, and assignees and trustees in bankruptcy can acquire no interest in the property in its changed form which will defeat his rights in a court of equity. Decree affirmed. (28 Vermont, 338.) WOODWARD vs. HARLOW. (Supreme Court of Vermont, February, 1856. J Action of book account. While Woodward was dangerously sick and bereft of reason, Harlow sued him and attached his property as for a debt due him from Woodward, though in fact Woodward did not then owe him anything. Eeuben Marks, who was Wood- ward's partner in business, in order to secure the release of Wood- ward's property, let Harlow have five notes belonging to Wood- ward as security, taking the receipt mentioned in the opinion. This was done without Woodward's knowledge or authority. When Woodward recovered, he disapproved of Marks' act and demanded back the notes, which Harlow refused to return. Woodward then brought this action to recover of Harlow the amount of two of the notes which he had collected, and also the value of the other three. The court below allowed him to recover the amount collected, but disallowed his claim as to the other three notes. F. Potter, for plaintiff. 8. H. Hodges, for defendant. Bennett, J. The questions arise in this case upon an auditor's report, in an action on book; and the plaintiff claims to be allowed for three certain notes, which went into the defendant's hands upon the terms specified by the auditor, and which had not been collected at the time of the audit, and which were disallowed by the county court. No question is raised, except as to the uncollected notes; and we are to inquire whether, upon the facts reported, an action of account, at common law, would lie to recover the amount of these notes. On the 2Gth day of September, 1853, the defendant gave to one Reuben Marks his receipt for five notes, including the three in question, to hold the same, or collect, as 166 Oases on Agency. [Book I security for the plaintiff's account, due to the defendant; and it is added in the receipt, that the defendant is to hold the notes or money until the plaintiff's account is settled, and then he is to account to the plaintiff for them, after the costs of the suit then pending had been paid. The case shows that when Marks turned out these notes to the defendant, Woodward was not in his right mind, and that he had no authority to do it from "Woodward; and it is found that, in point of fact, the plaintiff was not indebted to the defendant. Woodward never was satisfied with the action of Marks, and he demanded the notes of the defendant, and required him to settle on account of them, and this, the report says, the defendant declined to do, except upon the terms of the receipt. No doubt, when notes go into the hands of a bailiff or receiver under a contract, he may be called to an account, in the common law action; but the defendant insists he was a tort feazor as against the plaintiff, in getting the possession of these notes by the way of marks. Suppose it be so, could not the plaintiff affirm the contract made by Marks, on his account, with the defendant? We think he may; and by bringing his action on book, and claiming an allowance for these, he has adopted and confirmed the acts of Marks; and it is not for the defendant to insist that the taking and holding the notes was tortious on his part. This form of action can only be maintained on the ground of a ratification. See Story on Agency, sec. 259. It is of no consequence that the plaintiff at first dis- approved of the acts of Marks. This could not have the effect to prevent a subsequent ratification of the acts. His disapproval of the acts of Marks was at any time countermandable, and can- not have the effect by way of estoppel or otherwise, to conclude the plaintiff from a subsequent adoption of the assumed agency. It is true, as held in Smith vs. Hodson, 4 Term, 211, that if he adopts a part he must adopt the entire contract. But it is found that nothing was due from the plaintiff to the defendant; and if the defendant had a claim for costs in the action then pending, he might have charged them in his account, and had them adjusted in the present action. The expression in the receipt, that the defend- ant is to account, " after the costs of suit have been paid," does not make the payment of such costs a condition precedent to the right of bringing an action, but may give to the defendant a right of retainer to an amount equal to such costs. Adopting the whole contract then, as expressed in the receipt, Chap. V] Woodward vs. Harlow. 167 we think there is nothing to conclude this action. We think the defendant may well be sued in an action of account as at common law for the notes; and by the statute of 1852, a recovery can be had for those items in the plaintiff's account in the action on book. The judgment of the county court is reversed, and judgment for plaintiff, including in the damages the three notes uncollected at the time of the audit and the interest. V. WHAT AMOUNTS TO A RATIFICATION. (110 Missouri, 546.) HAWKINS vs. McGROAKTY. (Supreme Court of Missouri, April, 1892.) Action to enforce specific performance of a contract. Opinion states the facts. Gibson, Bond & Gibson, for appellants. W. P. Machlin & W. S. Boclley, for respondents. Brace, J. By an act approved March 19, 1887, the statute of " frauds and perjuries," section 2513, Revised Statutes, 1879, was amended by adding the following clause to that section: "And no contract for the sale of lands made by an agent shall be binding upon the principal unless such an agent is authorized in writing to make said contract." This is an action in the nature of a bill in equity to specifically enforce the written contract of an agent in the name of his principal for a sale of land made by the agent, not within the terms of such agent's written authority, upon the ground of a verbal ratification of such sale by the principal after he was informed thereof. In the facts of the case there is no element of equitable estoppel. Plaintiff's evidence tended at most only to prove that the defendant, when informed by letter of the sale, did not manifest to the agent any disapprobation thereof, but directly thereafter sold to another person. The trial court ruled that the written authority must author- ize the agent to make the contract which he does make, in order to 163 Cases ojs t Agency. [Book I bind the principal, and unless it does so the ratification thereof must be in writing to bind him, citing Story on Agency (9 ed.) sec. 242, and Bis utch Line vs. Mfg. Co., 12 1ST. H. 205, 37 Am. Dec. 203, in which it was held that " a ratification of an act done by one assuming to be an agent relates back, and is equivalent to a prior authority. When, therefore, the adoption of any particular form or mode is necessary to confer the authority in the first instance, there can be no valid ratification except in the same manner." At common law, where a contract is required to be under seal, a ratification must also be under seal. I American & English Encyclopedia of Law, 436; Story on Agency, sec. 49, and author- ities in note 3; Mechem on Agency, sec. 137, and authorities note 6, same page. And upon the same principle the last author, stating the general rule, says, " If, therefore, sealed authority was indispensable, sealed r on must be shown; and if written authority was required, written ratification must appear." Sec. 136. In Pollard & Co. vs. Gills, 55 Ga. 45, it was held that " where a crop lien for fertilizers is 3d by an agent who acts without authority from the pri. 1 in his absence, and the lien is under seal, proof of the ratification by the principal must be in writing and under si In Ragan vs. Che: 8 Ky. 540, under a statute which pro- vided that "no person shall be bound as the surety of another by the act of an a unlc thority of the agent is in writing, signed by the princi] it was eld that subsequent verbal ratifi- cation would not bi: that to so hold would be to defeat the object of te. In Palmer vs. \ h. 328, under a statute of frauds, the same as our own, I re t ion of the amendment set out, it was held that " i, if not made in writing, with due knowledge of the ci could only be made out by such conduct on the p as would equitably estop him from insisting on his ri d such an estoppel would not be made out un! " r misled by him to their own prejudice, tl led their protection against him. * * * Iu the al igned or calculated to mislead, mere del u owner of his estate, legal or equitable, until barred by sou r rule of equity." There is no such bar in the facts of this case. Hiemans was author- Chap. V] Hawkins v. McGroarty. 169 Ized in writing by the defendant Manll to sell his property for $1,- 400. On the ninth of July he sold to plaintiff for &1,300, who paid Iliemans $40 earnest money, and received from him a receipt for that amount on account of the sale. Hiemans says he immediately wrote Maull a letter, and that Maull called the next day, when he explained the sale to him and he manifested no disapprobation. Maull sold to his co-defendant, McGroarty, on the evening of the eleventh. He testifies that he did not see Hiemans until after this sale, and did not receive his letter until the evening of the day he Bold to McGroarty, and did not understand from its contents that his agent had actually effected a sale. However the truth of this matter may be, he never received from his agent the earnest money of the plaintiff; in a day or two, took the check he received from McGroarty for $50, paid by him as earnest money, to Hiemans (who collected it), and directed conveyances to be prepared to McGroarty, which was accordingly done, the balance of the purchase money paid, and the deeds delivered on the twenty-second of July. In the meantime he never, by any act or word of his, gave the plaintiff to undersstand for a moment that he had authorized or ratified the sale made by Hiemans to him; but from the first approach to him, made by the plaintiff, to secure a performance of the contract, 6teadily refused to recognize, ratify or confirm the same. Under the statute, as it now reads, requiring written authority for the contract the agents make, there can be no question, it would seem, that there is no such ratification here as could, by any process of reasoning, bind the defendant Maull to specifically per- form the contract in question, which his agent Hiemans had no written authority to make. The judgment is affirmed. All concur. Note — In Adams vs. Power, 52 Miss. 828, when the question was as to the ratification of a contract executed by an agent, one Shannon, and unneces- sarily under 6eal, the court said: " The general rule of the common law is that an agent cannot bind his principal by a sealed instrument unless he has been appointed by a writing under seal. But the rule seems in this country to have been so far relaxed as to allow a subsequent ratification by acts of a contract under seal if the law does not require such instruments to be sealed. Worrall vs. Munn, 5 N. Y. 229, 55 Am. Dec. 330; Lawrence vs. Taylor, 5 Hill, (N. Y.) 113; Randall vs. Van Vechten, 19 Johns. (N. Y.) CO, 10 Am. Dec. 193; Evans vs. Wells, 22 Wend. (N. Y.) 340; Story on Ag. §§ 154, 160-162. The defeasance contract would have been as effectual with- out seal as with it. The statute of frauds does not require such agreements to be in writing under seal. The acceptance of the note, and the appropria- tion of it with knowledge of the circumstances and agreement with which 170 Oases on Agency. [Book I it was connected, was a ratification of the assumed agency of Shannon." To the same effect: State vs. Spartansburg, etc., R. R. Co., 8 S. C. 129; Hammond vs. Hannin, 21 Mich. 374, 4 Am. Rep. 490. But in Pollard vs. Oibbs, 55 Ga. 45, cited in the principal case, it is held, following Rowe vs. Ware, 30 Ga. 278, that even though the contract is unnecessarily under seal, still the ratification must be sufficient to authorize the contract " sealed as it is." (11 Gray, 102, 71 Am. Deo. 690.) McINTYRE vs. PARK. (Supreme Judicial Court of Massachusetts, September, 1868.) Action of contract. Plaintiff entered into an agreement with defendants, D. W. Castle and D. S. Young, whereby he agreed to convey to them certain land and buildings thereon; they to pay him seven thousand eight hundred and iifty dollars, and in case either party made default, he should forfeit five hundred dollars, and pay the same to the other party. Defendants Castle and Young failed to pay, and refused to perform their part of the con- tract. On the trial, the plaintiff produced the agreement to which was Castle's name, signed by himself, and also the names of Park and Young, signed by Castle. Castle's authority to sign the names of Park and Young did not appear, and defendant objected to the introduction of the instrument as evidence. Plaintiff then offered evidence, against defendant's objection, that defendant was informed of Castle's use of his name; that he consented to be bound by the writing; that he treated it as a valid contract, and got from plaintiff an extension of time under it. Verdict for plaintiff, with damages fixed at three hundred and seventy-six dollars. Defend- ant alleged exceptions. S. T. Spaulding, for the defendant. G. Delano, for the plaintiff. By court, Metcalf. J. We express no opinion on the question whether the sum of five hundred dollars, mentioned in the agree- ment upon which this action is brought, is a penalty or liquidated damages. That point was ruled in defendant's favor, and the plaintiff has not excepted to the ruling. Chap. V] McIntyhe vs. Park. 171 The evidence of the defendant's ratification or adoption of the agreement executed in his name was rightly admitted, and he, by such ratification or adoption, became answerable for a breach of that agreement: Merr field vs. Parritt, 11 Cush. (Mass.) 590. In that case the agreement was not under seal; and tbe defendant con- tends that a sealed instrument, executed without previous authority, can be ratified only by an instrument under seal. However this may be elsewhere, by the law of Massachusetts such instrument may be ratified by parol: Cady vs. Shepherd, 11 Pick. (Mass.) 400, (22 Am. Dec. 379); Swan vs. Steadman, 4 Met. Mass.) 548; see also 1 Am. Lead. Cases, 4th ed. 450; Collyer on Part. 3d Am. ed. sec. 467; Story on Agency, 5th ed. sees. 49, 51, 242, and notes; McDonald vs. Eggleston, 26 Vt. 154, 60 Am. Dec. 303. The cases in which this doctrine has been adjudged were those in which one partner, without the previous authority of his copartners, executed a deed in the name of the firm. But we do not perceive any reason for confining the doctrine to that class of cases. We cannot see that the jury ought to have been instructed to find only nominal damages. It does not appear that all the evi- dence as to damages is set forth in the bill of exceptions. The instructions on the subject seem to us to have been right; and if the jury assessed larger damages than the evidence legally warranted, the defendants should have moved for a new trial on that ground. We must suppose, in this stage of the case, either that there was evidence of damages which is not reported, or that the jury judged from the nature of the case what was the amount of damages which the plaintiff had sustained — as they always do in those actions in which general damages only are claimed in the plaintiff's declara- tion, and in which the law has prescribed no fixed rule of damages. All the other rulings and instructions to which exceptions have been alleged we think were correct; and we deem it unnecessary to do more than simply to affirm them. Exception overruled. 172 Cases on Agency. [Book I (67 Connecticut, 42, 14 Am. St. Rep. 83.) SHONINGER vs. PEABODY. (Supreme Court of Connecticut, January, 1889.) Action of assumpsit, brought by Shoninger and another against Peabody, to recover for the price of a piano sold. The facts appear in the opinion. There was a judgment for the plaintiffs, and the defendant appealed. J. O'Neil and G. A. Colley, for the appellant. 8. W. Kellogg and J. P. Kellogg, for the appellees. Loomis, J. The plaintiffs have been for many years dealers in musical, instruments at New Haven, with a branch store at "Water- bury which, from 1880 to October, 1886, was under the sole charge and management of one Henry R. Day, the general agent of the plaintiffs. Day was paid a regular salary, and received, in addi- tion, a commission on all sales made by him for the plaintiffs. While acting as such agent he sold from the store in Waterbury one of the plaintiffs' pianos to the defendant for the, agreed price of three hundred dollars, which was agreed to be paid for wholly by certain commissions which might become due from Day to the defendant on future stock transactions between the defendant and Day on his private account. The defendant has been for a consider- able time engaged in the business of a stock-broker, and as such had had previous dealings with Day. The plaintiffs had no actual knowledge of the sale of the piano until after Day had left their employment. He had reported to them that the piano was rented to the defendant. But the finding is explicit that the plaintiffs were informed of the terms of the sale after Day left their employ, and before the bringing of this suit. The defendant earned commissions in his stock transactions on Day's account to the amount of $185, which were credited by Day on the piano account, but not paid over to the plaintiffs. In the year 188G the defendant paid the plaintiffs several sums, aggregating seventy-five dollars, which is all the plaintiffs ever received towards the price of the piano. Day was a defaulter in his dealings with the plaintiffs to an amount exceed- ing five thousand dollars. The manifest wrong and injustice perpetrated upon the plaintiffs Chap. V] Shoningbe vs. Peabodt. 173 by the defendant and Day make us regret that the principles of law applicable to the remedy chosen by the plaintiffs are not flexible enough to afford relief. But the greatest good to the greatest number requires adherence to sound general principles, even though in a given case a party may fail to obtain redress. The whole trouble in this case arises from a mistake as to the plaintiffs' remedy. When the plaintiffs were informed of the terms of the contract made by their agent for the sale of the piano to the defendant, they had an election to repudiate the arrangement, and by tendering back what they had received in ignorance of the terms of the sale, and demanding the piano, they could have recovered it by an action of replevin or obtained its value in trover. But, knowing the terms of the sale, they elected to sue in assumpsit on the contract for the agreed price, and thereby they affirmed the contract, and ratified the act of the agent, precisely as if it had been expressly approved upon being reported to them by the agent or the defendant. And in contemplation of law, a subsequent ratification and adoption of an act has relation back to the time of the act, and is tantamount to a prior command: 1 Am. Lead. Cas., 4th ed. 592. The argument for the plaintiffs (though it is not so stated) seems really to involve the fallacious assumption that the plaintiffs could affirm the contract in part and repudiate it in part; that is, that the contract is to be treated as good for the agreed price, but bad as to the agreed mode of payment. But the law requires a contract to be affirmed or repudiated in its entirety. Shepard vs. Palmer, 6 Conn. 100; Newell vs. Hurlburt, 2 Vt. 351. See, also, the cases hereinafter cited. There was no contract at all relative to the piano except the one made by Day as their agent; and when the plaintiffs, knowing the facts, sued on that contract, they affirmed it in every essential particular, both as to price and as to the terms of paying the price. The leading case on this subject is Smith vs. Hodxon, 4 Term Rep. 211, where it was held that if a bankrupt, on the eve of his bankruptcy, fraudulently delivered goods to one of his creditors, the assignees may disaffirm the contract, and recover the value of the goods in trover; but if they bring assumpsit, they affirm the contract with all its incidents, so that a creditor may even set off his debt; and the principle established in that case has ever since been considered to rest upon an impregnable foundation, that the existence of the contract could not be affirmed to promote the pur- 174 Cases on* Agency. [Book I pose of a recovery, and at the same time be treated as a nullity in order to shut out the opposite party from a defense otherwise open to him. In Butler vs. Gable, 1 Watts & S. 108, the trustees in a domestic attachment, which is a proceeding in the nature of a commission of bankruptcy, sued the defendant in assumpsit for the amount of a check, which had been transferred to him by the party against whom the attachment issued subsequently to its date, and relied on the invalidity of the transaction as ground of recovery. But it was held by the court that, whatever the result might have been had the action been laid in tort, the necessary result of laying it in contract was to affirm the transaction on which it was founded, and entitle the defendant to show that he had received the check in payment of a debt. For the same reason, it has long been held that a principal who seeks to enforce a sale made by his agent cannot ordinarily allege that the agent exceeded his instructions in warranting the goods, because he must accept the contract as a whole if he means to rely on any portion. The general concensus of judicial opinion in the United States is in perfect accord with the authorities cited from the English courts. "We will select a few only of the numerous cases affirming the principles upon which we base our opinion. One of the most recent cases is that of Billings vs. Mason, 80 Me. 496 (post, ), decided in August, 1888. The case is stated by Daxpoeth, J., in giving the opinion of the court as follows: " The action is assumpsit upon an account annexed. The defend- ant admits that he received from the plaintiff the goods charged, and makes no question as to the prices. This makes a prima facie case against him; and though technically it does not change the burden of proof, it devolves upon him, if he would avoid the responsibility, to give some reason why. The explanation offered by the defendant is, that though he received the goods from the plaintiff, he received them by virtue of an express agreement with an agent or traveling salesman of the plaintiff, one element of which was that certain goods of a like kind, which the defendant then had, should be taken in payment. This agreement with the agent is not questioned, but the answer to it is two-fold: (1) that the agent had no authority to make such a contract; and (2) that the contract under which the action is sought to be maintained was made directly with the plaintiff, though in some degree through Chap. V] Shoningeb ys. Pkabodt. 175 the instrumentality of the agent. Assuming, under the first, that the agent had no authority to make the contract he did, — and the evidence is quite conclusive upon that point, — still it does not change the conceded fact that he not only assumed the authority to do so, but did actually make such a contract. Waiving for the moment the second point raised, this was the only contract having the assent of the defendant, — the contract under which he acted, and by virtue of which he obtained the goods. It is quite clear that the plaintiff cannot hold him upon a contract he did not make, or repudiate the contract in part, and hold the remainder valid. Brigham vs. Palmer, 3 Allen, 450. Nor can he be holden upon an implied contract, for that is excluded by the express." In Smith vs. Flummer, 5 Whart. 89, 34 Am. Dec. 530, a con- tract made for the benefit of the defendants was held to have been ratified by their giving it in evidence as a defense in a suit brought contrary to its terms. In Beidman vs. Goodell, 56 Iowa, 592, an agent for the owner of a note and mortgage took new notes for the debt, and in consider- ation of their being signed by the wife of the maker, who was not a party to the former note, agreed (without the authority of his principal) to cancel the mortgage. His principal, having brought a suit and taken judgment against the makers of the new notes, was held to have ratified the agreement, so that he could not enforce the mortgage, which at the time was improperly canceled. In Peninsular Bank vs. Hanmer, 14 Mich. 208, a contract was entered into by the cashier in behalf of the bank, by which security was given by a debtor on long time to a creditor, in the interest and on motion and arrangement of the cashier, who, in order to procure the assent of the creditor, without authority from the bank, made and delivered a bond of indemnity against a prior mortgage on the property covered by the collateral security. The bank received the benefit of the transaction, and defended the creditor against a Buit to foreclose a prior mortgage. It was held that, having appro- priated the benefits, the bank must affirm or rescind in toto; that it could not disaffirm as to those parts which imjjosed an obligation, and affirm it so far as it operated to its advantage, and that the entire arrangement was ratified. In Whitloch vs. Heard, 3 Rich. 88, the plaintiff was a carriage- maker, and his shop was under the management of W., as his fore- man. W. owed the defendant by note, and made and delivered to her a buggy belonging to the plaintiff, in exchange for the note. 176 Cases on Agency. [ Book I The plaintiff, on hearing of this, disapproved of the arrangement, and brought his action for the price, alleging it to have been sold. It was held that he could not recover; that, regarding him as hav- ing adopted the contract, he would then be only entitled to the note; regarding him as having repudiated the contract, there would then be no sale of the buggy, and that his remedy was, after demand, to bring trover. In Berkshire Glass Co. vs. Wolcott, 2 Allen, 227, 79 Am. Dec. 787, an agent was entrusted with chattels for a certain specified purpose; he wrongfully sold the goods, and received payment in money. The principal brought an action of assumpsit against the purchaser for the price. It was held that he could not recover in assumpsit, the purchaser not having sold the property and received the money for it, but that the plaintiff might have recovered in an action of tort. The same principle is recognized in Jones vs. Hoar, 5 Pick. 285. In the case at bar, there is no claim that the defend- ant had sold the piano. In Butler vs. Hildreth, 5 Met. 49, an insolvent conveyed away his property in fraud of his creditors. The trustee brought a suit against the purchaser to recover the value of the property; then he discontinued that suit, and brought an action to set aside the sale on the ground of fraud. It was held that, having brought an action ex contractu, the sale was affirmed, and the latter action could not be maintained. In Marsh vs. Pier, 4 Rawle, 273, 26 Am. Dec. 131, the defend- ant purchased goods from A., as agent of the plaintiff, who brought an action and recovered judgment for the price. Afterwards the plaintiff disavowed the agency and brought replevin for the goods. It was held that the record of the former judgment was conclusive as an affirmance of the sale. A vast number of other cases establishing the same principle might be cited, but the above will suffice. No conflicting cases were cited by the plaintiffs, unless Stervart vs. Woodward, 50 Vt. 78, 23 Am. Rep. 488; and Squires vs. Barber, 37 Vt. 558, are to be so regarded. In the first of these cases, an agent of the plaintiffs, who were merchant tailors, owed the defendant, who was a physician, a private debt for medical services for himself and family, and being unable to pay money, persuaded the defendant to take a suit of clothes out of the plaintiff's shop in part payment, which was done. The court allowed the plaintiffs to recover of the defendant the Chap. V] Shoxinger vs. Peabodt. 177 price of the suit in an action of b )t, on the ground that the act of the defendant in the goods to his own use raised an implied p] m. The opinion of the court is very brief, and con >n as to the form of remedy, and no reference to ';•'• As to the form of remedy, it is manifestly he case with some others we have cited. In i howev he question whether the suit would be effectual as a of their agent's act, we suggest this distinction, that the act of gent in paying his private debt with the plaint ill's goods could not, perhaps, be regarded as an act done for or in be the principal at all, nor even in the principal's name, and uot properly a contract of sale at all, so that there was i c to be affirmed by the bringing of the suit, and no ; to ,t the raising of the implied promise except the fact that th idant had not sold the goods and received money thereon. It is doubtedly a sound doctrine, established by numerous authorities, that to make a ratification effectual it must be of some act done or engagement made as agent for or on behalf of the person whom it is alleged to bind. The other case cited from 37 Yt. 558, was very similar in the principles that apply. An agent of the plaintiffs, who had authority to sell their goods, became insolvent, and owing the defendant a private debt, undertook to pay it out of the plaintiff's goods, the defendant being cl with knowledge of all the cir- cumstances at the time. The sued in assumpsit, and the defendant, instead of denying the GE's claim, undertook merely to set off the debt against their claim, which, of course, could not be done. There is error in the judgment complained of, and it is reversed. (118 New York, 5G3.) HYATT vs. CLARK. (New York Court of Appeals, February, 1890. J Cross actions between the same parties. Clark sought specifio performance of a clause in a lease providing for its renewal and 12 178 Cases on Agency. [Book I Hyatt sought the cancellation of the lease on the ground that it had been executed by an agent in excess of his authority. Mr. Lake was Mrs. Hyatt's agent, holding a power of attorney from her. In January, 1880, he entered into negotiations with Mr. Clark for the leasing to the latter for a long period of certain premises in New York city, belonging to Mrs. Hyatt. Clark raised some question as to the sufficiency of Lake's authority under the power, which gave him no express power to make leases, and Clark wrote to Mrs. Hyatt, who was then in England, concerning the matter. While Avaiting a reply, the lease was executed and delivered to Clark who accepted it conditionally awaiting the reply from Mrs. Hyatt. Mrs. Hyatt sent a cable message to Lake cancelling his authority and directing him to sign no lease. Lake showed this message to Clark who refused to permit the lease to be cancelled, saying he would take the risk, and went into possession. Lake informed Mrs. Hyatt that the lease had been executed before the receipt of her message and could not be cancelled or avoided. He did not inform her that it had been conditionally accepted until November 10, 1884. In the meantime she had accepted the rent provided for by the lease. Judgments were rendered against her aad she appealed. William Man, for appellant. Joseph H. C'hoate and Sanger & Davis, for respondent. Vann, J. We do not deem it important to decide whether the power of attorney authorized Mr. Lake to execute the lease in question or not, because, in either event, the same result must fol- low, under the circumstances of this case. If, on the one hand, he acted without adequate authority in giving the lease, both the lessor and lessee knew it, for both knew the facts and both are presumed to have known the law, and the former, at least, had an absolute right to disaffirm the contract. As she knew the contents of the power of attorney and the lease, and that the latter was executed by her agent in her name, it was not necessary that she should be informed of the legal effect of those facts. Kelley vs. Newhuryport & Amesbury Horse R. R. Co., 141 Mass. 49G; Phosphate Lime Co. vs. Green, L. R. (7 0. P.) 43; Mechem on Agency, 6ec. 129. Whether influenced by caprice or reason, if she had promptly notified the lessee that she repudiated the lease because her agent had no power to execute it, their rights would have been forthwith Chap. V] Hyatt vs. Clark. 179 terminated and they would have had no lease. The right to dis- affirm on one tenable ground would, if acted upon, have been as effective as the right to disaffirm upon all possible grounds. Under the condition supposed, the law gave her the same right to disaffirm without any agreement to that effect, that she would have had if her agent, being duly authorized to lease, had expressly provided, in the written instrument, that she could disaffirm if she chose to do so. Therefore, by accepting the rent of the demised premises for more than four years without protest or objection, she ratified the lease as conrpletely as she could have if she had known of two. grounds upon which to disaffirm, instead of only one. Two grounds could not make the right any more effectual than one. If she had the right at all, the number of grounds upon which she could justify its exercise is unimportant. Her ratification was none the less complete, because, being unwilling to run the risk of a doubtful question of law, she did not at once act as she would have acted if she had known all of the facts. As said by the court in Adams vs. Mills, 60 N. Y. 539, "the law holds that she was bound to know what authority her agent actually had." Having executed the power of attorney, she is conclusively presumed to have known what it meant and the extent of the authority that it conferred. (Best on Evidence, 123; Whart. on Evi. § 1241.) If the lease was ultra vires, therefore, by ratifying it, she in legal effect executed and delivered it herself, and whatever was said between Lake and Clark, became immaterial. Even if they agreed that she should have the right to disapprove, it is of no importance, because she had that right without any such agreement. If her agent had no power to execute the lease, the delivery thereof, whether absolute or conditional, could not affect her rights. If she was dissatisfied with it, she could have been relieved of all responsibility thereunder by promptly saying to the lessees: "This contract was not authorized by the agency I created, and I refuse to be bound by it." After that there would have been no lease. If the action of her agent was unauthorized, it did not bind her, until by some act of ratification she bound herself. By ratifying, she waived any right to disaffirm upon any ground, known or unknown, because the lease did not exist, as a lease, by the act of her agent, but by her own act of confirmation. If, on the other hand, Mr. Lake was duly authorized to give the lease, certain presumptions of controlling importance spring from 180 Oases on Agency. [Book I that fact. He is presumed to have disclosed to his principal, within a reasonable time, all of the material facts that came to his knowledge while acting within the scope of his authority. It is laid down in Story on Agency (sec. 140), that " notice of facts to an agent is constructive notice thereof to the principal himself, where it arises from or is at the time connected with the Bubject matter of his agency, for, upon general principles of public policy, it is presumed that the agent has communicated such facts to the principal, and if he has not, still the principal having intrusted the agent with the particular business, the other party has a right to deem his acts and knowledge obligatory upon the principal. " In other words, she was chargeable with all the knowledge that her agent had in the transaction of the business he had in charge. (Ingalls vs. Morgan, 10 N. Y. 178; Adams vs. Hills, supra; Myers vs. Mutual Life Ins. Co., 99 N. Y. 1, 11; Bank of U. S. vs. Davis, 2 Hill, 451; Biggins vs. Armstrong, 9 Col. 38.) It was his duty to keep her informed of his acts and to give her timely notice of all facts and circumstances which would have enabled her to take any step that she deemed essential to her interests. She does not question the good faith of Mr. Lake, and there is no proof of fraudulent collusion between him and Mr. Clark, who, while under no obligation to inform Mrs. Hyatt of the facts, had the right to assume that her agent had done so. (Ingalls vs. Morgan, supra; Meehan vs. Forrester, 52 N. Y. 277; Scott vs. Middleton, U. & W. G. Ii. R. Co., 86 Id. 200, ante p. .) It was her duty to protect her interests by selectiug an agent of adequate judgment, experience and integrity, and if she failed to do so, she must bear the loss resulting from his inexperience, negli- gence or mistaken zeal. After the lapse of sufficient time, there- fore, she is presumed to have acted, with knowledge of all the acts of her agent, in the line of his agency. By accepting and retaining the rent, which was the fruit of her agent's act, for nearly five years without objection, she is presumed to have ratified that act. {Hoyt vs. Thompson, 19 N. Y. 207; Alexander vs. Jones, 64 Iowa, 207; Heyn vs. O'Ifagen, 60 Mich. 150, post p. ; 2 Greenl. on Ev. §§ 66, 67.) "Without expressing any dissatisfaction to the lessees, she received eighteen quarterly pay- ments of rent before electing to avoid the lease. She made no Chap. V ] Hyatt vs. Clark. 181 oiler to return any part of the rent so paid, although she tendered back the amount deposited to her credit for the nineteenth quarter at the time that she demanded possession of the premises. Independent of what she is presumed to have known through the information of her agent, she in fact knew the terms of the lease and that it was executed by Mr. Lake in her name. Upon her arrival in this country in September, 1880, she visited the premises and saw the additions and improvements that the tenants were making thereto, and at that time as well as subse- quently, rent was paid to her in person. Apparently she had all the knowledge that she cared to have, for she made no inquiry of her agent until about six months previous to the expiration of the first term of five years, and not until after the lessees had given notice of their election to continue the lease for a second term. Thinking that the rent was low, she then tried to find out something from her agent that would enable her to avoid the lease and as a result of her efforts in this direction, ascertained the fact upon which she based her right to succeed in this litigation. But it was then too late for her to disaffirm, because her long silence and many acts of ratification had been relied upon by the tenants, who had expended a large sum of money in making permanent improvements on the property. Having received the benefits of the contract, she could not, after years of acquiescence, suddenly invoke the aid of the courts to relieve her of any further obligation, because she had but recently discovered a fact that she should have ascertained, and which the law presumes that she did ascertain, long before. (1 Am. & Eng. Encyc. of Law, 429.) We think that after ample opportunity for election and action she ratified the lease and that her ratification was irrrevocable. In each action the order appealed from should be affirmed and judgment directed upon the stipulation in favor of the respondent, with costs of appeal to this court in one action only. Note.— In Kelley vs. Newburyport Horse Railroad, 141 Mass. 496, it is said : " The second request sought to incorporate into the doctrine of ratification a new element, namely, that in order to make a valid ratifica- tion, the principal must have known, not only all the facts, but also the legal effect of the facts, and then, with a full knowledge both of the law and facts, have ratified the contracts by some independent and substantive act. This request was properly refused. It is sufficient if a ratification is made with a full knowledge of all the material facts. Indeed, a rule somewhat less stringent than this may properly be laid down, when one purposely shuts his eyes to means of information within his own possession 182 Cases ox Agency. [Book I and control, and ratifies an act deliberately, having all the knowledge in respect to it which he cares to have. Combs vs. Scott, 12 Allen, (Mass.) 493, 497 ; Phosphate of Lime Co. vs. Green, L. R. 7, C. P. 43, 57." (4 Ketes, 469.) HAZARD vs. SPEARS. (New York Court of Appeals, September, 1868. J Plaintiffs were factors in the city of Buffalo. Defendants, who lived in Indiana, sent a large quantity of hams to plaintiffs to be sold at not les3 than seven and three-fourths cents per pound. Plaintiffs advanced to defendants, on the hams, $5,025, on April 2, 1861, the day of their receipt. On the 26th of April, plaintiffs made a contract for the sale of the hams to one Perry of New York city, at the price fixed and shipped him one car load, being about one-third, against which they drew and received $1,SG0. The remainder were shipped soon after, but Perry failed about the time he received them. The sale to Perry was made through his agent, Howe, who drew drafts on Perry for the price. Plaint- iffs hurried to New York and induced Perry to give up these hams upon their surrendering the drafts. They then tried to sell them in New York, but without success, and they therefore deliv- ered them to Perdue & Ward, who were acting as factors for defendants, to be disposed of to the best advantage. They were subsequently sold at a loss. Plaintiffs wrote to defendants fully concerning the affair and received several letters from them, none of which expressed any dissatisfaction with plaintiffs' conduct. In June plaintiffs had a personal interview with defendant Spears, who then imputed no blame to them. This action was to recover the balance of plaintiffs' advances to defendants. The defense was that plaintiffs must account for the deficiency caused by the sale at less than the price fixed. Plaintiffs recovered and defendants appealed. Benjamin H. Williams, for appellants. John Oanson, for respondents. Hunt, 0. J. The sale of the hams in New York, at a lower price than that fixed by the defendants, and obtained by the plaint- Ghap. V ] Hazard vs. Spears. 183 iffs in Buffalo, gives rise to the present controversy. The plaintiffa were limited in price by the order of the defendants. They were expressly directed not to sell them for less than seven and three- fourths cents per pound. The sale made in Buffalo was at that price, but the purchaser failed to pay, and the sale was rescinded. The expenses of the property to New York, and the sale there, together with the fall in price, produced the loss for which the amount of the verdict was given. Immediately upon his return from New York, Mr. Hazard, one of the plaintiffs, wrote to the defendants, giving a full account of the transaction; and informed them that the hams had been left with Purdue & "Ward, to dispose of to the best advantage. In the sev- eral letters, the defendants acknowledge the receipt of this infor- mation, and made no claim that they did not approve of the entire proceeding. The judge, at the trial, decided that these letters did not constitute a ratification of the transaction. The case does not furnish the ground of this decision. I presume it was from the fact that it is assumed in each of the letters, that the $1,800 paid was upon the purchase of the entire quantity of hams, and would go to reduce the loss that would arise from the entire sale. In truth, this sum was received in payment of a specific portion of the hams, one car-load, and would mitigate the loss upon that por- tion only, leaving the entire loss upon the remaining portion unprovided for. This would produce a great difference in the general result, and was an important fact in the case. The defend- ants' ratification, assumed from their failure to object, being based upen an erroneous understanding of the facts, could not bind them. I think the ratification that might be supposed to arise from this view of the case, must be abandoned. The question then arises, did the conversation in June, 1861, between the defendant Spears and the plaintiff Hazard, furnish evidence on which the jury are at liberty to find a ratification? By the letters already referred to, the defendants had been informed of the entire transaction, with the erroneous understanding on their part as to the $1,800 already mentioned. They had been distinctly informed that the property was left with Purdue & Ward for sale, and without limit as to price. In the conversation now referred to, all the transaction is again rehearsed to Mr. Spears, the understanding as to the $1,800 is now corrected, and he is informed that the property is left with the New York house for Bale, without limit. As testified by Mr. Hazard, he made no 184 Cases osr Agency. [Book I objection to the transaction; imputed no blame to the plaintiffs, and expressed bis regret at the probable loss. Mr. Spears, himself, testifies that he did not feel it his duty to be frank with the plaint- iff, or to tell him that he would be held liable for the sale of the hams. Under the circumstances stated, the title to the property thus in the hands of Purdue & Ward, was in the defendants. If a change in the market had occurred, by which the price had advanced, the benefit would have accrued to the defendants, and not to the plaintiffs. The sale to Perry was made by the plaintiffs, as the agents of the defendants, and upon his failure to perform, as such agents, they resumed the possession of the property. They, as such agents, also left it with Purdue & Ward for sale, without limit as to price. All thi3 was communicated to Spears in person. If he wished to repudiate what had taken place, and to counter- mand the directions for sale, given in behalf of his firm, and to hold the plaintiffs to the first instructions, it was his duty to have done it promptly. It should have been done on the spot, or certainly within a few days. In fact, there was no renunciation or countermand until the 5th of September thereafter, although a doubt on the subject of their liability to bear the loss was intimated in a letter of the 8th of August. In Prince vs. Clark, (1 Bar. & Or. 185, 8 Eng. Com, Law, 80), the plaintiff had shipped, by the defendant, certain goods to the East Indies for sale, with directions to invest the proceeds in specified articles. The defendant invested the amount in Benares sugar, which was not one of the specified articles, and advised the plaintiff of the purchase by a letter, received by him on the 29th of May. The plaintiff ] lade no objection until the 7th of August, when he notified the dt i t's agent that he disowned the pur- chase. The jury held, that by his delay he had assented to the acts of the agent, and the court of King's Bench affirmed their verdict. Bailey, J., says: "The principal has no right to pause and wait the fluctuation of the mark a order to ascertain whether the purchase is likely to be beneficial. He is bound, if he dissents, to notify hia deteri imble time.'" Holkoyd, J., says: "I thi a jury might fairly infer, from the facts of the case, that 1 ; id once assent to take the cargo on his own account, or that he meant, at least, to take the chance of the market." Chap. V] Hazard vs. Spears. 185 It was objected, in that case, that the defendant had no agent to whom notice could be given, and that he could receive no benefit from the notice. The court held, nevertheless, that an agent might have been found by inquiry, and that the verdict was justified. The defendants insist that this principle does not affect this case, because, they say, that Howe was liable on the drafts given up to Perry; that he was solvent, and that Spears was not advised of this state of things by Hazard in the June conversation. There are two answers to this objection. It does not appear that Howe was personally liable on the drafts drawn on the produce shipped. It appears, very distictly, that he was acting in transaction of the purchase, as the agent of Perry, and thus without interest. Whether the drafts drawn by him upon Perry were drawn as agent, or whether he voluntarily made himself liable upon them, is not proved, and, I think, cannot be assumed. Another, and quite a satisfactory answer is this, that no such point was raised on the trial. If the defendant claimed that the conversation and the delay to repndiate, did not furnish evidence of assent, because Spears was not informed of the fact that Howe was liable on the drafts, and was solvent; he should have called attention on the trial, to the precise point of which he complained. It was plainly stated that the drafts, whatever they were, were given up to Perry as a means of obtaining the return of the property. This, the defend- ant Spears certainly knew, and if he had not been informed of the other alleged facts, and had, on the trial, placed himself on that ground, the plaintiffs would then have had the opportunity of showing how the facts were, and what was the statement of them to Spears. To allow it now to be urged, when it was omitted at the proper time, would be quite unjust. The point is of frequent occurrence, and we rule upon it at nearly every term. In the same manner the defendants object, that Spears was not informed by Hazard that the sale was in fact to Perry and not to Howe. If this fact is of importance, the answer to the objection is the same as that given to the preceding one, that attention was not called to it on the trial. The defendants also insist that the judge erred in refusing to charge, that, if, in the conversation referred to, Hazard did not entertain the idea of procuring a ratification, and Spears did not intend to ratify the plaintiffs' acts, there was no ratification. If Hazard's testimony is to be relied upon, — and it was believed by the 186 Cases on Agency. [Book I jury, — he had acted, as he supposed, faithfully and honestly in the discharge of his duty as the defendants* agent, in making the sale, in recapturing the property, and in directing its resale by Purdue & "Ward, at the best price that could be obtained. Upon the first opportunity he communicates all the facts orally to Mr. Spears. The question then is, what is the legal effect of all this, with the answers of Spears in connection? If both Hazard and Spears had certainly thought that the transaction was right in itself and could not be disturbed or repudiated, and that no ratification could improve it, and therefore had no intention on the subject, would that have altered the legal effect of what they said and did? Or if Spears was satisfied that he had an advantage of Hazard, and meant to stand upon his strict rights, and at some convenient time to assert them, and yet, upon a full and frank statement of all the facts, made no visible or audible repudiation of the transaction, would he not have been concluded by his silence? The case of Prince vs. Clark, is clear to the point that he would be. The law passes its judgment upon, and gives legal effect to, what is said and done. Intentions, except as they are manifested by the acts and statements of the parties, are of no avail. Affirmed. (60 Mich. 150.) HEYN vs. O'HAGEN. {Supreme Court of Michigan, January, 1SS6.J Assumpsit, to recover for goods sold and delivered. In August, 1884, a shoemaker, living in Marquette, who carried on business in a shop in which defendant had formerly carried on business, bought goods of plaintiff, who lived at Ishpeming, asserting that he was in defendant's employment and was purchasing for him. He afterwards procured other goods in the same way. He had no authority to act for defendant, and defendant received none of the goods, though they were sent, in each case, by express to his address. An invoice of each purchase was also sent to defendant. The other facts appear in the opinion. The plaintiff recovered, and defendant brought error. Chap. V ] Heyn vs. O'Hagen. 187 F. 0. Clark, for appellant. Eayden & Young, for plaintiff. Champlin, J. (after stating the facts). The principle is well established, " That if a man either by word or by conduct has intimated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not lawfully have been done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned, to the prejudice of those who have so given faith to his words, or to the fair inference to be drawn from his conduct. " Cairncross vs. Lorimer, 7 Jur. (N. S.) 149; Truesdail vs. Ward, 24 Mich. 117, 134, and cases cited on page 135. But there can be no estoppel unless the plaintiff was induced to take some action in reliance upon the statement or conduct of the defendant which otherwise he would not have taken, and which operated to his prejudice. "Expenditures in litigation may as reasonably constitute the basis of an estoppel as any other expendi- tures. " Meister vs. Birney, 24 Mich. 435. The finding of the facts show that the plaintiff, upon selling the first bill, took the precaution to mail the invoice directly to defend- ant, and to send the goods by express directed to him. This invoice was received through the mail in due course, and within three or four days after its date; and defendant suspected immedi- ately that this shoemaker, who was doing business in the shop for- merly occupied by him, had ordered the goods in his name, and two or three days thereafter went to this person and asked him about it, and found his suspicion true; that is, that he had ordered the goods in his name, and also that this person had obtained the goods which had been shipped to him. Notwithstanding he had now become fully informed of the fact that this shoemaker had represented himself to the plaintiff to be the agent of defendant, and had ordered the goods for him or in his name, and knew that the goods were invoiced and consigned to him, yet he did nothing and said nothing to repudiate the transaction, or to inform the plaintiff that he had not received the goods, and had not made the purchase. The fact further appears that defendant had been engaged in the shoemaking business at Marquette, and at some time previous had purchased, in person, like goods of plaintiff. When plaintiff 188 Cases on Agency. [Book I called upon defendant for pay, he suggested that they both should go together to the shop of the man who had ordered the goods. Both invoices were found at the shop, and the man made payment of $21, which was then indorsed upon the first invoice, and defendant promised the plaintiff that he would see that he got the balance of the money. Now it cannot be presumed that what occurred in the shop at that time between the parties had no influence upon the conduct of the plaintiff. Had defendant repudiated the transaction and refused to pay for the goods, the plaintiff might have immediately proceeded to obtain possession of them, and to take such other remedy as the law afforded, to secure his rights. Defendant's promise of payment estopped him from afterwards asserting that he was not bound by it. The plaintiff relied upon it, and has instituted this suit to enforce it. Under the authority of Meister vs. Birney, he should be entitled to recover. But he need not rely alone upon the doctrine of estoppel. Under the facts found, the question is clear to me that the defendant has ratified the act of the shoemaker in ordering the goods in the name of the defendant. " To ratify is to give sanction and validity to something done with- out authority by one individual on behalf of another:" Evans, Ag. 48. Ratification may be express or implied. When there is no express ratification, the facts and circumstances from which a ratification may be inferred must be such as are inconsistent with a different intention. Here, the ratification, if any exists, must be inferred from the silence of defendant, and his neglect to inform the plaintiff that he had not authorized the shoemaker to purchase goods on his credit, or to order them in his name, after he was fully informed of the facts. In considering whether the facts and circumstances of a particu- lar case are sufficient evidence of a ratification, the distinction has been made between the unauthorized act of an agent, where the relation of principal and agent already exists, and that of a mere volunteer or stranger. In the former case it is said that an inten- tion to ratify will always be presumed from the silence of the prin- cipal after being informed of what has been done on his account, while in the latter case it has been said there exists no obligation to repudiate the transaction, nor will silence be construed into a ratification. 2 Duer, 154, 178-182, note 5; 1 Arm. Ins. 151; Story Ag. §§ 255, 258; Ward vs. Williams, 26 111. 451; Gold Min. Co. vs. National Bank, 96 U. S. 640. Chap. V] Heyn vs. O'Hagen - . 189 Whether silence operates as presumptive proof of ratification of the act of a mere volunteer must depend upon the particular cir- cumstances of the case. If those circumstances are such that the inaction or silence of the party sought to be charged as principal would be likely to cause injury to the person giving credit to, and relying upon, such assumed agency, or to induce him to believe such agency did in fact exist, and to act upon such belief to his detriment, then such silence or inaction may be considered as a ratification of the agency. The rule is stated by the Supreme Court of Wisconsin in the oase of Saveland vs. Green, 40 Wis. 438, as follows: "The rule as to what amounts to a ratification of an unauthorized act is element- ary, and may be stated thus: When a person assumes in good faith to act as agent for another in a given transaction, but acts without authority, whether the relation of principal and agent does or does not exist between them, the person in whose behalf the act was done, upon being fully informed thereof, must, within a reasonable time, disaffirm the act, at least in cases where his silence might operate to the prejudice of innocent parties, or he will be held to have ratified such unauthorized act.'" The qualification of good faith is, it seems to me, unnecessary in the person who assumes, without authority, to act as agent. If the person with whom he deals as agent acts in good faith, and with reasonable care, the act is capable of being ratified by the person on whose behalf such pretended agent assumes to act, whether the agent himself acts bona fide or mala fide. In this case the direct results of the silence of defendant, and his neglect to inform plaintiff in a reasonable time after he was fully informed of what had been done, was to lead plaintiff into the belief that the shoemaker was in fact the agent of defendant, and caused the plaintiff to sell to defendant, as he supposed, another invoice of goods, which he sent to defendant by express, and also mailed to him the invoice of the second bill, which defendant received. Here, by his silence, he permitted this shoemaker, whose name neither the plaintiff nor defendant knows, to defraud the plaint- iff by pretending to act for and on his behalf. Under these circumstances the defendant, by his silence and tacit acquiesc- ence in the conduct of the shoemaker, must be held to ratify the agency. Defendant knew that the goods were sent to him by express, and knew that the shoemaker had in some manner gotten possession of the goods from the express company. How, it doea 190 Oases on Agency. [Book I not appear; whether by defendant's direction or assent, or by the shoemaker's representing himself to the company as the agent of defendant. Defendant, however, knew that the shoemaker had received both consignments of goods from the express office, and he had left both invoices with the shoemaker. He went with plaintiff to the shop occupied by the shoemaker, who then paid $21, which was endorsed upon the first invoice, and defendant then told the plaintiff that he would see that he got the balance of the money, but forbade him from sending any more goods in that way. This promise was not to pay the debt of another, but his own debt. It does not appear that defendant at this time repudiated the agency or the authority of the shoemaker to order the goods upon his credit. He had, by his contract, ratified the act, and his promise was not that he would see that the shoemaker would pay the balance, but that he would see that he got the balance of the money. The statute of frauds has no application to the facts of this case. It was the promise of the defendant to pay his own debt, made so by his ratification of the act of the shoemaker in ordering the goods in his name. He remained silent when he should have spoken, and by his silence led the plaintiff to believe that he was his debtor, while lying by and seeing another person appropriate goods which had been consigned to him under representations that he had ordered them. The judgment should be affirmed. (42 Maine, 157.) RICE vs. McLARREN. {Supreme Judicial Court of Maine, 1856.) This was an action to recover the price of the brig Typee which the plaintiff claimed to have sold and delivered to the defendant. The brig was wrecked and lost before payment was made. Bradbury, for plaintiff. Hayden, for defendant. Mat, J. (Omitting irrelevant portion.) The case shows that the vessel, as early as the 11th of November, was taken into Chap. V] Kice vs. McLaeren. 191 possession by the defendant, and that he from that time, acting in connection with Capt. Larkin, as master tinder him, took the exclusive management and control of her. He procured freight for her, and sent her to sea a few days only before her loss. This was done with the assent of Mr. Wheeler, the agent of the plaintiff, who informed the defendant at the time he took possession that " the vessel was to be at his expense and risk from that day." The plaintiff, from that time, ceased to exercise any control over her, and would not have been liable for repairs subsequently made with- out his direction. Cutler vs. Thurlo, 20 Maine, 213; Tyler vs. Holmes, 38 Maine, 238. These acts of the plaintiff's agent appear to have been either previously authorized or subsequently ratified. As early as the 9th of November, the plaintiff wrote to him from Wilmington, inform- ing him of the defendant's offer, and of its acceptance. This letter contains the following language: "You will get all the money you can, and take such security for the balance as for assurance of * • *. See that it is right. He will perhaps pay all. If so, it will suit much better. Still, do whatever will make sale and close up Types." The authority here given is very broad. It is said, however, that these important acts of the agent must have been done before the reception of the letter. This fact, if it be a fact, does not alter the case. When received, it was a complete ratifica- tion of the acts, especially as there was no subsequent attempt to revoke them. These acts of the parties, in transferring and accept- ing the possession and control of the vessel, amount to an absolute and unconditional delivery under the contract. There seems to be nothing in the case to qualify this delivery. If the delivery had been upon conditions not performed, the property might not have passed. Hussey et al. vs. Thornton et al., 4 Mass. 405, 3 Am. Dec. 224; Smith vs. Dennie, 6 Pick. 262, 17 Am. Dec. 3G8. Under the circumstances, we think it did pass. * * * Judgment for plaintiff. Note.— See Moore vs. LocJcett, 2 Bibb, (Ky.) 67, 4 Am, Dec 683; Stillman vs. Fitzgerald, 87 Minn, 18Q. 192 Cases on Agency. [Book I (68 Alabama, 167.) JONES vs. ATKINSON. (Supreme Court of Alabama, December, 18S0.J This "was an action of statutory detinue brought by Atkinson against Jones to recover a certain mnle called John. Plaintiff had rented a mnle called Jerry to one Pritchett; Pritchett traded Jerry for John; then he traded John for a mare with one Clan ton; and Clanton sold or traded John to the defendant. Defendant requested the court to charge that, if the jury believe there was no sale of the mule Jerry by plaintiff to Pritchett, but simply a hiring; and that when Jerry was traded for John, the plaintiff ratified the trade; then, if Pritchett afterwards traded John for the mare, and, while Pritchett had her, plaintiff claimed her as his own and offered to trade her away, this was a ratification of the trade of John for the mare, and plaintiff cannot recover. This the court refused. Plaintiff recovered, and defendant bringa error. R. Gaillard and Jno. T. Kilpatrick, for appellant. S. J. Cuming, contra. Stone, J. When we first considered the charge refused in thia case, we doubted somewhat whether the hypothesis or premises, justified the conclusion it invoked. Knowledge of the unauthorized act done is a necessary element in every binding ratification and knowledge is not expressed in the charge, as one of the conditions on which a verdict for the defendant was claimed. "We now think that, under the facts and circumstances shown in the evidence, that constituent was necessarily implied. The acts of the ratifica- tion supposed in the charge are, that Atkinson, while said mare was in the possession of Pritchett, claimed her as his property, and offered to trade her. The undisputed facts are, that Pritchett had in his possession a mule called Jerry, which Atkinson claimed as his property; that Pritchett traded the mule Jerry for a mule named John, and Atkinson ratified the trade, and claimed the mule John as his property, and that subsequently Pritchett traded the mule John for the mare called the " Clanton mare." Now, the only claim Atkinson could have or assert to the mare, rested on the title he acquired by the exchange of the mule John for her. Chap. V] Jones vs. Atkinson. 193 This claim, if he made it, rests alone on the fact that she stood in the place of the mule John. If he claimed the mare, and if he asserted and attempted to exercise acts of ownership over her, this was a ratification, and heing once made, he could not revoke it, unless it was made under a misapprehension of facts. Uis right and claim to the mare had no foundation to rest on, unless he had parted with right and claim to the mule. He could not claim hoth, and claiming one, he renounced the other. The case of Mcehan vs. Forrester, 52 N. Y. 277, presented a question of ratification vel non. Pinkney, as the attorney and agent of Bertine, was intrusted with the collection of a claim due the latter. Without any authority from his principal, Pinkney took from the debtor a deed to lands, absolute on its face, but intended as security only. The Court of Appeals said: "There was no dealing on the subject between the plaintiff (debtor) and Bertine, except through Pinkney. The evidence justifies the inference that the deed was received by Pinkney for Bertine, in 'pursuance of the agreement made between Pinkney and the plaint- iff, and delivered by Pinkney to Bertine. "The agency of Pinkney was to collect the debt, not to purchase lands. When, under those circumstances, Pinkney delivered to Bertine the deed obtained from the plaintiff, it was the duty of Bertine to inquire, and of Pinkney to communicate, under what arrangement the deed had been obtained. In the absence of any evidence to the contrary, the presumption is that these duties were performed. If not, and Bertine received the deed blindly, without receiving or making any inquiry, he must be deemed to have con- fided the whole matter to his attorney, and adopted whatever arrangement the latter may have made to obtain the deed." Carv- ing vs. Southland, 3 Hill, 552. And a ratification once made becomes irrevocable. Wharton on Agency, § 73; Buck vs. Jones, 16 Texas, 461; Clark vs. Van Iiiemsdyk, 9 Cranch, 153; Seago vs. Martin, 6 Heisk. 308; Story on Agency, § 253; Lee vs. Fontaine, 10 Ala. 755; Firemans' Ins. Co. vs. McMillan, 29 Ala. 147; Crawford vs. Barkley, 18 Ala. 270. In Lee vs. Fontaine, supra, it is said: "Even the silence of the principal will, in many cases, amount to a conclusive presumption of the ratification of an unauthorized act." The charge asked should have been given. Reversed and remanded. 18 194 Cases on Agency. [Book I (62 Maine, 330.) SCHOOL DISTRICT vs. .ETNA INSURANCE COMPANY. (Supreme Judicial Court of Maine, 187S.J Action upon a policy of insurance npon the district school-house. Defense, that the district had sold the school-house. It appeared that the committee were authorized by resolution to sell the build- ing, and had sold it for some cash and balance in notes. The committee had retained the notes and cash in their own hands, and the district never had any benefit from them, and passed reso- lutions condemning the sale at the first meeting held after the sale had been made. The jury rendered a special verdict, and judg- ment was for the plaintiff. Wales Hubbard, for defendant. Gould & Moore, for plaintiff. Petees, J. The fact that the sale of the school-house in ques- tion was, in most part, upon credit instead of for cash, as the vote of the district imported it should have been, settles this contro- versy for the plaintiffs. This phase of the case does not appear to have been presented in any of the bills of exceptions or motions considered by the court before. The authority was by recorded vote easily to be seen and under- stood by those concerned. It is needless to cite cases to establish the general principle that a specific authority or direction to sell docs not authorize a sale on credit, unless, at the place of sale there is an usage of business, general or special, in reference to which an authority to sell upon credit, is supposed to be given. It is sug- gested in argument that this doctrine may be inapplicable to per- sons, acting as agents for quasi corporations, like towns and school districts, and that they might be regarded from convenience and necessity, as clothed with executive and prudential power, superior to that of agents of ordinary business corporations or persons. We find nothing in the authorities, and see no reason upon principle, in support of such a modification of the general rule. If there is any distinction, it would seem that the acts of public agents, acting in pursuance of a special authority are to be construed perhaps more strictly than the acts of agents of private persons, upon the Chap. V] School District vs. Insurance Co. 195 ground that public agents are less within the immediate supervision and control of their principals. State of Illinois vs. Delafield, 8 Paige, 527; s. c. 26 Wend. 192; Cushing vs. Loixjfellow, 26 Maine, 306. The jury, by a special verdict, find that the sale was made upon one year's credit, except ten per cent cash; that the proceeds of the sale never came into the possession of the district, nor were used by them; and that the district never ratified the sale. These findings are supported by the evidence. The district would not be bound by the sale made without authority, unless in some way by them ratified. The ratification must be by the principal, and not by the agent of his own acts. The retention of the money and notes by the committee, unless consented to by the district, would be no more evidence of an authorized contract than their taking the same originally would be. The ratification must be proved. It is not in this respect like a contract obtained by fraud which stands till rescinded; but a con- tract made by an agent without authority is no contract unless shown to be ratified, though such ratification may, under a variety of circumstances, be presumed. A presumption from the non-action of a corporation like a school district, would be less readily inferri- ble than in the case of individuals who can more readily act. A district can be bound only by some recorded vote, or some act, or an acquiescence upon their part as a corporation, equivalent thereto. The unofficial conduct of individuals in the district has no control- ling effect. As bearing upon these general propositions see Cham- lerlain vs Dover, 13 Maine, 474, 29 Am. Dec. 517; Davis vs. School District in Bradford, 24 Maine, 349; White vs. Sanders, 32 Maine, 188; Fisher vs. School District in Attleborough, 4 Cush. 494; Bliss vs. Clark, 16 Gray, 60. In this case, the sale was not warranted by any vote. All parties are presumed to have known it. The proceeds of the sale have remained in the hands of the committee from that day to this. The district have neither had nor used them, directly or indirectly. They were neither deposited with the officers of the district who dispense its funds and credit, nor with the town treasurer where the money of the district should be kept. The committee never informed their principals of their action in any official communi- cation or form whatever. Beyond all this there is plenary evidence to inspire the belief that the committee, with the full knowledge of the vendees, were executing the trust committed to them, in Borne respects at least, unfaithfully. The rule that where a prin- 196 Oases on Agency. [Book I cipal has full knowledge of the acts of his agents, he must dissent, and give notice of his dissent within a reasonable time, is stringent in its application only where the agent and those dealing with him are acting in good faith, and the principal receives a direct benefit therefrom. Here no benefit whatever, but, on the other hand, an injury wonld have accrued from the action of the committee, if about four hundred dollars were to be received for a property, admitted in the report of the case to have been worth several times that sum. All the subsequent corporate action of the district, so far as any appears, shows that the sale was repudiated. An insurance on the building was renewed. Attempts were made to hold dis- trict meetings in the house. An effort was undertaken to have the building put back to the place from which the purchasers removed it. The persons claiming to own the building were prosecuted by a vote of the district as trespassers (although the suit was subse- quently withdrawn), a significant evidence of disaffirmance of the contract attempted to be made. Upon all this evidence the find- ing of the jury upon this point must be deemed to be a correct one; and the rulings and refusals to rule upon the questions involved in such findings were sufficiently favorable to the party excepting. * * Verdict for plaintiff sustained. (47 New Yoke, 199.) BALDWIN vs. BURROWS. (New York Court of Appeals, January, 1872.) Blanchard, Burrows, Prouty, McClellan and Southworth had contributed, in varying proportions, to raise a large fund to be invested in cotton. Blanchard applied to the plaintiffs for an advance upon the cotton, saying that the co-owners had about 1,000 bales and wanted an advance of $30,000 on the whole lot; that he had consulted with the others and that they authorized the arrangement. Blanchard delivered to plaintiffs 255 bales and plaintiffs advanced, between April 5 and April 24, 1886, various sums aggregating $22,000, and on the 25th of April, the further sum of $6,000. All this money was paid to Blanchard, and plaint- iffs made no inquiry of the other co-owners as to Blanchard's Chap. V] Baldwin vs. Bubbows. 197 authority. On April 24 Blanchard gave Burrows $3,000, Sonth- worth $1,000 and Prouty $3,000, telling them that he had obtained an advance of $15,000 on the cotton. They at first declined to receive it, as they had known nothing about the advances, but Blanchard assured them that the advance had been made on his responsibility, that they were not responsible for it, and that the advance was a personal transaction between plaintiffs and himself. Thereupon they accepted the money. Plaintiffs sold the cotton received by them and there remained a balance due them of about $17,000 for which they applied to the co-owners, who utterly denied Blanchard's authority to borrow money on their account. Afterwards McClellan separately com- promised with plaintiff, and Blanchard became bankrupt, and this action was brought against the others. Plaintiffs recovered in the court below, and defendant appealed. J. M. Van Cott, for appellants. J. H. Clio ate, for respondents. Rapallo, J. Three distinct grounds of liability on the part of the defendants were submitted to the consideration of the jury; (1) that of a copartnership resulting from the purposes for which the cotton was purchased; (2) that of express authority to Blanchard from his co-owners to obtain the advances; (3) that of a subsequent ratification by the defendants of the acts of Blanchard. The verdict being general, it is impossible to determine upon which of these three grounds the jury based their verdict, and consequently if it shall be found that either of them was improperly submitted to the jury, the judgment cannot be sustained, unless it shall also appear that some one of them was so clearly established by uncontroverted evidence as to have rendered it the duty of the court to direct a verdict for the plaintiffs. (The court then determines that no partnership existed between the co-owners.) The question of an express authority to Blanchard to make the shipment and obtained the advances was separately submitted to the jury. The testimony of Blanchard was sufficient to authorize the submission of that question, including the question of the authority of Southworth to consent on behalf of Burrows. But Blanc-hard's testimony on both of these points was contradicted, and we cannot say that the jury necessarily passed upon them, as they may have rested their verdict upon a finding of copartnership ab initio, under the instructions of the court. 198 Cases on Agency. [Book I It follows that the error in these instructions is fatal to the judgment, unless a ratification was so clearly made out as to leave nothing for the consideration of the jury, and to have rendered it the duty of the judge to direct a verdict for the plaintiffs on that ground. To test this question, we must look at the testimony of the defendants, for if, according to their version of the transaction, viewed in the most favorable light in which the jury might properly have regarded it, there was not a sufficient ratification to bind the defendants in solido for the whole amounts advanced by the plaintiffs, the court would not have been justified in directing the verdict which was rendered. The defendants, Prouty and Southworth, admit that on the 24th of April, 1866, they received from Blanchard, Southworth, $1,000 and Prouty $3,000, and that Blanchard informed them at the time that he had obtained $15,000 from the plaintiffs, as an advance upon the shipment through them of a portion of the cotton. But they aver, in substance, that when Blanchard offered them his checks and informed them of what he had done, they denied his authority to ship, or to obtain the advances, and refused to receive the checks, but that they were finally induced to accept them, by Blanchard's assurance that he had obtained the $15,000 advance upon the sole credit of Blanchard & Co., and in such a manner as not to render the other defendants responsible to the parties mak- ing the advance, in case of a reclamation; that the advance was a transaction between the plaintiffs and Blanchard & Co. ; that the defendants had nothing to do with the plaintiffs, and that the pay- ment was a matter between Blanchard & Co. and the defendants; also that Blanchard did not disclose that he had obtained more than $15,- 000, or that he contemplated obtaining any further advances. That, relying upon these statements of Blanchard, they received the money, Southworth at the same time receiving $3,000 for account of the defendant, Burrows, who was absent; that this latter sum was deposited by Southworth to the credit of a bank with which Bur- rows was connected, and Burrows advised of the deposit. Burrows testifies that he was informed that this deposit proceeded in some way from the cotton transaction, but how he did not know; that the only authority he had given to Southworth was to look after or watch his interest in the cotton. All these parties testify that they did not learn the actual facts until long after the cotton delivered to the plaintiff had been snipped to England, and the residue destroyed by fire. Chap. V] Baldwin vs. Bubkows. 199 It appears that at the time of the payment hy Blan chard, April 24th, $22,000 had, in fact, been advanced by the plaintiffs, and that on the following day they made a further advance to Blanch- ard & Co. of $6,000, which latter sum is included in the recovery. As to this latter sum, there clearly was no ratification; nor was it advanced on the strength of the acceptance by I'routy, South- worth and Burrows of the sums paid to them on the twenty-fourth, for it does not appear that the fact of such payments was communi- cated to the plaintiffs before the advance of the $0,000. From the beginning, the plaintiffs seem to have relied wholly upon the state- ments of Blanchard as to express authority from his co-owners, and not upon any act of the defendants. The plaintiffs were informed by Blanchard of the separate interests of the defendants, and do not even seem to have supposed that they were dealing with them on the footing of a partnership; for in January, 1867, they wrote to South worth, that they had charged him with one-fifteenth of the loss on the cotton, and demanded of him that proportion only. They trusted Blanchard's representations at their peril, making no inquiry of Prouty or Southworth, though they both resided in the Bame city with the plaintiffs; and it does not appear that either they or Burrows had done anything to hold Blanchard out as authorized to contract in their names. This is a case, therefore, which depends upon the actual authority given, or upon the ratifi- cation of specific acts; and although such ratification is, as to the act specially ratified, equivalent to a previous authority, it is not retroactive to the extent of binding the principal for other acts in excess of the authority of the agent, though the principal might have been bound for such other unauthorized acts, if they had been done under color of a previous authority actually given. The ratifi- cation, therefore, if it had been made out of the borrowing of the $22,000 not having been communicated to the lender, and they not having acted on the faith of it, would not carry with it the subsequent advance of $6,000, (St. John vs. Redmond, 9 Porter Ala. R. 428), though it might be that if there bad been a previous authority to borrow the $22,000, it would have bound the defend- ants for the subsequent advance, if the precise limit of the agent's authority had not been known to the lender. But was there a clear case on the uncontroverted facts of a rati- fication of the act of Blanchard, in obtaining the advance of the $22,000, or any part of it, on the joint credit of all the owners of the cotton? Assuming the transaction to have been as stated in 200 Cases on Agency. [Book I the testimony of Prouty, Sonthworth, and Burrows, Blanchard & Co., were mere bailees of the cotton for the specific purpose of picking and drying it and preparing it for sale, for a compensation to be paid to them by the owners. The unauthorized pledge and shipment of it by Blanchard were, as to the shares of his co-own- ers, a conversion, which rendered him liable to them for the value of their respective shares. By receiving from him a portion of the advances which he had obtained, on his assurance that he had obtained them on the credit of Blanchard & Co., and in ignorance that their own credit had been used, they did not ratify his use of their names. There can be no ratification of an act without knowl- edge of the act having been done. The ratification of an act previ- ously unauthorized must, in order to be binding, be made with a full knowledge of all the material facts. {0 wings vs. Hull, 9 Pet. 608; Nixon vs. Palmer, 8 N. Y. 398; Seymour vs. Wychoff, 6 Seld. 224; Smith vs. Tracy, 36 N". Y. 79, {ante p. 154); 2 Greenlf. Ev. § 66; Story on Agency, §§ 239, 253. ) The receipt, even from an agent, of money paid him on a contract, does not bind the principal to the con- tract, unless he knows on what account the money was received and the terms of the contract. {Venn. Co. vs. Dandridge, 8 Gill & J. 323, 29 Am. Dec. 543.) It cannot be contended, therefore, that so long as the defendants remained ignorant that the advances had been made upon their credit, there was any ratification; but it is claimed that by not offering, when they became apprised of the facts, to return to the plaintiffs the sums which they had received of Blanchard they ratified the original transaction and became liable in solido as prin- cipals for all the advances obtained from Blanchard & Co. But that result does not follow. In the first place, the defendants testify that they did not learn the facts until long after the cotton had been sent to England. It was then too late to restore matters to their original condition. Furthermore, according to their statement, they had not received the money as their own, or as arising from a dealing between them and the plaintiffs through Blanchard as their agent, but as the money of Blanchard, in receiving which they dealt with him as a principal. He had misappropriated their property, and they were entitled to payment or indemnity from him. llad they known all the facts at the time, they could rightfully have repudiated his acts, and demanded and received from him the value of their shares. They were not bound to look to the plaintiffs for their Chap. V] Baldwin vs. Buiutows. 201 cotton. They conld have prosecuted Blanchard, or settled with him, without incurring any liability to the plaintiffs. And even if they had severally received of Blanchard payment or security out of the same money which they knew he had obtained from the plaintiffs by the fraudulent use of their names, and that money could be identified and followed, the receipt of it by them as his money, to indemnify them for his tortious disposition of their property, would not have been a ratification of the contract which he had assumed to make in their behalf, nor would it have rendered them jointly liable for the whole amount of the advance, including what Blanchard retained. They would, at the most, have been liable for what they received. The mere fact that the proceeds of a contract made by one person in the name of another without authority, or a portion of them, have come to the hands of the latter, is not, of itself, sufficient to render him liable on the contract. (Perm. Co. vs. Dandridge, 8 Gill & Johns. [Md.], 323, 29 Am. Dec. 543; Evans vs. Wells, 22 Wend. 324; Palmerton vs. Huxford, 4 Den. 16C-168). To have that effect, the proceeds must be received not only with knowledge, but under such circumstances as to constitute a voluntary adop- tion of the contract. When goods are purchased by one assuming, without authority, to be the agent of another, if the latter know- ingly receives the goods so purchased as ?iis own property, this will amount to a ratification of the agency. But if he denies the authority of the pretended agent to act for him on having knowl- edge of his acts, and afterwards receives the goods as the property of the assumed agent in payment of a debt due from him, it will not amount to a ratification. (Hasti)tgs vs. Ba>gor House Pro- prietors, 18 Maine, 436.) It is conceded in that case, that the seller of the goods would have a remedy against the party who received them, knowing that they had been obtained by fraud. But the remedy would not have been upon the original contract of purchase. Receiving them as the property of the fraudulent vendee, is inconsistent with an adoption of his assumed agency. And if only a portion of the goods were received, the recipient would only be liable for that portion. Clearly, if the defendants received part of the proceeds inno- cently, as the money of Blanchard, their subsequent omission to return what they had received could not make them liable upon the original contract; and if they restored the money, they were entitled to recover back their property or its proceeds. 202 Oases on Agency. [Book I The plaintiffs parted with their money, relying wholly on Blanchard's representations as to his authority. The subsequent receipt from him by the defendants of part of the money, tended in no way to accredit him or to mislead the plaintiffs and raises no equity in their favor, upon which the defendants can be held as joint contractors. It is true that frauds might be committed by putting forward an insolvent party, and obtaining advances through him, and subsequently denying his authority. But there must be some evidence of such fraud to create a liability. The counsel for the plaintiffs has referred to a class of cases in which it is said that a principal cannot enjoy and retain the fruits or benefits of the act of his agent, without adopting and ratifying the instrumentalities by which those fruits were obtained, even though employed without his authority or knowledge; and also to cases establishing, that if the principal ratifies and enjoys the bene- fit of part of a contract, he cannot repudiate the rest. The first class of cases referred to are all cases of acknowledged agency or of acts expressly adopted by the principal as done for him, and where the principal is either seeking to enforce a right obtained for him by his agent, or has had the benefit of a contract which he author- ized or has adopted as his own; and the controversy has been, not as to the authority of the agent to make the contract, but as to the means employed by him to accomplish what he was authorized to do, or what the principal has accepted as done for him; and the instrumentalities referred to are, in general, frauds committed by the agent in doing the authorized or ratified act. "When the principal seeks to enforce a contract or right obtained for him by his agent, or by one whose agency he has adopted, it is well established that the fraud of the agent may be set up as a defense against his innocent principal, for the very obvious reason that the contract or other right which the principal is seeking to enforce is tainted and vitiated by the fraud employed by his agent in obtaining it; and the principal, though himself innocent, takes it subject to that taint. (Atwood vs. Small, 6 Clark & Fin. 449; Story on Agency, sec. 419; Duulap's Paley, 4th Am. ed. 325; Veazie vs. Williams, 8 llow. U. S. 134; Dexter vs. Adams, 2 Denio, 646.) The other cases which hold the principal liable to respond for the frauds of his agent, rest upon the familiar doctrine that the principal is bound for the acts of the agent done in the course of his employment, and even for his frauds and other torts, when Chap. V] Baldwin vs. Bukiiows. 203 committed in doing what he was entrusted to do, {Hern vs. Nich- ols, 1 Sulk. 289; Story on Agency, §§ 452-454); and also upon the ground that a principal, by adopting a contract made for him, and receiving and retaining the fruits as belonging to him by virtue of that contract, assumes responsibility for the instrumentalities which the agent may have employed in his behalf to effect the con- tract. ( Veazie vs. Williams, 8 llow. U. S. 134; Bennett vs. Jud- son, 21 N. Y. 238; Elwell vs. Chamberl in, 31 Id. 611.) It must be observed, however, that even this responsibility for instrumentalities does not extend to collateral contracts made by the agent in excess of his actual or ostensible authority, and not known to the principal at the time of receiving the proceeds, though such collateral contract may have been the means by which the agent was enabled to effect the authorized contract, and the principal retain the proceeds thereof after knowledge of the fact. (Smith vs. Tracy, 36 N. Y. 79; and see Hammond vs. Michigan State Bank, Walker's Ch. K. 214; Young vs. White, 7 Beav. 500.) A party dealing with an agent is bound to enquire as to the extent of his authority; but he cannot always protect himself against his frauds. The cases in which it is held that, if the principal ratifies and enjoys the benefit of a part of a contract he cannot repudiate the rest, refer to an intentional ratification, with knowledge of all that has been done. (Story on Agency, § 250; Farmer's Loan & Trust Co. vs. Walworth, 1 N. Y. 434; Smith vs. Tract/, 36 N. Y. 79; Dunlap's Paley, 172, 173.) But this case does not come within the principle of any of those cited. Here, according to defendants' version of the facts, the acts of Blanchard were not done as the means of accomplishing any- thing which he was authorized by the defendants to perform as their agent, nor were the sums paid received by them as the fruits of any contract made in their behalf and which they adopted, but upon an independent dealing between them and Blanchard, and as his money raised on his own credit and their goods. The judgment cannot be sustained, on the ground that the evi- dence justified the direction of a verdict for the plaintiffs; and it must therefore be reversed, and a new trial ordered, with costs to abide the event. 20i Cases on Agency. [Book I (113 Massachusetts, 291, 18 Am. Eep. 480.) THACHER vs. PRAY. ( Supreme Judicial Court of Massachusetts, October, 1873. J One Gray had in his possession a horse belonging to the plaintiff Thacher. Gray also owed Thacher for potatoes sold to him by the latter. Gray wrongfully sold the horse to defendant Pray, receiv- ing in payment the satisfaction of a debt which he owed Pray, and also a cashier's check or draft for $100. Gray wrote to Thacher about his indebtedness for the potatoes, enclosing this check and saying: "I send you a check for one hundred dollars. Please credit me for the same." He said nothing about the sale of the horse. When Thacher discovered that the horse had been sold, he demanded its return of Pray, but the latter refused unless Thacher returned the check or its proceeds, which Thacher declined to do. Thacher then brought this action to recover the horse or its value. Thacher asked the court to charge the jury that if Gray sent him this check to be applied on account of the potatoes, and Thacher so received and applied it before he knew of the sale of the horse, the mere fact that it was the same check that Pray gave Gray for the horse was of no consequence, and that Thacher's receipt and application of the check would not, under the circum- stances, amount to a ratification of the sale of the horse, nor was ho obliged to return the check to Pray before bringing this suit. The court declined so to charge, and instructed the jury, in sub- stance, that Thacher's retention of the check after he knew of its origin would bar the action and amounted to a ratification of the sale. Verdict for defendant, and plaintiff alleged exceptions. W. H. Fox, for plaintiff. H. J. Fuller (E. H. Bennett with him), for defendant. Endicott, J. The instructions upon which this case was given to the jury failed to notice an important portion of the evidence. If the only dealings between the plaintiff and Gray related to this horse, and the money paid for the horse by the defendant to Gray, who had no authority to sell, had been sent to the plaintiff, the taking and keeping it might be a ratification of the sale by Gray; or, if the plaintiff had wished to rescind it, he should return the money bo received. But the evidence in the case required other Ohap. V ] Thachee vs. Prat. 205 and further instructions. It appeared that the plaintiff had sent potatoes to Gray for sale, and there was evidence tending to show that the check for $100, taken by Gray on account of the wrong- ful sale of the horse, was paid over to the plaintiff, received by him, and accredited on account of the potatoes, and the plaintiff did not know that the horse had been sold for a long time afterward. These facta justify the plaintiff's prayer for instructions, and we think they should have been given. It does not affect the rights of the parties that the same check which defendant gave Gray waa given to the plaintiff, if it was applied to the settlement of an existing account between them, without any notice that it was a part of the proceeds of the unauthorized sale of the horse. Being indorsed by Gray, it was in the plaintiff's hands payable to bearer, transferable by delivery, and subject to the same rules as bank bills, coupons, or other instruments payable in money to bearer. Spooner vs. Holmes, 102 Mass. 503, 3 Am. Rep. 491. It is as if Gray had cashed the check and sent the identical or other bills to the plaintiff. It was held in Lime Rock Bank vs. Plimpton, 17 Pick. 159, 28 Am. Dec. 286, where an agent had lent the money of his principal to his private creditor, who appropriated it to the payment of the debt, that the principal could not recover it, the creditor not know- ing at the time of the loan that the money belonged to the princi- pal. The creditor had the right to secure his private debt, and being money having no ear mark, it did not stand on the same ground as chattels. A party is not bound to inquire into the author- ity of a person from whom he receives money in payment of a debt, for a different doctrine would be productive of great mischief. In that case as in this, there was no privity between the parties, and the equities were much stronger than here. Exceptions sustained. 2U6 Cases on Agency. [Book I VI. THE RESTJLT8 OF RATIFICATION". 1. Between Principal and Agent, (13 Bush, 526, 26 Am. Eep. 211.) BANK OF OWENSBORO vs. WESTERN BANK. {Kentucky Court of Appeals, September, 1877. J Plaintiff bank requested defendant bank to loan some money for it on good notes. Defendant therefore loaned $5,000 to one Atwood on his note secured by stock of the Bank of Louisville. That bank claimed a lien on the stock, of which defendant informed plaintiff, but also informed plaintiff that the Bank of Louisville had agreed to release the lien. On this information, plaintiff accepted the note and the stock as collateral, but, having brought suit against the Bank of Louisville to compel a transfer of the stock, waa defeated, and the lien of the Louisville bank was held prior to plaintiff's. Atwood, in the meantime, had failed, and plaintiff not being able to collect from him, brought this action against defendant, charging it with negligence in making the loan. Judg- ment below for defendant, and plaintiff appealed. James 8. Pirile, 0. W. Carutli and Thomas Speed, for appellant. Muir, Bijur & Davie, for appellee. Cofer, J. (After stating the facts). The only grounds urged for a reversal is, that the court erred in instructing the jury in respect to the alleged ratification. The evidence showed, without contra- diction, that before the appellant received the note and collaterals, and brought suit against Atwood and the Bank of Louisville, it knew that the latter claimed a lien on the stock pledged to secure Atwood's note for an amount exceeding its value. But also showed that the appellee's cashier informed the appellant, that before the loan was made the Bank of Louisville agreed to release its lien, or, what was the same thing, to transfer the 6tock on its books into appellant's name. That the appellee's cashier knew, before he made the loan, that the Bank of Louisville had a lien on its stock for debts due the bank by the holders thereof, and that Atwood was then indebted to the bank • See also Hazard vs. Sjjears, ante, p. 182. Chap. V] Bank vs. Bank. 207 in a sum greatly exceeding the value of the stock, was not at any time disputed, the sole matter in dispute being whether it had agreed to waive its lien when called on by Hurter before he made the loan. That question was never finally settled until the judg- ment in favor of the Bank of Louisville was rendered. Upon this evidence the court instructed the jury that if the appellee fairly and fully communicated to the appellant all the facts and circumstances connected with the loan which were known to the appellee or its agent, Hurter, and that the appellant knew of the insolvency of Atwood and the claim asserted by the Bank of Louisville and thereafter adopted the transaction, and received the note and collaterals and treated them as its own, the law was for the appellee, although it might have been guilty of such negligence as would otherwise have rendered it liable. The doctrine that if an agent has, by a deviation from his orders, or by any other misconduct or omission of duty, become responsi- ble to his principal for damages, he will be discharged therefrom by the ratification of his acts or omissions by the principal, if made with a full knowledge of all the facts, is elementary. But the instructions given in this case went further, and held that if the principal, at the time of accepting the note and collaterals, knew all the facts touching the loan and affecting the value of the security, which were then known to the agent, and with such knowl- edge received them and treated them as its own, the agent was dis- charged from liability. We have examined many authorities, both elementary and judicial, in which the doctrine of ratification, as between principal and agent, is discussed, but we have not found one which considered the good faith of the agent as an element in deciding whether or not there had been a ratification; but, on the contrary, whenever the good faith of the agent has elicited remarks, it has been to the effect that it could have no weight in the decision of this question. "Indeed, in all such cases the question is not whether the party (agent) has acted from good motives and with- out fraud, but whether he has done his duty and acted according to the confidence reposed in him." Story on Agency, sec. 192. Nor do we find any authority for exonerating a delinquent agent from liability if he communicates to the principal all the facts known to him at the time, and the principal ratifies the delinquency, and it afterwards turnB out that the facts as communicated were not the real facts of the case. In such a case the assumed condi- tion is not that claimed to have been ratified. 208 Cases on - Agency. [Book I It was the duty of the appellee to loan appellants money on good security, or such as a person of common prudence and skill in business would have esteemed good. It did loan it upon a security confessedly sufficient if unincumbered, but which, as the event has proved, was incumbered to its full value, and therefore was no security at all. The appellee, through its cashier (for whose acts we assume for the present it was liable), represented that the stock was not in lien to the Bank of Louisville; in other words, that the security was good. To know whether the representation was true was necessary to enable the appellant to make an election. It is true it knew that the Bank of Louisville asserted a lien, but whether that lien was superior to the appellant's, or had been waived as appellee represented, it did not and could not know until the dispute was settled. We have, therefore, a case in which, when the alleged ratification was made, both the principal and agent were necessarily ignorant of the most material fact in the whole case, and consequently there could not have been such a ratification as would release the agent from liability if its conduct had been such that it was otherwise liable. The gravamen of the appellant's complaint is, that the appellee negligently failed to take sufficient security for the loan; and the defense is, that the alleged negligence has been ratified; and yet the uncontradicted evidence is, that at the time of the sup- posed ratification it was not known that there had been the slightest negligence or that the security was insufficient. It was not the act of making the loan that needed to be ratified; that was expressly authorized. Nor did the acceptance of the bank stock as security need ratification. The stock was confessedly worth more than the loan. That which needed ratification was the acceptance of the stock subject as it was to the Hen of the Bank of Louisville as security for the loan. If, as the appellee affirmed, it was not subject to the asserted lien, there had been no negligence, and there was nothing to ratify. Whether it was subject to that lien was never known until the suit to test the question was decided; and then, and not until then, did the appellant obtain a knowledge of the facts necessary to make an election whether to adopt or repudiate the acts of its agents. We have found no case, the facts of which are sufficiently like the facts of this, to make the decision rendered a controlling precedent in this case; but assuming the two fundamental rules of Chap. V] Bank vs. Bank. 209 the law of agency, (1) that -when the agent has deviated from his duty he becomes liable to his principal for snch losses as are the direct and natural consequence of such deviation, whether his motives were good or bad; and (2) that he is only released from that liability when the principal, with a knowledge of all the facts, ratifies his departure from his duty, and we think there can be no doubt of the correctness of the conclusion we have reached. There was not ouly no evidence that the appellant knew at the time of the alleged ra pellee had taken insufficient security, but, on the contrary, the evidence was uncontradicted and conclusive that it did not, and there was therefore no evidence upon which to base an instruction on the subject of ratification. None of the cases cited by appellee's counsel are like this. We cannot undertake to review them one by one, and point out the distinction between them and this case; but an examination of them will show that in every one in which the agent was held to be dis- charged from liability for deviations from orders or duty, the prin- cipal knew at the time of the ratification that the agent had not done his duty, whereas, in this case, as we have already seen, the appellant did not and could not know that the appellee had not taken ample security until it was decided that the Bank of Louis- ville had not waived its lien on the stock. This conclusion is sus- tained by the cases of Bank of St. Marys vs. ('alder, 3 Strobh. 403; Walker vs. Walker, 5 Heisk. 425; and by Wharton on Agents and Agency, § 67. (Omitting a point decided not to be in issue.) If, in view of the character and standing of Atwood at the time the loan was made, the knowledge the appellee (or, what is the same thing, its cashier) had of the lien on the collaterals given to the Bank of Louisville by its charter, what took place between the appellee's cashier and the officers of the Bank of Louisville, and his information as to Atwood's indebtedness to it, the loan would not have been made on the security taken by a person of ordinary prudence and skill in banking, the appellee is liable, otherwise it is not. Judgment reversed, and cause remanded for a new trial upon principles not inconsistent with this opinion. To the petition of counsel for appellee for a rehearing, Judge Cofer delivered the following response of the court: We have carefully re-examined the grounds upon which the 14 210 Cases on Agency. [Book I opinion already delivered herein is based, and the anthorities relied on by the learned connsel for the appellee to show that the conclu- sion then reached was erroneous, but have failed to detect any error in the reasoning by which we reached that conclusion, or any con- flict between the opinion and the cases cited by connsel. We have, however, concluded that one portion of the opinion was not neces- sary to a decision of this case, and it has been stricken out. "We said in the opinion that we could not undertake to review all the cases cited by counsel, and point out the distinction between them and this case, and therefore contented ourselves with saying that there was such a distinction. In the petition counsel have cited only a portion of the cases cited on the hearing, and we deem it due to them, as well as ourselves, to indicate the distinction between those cases and this case. The cases cited are Courcier vs. Ritter, 4 Wash. 549; Caimes vs. Bleeker, 12 Johns. 300; Pickett vs. Pear- son, 17 Vt. 470; and Hanks vs. Drake, 49 Barb. 202. The facts in Courcier vs. Bitter were these: In October, 1812, Ritter, a merchant of Philadelphia, consigned to Courcier, a merchant of Bordeaux, forty bags of coffee, with instruction to sell immediately on arrival, and forward to him by the same vessel the articles mentioned in the letter of advice. The coffee was not landed until March, 1813, but Courcier had previously written that as soon as it was landed he should use his best endeavors to effect an advantageous sale, and would ship by the return of the vessel the articles ordered. April 28 he again wrote to Ritter as follows: " I have not been able yet to procure a sale of your coffee, but no exertions will be wanted to avail myself of the first favorable change in the market." Courcier did not again write to Ritter until May 21, 1815, when he inclosed an account of sales, by which it appeared that the coffee had not sold for enough to reimburse the advance made by the shipment of articles ordered by Ritter, and the suit was brought to recover the balance due thereon. Ritter defended on the ground that his instructions to sell immediately had not been obeyed, and he had been damaged by the holding of the coffee by Courcier; to which Courcier replied, that by accepting the return cargo (which was procured by an advance made by him, and was not purchased with the proceeds of the outward cargo), and by not promptly objecting to the alleged violation of his orders, of which the letter of April 28 informed him, Ritter had ratified what was done. Chap. V] Bank vs. Bank. 211 In considering tins part of the defense, Mr. Justice "Washington said: " If the principal, being informed by his agent pf the devia- tion from his orders, makes no objection to his conduct, the law construes his silence into a tacit recognition of the act or omission, against which he will not be permitted afterwards to complain. The reason is obvious. He shall not by his silence place his agent in the predicament of losing all the gain which may result from his well-intended disobedience, and yet be exposed to sustain the loss which a mistaken judgment or unforseen circumstances may produce." This principle we recognize fully. " If," says the learned judge, " the principal, being informed by his agent of the deviation from his orders makes no objection to his conduct, the law construes his silence into a tacit recognition," etc. But suppose he, as the appellee did in this case, fails to notify his principal that he has deviated from his orders, what, then, does the law imply from the silence of the principal? The same learned judge, in the same case, referring again to the letter of April 28th, says: " He does not say that he has declined selling on account of the low price of coffee, which would subject his correspondent to a loss, but that the sale of it is impracticable. * * * He discloses no breach of orders whatever, if the fact was that no sales could be made; and consequently the defendant's silence had no known violation of duty to recognize or ratify." Such is precisely the case here. The appellee did not disclose that it had violated its orders, but affirmed that it had not, and ''there was no known violation of duty to recognize or ratify." Cairnes vs. Bleeker is a very long case, but may, for the purposes of this case, be briefly stated as follows: Bleeker received from Cairnes certain goods m&rked M. Gillett, and was instructed to deliver them to Gillett whenever he deposited with him (Bleeker) property amply sufficient to secure certain drafts drawn by Gillett on Bleeker in favor of Cairnes. In July, after the goods were deposited with Bleeker, he wrote to Cairnes, informing him that a certain quantity of ashes had been deposited by Gillett to secure the drafts, and that the goods received for Gillett had been deliv- ered to him. The ashes then held by Bleeker seem to have been understood by both parties not to be "amply sufficient to secure the drafts," for in the same letter, informing Cairnes of the deliv- ery of the goods to Gillett, he was notified that Gillett promised 212 Cases on Agexcy. [Book I more aslies by the next trip of the vessel by which the first lot was shipped. In October Cairnes wrote to inquire of Bleeker what other prop- erty, besides the ashes shipped as above stated, Gillett had placed in his hands when he took away the last of the goods. November 1st Bleeker informed Cairnes that Gillett had deposited no property besides the ashes already shipped. On the 12th of the following February Cairnes informed Bleeker by letter that he should look to him for the value of the goods left with him, and which he, in violation of his instructions, had delivered to Gillett without the required deposit of " property amply sufficient to secure the drafts." That letter was not answered, and August 3d following, formal demand was made upon Bleeker for the goods, which he refused to deliver. In commenting on these facts the court said: " On the 18th of July, 1811, the defendant informed the plaintiff that he had, on the 17th day of that month, delivered to Gillett the last parcel of the goods, and that he (defendant) had received from him twenty-six casks of ashes. * * * The plaintiff rests satisfied until October the 29th, and tl;en, for the first time, asks for information what other property Gillett had placed in his hands when he took the last of the goods." The duty and instructions of Bleeker were not to deliver the goods to Gillett until he should deposit with him "property amply sufficient to secure the drafts." Those instruc- tions were violated, and Cairnes was distinctly informed of the fact by letter dated July 18, and with that information he remained silent until October 29. It was held he could not recover. The statement of facts in Pickett vs. Pearson is very long; but the point decided in the case may be shown by the following state- ment: The defendant undertook to collect money for the plaintiff who resided in Vermont, from debtors residing in the then terri- tory of Wisconsin, and was instructed to receive from one of them only gold and silver or bank-notes at par in Vermont; but the defendant disobeyed his orders, and received for a portion of the debt bank-bills not worth more than twenty cents on the dollar, and for the residue he took the note of the debtor. On his return he delivered the bills and note to the plaintiff, who said he did not know the value of the bills, but would see what he could do with them. He received them November 14, and during the ensuing winter learned they were worth only twenty cents on the dollar, Chap. V] Bank vs. Bank. 213 and as soon as he ascertained their value he notified the defendant, and requested him to make up the money as good as the plaintiff had instructed him to receive, but he did not offer to return the bills until after he had sued the defendant, and it does not appear that he ever offered to return the note of hand taken by the defendant for a part of the debt. The defendant at the time of receiving the bank-bills from Chickering, the debtor, took from him a guaranty with surety that the bills were good, and that also was delivered to the plaintiff with the bills, and was retained by him until after suit was commenced. In commenting on the facts, the court said: "It seems very plain to us that the plaintiffs taking the money and guaranty, and keeping them for months, fully exonerated the defendant. The plaintiff received of the defendant all that the defendant received of Chickering, and all that belonged to him, under protest, to be sure, that he would see what could be done with the money. How long a time is to be allowed him to ascertain that fact? It could hardly be pretended that two or three months were necessary to ascertain that fact. It could just as well be done in as many weeks, and very likely in as many days." The case was made to turn upon the delay to return the bills after the plaintiff had learned they were not such as he had directed to be received. He knew then that his instructions had been violated, and then, and not until then, or until he might, by proper diligence, have learned the fact, did he become bound by a ratification. The case of Hanks vs. Drake is thus correctly stated by counsel: " The principal employed the agent to sell stocks for him at a particular time. The agent sold them prematurely, whereby loss was occasioned to the principal. The agent rendered an account to the principal of what he had done. The principal remained silent for four months, then received the proceeds of the sale, and sued the agent for damages for the difference. "The court held that the right of action was lost by ratification, saying: 'When they sold the stock and rendered the account, it was the duty of the plaintiff to have dissented at once. Had the plaintiff so dissented, the defendant could have replaced the stock without loss/ and saying further: 'The plaintiff, however, claims that such acts are not a ratification unless he had full knowledge of his rights. I do not understand such to be the rule; but the party must have full knowledge of the facts and circumstances of 214 Cases on Agency. [Book I the transaction.'" Here was four months of silence after the prin- cipal knew his instructions had been violated. It thus appears that between each of the cases cited in the petition (and we assume they are as pertinent as any counsel have been able to quote) and the case at bar there is the clear and marked distinction that in the former the principal knew at the time of the alleged ratification that his instructions had been dis- obeyed, while in the latter the principal not only did not know that his orders had not been obeyed, but the agent insisted there had been no disobedience. (Omitting another point not in issue.) But we are referred to our opinion in Trigg vs. The Second National Bank, as inconsistent with the opinion in this case. The following extract from the opinion in that case will be sufficient to distinguish it from this and to show that it belongs to the same class with the cases cited by counsel, and which we have just reviewed. We said: "The evidence showed that the note was delivered to appellants in December, and that they then knew the facts in regard to the financial condition of the parties to the note and the value of the collaterals." In other words, the appellants in that case knew, when they accepted the securities taken by the appellee, the value of those securities, and if their agent had deviated from its duty, they then knew the facts. The petition must be overruled. Note.— See, also, Walker vs. Walker, 5 Heisk. (Tenn.) 425; Rathbun vs. Steamboat Co., 76 N. Y. 376, 32 Am. Rep. 821; Trigg vs. Jones, 46 Minn. 277. In the case last cited the court said: " There is no doubt that the general rule is that, by a ratification of an unauthorized act, the principal absolves the agent from all responsibility for loss or damage growing out of the unauthorized transaction, and that thenceforward the principal assumes the responsibility of the transaction, with all its advantages and all its burdens. Neither is there any question but that, where the rights and obligations of third persons may depend on his election, the principal is bound to act and give notice of his repudiation or disaffirmance of the unauthorized act at once, or at least within a reasonable time after knowl- edge of the act, and, if he does not so dissent, his silence will afford con- clusive evidence of his approval. Such a rule is necessary to protect the rights of third parties who have dealt with the agent. If the principal, after knowledge, remains entirely passive, it is but just, when the protec- tion of third parties require it, to presume that what, upon knowledge, he has failed to repudiate, he has tacitly confirmed. But it is apparent that the reasons for such a rule do not apply with equal force in favor of the agent himself, who has wrongfully committed the unauthorized act. Con- sequently mere passive inaction or silence, which would amount to an implied ratification in favor of third parties, might not amount to that in Chap. V ] Bank vs. Bank. 215 favor of the agent, so as to absolve him from liability to his principal for loss or damage resulting from the unauthorized act, especially if such inac- tion or failure to immediately disaffirm was induced by the assurances or persuasion of the agent himself. Nor in this case does the affirmative action of the plaintiff, after knowledge of the delivery of the deed, in taking part in the preliminary steps for the organization of the contemplated stock company, of itself amount to a ratification of the unauthorized act. Such steps were right in the line of the original agreement between the parties and were designed to carry it into effect, induced, as such action probably was, by the assurances of Jones (the agent) that the enterprise would s ill go on, and plaintiff get his stock, it really amounted to nothing more than an effort on plaintiff's part, after knowledge of Jones' deviation from his instructions, to avoid loss thereby, which is not such a ratification as will relieve the agent. Mechem, Ag. § 173. Upon proof that Jones' act was without original authority, the burden was upon him to show 6uch a subse- quent ratification as would relievo him from liability. The court has not found any 6uch ratification, and, in our opinion, under the evidence, he was justified in finding, as he in effect does, that there was none." 2. Between Principal and the Other Parti/, (14 Wisconsin, 686.) DODGE vs. HOPKINS. {"Supreme Court of Wisconsin, June, 1861.) This was an action to recover installments due upon a written contract under seal by which Dodge had agreed to sell Hopkins certain lands which the latter agreed to buy and pay for in given installments, one of which was paid to the agent at the date of the contract. The contract was executed on the part of Dodge by an agent who assumed to act under a letter of authority from Dodge and his wife which had been executed in Spain. It was objected on the trial that the power of attorney was not so executed as to authorize the act of the agent. There was no evidence that defend- ant had at any previous time sought to repudiate the contract on this ground, but he sought to file a supplemental answer showing that since the commencement of suit he had tendered the money to an alleged agent of plaintiff and demanded the deed agreed upon. The supplemental answer was rejected. Judgment for plaintiff and defendant appealed. 216 Cases on Agency. [Book 1 J. C. Hopkins, for appellant. Abbott, Gregory & Pinney, for respondent. Dixon, 0. J. (After deciding that the supplemental answer was properly rejected because it did not appear that the agents had authority to accept the money or make the conveyance, and that the power of attorney was not sufficient to authorize the agent to execute the contract on the part of the plaintiff because as the power from Dodge and his wife was joint, it did not authorize a sale of the separate property of Dodge alone.) We are next to ascertain the effect of this want of authority upon the rights of the defendant. It is very clear, in the present condition of the case, that the plaintiff was not bound by the contract, and that he was at liberty to repudiate it at any time before it had actually received his sanction. Was the defendant bound? And if he was not, could the plaintiff, by his sole act of ratification, make the contract obligatory upon him? We answer both these questions in the negative. The covenants were mutual — those of the defendant for the payment of the money being in consideration of that of the plaintiff for the conveyance of the lands. The intention of the parties was that they should be mutually bound — that each should execute the instrument so that the other could set it up as a bind- ing contract agaiust him, at law as well as in equity, from the moment of its execution. In such cases it is well settled, both on principle and authority, that if either party neglects or refuses to bind himself, the instru- ment is void for want of mutuality, and the party who is not bound cannot avail himself of it as obligatory upon the other. Townsend vs. Coming, 23 Wend. (N. Y.) 435; and Townsend vs. Hubbard, 4 II ill, (N. Y.) 351, and cases there cited. The same authorities also show that where the instrument is thus void in its inception, no subsequent act of the party who has neglected to execute it, can render it obligatory upon the party who did execute, without his assent. The opinion of Judge Bronson in the first named case is a conclusive answer to all arguments to be drawn from the subsequent ratification of the party who was not origi- nally bound. In that case, as in this, the vendors had failed to bind themselves by the agi L. He says: "It would be most extraordinary if the vendors could wait and speculate upon the market, and then abandon or set up the contract as their own interests might dictate. But without any reference to prices, and Chap. V] Dodge vs. Hopkins. 217 whether the delay was long or short, if this was not the deed of the vendee at the time it was signed by himself and Baldwin (the agent), it is impossible that the vendors, by any subsequent act of their own without his assent, could make it his deed. There is, I think, no principle in the law which will sanction such a doctrine." The only point in which the facts in that case differ materially from those here presented, is that no part of the purchase money was advanced to the agent. But that circumstance cannot vary the application of the principle. The payment of the money to the agent did not affect the validity of the contract, or make it bind- ing upon the plaintiff. He was at liberty to reject the money, and his acceptance of it was an act of ratification with which the defendant was in no way connected, and which, although it might bind him, imposed no obligation upon the defendant until he actually assented to it. It required the assent of both parties to give the contract any vitality or force. I am well aware that there are dicta and observations to be found in the books, which, if taken literally, would overthrow the doctrine of the cases to which I have referred. It is said in Laivrence vs. Taylor, 5 Hill, (N. Y.) 113, that "such adoptive authority relates back to the time of the transaction, and is deemed in law the same to all purposes as if it had been given before." And in Neiifton vs. Bronson, 3 Kern. (N. Y.) 594 (67 Am. Dec. 87), the court say: " That a subsequent ratification is equally effectual as an original authority, is well settled." Such expressions are, no doubt, of frequent occurrence,and although they display too much carelessness in the use of language, yet if they are understood as applicable only to the cases in which they occur, they may be considered as a correct statement of the law. The inaccuracy consists in not properly distinguishing between those cases where the subsequent act of ratification is put forth as the foud 'at ion of a rigid in favor of the party who has ratified, and those where it is made the basis of a demand against him. There is a broad and manifest difference between a case in which a party seeks to avail himself, by subse- quent assent, of the unauthorized act of his own agent, in order to enforce a claim against a third person, and the case of a party acquiring an inchoate right against a principal by an unauthorized act of his agent, to which validity is afterwards given by the assent or recognition of the principal. Paley on Agency, ] ( J2, note. The principal in such a case may, by his subsequent assent, bind him- self, but, if the contract be executory, he cannot bind the other 218 Cases on Agency. [Book I party. The latter may, if he choose, avail himself of such assent against the principal, which, if he does, the contract, by virtue of such mutual ratification, becomes mutually obligatory. There are many cases where the acts of parties, though unavailable for their own benefit, may be used against them. It is upon this obvious distinction, I apprehend, that the decisions which I have cited are to be sustained. Lawrence vs. Taylor and Newton vs. Bronson were both actions in which the adverse party claimed rights through the agency of individuals whose acts had been subsequently ratified. And the authorities cited in support of the proposition laid down in the last case ( Weed vs. Carpenter, 4 "Wend. [N. Y.] 219; Episco- pal Society vs. Episcopal Church, 1 Pick. [Mass.] 372; Corning vs. Southland, 3 Hill, [N. Y.] 552; Moss vs. Rossie Lead Mining Co., 5 Id. 137; Clark vs. Van Riemsdylc, 9 Cranch. [U. S.] 153; Willi nks vs. HoUingsworih, 5 Wheat. [U. S.] 241;, will, when examined, be found to have been cases where the subsequent assent was employed against the persons who had given it, and taken the benefit of the contract. * * * Eeversed. Note. — Compare this case with the two following. This case has been followed in later Wisconsin cases. See Atlee vs. Bartholomew, (1881) G9 "Wis. 43, 5 Am. St. Rep. 103, and note. See also 24 American Law Review, p. 5S0. In Yerkes vs. Richards, (1893) 153 Penn. St. 646, it is held that an agree- ment to sell land at the option of the vendee is not rendered void for want of mutuality because the vendee was a feme covert, and the agent who contracted for her had no authority to bind her thereby; and on election and offer of performance by such vendee the contract will be enforced against the vendor. Corson vs. Mulvaney, 49 Pa. St. 88, followed. Notice to quit, given by one assuming to act as agent for another, but having no authority, cannot be ratified after the time when the notice is to operate, so as to lay the foundation for summary proceedings under the landlord and tenant act. Pickard vs. Perley, (1"G4) 45 N. H. 188, 86 Am. Dec. 153; Brahn vs. Jersey City Forge Co., 38 N. J. L. 74; Right vs. Cuttrel, 5 East. 491; Doe vs. Walters, 10 B. & C. 625; Doe vs. Gokhvin, 2 Q. B. 143. Contra: Roe vs. Pierce, 2 Camp. 96; Gooutitle vs. Woodward, 8 B. & Aid. 689. Chap. V] McClintock vs. Oil Company. 219 (146 Pennsylvania State, 144, 28 Am. St. Rep. 785.) McCLINTOCK vs. SOUTH PENN OIL COMPANY. (Supreme Court of Pennsylvania, January, 1892. J One Donaldson entered into a written contract to sell to the plaintiff, Mattie M. McClintock, certain real estate therein described on terms therein stated. Afterwards her husband agreed to trans- fer the contract to the defendant for $1,150, and he indorsed upon the contract a receipt as follows: Pittsburgh, Pa., December 23, 1889. Received of the South Penn Oil Company, fifty dollars of the purchase money for the within contract. The balance to be paid by 26th, on making the necessary transfer, is to be eleven hundred dollars. Mattie M. McClintock, By Alex. McClintock. On December 26, defendant endorsed on the contract the neces- sary writiug for a formal transfer of it, and requested it to be prop- erly executed and returned the next day, when the money would be paid. The transfer was properly executed by McClintock and wife, and tendered to defendant, but defendant refused to accept it and pay the $1,100, unless McClintock would get Donaldson to make certain alterations in the contract. McClintock tried to have this done, but Donaldson refused. Plaintiff then offered to return to defendant the fifty dollars paid on the date of the receipt, and requested defendant to cancel the assignment, but this defendant refused to do, and notified Donaldson that it held the contract by assignment. Plaintiff not receiving the payment from defendant, was not able to pay to Donaldson a payment due soon after, and lost her rights under the contract. She brought this action for damages, and recovered. Defendant appealed. Boyd Crumrine, Henry Mc Sweeney, Charles M. Thorpe and E. E. Crumrine, for the appellant. R. W. Irwin, John W. Donnan, A. Donnan, and if. C. Acheson, for the appellee. Mitchell, J. The receipt by plaintiff's husband expressed the fact of a sale, by the acknowledgement of receipt of part of the purchase money, and fixed the time and amount of the remaining payment. All the other terms of the contract, including the 220 Cases on Agency. [Book 1 identification of the subject matter, were shown by the original agreement of Donaldson, on which the receipt was indorsed. The two papers thus constituted one instrument, which, so far as appears on its face, was a sufficient memorandum in writing to sat- isfy the statute of frauds. Its defect in that regard was dehors the instrument itself, and lay in the want of written authority in the husband to act as agent for his wife. Had his authority been in writing at that time, even though on a separate paper, no question of the validity and binding force of the contract could have arisen. His action as agent was, however, formally ratified and adopted by the wife in writing before any rescission or change of position in any way by the defendant. The exact question before us, therefore, is whether such ratifica- tion by the wife, of its own force, perfected and validated the agent's original contract, or whether it still required acceptance by the grantee. No case precisely in point has been found, and we are left to determine the question on general principles. It is conceded that a deed tendered by the vendor, but refused by the vendee, will not validate a parol contract, and it is argued that the present case stands upon the same footing. But I apprehend that the rule in question results from the common-law requirement that every writ- ing must be accepted before it becomes a contract. It is sometimes said, however, that the reason a deed tendered is ineffectual under the statute is, that until such tender the vendor was not bound; the vendee could not have held him, and there being, therefore, a want of mutuality in the agreement, equity will not specifically enforce it. Whether the equitable doctrine of mutuality has any proper place in cases arising under the statute of frauds is a vexed question on which our decisions are not in harmony, and are badly in need of review and authoritative settle- ment. See Tripp vs. Bishop, 56 Pa. St. 424; Mcason vs. Kaine, 63 Pa. St. 335; Sands vs. Arthur, 84 Pa. St. 479; and the com- ment upon them by Judge Reed in his treatise on the statute of frauds, sec. 367. But whatever the foundation of the rule, it is doubtful if the case of ratification of an agent's act comes fairly within it. If the agent had been properly authorized, the contract would have bound both parties in the first instance, and the settled rule is that ratification is equivalent in every way to plenary prior authority. The objection of want of mutuality is not good in many cases of dealing with an agent, for if he exceeds his authority, Chap. V] McCllntock vs. Oil Company. 221 actual and apparent, his principal will not be bound, yet may ratify, and then the other party will be bound from the inception of the agreement. The aggregatio mentium of the parties need not commence simultaneously. It must co-exist; but there must be a period when the question of contract or no contract rests on the will of one party to accept or reject a proposition made, and this interval may be long or short. The offer, of course, may be revoked or withdrawn at any time prior to acceptance, but after acceptance it is too late. The contract is complete. If, in the present case, the defendants had written a letter to plaintiff stating that they had made the agreement with her hus- band as agent, but that his authority not being in writing, they requested her to send them a written ratification, and thereupon she had written and mailed an acceptance and ratification of her agent's act, there could be no question of the contract. Hamilton vs. Lycoming Mut. Ins. Co., 5 Pa. St. 339, and cases cited in 3 Am. & Eng. Ency. of Law, 856, tit. "Contract;" and 13 Am. & Eng. Ency. of Law, 233, tit. "Mail." And, in effect, that is just what the defendant did here. It made the original agreement with the husband, evidenced by his indorsement on the Donaldson contract, which was delivered into its possession. On the day that payment was called for by the indorsed agreement, the defendant further indorsed on the contract an assignment by husband and wife, which would be a written ratification of the most formal kind of the husband's previous act, and, as the jury have found, delivered it to the husband unconditionally for execution and acknowledg- ment. The defendant's consent to the contract sued upon was thus manifested; and upon acceptance by plaintiff, the contract became binding as a common-law contract of both parties, and upon her signature it became a contract in writing within all the require- ments of the statute. The objects of the act, certainty of subject matter, precision of terms, reliability of evidence, and clearness of intent of the land owner, are all secured, and we see no particular in which either the letter or the policy of the statute has been violated. The cases cited by appellee, though not decisions on the precise point, tend to sustain the conclusion here reached: Maclean vs. Dunn, 4 Bing. 722, was under the English statute, which requires only that the agent should be "lawfully authorized;" but the opinion of Lord Chief Justice Best illustrates the effectiveness of ratification as equivalent to antecedent authority. In our own 222 Cases on Agency. [Book I case of McDowell vs. Simpson, 3 Watts, 129, 27 Am. Dec. 338, the opinion of Kennedy, J., is clearly expressed that a lease by an agent in excess of any authority, either parol or written, may be ratified, bnt the ratification to create a valid term for seven yeara must be in writing. So far as the case goes, it is directly in line with our present conclusion, and it has never been questioned, but on the contrary is cited with approval in Dunn vs. Rothermel, 112 Penn. St. 272. This disposes of the main question in the case, and with it the exceptions relating to the measure of damages fall. The plaintiff recovered only the contract price, to which she was entitled. * * * Judgment affirmed. Note. — See preceding and following cases and notes. (Law Reports, 41 Chancery Division, 295.) BOLTON PARTNERS vs. LAMBERT. (English Supreme Court of Judicature, Court of Appeals, March, 1SS9.J This was an action in the Chancery Division brought by Bolton Partners, an incorporated company, against Lambert to enforce the specific performance of an agreement to take a lease of certain premises. On the 8th of December, 1886, Lambert wrote to one Scratchley, who was then acting as managing director of the plaintiff company, offering to take the premises upon conditions Btated in his letter. Scratchley wrote to Lambert on the 9th acknowledging the receipt of the offer, and saying that he would refer it to the directors. On December 13, the " works commit- tee " decided to accept the offer and that Lambert should be so notified. On that day Scratchley wrote to Lambert saying that his offer had been accepted, and that the company's solicitor had been instructed to prepare the papers. It was admitted that the " works committee" had no authority to accept the offer or to bind the company to carry out its part of the agreement. On December 17, the plaintiff's solicitor sent defendant a draft of the agreement, but objection was made by the defendant to cer- Chap. V] Bolton Partners vs. Lambert. 223 tain provisions, and, after some correspondence, the defendant, on Jannary 13, 1887, wrote to plaintiff withdrawing his offer, on the ground that he had been misled by statements made to him as to the value of the property. On January 17 the writ in this action was issued by order of the board of directors, and on January 28 the board of directors formally confirmed the action of the " works committee" and Scratchley's letter of acceptance. The defendant denied that there had been any complete con- tract; and contended that after he had repudiated his offer it was too late for the company to ratify Scratchley's acceptance. He also relied on misrej)resentation. The action came up before Mr. Justice Kekewioh on the 19th of December, 1888, and he decreed specific performance, saying among other things, after finding that the letters made a complete contract and that there was no misrepresentation: " It is said that the contract cannot be enforced on the ground of want of mutuality, that is, that inasmuch as the company were not bound at any time before the 13th of January, 1887, Mr. Lambert cannot now be compelled to perform the contract he had entered into with them through their unauthorized agent. As regards the doctrine of mutuality, I have had to consider it many times. I am always afraid of quoting my own decisions. I do not think it is the right thing for a judge to do, but I often do refer to them when I can thereby avoid repeating in different words what I have said before. I see that in the case of Lee vs. Soames, 36 W. R. 884, I did refer to the doctrine, and to the cases on the sub- ject, and I did so even more fully in the case of Wylson vs. Dunn, 34 Ch. D. 569, 576, 577, where my view of the doctrine of mutuality is stated with express reference to the judgments of the Master of the Rolls in Forrer vs. Nash, 35 Beav. 167, and Lord Justice Fry in Brewer vs. Broadivood, 22 Ch. D. 105. But the question here is, what is the value of want of mutuality as regards a case of this kind. Why should Mr. Lambert be now entitled to get off his bargain because at that time the company was not strictly bound? Mr. Lambert does not seek to get off his bargain on that account. He repudiates it on entirely different grounds, and long before he set up this point of ultra vires the company had adopted the contract made on their behalf and had taken proceedings, and had waived any right they might have had as against him to resist specific per- formance of it if he had taken proceedings. On what possible ground therefore can he now complain that he is compelled to per- r^szi . : t [Book I ; . :ir-: ; Z E :•:: tt; a= v ill ~. . 7 I: =' -. :. ; " — : ; i -: 7 ._';•::: :-l. : -; 7. - . - i" _ :t : . . - from. - " . - ' ------ T_7 . 7 7 r * * * " ~:r. Z: 1 . 7 ". ' 7 1 . _ 7. :i : : n -~ if : - 1 1: 1 .. ■ : ~: . " - "_- "r . :' 7-7 r: 7 ... : irri:: 777 ilf. : n- .-:". :: . ~ _"..:" _ Thzz z .".Mr ?:~ 7-. ""."_ 7- .i: .: . 7 . . : \ . . _ I _ " -: . " ZZrZlZzTZ ' . - . J - 17 .* * a : : :. : ■ ] i_ '._ . : ri. 1 .1 : : _ - . . -.-.:: . ." L:_ : i:7-i-l vm\r_~ \ : 1 ■ " _ : 1 1: . ::-: * - 7 v~Zzzji: ~ - _ . .-r-.r\ 1 ~~ 77 7 771*7* : 1 -_t 1 : "77 *~ 1 7: "::^:: 7 :7 ' ; .7":- 7: _• . .1 7 -:...:. t -. : . . ■ - . - - z~ • . : -1 :: _ -7 -. But it B ' : ; T.i:.-; .7 77 ~: 7 1 : iLl: lit 7*-* . 7* : :777 111 7-1 - 77: -7 1 7*7*7.-7 1 77:7: ::' il' : . 1.7 1:177- ----- f _7 " _ - :-. ~_ .: 1 . " " :.' -. 1 ' - . : i z il' ;----- -_ — - ~ — Mr . 7 * . : * ; 7 ■ _ - :' n ' - i : - : 1 : * : • . " " " : - : ' 1 w 1 - ' ' 1 - * . ■ '777* " : ' " - 1-1.1 1 Chap. V] Bolton Pa*. wk Lajcbeit as if lie tad had authority to do the act at the time tlie act vas done by sea have been re r7 -red to as la; bet - like t7- :ase of Ragedorn vs. Olirerson. 2 il :, is a n of the principle. It- -favor- able the rule -was to the | rin 7 pal, be • _ he waa not bound,, and he had an option t had been done. In that c 7 7.1 Lai on a ship in which ar_ tb bt person va I been lost th. the act of t7 gh dcr^ viti enable _ -7 - : - -7- -A ..'jar*. Marl-?. 7H.&S ::e a bill _ - in thenar :na, who had ri~en n: :' : the.: I it vaa that J n hii ::en brought. - ". - ""':." rat:: t to a prior so as tc Ancona to sue upon 7 1: Mr. I for tant) t7:.t : 7. : : .:se t_ liability of the defendant :' the "ant tc A _a was j Anramafe and r. s i the agent, and a pre- 7 ns".; sting lia: dova The role as to rat An eel e of iti | ace I an] tion of the doctrine oi :s. J ama, L. E. 6 Z . _ : - . " re was an __- 1 been d afore :. fication bj Eendant; in at cast :ree- ment made between had • The case cf Bi-d \s. Brovm, 4 Ex. by t -i ra1 I not o] : : trans So, also, in 7 Kent. 12 Q. B. I who 15 226 Oases on Agency. [Book I represented the lawful heir desired, after the defendant Kennedy had acquired a title to the estate by means of the statute of limita- tions, and after the title of the heir was gone, to ratify the act of Kennedy as to the receipt of rents, so as to make the estate vest in the heir. In my opinion none of these cases support the appellant's contention. I think the proper view is that the acceptance by Scratchley did constitute a contract, subject to its being shown that Scratchley had authority to bind the company. If that were not shown there would be no contract on the part of the company, but when and as soon as authority was given to Scratchley to bind the company the authority was thrown back to the time when the act was done by Scratchley, and prevented the defendant withdrawing his offer, because it was then no longer an offer, but a binding contract. * * * The other justices delivered concurring opinions. Appeal dismissed. Note — See two preceding cases and notes. Ancona vs. Marks, 7 H. & N. 686, cited in the principal case, is cited and followed, as to the retroac- tive effect of the ratification of the institution of a 6uit, in Day Land & Cattle Co. vs. State of Texas, (1SS7) 68 Tex. 526. In Sequin vs. Peterson, (lS73i 45 Vt. 255, 12 Am. Rep. 194, a previous demand of a wife was held sufficiently ratified by the subsequent institu- tion of a suit by the husband, based upon such demand. See also Woodward vs. Harlow, (1856) 28 Vt. 338, ante p. 165; Rice vs. McLarren, ante p. 190. 8. Between Agent and the other Party, (4 Maule & Selwyn, 259.) STEPHENS vs. ELWALL. (English Court of King's Bench, Trinity Term, 1815.) Trover for goods which had been wrongfully sold by bankrupts after their bankruptcy. The goods had been bought by one Deane for his principal Hcathcote who was in America. Defendant was Heathcote's clerk, and, having received the goods, he sent them to Ileathcote. The trial judge, LeBlanc, instructed the jury that if Chap. V] Stephens vs. Elwall. 227 the defendant was acting merely as clerk for Ileathcote, he would not be liable; otherwise, if he was acting for himself. Verdict for the defendant. Motion for new trial. Park, contra. Topping and Richardson, for the motion. Lord Ellenborough, C. J. The only question Is, whether this is a conversion in the clerk, which undoubtedly was so in the master. The clerk acted under an unavoidable ignorance and for his master's benefit when he sent the goods to his master; but nevertheless his acts may amount to a conversion; for a person is guilty of a conversion, who intermeddles with my property and disposes of it, and it is no answer that he acted under authority from another, who had himself no authority to dispose of it. And the court is governed by the principle of law, and not by the hard- ship of any particular case. For what can be more hard than the common case in trespass, where a servant has done some act in assertion of his master's right, that he shall be liable, not only jointly with his master, but if his master cannot satisfy it, for every penny of the whole damage; and his person also shall be liable for it; and what is still more, that he shall not recover con- tribution. Le Blanc, J. I think the rule of law is very different from what I considered it at the trial. The great struggle made at the trial was whether the goods were for Heathcote or not; but that makes no difference if the defendant converted them. And here was a conversion by him long before the demand. Per Curiam. Rule absolute. Note.— "Where an agent who has without right purchased a husband's property from the wife, has taken possession, and turned it over to his principal, this of itself is a conversion: and demand by the husband before suing the agent for conversion is not necessary. Rice vs. Yocum, — Penn. St. — , 26 Atl. Rep. 698. If one having the custody of goods for carriage, fraudulently appropriate them to his own use by consigning them in his own name for sale to a fac- tor who makes advances upon them, the factor is liable for conversion to the rightful owner if he sell them and retain the advances out of the proceeds, although he is entirely ignorant of any want of title in his cus- tomer and wholly innocent of any wrong intent. Per Jackson, J., Ham- mond, J. contra: Moore vs. Hill, (1889) 38 Fed. Rep. 830. Any person, who, however innocently, obtains possession of the goods of a person who has been fraudulently deprived of them, and disposes of them, whether for his own benefit or that of another, is liable for a conversion. 228 Cases on Agency. [Book I BoTlins vs. Fowler, (1875) L. R. 7, H. L. 757, 14 Moat's Eng. Rep. 133. See, also, Saltus vs. Everett, 20 Wend. (N. Y.) 263, 32 Am. Dec. 541. So it has been held that an auctioneer who has, in good faith, received and sold property for one whom he supposed to have the right to direct the sale, but who, in fact, had no such right, is guilty of a conversion. Farebrother vs. Ansley, 1 Camp. 343; Adamson vs. Jarvis, 4 Bing. 66. A factor who receives for sale goods from one whom he believes to be the true owner, and having sold them, remits the proceeds to his consignor, is not liable for conversion to another who subsequently proves that he was the owner. Roach vs. Turk, (1872) 9 Heisk. (Tenn.) 708, 24 Am. Rep. 360. In a note to Ryman vs. Gerlach, 153 Penn. St. 197, 32 Am. L. Reg. 781, this rule is stated as the result of the authorities: "An agent is excused for what he does, if the act is of such a nature as would be excused if performed by a custodian having a lawful possession and prima facie title such as a finder or bailee, even though the possession of the servant or agent is wrongful, provided the latter is ignorant of the real ownership." Chap. VI] Appleiok Bank vs. McQilvbay. 229 CHAPTER VI. OF DELEGATION OF AUTHORITY. (4 Gkay, 618, 64 Am. Deo. 92.) APPLETON BANK vs. McGILVEAY. (Supreme Judicial Court of Massachusetts, October, 1855.) Defendants who did business in Boston held a note against a firm doing business in Lowell, due April 7, 1854. They delivered the note to an expressman between Boston and Lowell for collection, and directed him to collect in the ordinary way. The expressman Bometimes collected notes left with him by calling upon the maker personally and sometimes by depositing them in a bank. He did not inform defendants how he intended to collect their note, nor did he know whether they were aware that he sometimes collected through a bank. lie left the note with plaintiff, a bank in Lowell, for collection. On the 8th of April, he called at the bank and asked if the note had been paid, and was told that it had been, and he was given the amount which he turned over to defendants, less his charges. The note in fact had not been paid, nor had the maker been notified, and it was the mistake of a clerk in the bank in saying that it had been and in delivering the money to the expressman. Immediately upon discovering the mistake the bank demanded payment of the makers which was refused. The bank then tendered back the note to defendants and demanded the return of the money paid to the expressman, which was refused, and this action was to recover it. It appeared that the makers of the note could not and would not have paid the note if it had been presented at maturity. Verdict by consent for plaintiffs subject to opinion of the full count. D. 8. Richardson and W. A. Richardson, for the plaintiffs. J. 0. Abbott, for the defendants. By Court, Bigelow, J. The objection that this action cannot be maintained, for want of privity between the parties to the suit, is not sustained by proof. The rule of law is well settled, that in 230 Cases on Agency. [Book I the absence of any authority, either express or implied, to employ a subagent, the trust committed to an agent is exclusively personal, and cannot be delegated by him to another so as to affect the rights of the principal. In such case, if the agent employs a substitute, he does it at his own risk and upon his own responsibility. The agent only is liable to the principal, and the subagent is responsi- ble solely to his immediate employer; nor can the principal be liable for the acts of the subagent. There is no privity between them upon which any mutual rights and remedies can be based. But this general rule is always subject to be modified by the peculiar circumstances of each particular case, from which, or from the usage of trade, a power to delegate an authority can be inferred: Story on Agency, sees. 14, 388. In the case at bar, it appears that the defendants delivered the note for collection to the carrier, with directions " to collect it in the ordinary way/' and that it was his custom to collect notes by depositing them in a bank, as well as by calling on the parties per- sonally. The directions given by the defendants were equivalent to an authority to adopt either of the modes of collecting the note which the carrier was in the habit of using, and well warranted the jury in finding that the plaintiffs were duly employed as the agents of the defendants in this particular transaction. We cannot doubt that if the carrier had died or become insolvent before payment to him of the amount collected by the plaintiffs, the defendants, upon disclosure of the agency, would have had a good claim therefor against the plaintiffs. The privity necessary to make the parties liable to each other is created by the authority to employ a sub- agent, which is fairly to be inferred from the evidence. This view of the legal relation of the parties is decisive of the remaining objection to the plaintiff's right of recovery in this action. The money was clearly paid over to the defendants under a mistake of fact, and, upon familiar principles, an action can be maintained to recover it back. It is no answer to the plaintiffs' claim that the mistake arose from the negligence of the plaintiffs. The ground on which the rule rests is, that money paid through misapprehension of facts, in equity and good conscience belongs to the party who paid it; and cannot be justly retained by the party receiving it consistently with a true application of the real facts to the legal rights of the parties: 2 Saund. PI. & Ev. 2 ed. 394. The cause of the mistake, therefore, is wholly immaterial. The money is none the less due to the plaintiffs because their negligence caused Ohap. VI ] Appleton Bank vs. McGilvray. 231 the mistake nnder which the payment was made. The case would have been different if it had appeared that the defendants had Buffered any damage, or changed their situation as respects their debtor, by reason of the laches of the plaintiffs. But the facts show that their rights were wholly unaffected by the mistake under which the payment was made. Nothing occurred subse- quently to the payment which renders it unconscientious to recover the money back. It is therefore clear that the defendants have money belonging to the plaintiffs in their hands, to which they show no legal or equitable title. Kelly vs. Solari, 9 Mee. & W. 54; Bell vs. Oar diner, 4 Man. & Gr. 11; Horn vs. Baker, 2 Smith's Lead. Cas. 243, 244. Judgment on the verdict. (73 New York, 73, 29 Am. Rep. 105.) BIRDSALL vs. CLARK. (New York Court of Appeals, March, 1878. J Action to restrain the superintendent of streets of Binghamton, and his servants, from repairing the sidewalk in front of plaintiff's premises. In 1873 the common council of that city, by resolution, determined to make certain repairs to the sidewalks in the street on which the plaintiff's premises fronted, and directed the plaint- iff to make the sidewalk in front of his premises conform thereto by a specified day. The plaintiff failed to comply, and the defendant, as such superintendent, proceeded to make the repairs, pursuant to another resolution set forth in the opinion. The plaintiff had judgment which was reversed at general term, and he appealed. Other facts appear in the opinion. Ausburn Birdsall, appellant, in person. Samuel Hand, for respondents. Church, C. J. There is no question but that the common council had full power to ordain the grading and curbing of the sidewalk in front of the plaintiff's premises, and that for any inci- dental or consequential injury the plaintiff had no remedy, upon the general principle that private interests are subordinate to the public good. By section 14 of title 8 of the charter of the city ol 232 Cases on Agency. [Book I Binghampton, the building and maintaining in good order of all sidewalks is to be done at the expense of the premises in front of •which they are required, or of the owner thereof; and after provid- ing that the common council shall order the work to be done within a specified time, and cause a notice of the same to be served upon the owner or person in possession of the premises, it provides that " If any work shall not be done within the time limited therefor, the common council shall by contract, or other -wise, cause it to bs done, and assess the expenses thereof, with ten per cent additional upon said premises, or upon the owner thereof." In lt>70 the common council passed a general resolution direct- ing the superintendent of streets, when the owner neglected to do the work by the time limited, "to cause the same to be done," and the question is whether this is a proper exercise of the power conferred upon the common council by the clause before quoted. It is a well settled principle that public powers or trusts devolved by law or charter upon the council or governing body to be exer- cised by it when and in such manner as it shall judge best, cannot be delegated to others. (Dill, on Mun. Corp. §00.) If discretion and judgment are to be exercised, either as to time or manner, the body or officer intrusted with the duty must exercise it, and can not delegate it to any other officer or person. On the other hand, a municipal corporation may appoint agents, or give directions to subordinate officers to perform duties of a ministerial or admin- istrative character. Dill, on Mun. Corp., § 60. The point involved is within a narrow compass. Any work not done within the time limited, the charter requires the common council to cause to be done by contract or otherwise. The council directed, not in a specific case, but in all cases, that the superintendent of streets should "cause the work to be done," thus delegating the precise authority conferred upon it. The charter conferred the power upon the council to cause it to be done, by contract or otherwise. This requires the exercise of discretion and judgment as to the manner in which the work should be done. Whose judgment is to be exercised? The legislature has said that it is the judgment of the council, but the latter has attempted to invest the superin- tendent of streets with its exercise. This they had no power to do. The charter clearly contemplates the action of the council in each case. As to one work, it may be judicious and economical to direct that it be done by contract, and let to the lowest bidder; In another, by contract with a particular person without bidding; Ohap. VI] Bikdsall vs. Olaek. 233 in another, partly by contract and partly by day's work; and in another, entirely by day's work; and other terms and directions might be appropriate. The owner, who is ultimately to pay the expense, has an interest in the manner in which the work is to be done, because it may materially affect the amount of the expense. lie is entitled to the judgment of the council on that question. The principle decided in the case of Thompson vs. Scher?nerhorn, 6 N. Y. 92, 55 Am. Dec. 385, is applicable. There the common council of Schenec- tady were authorized to make by-laws and ordinances directing the improvement of streets within such time and in such manner as they might prescribe, and passed an ordinance for pitching and flagging a certain street in such manner as the city superintendent, under the direction of a committee of the common council, should direct and require. This court held the ordinance void by omit- ting to specify the manner in which the improvement was to be made. The court say: " In effect it is a power of taxation, which is the exercise of sovereign authority, and nothing short of the most positive and explicit language can justify the court in hold- ing that the legislature intended to confer such a power on a city officer or committee." The particular description of the work is no more important than the mode of making the expenditure, and the same principle applies to every power conferred upon the coun- cil until the improvement is finished and the tax collected. It is a general rule that such powers must be exercised in strict con- formity to law, and that any interference by public bodies or offi- cers with the property-rights of the citizen can only be justified by clear authority of the statute. It seems to me quite clear that the proposed expenditure required the action of the common council to determine the manner of doing the work, and this being so, it is equally clear that such action must have been taken in accord- ance with section 11 of title 4 of the charter. It was a " resolu- tion" involving the expenditure of money for a local improvement, and affected rights of property. I have examined the other provisions of the charter referred to, prescribing the powers and duties of the superintendent of streets, and the power of the common council to prescribe the duties of officers, and do not find anything to affect the views before expressed as to the proper construction of the clause quoted. The order of the General Term must be reversed, and the judg- ment entered upon the report of the referee affirmed. 234 Cases on Agency. [Book 1 Note.— See, also, Lyon vs. Jerome, 26 Wend. (N. Y.) 485, 87 Am. Dec. 271; Gale vs. Kalamazoo, 23 Mich. 344, 9 Am. Rep. 80; Eydes vs. Joyes, 4 Bush, (Ky.) 464, 96 Am. Dec. 311; State vs. Hauser, 63 Ind. 155; State vs. Bell, 34 Ohio St. 194; Mattheios vs. Alexandria, 68 Mo. 115, 30 Am. Rep. 776. In Osgood vs. Kelson, (1872) L. R. 5 H. L. 636, 645, where the question was as to the validity of a removal of the plaintiff from the office of chief clerk of the sheriff's court of the city of London, Martin, B., said: "The next objection taken was, that the amotion did not take place, as the law required, on the authority of the lord mayor, aldermen and commons, but by delegation. In our opinion there was no delegation at all What was done was, that a complaint having been made to tbe body which has con- trol in the matter, viz: tbe mayor, aldermen and commons of the city of London, as to the conduct of Mr. Osgood, it was referred by them to a com- mittee, which seems to have been long used in the corporation of London, known as the 'Officers' and Clerks' Committee,' and what they were directed to do was to make inquiry with reference to the alleged complaint, to take evidence, and to ascertain the truth of it, not for the purpose of that com- mittee coming to any judgment or decision themselves, but for the purpose of their report being submitted to the mayor, aldermen and commons in order that they might come to a judgment upon it. The argument of the learned counsel is erroneous in point of fact. That has not taken place which they allege to have taken place, and therefore there was no delegation." (26 Minnesota, 377.) PETERSON vs. CHRISTENSEtf. ('Supreme Court of Minnesota, March, 1880.) Appeal by defendant from an order of the district court over- ruling a demurrer to the complaint. B. F. Webber and M. J. Severance, for appellant. S. L. Pierce and J. Newhart, for respondent. Berry, J. On February 21, 1878, defendant agreed with McCormick & Bro. to act as their agent for the sale of harvesting machines and mowers, for the season of 1878. On the next day, as party of the first part, he made an agreement with the plaintiff, as party of the second part, as follows, viz: that he would pay, turn over, and cause to be paid and turned over to the plaintiff, at such time and times as the plaintiff may designate, any and all money, payments, commissions and compensations, of whatever kind and nature, that are due or to become due, and that he may earn or that will in any manner accrue to him, by reason of his said Chap. VI] Peterson vs. Ciiristense]*. 235 agency or as such agent; that the plaintiff should at all times have full and exclusive direction and control of each and every transac- tion entered into, and sale made by the defendant under his said agency; that the plaintiff should have free access to all the books kept by defendant; and control of all book-accounts, and notes taken for any of the said machinery, or repairs therefor, by the defendant; and that the defendant would not, at any time, do or cause to be done, any business by himself or others for him in or about said agency, or in regard to any sale or transaction thereunder, until he has first secured from the plaintiff his approval and direction. For an alleged breach by defendant of the fore- going agreement, the plaintiff brings this action for damages. The defendant interposes a general demurrer. In support of the demurrer it is contended that the agreement is void as against public policy. The argument is that defendant's agency was presumably an ordinary one, the duties of which are personal and not assignable; that, therefore, defendant held a per- sonal trust, and his principals were entitled to his personal judg- ment in the business of his agency; that by the agreement upon which this action is brought, defendant in effect transferred hia agency, and surrendered his personal judgment, to the plaintiff, and that such transfer and surrender are against public policy. It would be unwise to attempt to furnish an exact definition by which to determine whether a contract is or is not void as against public policy. As with regard to fraud, it is safer to determine questions of this kind as they arise in particular cases. See Story on Contracts, § 546. But there need be no hesitation in laying down the general rule, that a contract is not void as against public policy unless it is injurious to the interests of the public, (2 Chitty on Contracts, 982,) or, as it is sometimes expressed, " contravenes some established interest of society." Story on Contracts, § 546. See, also, Bishop on Contracts, § 460. The case at bar does not fall within this rule. Admitting what is claimed by the defendant, but what does not necessarily appear from the complaint, viz., that the transfer of the defendants' agency was unauthorized, the case would be simply one in which the defendant had exceeded his authority, perhaps ignorantly and per- haps with a fraudulent intent, it matters not which. The transac- tion is private merely, affecting no one but the parties to it, and no public interest or established interest of society is in any way involved. Order affirmed. 236 Cases on Agency. [Book I (50 Alabama, 347.) HARRALSON" vs. STEIN. (Supreme Court of Alabama, January, 187^.) Action by Harralson & Co., against Stein for the value of a box of tobacco sold and delivered to him by the plaintiffs. There was evidence tending to show that Stein went to the plaintiffs store to purchase a lot of tobacco. He told one of the plaintiffs of his pur- pose, and the plaintiff directed his clerk, Jordan, to " sell to Mr. Stein all the tobacco you can." The clerk sold to Stein, at sixty cents per pound, ten boxes of tobacco, which, except one, were in the United States bonded warehouse, and one was in the store. The sale was completed, except the payment of the money and the delivery of the tobacco. The plaintiffs, who were factors, held the tobacco for sale as com- mission-merchants and factors, and had instructions not to sell for less than seventy cents a pound. When the plaintiff, who had directed the clerk to make the sale, was told the price, he refused to deliver the tobacco under the sale by the clerk, except one box, which was in the store where the sale occurred. This box was delivered, and carried away by Stein, at the price agreed on between Stein and the clerk. The clerk was the general agent of the factors, authorized by them to sell any goods consigned to them, intrusted to his care. This sale by the clerk was made on the 16th day of February, 1872. A few days after this, Stein returned to the store, asked for his bill, and proposed to pay for the tobacco sold to him by the clerk, and demanded its delivery. The sale was then repudiated by Harralson & Co. and they refused to receive payment or to deliver it to Stein. The weight of the tobacco in all the boxes was shown to be about six hundred pounds. The quantity of the tobacco in the box which was delivered was also shown. Stein refused to pay for this; and Harralson & Co., in their own name, sued to recover its value; and Stein pleaded in recoupment of damages, that he had been injured by their failure and refusal to deliver to him the tobacco, which they had sold to him by their clerk, to a greater amount than the value of the tobacco which had been delivered, and for which the present suit was brought. There was a judgment for Stein in the court below, and Harralson & Co. appealed to this court. Chap. VI] Harralson vs. Steiu. 237 Tli ere were two questions raised on the trial below, which were decided adversely to the appellants, to which they excepted, and which are insisted on as error in this court. The one was, that the appellants, being factors and commission-merchants, could not make a sale of the goods consigned to them, by the agency of their clerk. The other was as to the measure of damages when insisted on by way of recoupment. D. P. Bestor, for appellants. R. & 0. J. Semmes, contra. Peters, 0. J. (After stating the facts.) Upon the first proposition thus presented, it is contended that the appel- lants, being factors and commission merchants, were merely the agents of the owner of the tobacco, and could not sell it by their clerk. This is said upon the principle that an agency, being a delegated authority, it cannot be executed by a sub-agent, which is expressed in the maxim, DeUgata potestaa non potest delegari. But this maxim seems to refer to those agencies which involve the execution of a bare power; and although this may apply to factors and commission merchants in certain cases, yet it is not, as to them, an universal restriction. Story on Agency, §§ 13, 14; 2 Kent, 633, marg. But this principle is only invoked when the attempt is made to bind the owner by the acts of the sub- agent. It is otherwise when the factor assumes the position of princi- pal, and the contract is attempted to be enforced in his name, as is the case in the present suit. When this is the case, the factor makes himself the principal in the transaction, and his clerk, who acta under his direction, becomes his agent, and in this way he consents to be bound by the law which governs the acts of parties who sus- tain such relations as principal and agent. It has been repeatedly settled by this court that an administrator may bind himself, by a sale of the decedent's personal property, which is void as to the estate; for the reason, doubtless, that he will not be permitted to undo what he has deliberately done to another's injury. Snedicor vs. Molly, 47 Ala. 507; 12 Ala. 298; 5 Porter, 64. Here the sale was made by the factors' clerk, by their direction, and they are seeking to enforce it in part by this suit. If they choose to act in this way, they submit thus to be bound. The same would be the case with the vendee. After the sale is completed, neither party to the contract can repudiate it. Such is the case here. * * * Affirmed. 238 Oases on Agency. [Book 1 (60 Missouri, 116.) GRADY vs. AMERICAN CENTRAL INSURANCE COMPANY. (Supreme Court of Missouri, May, 1875.) Action upon a policy of insurance. Defense, inter alia, that by the terms of the policy it was not to be valid unless signed by defendant's agent, and that the agent had not signed, but his name was signed by another. There was evidence tending to show that the agent's name was signed by such other person with the agent's knowledge and consent. Judgment for defendant below. Ranney and Vories, for plaintifE in error. Doniphan & Reed, for defendant in error. Voeies, J. * * * It is true, as insisted by the defendant in this case, that an agent cannot delegate his authority to act for his principal, without special authority from the principal to do so, or unless the act of the agent, who delegates the authority, is ratified by the principal with knowledge of the facts; but this rule does not apply to mere ministerial acts to be performed by the agent. It is not necessary that the agent should do such acts in person; if he direct the act to be done, or, with a full knowledge of the act, adopt it as his own, it is sufficient. Commercial Bank vs. Norton, 1 Hill, (N. Y.) 501; BartleU vs. Palmer, 8 N. Y. 398; Seymour vs. Wyckoff, 10 N. Y. 213; Lynn vs. Burgoyne, 13 B. Mon. (Ky.) 400. • * * Reversed. Note.— See, also, that mechanical and ministerial duties may be delegated: Williams vs. Woods, 16 Md. 220; Newell vs. Smith, 49 Vt. 255; Sayre vs. Nichols, 7 Cal. 535, 68 Am. Dec. 280; Renwick vs. Foster, 56 Iowa 527; Bodine vs. Exchange Ins. Co., 51 N. Y. 123. Usage and the custom of the trade may justify the delegation: Darling vs. Stanwood, 14 Allen, (Mass.) 504; Johnson vs. Cunningham, 1 Ala. 249; Smith vs. Sublett, 28 Tex. 163. So delegation may be warranted by the evident expectation and intention of the parties at the time the authority was conferred: Johnson vs. Cunning- ham, supra; Duluth National Bank vs. Insurance Co., 85 Tenru 76, 4 Am. Bt. Rep. 744, Chap. VI] Nat'l Bank vs. Nat'l Bank. 239 (112 United States, 276.) EXCHANGE NATIONAL BANK vs. THIRD NATIONAL BANK. (United States Supreme Court, November, 1S8J^) Plaintiff, a bank in Pittsburgh which had discounted them, sent to defendant, a bank in New York, eleven unaccepted drafts drawn on "Walter M. Conger, Sec'y Newark Tea Tray Co., Newark, N. J." Defendant sent them to a bank in Newark for collection. They were recognized by all the banks as drafts upon the Tea Tray Company. The Newark bank took Conger's indi- vidual acceptance, on his refusal to accept, as secretary, but gave no notice of this until the drawers and indorsers of the drafts had become insolvent. This action was to hold defendant liable for the neglect of the Newark bank. Judgment below for defendant and plaintiff brings error. John R. Emery and Thomas N. McCarter, for plaintiff in error. A. Q. Keasbey, for defendant in error. Blatchfoed, J. (After stating the facts.) It is contended by the defendant, that its liability, in taking at New York for col- lection these drafts on a drawee at Newark, extended merely to the exercise of due care in the selection of a competent agent at Newark, and to the transmission of the drafts to such agent, with proper instructions; and that the Newark bank was not its agent, but the agent of the plaintiff, so that the defendant is not liable for the default of the Newark bank, due care having been used in selecting that bank. Such would be the result of the rule estab- lished in Massachusetts. Fabens vs. Mercantile Batik, 23 Pick. 330; 34 Am. Dec. 59; Dorchester Banlc vs. New Enrjla.d Bank, 1 Cnsh. 177; in Maryland, Jackson vs. Union Bank, 6 Ear. & Johns. 146; in Connecticut, Lawretice vs. Stonington Bank, 6 Conn. 521; East ILuldam Bank vs. Scovil, 12 Conn. 303; in Mis- souri, Daly vs. Butchers' & Drovers' Bank, 56 Mo. 94; 17 Am. Rep. 603; in Illinois, Mtna Ins. Co. vs. Alton City Batik, 25 LI. 243; in Tennessee, Bank of Louisville vs. First Nat'l Bank, 8 Baxter, 101, 35 Am. Rep. 691; in Iowa, Guelich vs. Nat'l State Bank, 56 Iowa, 434, 41 Am. Rep. 110; and in "Wisconsin, Stacf 240 Cases on Agency. [Book I vs. Bane County Bank, 12 "Wis. 629; Vilas vs. Bryants, Id. 702. 1 The authorities which support this rule rest on the proposition, that since what is to be done by a bank employed to collect a draft payable at another place cannot be done by any of its ordi- nary officers or servants, but must be entrusted to a sub-agent, the risk of the neglect of the sub-agent is upon the party employing the bank, on the view that he has impliedly authorized the employment of the sub-agent; and that the incidental benefit which the bank may receive from collecting the draft, in the absence of an express or implied agreement for compensation, is not a sufficient consideration from which to legally infer a con- tract to warrant against loss from the negligence of the sub-agent. The contrary doctrine, that a bank receiving a draft or bill of exchange in one State for collection in another State from a drawee residing there, is liable for neglect of duty occurring in its collection, whether arising from the default of its own officers or from that of its correspondent in the other State, or an agent employed by such correspondent, in the absence of any express or implied contract varying such liability, is established by decisions in New York: Allen vs. Merchants' Bank, 22 Wend. 215, 34 Am. Dec. 289; Bank of Orleans vs. Smith, 3 Hill, 5G0; Montgomery County Bank vs. Albany City Bank, 3 Selden, 459; Commercial Bank vs. Union Bank, 1 Kernan, (11 N. Y.) 203, 212; Ayrault vs. Pacific Bank, 47 N. Y. 570, 7 Am. Rep. 489; in New Jersey, litus vs. Mechanics' National Bank, 6 Vroom (35 N. J. L.) 588; in Pennsylvania, Wingate vs. Mechanics' Bank, 10 Penn. St. 104;* in Ohio, Beeves vs. State Bank, 8 Ohio St. 465;* and in Indiana, Tyson vs. State Bank, 6 Blackford, 225. * It has been so held in the second circuit, in Kent vs. Dawson Bank, 13 Blatchford, 237; and the same view is supported by Tabcr vs. Perrott, 2 Gall. 5G5; 1 This rule prevails also in Mississippi. Tiernan vs. Commercial Bank, 7 How. 648; Agricultural Bank vs. Commercial Bank, 7 Sm. & M. 592; Bowling vs. Arthur, 84 Miss. 41; Third National Bank vs. Vicksburg Bank, 61 Miss. 112, 48 Am. Rep. 78; Louisiana, Hyde vs. Planters' Bank, 17 La. Ann. 560; Baldwin vs. Bank of Louisiana, 1 La. Ann. 13; Penn- sylvania, Merchants' National Bank vs. Goodman, 109 Penn. St. 422, 68 Am. Rep. 728. •This seems to be an error. See Merchants' 1 National Bank vs. Good- man, 109 Penn. St. 422, 58 Am. Rep. 728. •See, also, Bank vs. Butler, 41 Ohio St. 519, 52 Am. Rep. 94. 4 The same rule obtains in Michigan, Simpson vs. Waldby, 68 Mich. 439; Montana: Power vs. First National Bank, 6 Mont 251, and Minnesota; Streissguth vs. National Bank, 43 Minn. 60. Chap. VI] Nat*l Bank vs. Nat'l Bank. 241 and by the English cases of Van Wart vs. Woolley, 3 B. & C. 439; s. o. 5 D. & R. 374, and Mackersy vs. Ramsay s, 9 CI. & Fin. 818. In the latter case, bankers in Edinburgh were employed to obtain payment of a bill drawn on Calcutta. They transmitted it to their correspondent in London, who forwarded it to a house in Calcutta, to whom it was paid, but, that house having failed, the bankers in Edinburgh being sued, were, by the House of Lords, held liable for the money on the ground that, they being agents to obtain pay- ment of the bill, and payment having been made, their principal could not be called on to suffer any loss occasioned by the conduct of their sub-agents, between whom and himself no privity existed. The question under consideration was not presented in Bank of Washington vs. Triplett, 1 Pet. 25; for although the defendant bank in that case was held to have contracted directly with the holder of the bill to collect it, the negligence alleged was the neg- ligence of its own officers in the place where the bank was situated. In Hoover vs. Wise, 91 U. S. 308, a claim against a debtor in Nebraska was placed by the creditor in the hands of a collecting agency in New York, with instructions to collect the debt, and with no other instructions. The agency transmitted the claim to an attorney at law in Nebraska. The attorney received the amount of the debt from the debtor in Nebraska, in fraud of the bankrupt law, and paid it over to the agency, but the money did not reach the hands of the creditor. The assignee in bankruptcy having sued the creditor to recover the money, this court (three justices dissenting) held that the attorney in Nebraska was not the agent of the creditor in such a sense that his knowledge that a fraud on the bankrupt law was being committed was chargeable to the creditor on the ground that, the collecting agency having undertaken the collection of the debt, and employed an attorney to do so, tHe attorney employed by it, and not by the creditor, was its agent, and not the agent of the creditor; and the creditor was held not to be liable to the assignee in bankruptcy for the money. In the opinion of the court it is said, that the case falls within the decisions in the above-mentioned cases of Beeves vs. State Bank, 8 Ohio St. 465; Maclcersy vs. Bamsays, 9 CI. & Fin. 818; Mont- gomery County Bank vs. Albany City Bank, 3 Selden, 459; Com- mercial Bank vs. Union Bank, 1 Kernan, 203; and Allen vs. Mer- chants' Bank, 22 Wend. 215, 34 Am. Dec. 289, and it is said that those cases, the first three of which are stated at length, show " that 16 242 Oases on Agency. [Book I where a bank, as a collection agency, receives a note for the pur- pose of collection, its position is that of an independent contractor, and the instruments employed by such bank in the business contem- plated are its agents and not the sub-agents of the owner of the note." The court proceeds to say, that those authorities go far towards establishing the position, that the collecting agency was an independent contractor, and that the attorney it employed was its agent only, and not in such wise the agent of the defendant as to make the defendant responsible for the knowledge of the attorney in Nebraska. The court then cites, as a case in point, Bradstreet vs. Eucrson, 72 Penn. St. 122, 13 Am. Rep. 665, as holding that where a commercial agency at Pittsburg received drafts to be collected at Memphis, and sent them to its agent at Memphis, who collected the money and failed to remit it, the agency at Pittsburg was to be regarded as undertaking to collect, and not merely receiving the drafts for transmission to another for collection, and as being lia- ble for the negligence of its agent at Memphis. It also cites, as to the same purport, Leivis vs. Peck, 10 Ala. 142, and Cobb vs. Becke, 6 Ad. & El. 930. It then says that these authorities fix the rule, before stated, on which the decision is rested. So far from there being anything in that case which goes to exonerate the defend- ant in the case at bar, its reasoning tends strongly to affirm the principle on which the defendant must be held liable. Indeed, its language supports the view that the Newark bank, in this case, would not be liable directly to the plaintiff. If that be so, and the defendant is not liable, the plaintiff is without remedy. * * * (Distinguishing Brit/ on vs. Niccolls, 104 U. S. 757.) The agreement of the defendant in this case was to collect the drafts, not merely to transmit them to the Newark bank for collection. This distinction is manifest; and the question presented is, whether the New York bank, first receiving these drafts for collections, is responsible for the loss or damage resulting from the default of its Newark agent. There is no statute or usage or special contract in this case, to qualify or vary the obligation resulting from the deposit of the drafts with the New York bank for collection. On its receipt of the drafts, under these circumstances, an implied undertaking by it arose, to take all necessary measures to make the demands of acceptance necessary to protect the rights of the holder against previous parties to the paper. From the facts found, it is to be inferred that the New York bank took the drafts from the Chap. VI] Nat'l Bank vs. Nat'l Bank. 243 plaintiff, as a customer, in the usual course of business. There are eleven drafts in the case, running through a period of over three months, and the defendant had previously received from the plaintiff two other drafts, acceptances of which it had procured from Congor, at Newark, through the Newark bank. The taking by a bank, from a customer, in the usual course of business, of paper for collection, is sufficient evidence of a valuable considera- tion for the service. The general profits of the receiving bank from the business between the parties, and the accommodation to the customer, must all be considered together, and form a consid- eration, in the absence of any controlling facts to the contrary, so that the collection of the paper cannot be regarded as a gratuitous favor. Smedes vs. Bank of Vtica, 20 Johns. 372, and 3 Oowen, 6G2; McEinsler vs. Bank of Vtica, 9 Wend. 46; affirmed in Bank of Vtica vs. McKinster, 11 Wend. 473. The contract, then, becomes one to perform certain duties necessary for the collection of the paper and the protection of the holder. The bank is not merely appointed an attorney authorized to select other agents to collect the paper. Its undertaking is to do the thing, and not merely to procure it to be done. In such case, the bank is held to agree to answer for any default in the performance of its contract; and, whether the paper is to be collected in the place where the bank is situated, or at a distance, the contract is to use the proper means to collect the paper, and the bank, by employing sub-agents to perform a part of what it has contracted to do, becomes respon- sible to its customer. This general principle applies to all who contract to perform a service. It is illustrated by the decision of the Court of King's Bench in Ellis vs. Turner, 8 T. E. 531, where the owners of a vessel carried goods to be delivered at a cer- tain place, but the vessel passed it by without delivering the goods, and the vessel was sunk and the goods were lost. In a suit against the owners for the value of the goods, based on the contract, it was contended for the defendants that they were not liable for the misconduct of the master of the vessel in carrying the goods beyond the place. But the plaintiff had judgment, Lord Kenton savin" 1 that the defendants were answerable on their contract, although the misconduct was that of their servant, and adding: " The defendants are responsible for the acts of their servant in those things that respect his duty under them, though they are not ans- werable for his misconduct in those things that do not respect his duty to them." 244 Cases on Agency. [Book I The distinction between the liability of one who contracts to do a thing and that of one who merely receives a delegation of author- ity to act for another is a fundamental one, applicable to the present case. If the agency is an undertaking to do the business, the original principal may look to the immediate contract or with him- self, and is not obliged to look to inferior or distant under-con- tractors or sub-agents, when defaults occur injurious to his interest. Whether a draft is payable in the place where the bank receiving it for collection is situated, or in another place, the holder is aware that the collection must be made by a competent agent. In either case, there is an implied contract of the bank that the proper measures shall be used to collect the draft, and a right, on the part of the owner, to presume that proper agents will be employed, he having no knowledge of the agents. There is, therefore, no reason for liability or exemption from liability in the one case which does not apply to the other. And, while the rule of law is thus general, the liability of the bank may be varied by consent, or the bank may refuse to undertake the collection. It may agree to receive the paper only for transmission to its correspondent, and thus make a different contract, and become responsible only for good faith and due discretion in the choice of an agent. If this is not done, or there is no implied understanding to that effect, the same responsi- bility is assumed in the undertaking to collect foreign paper and in that to collect paper payable at home. On any other rule, no principal contractor would be liable for the default of his own agent, where, from the nature of the business, it was evident he must employ sub-agents. The distinction recurs between the rule of merely personal representative agency and the responsibility imposed by the law of commercial contracts. This solves the difficulty and reconciles the apparent conflict of decision in many cases. The nature of the contract is the test. If the contract be only for the immediate services of the agent, and for his faithful conduct as representing his principal, the responsibility ceases with the limits of the personal services undertaken. But where the contract looks mainly to the thing to be done, and the undertaking is for the due use of all proper means to performance, the responsi- bility extends to all necessary and proper means to accomplish the object, by whomsoever used. We regard, as the proper rule of law applicable to this case, that declared in Van Wart vs. Wooley, 3 B. & 0. 439, where the defendants, at Birmingham, received from the plaintiff a bill on Chap. VI] Nat'l Bank vs. Nat'l Bank. 245 London to procure its acceptance. They forwarded it to their London banker, and acceptance was refused, bnt he did not protest it for non-acceptance or give notice of the refusal to accept. Chief Justice Abbott said: " Upon this state of facts it is evident that the defendants (who cannot be distinguished from, but are answer- able for, their London correspondent) have been guilty of a neglect of the duty which they owed to the plaintiff, their employer, and from whom they received a pecuniary reward for their services. The plaintiff is, therefore, entitled to maintain his action against them, to the extent of any damages he may have sustained by their neglect. " In that case there was a special pecuniary reward for the service. But, upon the principles we have stated, we are of opinion that, by the receipt by the defendant of the drafts in the present case for collection, it became, upon general principles of law, and independently of any evidence of usage or of any express agreement to that effect, liable for a neglect of any duty occurring in that collection, from the default of its correspondent in Newark. What was the duty of the defendant, and what neglect of duty was there? An agent receiving for collection, before maturity, a draft payable on a particular day after date, is held to due diligence in making presentment for acceptance, and, if chargeable with neg- ligence therein, is liable to the owner for all damages he has sus- tained by such negligence. Allen vs. Suydam, 20 Wend. 321, 32 Am. Dec. 555; Walker vs. Bank of the State of New York, 5 Selden, 582. The drawer or indorser of such a draft is, indeed, not dis- charged by the neglect of the holder to present it for acceptance before it becomes due. Bank of Washi?igton vs. Triplett, 1 Pet. 25, 35; Townsley vs. Sumrall, 2 Pet. 170, 178. But, if the draft is presented for acceptance and dishonored before it becomes due, notice of such dishonor must be given to the drawer or indorser, or he will be discharged. 3 Kent's Comm. 82; Bank of Washington vs. Triplett, 1 Pet. 25, 35; Allen vs. Suydam, 20 Wend. 321, 22 Am. Dec. 555; Walker vs. Bank of the State of New York, 5 Selden, 582; Goodall vs. Dolley, 1 T. K. 712; Bayley on Bills, 2d Am. ed. 213. Moreover, the owner of a draft payable on a day certain, though not bound to present it for acceptance in order to hold the drawee and indorser, has an interest in having it presented for acceptance without delay, for it is only by accepting it that the drawee becomes bound to pay it, and, on the dishonor of the draft by non-acceptance, and due protest and notice, the owner has a right of action at once against the drawer and indorser, without 246 Cases on Agency. [Book I ■waiting for the maturity of the draft; and his agent to collect the draft is bound to do what a prudent principal would do. 3 Kent's Com. 94; Robinson vs. Ames, 20 Johns. 146, 11 Am. Dec. 259; Lenox vs. Cook, 8 Mass. 460; Ballingalls vs. Gloster, 3 East, 481; Whitehead vs. Walker, 9 M. & "W. 506; Walker vs. Bank of the State of New York, 5 Selden, 582. In view of these considerations, it is well settled that there is a distinction between the owner of a draft and his agent, in that, though the owner is not bound to present a draft payable at a cer- tain day for acceptance before that day, the agent employed to collect the draft must act with due diligence to have the draft accepted as well as paid, and has not the discretion and latitude of time given to the owner, and, for any unreasonable delay, is responsible for all damages sustained by the owner. 3 Kent's Comm. 82; Chitty on Bills, 13th Am. ed. 272, 273. The defendant being thus under an obligation to present the drafts for acceptance, and having in fact, presented them through the Newark bank, to Conger, the secretary of the company, was bound not to take the acceptances it did, but to treat the drafts as dishonored. The plaintiff was, at least, entitled to an acceptance in the terms of the address on the drafts. Walker vs. Bank of the State of New York, 5 Selden, 582. The defendant had notice from the description of the drafts by the words " Newark Tea Tray Co.," in the letters sending them for collection, that the plaintiff regarded the drafts as drawn on the company; and the defendant recognized its knowledge of the fact that the drafts were drawn on the company, by describing them by the words " Newark Tea Tray Co.," in its letters to the Newark bank, in every instance but two. If, on the face of the drafts, the address was ambiguous, it was not for the defendant to determine the question, as against the plaint- iff, by taking an acceptance which purported to be the acceptance of Conger individually, especially in view of the information it had by the words " Newark Tea Tray Co.," in the letters sending the drafts to it for collection. It appears that the drafts were dis- counted by the plaintiff as drafts on the company, and, if it could have had an acceptance in the terms of the address, it would, in a suit against the company, have been in a condition to show who was the real acceptor. But, with the information given to the Newark bank by Conger, while that bank had in its hands for acceptance drafts drawn in the same form as those here in question, that he would not accept such drafts in his official capacity as secretary, Chap. VI ] Nat'l Bank vs. Nat'l Bank. 24? the Newark bank chose to take acceptances individual in form. This was negligence, for which the defendant is liable to the plaint- iff in damages, no notice of dishonor having been given. The defendant was bound to give such notice to the plaintiff. Walker vs. Bank of the State of New York, 5 Selden, 582. * * * The judgment of the circuit court ia reversed with direction to award a new trial. (24 Kansas, 600, 36 Am. Eep. 264.) CUMMINS vs. HEALD. {Supreme Court of Kansas, July, 1SS0.J Cummins, who was a lawyer and banker, received from Heald two notes, made by a party living in another part of the state, for collection. He gave to Heald a receipt stating that he had received the notes "for collection. " He sent them to an attorney, Kroenke, who lived near the debtor, to be collected. Kroenke collected the money, kept it and absconded. This action was brought to hold Cummins liable. Verdict below for the plaintiff. J. P. Cummins and McClure & Humphreys, for plaintiff in error. Thompson & Thompson and Johnston & Freeman, for defendant in error. Horton, C. J. The principal question presented for our deter- mination is, who shall bear the loss occasioned by the embezzle- ment of F. "W. Kroenke, — Heald, the owner of the notes, or Cnmmins, who received the notes for collection? Counsel for plaintiff in error contend that as Cummins failed to receive any of the proceeds of the notes from Kroenke, he is not responsible for the loss, as he acted in good faith, and exercised ordinary care and diligence in all the transactions. Again, it is claimed by them, that Cummins received the notes for collection as a banker; that he was requested by Heald to send the notes to an attorney at law for collection; that in accordance with the request, he forwarded them to Kroenke; that Heald approved of this selection and action, and thereby that Kroenke was not the agent of Cummins, but of Heald only. In view of the evidence adduced upon the trial, and the special findings that Cummins received the notes as attorney at 248 Oases on Agency. ^B^ok I law "for collection/* and that the notes were to be collected by him, the latter claim has no support in the record. Therefore, we can inquire only as to the liability of Cummins under the terms of the receipts for the collections. The decision in Bradstreet vs. Ever son, 72 Penn. St. 124, 13 Am. Rep. 655, is a leading case upon the legal interpretation of a similar receipt of a claim for collection. It is there stated that such a receipt " for collection " imports an undertaking by the attorney himself to collect, and not merely that he receives it for transmission to another for collection, for whose negligence he is not to be respon- sible; that the attorney executing the receipt is therefore liable by its very terms for the negligence of the distant attorney, who is his agent: that he can not shift the responsibility from himself upon his client, that there is no hardship in this, for it is in his power to limit his responsibility by the terms of his receipt, when he knows he must employ another to make collection. See also, Weeks on Attorneys, sec. 117; Wharton on Neg. sec. 753; Reeves vs. State Bank, 8 Ohio St. 465; Commercial Batik vs. Union Bank, 11 N. Y. 203; Walker vs. Stevens, 79 111. 193; Morgan, vs. Tener, 83 Penn. St. 305; Kent vs. The Dawson Bank, 13 Blatch. 237. The authorities are decisive against the relief of Cummins on the ground of his good faith, or the exercise of ordinary care and dili- gence. He took the notes " for collection " ; he corresponded with Kroenke, he selected him as his agent; he sent the notes to him at his own instance, and as he must be held liable under the receipts for collections made by his own agent, he must suffer the loss occasioned by the fraud of such agent. Counsel questions the correctness of the instruction of the court that Heald was entitled to interest from the date the money was collected: 0173.75 was collected by Kroenke on January 15, 1878; and $256. 75 was collected August 26, 1878. Heald was informed by Cummins early in November, 1878, that Kroenke had collected the notes and absconded. Plaintiff in error alleges no demand was made until November 25, 1878, and that the jury cast interest on the money from the dates of the collections. It is the general rule that an attorney who collects money must give his client notice thereof immediately, and await instructions, and that no action will lie for the money collected by him until a demand is made, Voss vs. Bad op, 5 Kan. 59; yet, when the collection is followed by an embezzlement of the money collected, no demand is necessary to maintain an action for the recovery of the money. As Cummina Chap. VI] Cummins vs. Heald. 249 was civilly liable for the fraud of his agent, and as the money was embezzled upon its collection, the instruction of the court was not erroneous. Comp. Laws, 1879, chap. 51, page 509. The judgment of the District Court will be affirmed. All concur. Note— See also Cox vs. Livingston, 2 Watts & S. (Pa.) 103, 87 Am. Deo. 486; Rhines vs. Evans, 66 Perm. St. 192, 5 Am. Rep. 364; Sanger vs. Dun, 47 Wis. 615, 32 Am. Rep. 789. (141 Massachusetts, 37, 55 Am. Rep. 443.) BARNARD vs. COFFIN. (Supreme Judicial Court of Massachusetts, January, 18S6.) Plaintiff had 160 acres of land in Illinois which he desired to sell and he employed the defendants to aid him in finding a purchaser. Defendants employed one Ochs to endeavor to get a customer for the land for them for a commission. Ochs received an offer of $22.50 per acre for the land, but reported it to defendants as an offer of $10 per acre. Defendants informed plaintiff of this offer of $10 and advised him that they thought it a fair one, and plaint- iff, believing them, authorized them to accept it. Defendants advised Ochs that the offer was accepted, and a deed from plaintiff was procured to a person whom Ochs put forward as the purchaser but who was not really so. This person then conveyed to the real purchaser, who meantime had increased his offer to $22.75 per acre, at which rate he paid Ochs. Ochs returned $1,600 to defendants who transmitted it to plaintiffs less their commissions. The defendants acted in good faith having no knowledge that Ochs had received more than the $10 per acre. When plaintiff discovered the fraud, he sued defendants for the balance at the price received by Ochs and recovered. The defendents alleged exceptions. The other facts appear in the opinion. B. R. Curtis & S. G. Croswell, for defendants. O. O. Shaltuch & W. A. Munroe, for plaintiff. Field, J. Of the rulings requested by the defendants the second and third were refused because the facts were not found to 250 Cases on Agency. [Book I be as they were assumed to be in the requests, and this is a suffi- cient reason for the refusal. The remaining exception is to the refusal to rule that on the whole evidence the plaintiff could not maintain the action. The judge found that no consent was given by the plaintiff to the defendants to delegate their authority to a sub-agent, and that no custom or usage to delegate authority in similar cases was shown; and that the nature of the employment of the defendants by the plaintiff was that they undertook, for a compensation to be paid them, to aid the plaintiff in selling the land, by obtaining, if possi- ble, offers for it, and communicating them to him, for his accept- ance or rejection, together with such information as they could readily obtain to assist him in determining his action upon these offers, and by consummating a sale in case such an offer was accepted. The judge also found that Ochs was the agent of the defendants in the business of obtaining and transmitting offers. The evidence warranted these findings. The only question of law is whether, with these findings, the plaintiff can, on the other facts found and on the evidence, maintain his action. If Ochs was employed by the defendants, without the express or implied consent of the plaintiff, and if there was no usage in the business to employ sub-agents and there was no necessity from the nature of the business that sub-agents should be employed, there is no privity between the plaintiff and Ochs, and Ochs is only liable to his employers who were the defendants, and the defendants are liable to the plaintiff for the acts of Ochs, in the same manner as if those acts were their own. Warren Bank vs. Suffolk Bank. 10 Cush. 5^2; Pownall vs. Blair, 78 Penn. St. 403; Darling vs. Stan- wood, 14 Allen, 504; Stevens vs. Babcoch, 3 B. & Ad. 354. It is argued that as the plaintiff knew before he signed the deed that the sale was made by Ochs, the plaintiff by confirming the sale and signing the deed, ratified the employment of Ochs. If the plaintiff understood that Ochs was employed by the defendants as his agent, then these acts of the plaintiff might be held to be a ratification of his employment, and equivalent to an authority to the defendants to employ Ochs as the agent of the plaintiff. But if the plaintiff understood that the defendants employed Ochs as their agent to assist them in transacting the business which they had undertaken, then these acts of the plaintiff might only show that the plaintiff was willing that the defendants should transact the business by means of their servants or agents, for whom they Chap. VI] Barnakd vs. Coffin. 251 should be responsible; and it was competent for the judge, on the evidence, to find that this was the understanding and intention of the plaintiff, and he has in effect so found. The principle which runs through the cases is, that if an agent employs a sub-agent for his principal, and by his authority, express or implied, then the sub-agent is the agent of the princi- pal, and is directly responsible to the principal for his conduct, and so far as damage results from the conduct of the sub-agent, the agent is only responsible for a want of due care in selecting the sub-agent; but the agent, having undertaken to do the busi- ness of his principal, employs a servant or agent on his own account to assist him in what he has undertaken; such a sub-agent is an agent of the agent, and is responsible to the agent for his conduct, and the agent is responsible to the principal for the man- ner in which the business has been done, whether by himself or by his servant or agent. The decision in this case, as reported in 138 Mass. 37, is that the finding that "the defendants were bound to see to it that the offer transmitted was a genuine offer and not the offer of a sub- agent," was a ruling of law which could not be supported if the defendants were only liable on the ground of negligence, and not on the ground that Ochs was their agent, for whose acts they were responsible. Exceptions overruled. Note.— See also, Eoag vs. Grave*, 81 Mich. 628; McCants vs. Wells, 4 a Car. 881. 252 Oases on Agency. [Book I CHAPTER VII. OF THE TERMINATION OF THE RELATION. BY ORIGINAL AGREEMENT. (See cases stated in text of Mechem on Agency, §§ 200, 201.) II. BY ACT OF THE PARTIES. (73 Alabama, 373.) CHAMBERS vs. SEAT. (Supreme Court of Alabama, December, 1888.) Action to recover damages for an alleged wrongful revocation of plaintiff's authority to sell lands. The opinion states the facts. Judgment for defendant, and plaintiff appealed. I'arsons & Parsons, 8. F. Bice and Bradford & Bishop, for appellant. Bow den & Knox, contra. Somerville, J. The main contention in this case involves the right of the principal to revoke the agent's authority to sell, so as to deprive the latter of his commissions. The agreement, which is the basis of this suit, is in writing, bearing date February 28, 1878, and is signed by both the plaintiff and defendant. Its substance is briefly as follows: Seay was the owner of a tract of land in Talladega county, valuable for the quantity of iron ore it was known to contain. lie placed this land in the hands of Chambers for sale, subject to Seay's ratification, if he (Seay) should "deem the price to be paid for said property suf- ficient to warrant a sale." Chambers, on his part, agreed to Chap. VII] Chambers vs. Seat. 253 undertake the sale of the land, and to this end undertook and promised to transport specimens of ore taken from it to Birming- ham, England, for inspection there; and also to advertise the prop- erty in one respectable paper in each of the cities of Birmingham and London, England. By way of compensation for his services and expenses, it was stipulated that Chambers should receive " an undivided one-fourth interest in the proceeds of sale when sold as aforesaid," and his right to sell was made " exclusive." The evidence tends to show that Seay revoked the agency of Chambers in January, 1880, and very soon afterwards himself sold the property to one Glidden for the sum of twenty thousand dol- lars. The circuit court charged the jury, that the agreement in question was a mere revocable agency, which could be recalled by the principal, Seay, at any time before it had been executed, by his making a sale of the property; and if it was so revoked prior to the sale made by Seay to Glidden, then Chambers was not entitled to recover any commissions. The rule is not denied, that, in ordinary cases, a principal, who has empowered an agent to sell, may at any time before sale revoke the agent's authority. It is equally true that the usual theory of commissions is, that the agent is to receive them only in the event of success. Wood's Mayne on Dama es, (Amer. ed.) §§ 746-747. It is argued that the present agreement does not come within this general rule, because it confers on the agent a power coupled with an interest, and that such a power is irrevocable. It is a generally admitted proposition of law, that a principal is not per- mitted to revoke the authority of his agent, where such authority is conpled with an interest, or where it is necessary to effectuate a security. Ewell's Evans on Agency, marg. page 83. These are the two established exceptions, which seem, indeed, to be essentially similar in principle. It is contended that the agency of the plaintiff Chambers comes within the influence of the first exception, as being coupled with an interest, and it was not competent, therefore, for Seay to revoke it. It is not any interest, however, that will suffice to render an agency irrevocable. An interest in the proceeds of sale, or money derived from the sale of property by an agent, is not sufficient for this purpose. Barr vs. Schreeder, 32 Cal. 609; Hartley's Appeal, 53 Penn. St. 212, 91 Am. Dec. 207; Gilbert vs. Holmes, 64 111. 549. To be irrevocable, it seems now well settled, that the power conferred must create an interest in the thing itself, or in the property which is the subject 254 Oases on Agency. [Book I of the power. In other words, " the power and estate must be united and co-existent;" and, possibly, of such a nature that the power would survive the principal iu the event of the hitter's death, so as to be capable of execution in the name of the agent. Blach- stone vs. Bultermore, 53 Penn. St. 2CG, (post ); Bonney vs. Smith, 17 111. 531; Mansfield vs. Mansfield, 6 Conn. 559, 16 Am. Dec. 76; Hunt vs. Rousmanier, 8 Wheat. 174, (post ); Evans on Agency (Ewell), marg. page 83, note, and p. 85; Raleigh vs. Atkinson, 6 M. & W. 670. In Hunt vs. Rausmanier, supra, such a power was denned by Chief Justice Makshall, to be one " engrafted on an estate in the thing itself." The power conferred on Chambers was not of this nature, very clearly. He had no interest in the subject matter of his agency, the land itself. He was interested only in the money to be derived as the proceeds of the sale of the land, which could only be realized by the completion of his agency, or by some negotiation which was tantamount to it. He had parted with no money or other value for the security of which the power of 6ale was conferred in the agreement. He had risked in the venture of his agency only his personal services and the expenses incidental to its execution. The undertaking to transport specimens of iron ore to England, and to advertise the lands there, may be embraced as apart of the ordinary expense to be incurred in the usual course of such an employment. It is fair to presume that he risked this much in view of the large compensation to be reaped as commissions, in the event of a suc- cessful sale. Simpson vs. Lamb, 17 C. B. 603. It is insisted further that the agency is rendered irrevocable by reason of the fact, that the power of sale conferred on Chambers was stipulated to be exclusive. This cannot be stronger than the use of the word "irrevocable," which has been construed to fail of Buch a purpose, unless the agency comes within the exceptions above discussed. In the case of a naked power, an express declaration of irrevocability will not prevent revocation. McGregor vs. Gardner, 14 Iowa, 326; Blaclcstonevs. Btiitermore, 53 Penn. St. 2C6 (post, — ). The chief difficulty arises in those cases where the agent has incurred trouble and expense in the execution of his agency, and has been prevented from effecting a sale by the interference of his principal, whether by revocation of his authority or otherwise. It is not just, it is true, for a principal to revoke an agent's authority without paying him for labor and expense reasonably incurred in the course of the agent's employment. Chap. VII] Chambers vs. Seat. 255 Unless otherwise stipulated, the agent may, in a proper form of action, ordinarily claim reimbursement for the value of these. Evans' Agency (Ewell), marg. p. 83-84. So where a sale of property is brought about by the advertisements or exertions of a broker or agent, the broker being the efficient cause of the sale and the purchaser being found through his instrumentality, he may often recover his commissions. Sussdorjf vs. Schmidt, 55 N. Y. 319; Earp vs. Cummmgs, 54 Penn. St. 394; 93 Am. Dec. 718. These are mentioned as just qualifications of the general rule, to which we have above adverted, touching the subject of the revocation of an agent's authority by his principal. The pleadings in the present case, upon which it was tried, are framed very clearly with reference to a recovery of the stipulated commissions promised to Chambers, and the gravamen of the action is, in effect, alleged to be the wrongful revocation of the agency by act of the principal. We need not, for this reason, dis- cuss the question as to the plaintiff's right to recover for the value of his services, or for expenses incurred. The first and fifth counts were obviously actions on the case, and the other counts were in assumpsit. Myers vs. Gilbert, 18 Ala. 4G7. The demur- rer for misjoinder was consequently well taken, and was properly sustained by the court. The rulings of the circuit court were in accordance with above views, and its judgments must be affirmed. Note.— See, also, Clark vs. Marsiglia, 1 Denio, (N. Y.) 317, 43 Am. Dec. 670; Owen vs. Frink, 24 Cal. 178; Lord vs. Thomas, 64 N. Y. 110; AttriU vs. Patterson, 58 Md. 226; Frink vs. Roe, 70 Cal. 296; Tucker vs. Law- rence, 56 Vt. 467; Simpson vb. Carson, 11 Oreg. 361; Darrow vs. St. George, 8 Colo. 592. Sibbald vs. Bethlehem Iron Co., post. p. — » (53 Pennsylvania State, 266.) BLACKSTONE vs. BUTTERMORE. ( Supreme Court of Pennsylvania, January, 1867. J Ejectment by Blackstone vs. Buttermore. Buttermore, who was the owner of the land in question, gave to one Davidson a power of attorney to sell the land on terms therein mentioned, which power concluded as follows: " and I hereby ratify and confirm what- 256 Oases on Agency. [Eook I ever contract he may make in accordance with the above authority, and bind myself for its execution. This authority is irrevocable before the 1st day of May next." On the 19th of April, Davidson entered into an agreement for the sale of the land to Blackstone, which Butterniore refused to carry out, having previously revoked the power, of which Blackstone had notice at the time of the agree- ment. Verdict for defendant. A. Patterson, for plaintiff in error. D. Eaine and C. E. Boyle, for defendant in error. Agnew, J. A power of attorney constituting a mere agency is always revocable. It is only when coupled with an interest in the thing itself, or in the estate which is the subject of the power, it is deemed to be irrevocable, as where it is a security for money advanced or is to be used as a means of effectuating a purpose neces- Bary to protect the rights of the agent or others. A mere power, like a will, is in its very nature revocable when it concerns the interest of the principal alone, and in such case even an express declaration of irrevocability will not prevent revocation. An interest in the proceeds to arise as mere compensation for the service of executing the power will not make the power irrevocable. Therefore, it has been held that a mere employment to transact the business of the principal is not irrevocable without an express covenant founded on sufficient consideration, notwithstanding the compensation of the agent is to result from the business to be per- formed, and to be measured by its extent. Coffin vs. Lanclis, 46 Penn. St. 426. In order to make an agreement for irrevocability contained in a power to transact business for the benefit of the principal binding on him, there must be a consideration for it independent of the compensation to be rendered for the services to be performed. In this case the object of the principal was to make sale solely for his own benefit. The agreement to give his agent a certain sum and a portion of the proceeds was merely to carry out his purpose to sell. But what obligation was there upon him to sell, or what other interest beside his own was to be secured by the sale? Surely his determination to sell for his own ends alone was revocable. If the reasons for making a sale had ceased to exist, or he should find a sale injurious to his interests, who had a right to say he should not change his mind? The interest of the agent was only in his com- pensation for selling, and without a sale this is not earned. A revo- Chap. VII] Blackstone vs. Buttermore. 257 cation could not injure him. If he had expended money, time or labor, or all, upon the business intrusted to him, the power itself was a request to do so, and on a revocation would leave the princi- pal liable to him on his implied assumpsit. But it would be the height of injustice if the power should be held to be irrevocable merely to secure the agent for his outlay or hie services rendered before a sale. The following authorities are referred to: Hunt vs. Rousmanier, 8 Wheaton (U. S.) 174 post . Story on Agency, §§ 463, 4G4, 465, 468, 476, 477; Paley on Agency, 155; 1 Parsons on Contracts, 59; Irwin vs. Workman, 3 Watts, (Pa.) 357; Smith vs. Craig, 3 W. & S. 20. The judgment is therefore affirmed. (Ill Indiana, 206.) ROWE vs. BAND. (Supreme Court of Indiana, May, 1887. J The First National Bank of Indianapolis (No. 55) and the Indiana Banking Company were jointly interested in certain per- sonal property and put Eowe in charge of it to sell it out on their account. The proceeds were, with the consent of both parties, deposited by Eowe in the bank of the Indiana Banking Company in the name of "William Eowe, trustee." Afterwards the First National Bank of Indianapolis (No. 2556) was organized to suc- ceed to the business of No. 55. While this deposit amounted to over $7,000, the banking company became insolvent, and on August 10, 1883, the day before it closed its doors, it had a settlement with the First National Banks, and duplicate releases were executed by which each released the other of all claims whatever. Band was appointed receiver of the banking company, and Eowe sought to recover from him the amount deposited in his name as trustee. Judgment against him and he appealed. H. J. Milligan, for appellant. F. Winter and J. M. Winters, for appellee. Niblack, J. (After stating the facts.) A trustee is one to whom an estate has been conveyed in trust, and, consequently, the 17 258 Cases os Agency. [Book I holding of property in trust constitutes a person a trustee. An agent is one who acts for, or in the place of another, denominated the principal, in virtue of power or authority conferred by the latter, to whom an account must be rendered. In the case of an ordinary agency for the sale or disposition of property, the title to the property, as well as to the proceeds, remains in the principal. Such an agency may be revoked at any time in the discretion of the principal. It may, also, be in like manner terminated by the renunciation of the agent, he being liable only for the damages which may result to the principal. An agency may also be, and is revoked by operation of law in certain cases, among which are the bankruptcy of the principal, the extinction of the subject matter of the agency, the loss of the principal's power over such subject matter, or the complete execution of the business for which the agency was created; also, where the changed condition becomes such as to produce an incapacity in either party to proceed with the business of the agency. Where a power or authority to act as agents is conferred on two persons, the death of one of them terminates the agency. So, where two persons are jointly appointed agents to take charge of a particular business for a specified term or purpose, and one of them becomes incapacitated before the term is completed or the purpose is accomplished, the other cannot proceed alone without the consent of the principal, and hence the agency is thereby in effect revoked. Abbott's and Bouvier's Law Dictionaries, titles "Agent" and "Agency;" 1 Wait's Actions and Defenses, 289; 1 Parsons Contracts, 39 ei seq.; Story on Agency, §§ 38, 42, 474, 499. The inevitable inference from these legal propositions is, that, when two principals jointly appoint an agent to take charge of some matter in which they are jointly interested, and a severance of their joint interest afterwards occurs, the severance revokes the agency. An agent may sue in his own name: First, When the contract is in writing, and is expressly made with him, although he may have been known to act as agent. Secondly, When the agent is the only known or ostensible principal, and is, therefore, in contemplation of law, the real contracting party. Thirdly, When, by the usage of trade, he is authorized to act as owner, or as a principal con- tracting party, notwithstanding his well-known position as agent only. But this right of an agent to bring an action, in certain Chap. VII] Rowe vs. Rand. 259 cases, in his own name, is subordinate to the rights of the princi- pal, who may, unless in particular cases whore the agent has a lien or some other vested right, bring suit himself and thus suspend or extinguish the right of the agent. Applying the general principles thus announced to the facts hereinbefore stated, our conclusions are, that Rowe became an agent only, and hence not a trustee, for the sale of the property left with him by the banks; that he acquired no lien either upon the property or its proceeds which would have prevented the national banks, or either of them, as the situation might have authorized at the time, from revoking Rowe's authority as their agent, and demanding an accounting from the banking company as to the money deposited with it by him, or from demanding 6uch an accounting without revoking Rowe's agency; that, conse- quently, the money so deposited constituted a fund upon which the national banks might have based a claim against the banking com- pany when the agreement was mutually entered into on the 10th day of August, 1883, and that, if, in fact, all claim against that fund was released by the agreement of that date, the agency of Rowe in all matters concerning the fund was thereby revoked, leaving him in a position to demand only an accounting for his ser- vices and expenses. (The court then find that the effect of the release was to relinquish the national banks' claim upon this fund. ) Judgment affirmed. (Law Repoets, 1 Appeal Cases, 256, 15 Moak's Eng. Rep. 124.) RHODES vs. FORWOOD. (English House of Lords, May, 1876. J Action for damages for an alleged breach of contract. Rhodes was the owner of the Risca Colliery; Forwood & Paton were brokers in Liverpool. The declaration set forth an agree- ment dated the 24th of September, 1869, of which the material parts were stated in the opinion. The agreement was acted upon by the parties until the 1st of March, 1873, when the defendants contracted to sell the Risca colliery, and the vendees took possession of it on the 22d of that 260 Cases on Agekoy. [ Book I month, and from that the plaintiffs had ceased to be employed in the sale of the coals. Forwood & Paton having brought their action on the agree- ment, it was referred to a barrister, who stated a case for the opinion of the court. Upon argument in the Court of Exchequer, judgment was given by Mr. Baron Beamwell and Mr. Baron Cleasbt, for the defendant Rhodes. Upon error to the Exchequer Chamber, that judgment was reversed by Lord Colee- idge, Mr. Justice Lush, and Mr. Justice Aechibald. Diss. Mr. Justice Qwain". The case was then brought up on error to this house. Mr. Benjamin, Q. C, and Mr. Patchett, for the plaintiff in error. Mr. Manisty, Q. 0., and Mr. J. G. Bigham, for the defendants in error. The Loed Chakcelloe (Lord Caiens): My Lords, I do not think that any of your Lordships can have any doubt as to the decision which the house ought to give in the present case. The case itself lies in an extremely short compass. As regards its gen- eral history it may be stated thus: There is a colliery owner in the south of Wales who is anxious to place the produce of his colliery in the most advantageous way, and to obtain a sale for the coal taken from it in the Liverpool market, as well as in other places. He enters into an agreement with certain gentlemen in Liverpool, the present respondents. I shall have to refer a little more particularly to the details of that agreement afterwards, but the outline of it is this, they are to become his agents for the sale of the coal sold in Liverpool for a period of seven years; during that time he will not employ any other agent in Liverpool to sell his coal, and, during that time, they will not act as agents without his consent for the sale of any other steam coal; they are to be paid a price for their services by a percentage upon the value of the coal sold, and for that price they are to undertake all the expense, of an office, and of advertising and commending the coal to purchasers, which may have to be incurred in Liverpool. My Lords, the employment commences upon that footing, and the case finds clearly that the respondents were at considerable expense in bringing the coal into the Liverpool market, and before the notice of purchasers. As a matter of course that expense wonld naturally be incurred to a greater extent in the earlier part of the Chap. VII] Rhodes vs. Forwood. 261 term of seven years than in the latter part. The employment therefore during the earlier part of the seven years would naturally be expected to be less remunerative than during the latter part of that period. The employment went on for about three years and a half. At the end of that time the appellant sold his colliery, and, therefore, of necessity, no more coal could come to the Liverpool market with regard to which he would be the principal and the respondents his agents. That, of course, was a considerable hard- ship upon the respondents for the reason that I have mentioned. The expense which would fall most heavily upon them would be the expense in the earlier part of the employment, and they were deprived of the commission which they might have earned during the later years, 'which would have been the most productive part of their employment. But although that is a hardship upon them which naturally one would regret to see occur, still the question remains what was the contract entered into between the parties, and has there been, in what has been done, any violation of that contract. My Lords, it is not contended that there has been any violation of any express term in any part of the contract. There is no express term in the contract from beginning to end that the appel- lant, the colliery owner, would send any coal to Liverpool, or any particular quantity of coal to Liverpool, or that he would continue for any particular length of time to send coal to Liverpool. As regards express contract, there is a complete absence of anything of that kind. But then it is contended that there is an implied contract under which the appellant was bound to send coal to Liverpool, and that he has disabled himself from performing that implied contract by selling the colliery out of which the coal might have come. My Lords, that requires your Lordships to look at the whole contract, and to discover, if you can, whether there is any such implied con- tract as is suggested. Now the general effect of the contract is this: Your Lordships will observe that it commences in this way, that " for the term of seven years " " Paton & Forwood, or such of them as shall continue to carry on business in the name of that firm at Liverpool, shall and will be the agents of Mr. Rhodes at Liverpool for the sale of the coals of all kinds produced at the Risca Collieries." I stop there for the purpose of saying that that obviously is, and indeed it was admitted to be, not a contract that they would be the agents of 262 Cases on Agency. [Book I Rhodes for the sale of Risca coal of all kinds wherever the sale should take place, bnt that they would by the agents for the sale in Liverpool of cuch of the coal as was sold in Liverpool; and, farther, that it is obviously a contract that they will be the agents of Rhodes for the sale of coal which is produced at the Risca Colliery while the Risca Colliery is his property, because if it is the property of another person they could not be the agents of Rhodes for the Bale of coal which did not belong to Rhodes. Farther than that, the contract is that they will thus be the agents of Mr. Rhodes for seven years with this important qualification, "Subject nevertheless to the determination of such agency in manner hereinafter mentioned/' You are therefore informed at the com- mencement that although there is a fixed term stated^ namely, seven years, means are provided in a subsequent part of the con- tract for terminating the agency. Then there are two engagements, one upon the side of Rhodes and the other upon the side of Forwood, and they are the only two express engagements which I find in the contract. With regard to Rhodes, the express engagement on his part is in the second clause, " During the continuance of such agency, Mr. Rhodes will not employ any other agent for the sale of coals in the port of Liver- pool, save in respect of contracts now existing, all of which are expressly exempted from this agreement." That is all which he actually and openly contracts for. He ties his hands against having any other agent for the sale of coal in the port of Liverpool. The express contract on the part of Forwood, Paton & Co., is in the fourth paragraph: "Forwood, Paton & Co. will not during the continuance of their agency act as agents for the sale of any other steam coal without the written consent of Mr. Rhodes, to be obtained for each transaction." It is a correl- ative contract on their part, negative also in its aspect, that, as he will not employ any other agent, bo they will not act for any other principal. Now I ask your Lordships at this point to consider if the contract had stopped here, what would have been the result? Both parties would have been tied and bound for seven years, the one not to employ another agent, the other not to act for another principal. Then it appears to have occurred to them, naturally enough, to consider — but what if the agency produces no fruit to the agents? Or what if the agents are not able to act with the energy which the principal expects? Is this state of things to go on for seven Chap. VII] Rhodes ys. Fobwood. 253 years in this case? And then to deal with that your Lordships find that the 7th clause is introduced, providing that if "during the first or any subsequent year of the agency hereby created " Forwood, Paton & Co., "shall not have bona fide sold 50,000 tons of coal on Mr. Rhodes' account, in conformity with the terms of this contract" (that is to say, sold at prices of which the principal would approve), "it shall be lawful for Mr. Rhodes, at any time prior to the 1st day of May in the ensuing year, to determine the said agency at the expiration of six months from the delivery of a notice in writing to that effect." And on the other hand, " in the event of Mr. Rhodes not being able to supply with due dispatch the quantity and quality of coal not exceeding " (not 50,000 tons, but) " 75,000 tons in all in any one year which may have been sold on his account, in conformity with the terms of this contract (saving the case of strikes or inevitable accident), it shall be law- ful for Messrs. Forwood, Paton & Co. in like manner to determine their agency." Therefore, there is not an absolute contract to employ no other agent during seven years, and an absolute con- tract to act for no other principal for seven years, but a contract of that kind subject to determination in the manner mentioned, the mode of determination being that which I have read, a power to the principal to resile if his agent cannot sell at prices approved by him, 50,000 tons of coal in the year, and a power to the agent to resile if the principal cannot supply him in any year with 75,000 tons of coal which can be sold at those prices. That is the protection which the parties have provided for them- selves with reference to the duration or the continuance of this agree- ment. Now, I ask, the parties having provided this kind of pro- tection for themselves, upon what principle is it that your Lordships are to introduce into and to imply in the agreement what, it is admitted, is not found expressly there, namely, an engagement that during that time the principal will not disable himself from sending coals to Liverpool by selling his colliery to any other per- son? This question is asked by Mr. Manisty: Can you assume that the agents intended to leave open the right to sell the colliery without any assent on their part? My Lords, I should ask, in answer to that, another question: Can you assume that the principal, the colliery owner, meant to tie his hands for seven years against sell- ing the colliery without either obtaining the consent of the agents, or without paying them a gross sum, the equivalent for all the profits they might make by the continuance of the engagement dur- 264 Cases on Agency. [Book I ing the seven years? My Lords, if it was the intention that there should be an implied undertaking of that kind, how inconsistent would that have been with the express clause which I hare read, the 7th clause, providing expressly in the events which are there mentioned for the determination of the agreement. Now, my Lords, as I pointed out in the course of the argument, there are really in this agreement several risks which are left alto- gether uncovered, and as to some of which it was very candidly admitted by the counsel for the respondents that no provision whatever was made, and that they could not say that there was even by implication any protection against those risks. I will remind your lordships of what those risks are. On the one hand, in the first place, the colliery owner, the appellant, might sell the whole of his coal at ports other than Liverpool, and not send a single ton to Liverpool. That is admitted on the part of the respondents. They do not challenge that proposition. They say that that is an infirmity in the engagement between the parties. The agents could not have demurred or complained if every ton of this coal raised during the seven years at the Kisca colliery had been sold at Swansea, or at Southampton, or at any other port which might be suggested. In the next place, the coal might have been sent to Liverpool, but the principal might have taken a view with regard to the price to be obtained for it which would have led him to place limits upon the coal, such as to prevent the agents selling any of it in any one particular year, and the agents might have been left in that year without any commission whatever, although having coal in stock, because the principal might have thought it expedient to hold the coal and wait for better prices. There, again, it is admitted that that was in the power of the principal, and that the agent could not have complained. Then, again, I asked the question: Supposing the colliery owner had, by reason of difficulties arising with the workers or otherwise, chosen to close his colliery for a year, or for several years, and to wait for better times or a more easy mode of working, could the agents have complained? It was said they could not; that the colliery owner must be judge of that. He might have taken that course without exposing himself to any proceedings for damages. But if that is so, if any one of these three courses might have been adopted, if all the coal after it was got out of the colliery might have been sold elsewhere, if the colliery might not have been worked at all, if the prices required to be fetched Chap. VII] Khodes vs. Forwood. 265 at Liverpool might have been such that the coal could not have been sold even after it went to Liverpool, if all that was in the power of the colliery owner, and it could not be contended that there is any provision in this contract against any of those risks, why is it to be assumed with regard to the other, the fourth risk, namely, the risk of the colliery owner, not selling his coal elsewhere piecemeal, but selling the colliery itself to a purchaser, that there is an implied undertaking against that one risk, although it is admitted that there is no undertaking at all against any of the other risks? My Lords, in point of fact an agreement of this kind, obviously, is made upon the chances of risks of the sort I have referred to, and none of which is expressed in the agreement. That which is in the mind of the parties, the principal on the one hand and the agents on the other, is supposing it to be convenient that the busi- ness should go on and the coal find its way to the port of Liver- pool, all that we require to stipulate for is that, on the one hand, the principal should have the security that his agents will be suffi- ciently energetic to sell a certain quantity of coal in the year, and, on the other hand, that the agents should be able, if a sufficient quantity of coal is not put in their hands for sale to terminate the engagement. My Lords, it is obvious, now that the result is seen, that it would have been a much wiser thing if both parties, or at all events if the agents, in place of stipulating for a mode of terminating the agree- ment which required to work it out the lapse perhaps of a year or eighteen months, had stipulated for a more speedy power of term- inating the agreement, and for the power of taking coal for other people as agents, supposing the coal of the Eisca Colliery was not sent to them. That, however, was for them to judge of. Your Lordships cannot reform an agreement because in the result it appears to produce consequences which possibly may not have been expected. The simple point here appears to me to be, as it is admitted that there is no express contract which has been violated: Can your Lord- ships say that there is any implied contract which has been violated? I can find none. I cannot find any implied contract that the colliery owner would not sell his colliery entire. Therefore I am obliged to arrive at the conclusion that the decision of the Court of Exchequer was correct, and that judgment in the action should be given as the Court of Exchequer gave it, for the defendant. 266 Cases ox Agency. [Book 1 Lords Chelmsford, Hatherby, Penzance and O'Hagan delivered concurring opinions. Reversed. Note— See, also, Burton vs. Great Northern Ry. Co., 9 Ex. 507; Church- ward vs. The Queen, L. R. 1 Q. B. 173; Ex parte Maclure, L. R. 5 Ch. 737; Aspclin vs. Austin, 5 Q. B. 671; Dunn vs. Sayles, 5 Q. B. 685; Orr vs. Ward, 78 I1L 318; McArthur vs. Times Printing Co., ante, — . (Law Reports, 1891, 1 Queen's Bench Division, 544.) TURNER vs. GOLDSMITH. (English Court of Appeal, January, 1891.) The defendant, a shirt manufacturer, by contract in writing, agreed to employ the plaintiff, and the plaintiff agreed to serve the defendant as agent, canvasser, and traveler on the terms — first, that the agency should be determined by either party at the end of five years by notice; secondly, that the plaintiff should do his utmost to obtain orders for and sell the various goods " manufac- tured or sold by the defendant as should from time to time be forwarded or submitted by sample or pattern to T." And it was further provided that the plaintiff should be remunerated by such commission as was specified in the contract. After about two years the defendant's manufactory was burned down and he did not resume business, and thenceforth did not employ the plaintiff, who brought an action for breach of contract. Winch, Q. C, and H. Kisch, for the plaintiff. E. Bullen, for the defendant. Lindley, L. J. This is an action for breach of contract in not employing the plaintiff for the period of five years. The contract turns upon the construction of the agreement entered into by the parties, and the application of it in the events which have happened. The plaintiff wished to act as traveler to the defendant, and the defendant wished to engage him in that capacity. An agreement, dated January 31, 1887, was entered into between them, which contained this recital: " "Whereas, in consideration of the agreement of the said A. S. Turner, the said company " (*. e., Mr. Goldsmith, and any partner Chap. VII] Turner vs. Goldsmith. 2G7 he might have) " agree to employ the said A. S. Turner as their agent, canvasser, and traveler, upon the terms and subject to the stipulations and conditions hereinafter contained; and in con- sideration of the premises the said A. S. Turner hereby agrees with the said company that he, the said A. S. Turner, shall and will diligently, faithfully, and honestly serve the said company as their agent, canvasser, and traveler, upon the terms and subject to the stipulations and conditions hereinafter contained. " Stopping there we have a clear agreement by the company to employ the plaintiff, and by the plaintiff to serve the company — and on what terms? 1. That the agency shall commence as from January 31st, 18S7, and shall be determinable either by the com- pany or Turner at the end of five years from the date of the agree- ment upon giving such notice as therein mentioned. 2. " The said A. S. Turner shall do his utmost to obtain orders for and sell the various goods manufactured or sold by the said company as shall be from time to time forwarded or submitted by sample or pattern to him at list price to good and substantial customers." Clause 5 is only material because it repeats the words " manufactured or sold by the said company." The 8th clause provides for the plaintiff's remuneration by a commission on the goods sold by him. The other clauses are not material as regards the question before us. It was contended by the defendant that the agreement did not contain any stipulation that the company should furnish the plaintiff with any samples, and that there was, therefore, no agree- ment to do what was necessary to enable him to earn commission. The answer to that is, that the company would not be employing the plaintiff within the meaning of the agreement unless they sup- plied him with samples to a reasonable extent. Then it was said that there is no undertaking by the company to go on manufactur- ing. It is true that there is no express, nor, 60 far as I see, any implied undertaking by the company to manufacture even a single shirt; they might buy the articles in the market. The defendant's place of business was burnt down; the defendant has given up business, and has made no effort to resume it. The plaintiff then says, "I am entitled to damages for your breach of the agreement to employ me for five years." The defendant pleads that the agree- ment was conditional on the continued existence of his business. On the face of the agreement there is no reference to the place of business, and no condition as to the defendant's continuing to 268 Cases on Agency. [Book I manufacture or sell. How, then, can such a condition as the defendant contends for be implied? It was contended that the point was settled by authority. I will refer to three cases on the subject. In Rhodes vs. For wood, 1 App. Cas. 256, (ante, — -) it was held that an action very similar to the present was not maintainable. But that case went on the ground that, there not being any express contract to employ the agent, such a contract could not be implied. In the present case we find an express contract to employ him. In L'owasjee Kanaohoy vs. Lallbhoy Vullublioy, Law Rep. 3 Ind. App. 200, there was a contract in a partnership deed to employ one of the partners during his life as sole agent to effect purchases and sales on behalf of the partnership at a commission upon his sales. The partnership was dissolved by decree of the High Court of Bombay on the ground that the business could not be carried on at a profit. It was held that the employment was to sell on behalf of the partnership; that, the partnership having come to an end, the employment ceased, and that the partner could not claim any compensation, for that a contract to carry on the partnership during the claimant's life under all circumstances could not be implied. Taylor vs. Caldwell, 3 B. & S. 826, 833, contains some observa- tions which are very much in point. Blackbukn, J., there says: " There seems no doubt that where there is a positive contract to do a thing not in itself unlawful, the contractor must perform it or pay damages for not doing it, although in consequence of unfor- seen accidents the performance of his contract has become unex- pectedly burdensome or even impossible. * * * But this rule is only applicable when the contract is positive and absolute, and not subject to any condition either express or implied, and there are authorities which we think establish the principle, that where from the nature of the contract it appears that the parties must from the beginning have known that it could not be fulfilled, unless when the time for the fulfillment of the contract arrived, some particular specified thing continued to exist, so that, when entering into the contract, they must have contemplated such con- tinuing existence as the foundation of what was to be done, then, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be construed as a positive contract, but as subject to an implied condition that the parties shall be excused in case before breach, performance becomes impossible from the perishing of the thing without default of the contractor. ** Chap. VII ] Turner vs. Goldsmith. 269 The substance of that is, that the contract will he treated as sub- ject to an implied condition that it is to he in force only so long aa a certain state of things continues, in those cases only where the parties must have contemplated the continuing of that state of things as the foundation of what was to he done. Here the parties cannot be taken to have contemplated the continuance of the defendant's manufactory as the foundation of what was to be done; for, as I have already observed, the plaintiff's employment was not confined to articles manufactured by the defendant. The action, therefore, in my opinion, is maintainable. The plaintiff, then, is entitled to damages, and in my opinion not merely to nominal damages; for, if I am right in my con- struction of the agreement, he has suffered substantial loss. We think, however, that £125 is too much, and the plaintiff's coun- sel having agreed to take our assessment of damages rather than be sent to a new trial, we assess them at £50, and direct judgment to be entered for the plaintiff for that amount. Kay and Lopes, L. JJ., concurred. (61 Missouri, 534.) LEWIS vs. ATLAS MUTUAL LIFE INSURANCE COM- PANY. {Supreme Court of Missouri, January, 1876.) Appeal from St. Louis county circuit court. Martin & Lochland, for appellant. Cline, Jameson & Day, for respondent. Wagner, J., delivered the opinion of the court. This was an action to recover damages for breach of a contract of agency. By virtue of the contract the plaintiff became the general agent of the defendant for the state of Illinois, for the term of five years. By the provision of the contract the plaintiff agreed to work exclu- sively for the company during its continuance. He was also bound to work the territory with a full corps of energetic and reliable agents. He had all the authority of a general agent in soliciting insurance and collecting premiums. His remittances were to be on the 10th of each month, at the time of his monthly reports. As 270 Cases on Agency. [Book I a compensation for his services and expenditures, he was to have 35 per cent on first premiums, prior to July 1, 1870, and 30 per cent after that, ten per cent on term insurance and paid up poli- cies, and ten per cent on all renewals. These premiums on renewals were to bepaid to him and his heirs after the expiration of the five years, provided he continued to be the agent of the company for that term, and performed the conditions of the contract required of him. He was also to have $250 per year, for rent of office at Springfield, Illinois. It is averred in the petition that the plaintiff discharged the duties of the contract devolving upon him, until the 2d day of March, 1872, at which time the defendant discontinued its busi- ness in Illinois, and failed and refused to permit plaintiff to further prosecute the duties as agent there; that on the 24th of April, 1872, the defendant voluntarily sold and transferred the whole of its business and its assets to the St. Louis Mutual Life Insurance Company, thereby discontinuing its business and depriving itself of the power to keep and perform its part of the contract. The answer denies the breaches, and also sets out, as an excuse for the discontinuance of its business in Illinois and elsewhere, that on account of the insufficiency of its assets and property, it was unable to comply with the laws of Illinois and Missouri, and that on the 24th of April, 1872, it caused all its policies to be re-insured in the St. Louis Mutual Life Insurance Company, and that the plaintiff sanctioned the re-insurance. The evidence showed con- clusively, and about that there is no question, that the defendant discontinued its business in Illinois on the 2d of March 1872, and that it sold out entirely to the St. Louis Mutual Life Insurance Company on the 24th of April, 1872. It was an unqualified sale of all its property and rights. The cause was tried before the circuit court with a jury, and a verdict was found for the plaintiff, upon which judgment was rendered. At general term this judgment was reversed, and plaintiff prose- cuted his appeal to this court. There are but two questions arising on the record of any import- ance, and the first is, whether the insolvency and inability of the company to carry on its business, is any legal excuse for the breaches of the contract; and the second relates to the measure of damages. The court held, by its instructions, that the inability of the defendant to continue its business, was no excuse for its breach of contract with the plaintiff. Chap. VII] Lewis vs. Lnsueaxce Co. 27] It appeared at the trial that the plaintiff was only permitted to conduct his agency about half the time agreed upon by the stipula- tion. During that time he procured a large number of policies and the annual renewals were shown to be very valuable. It is now argued on behalf of the defendant, that by the terms of the contract sued on, the plaintiff was merely appointed agent for the company, for the period of five years, and, as the company did not expressly bind itself to continue in business for that length of time, that its inability to act and execute the whole stipulation on its part, constituted no breach. It is true there was no positive and direct covenant on the part of the company to carry on the business for any definite time. But the plaintiff agreed to act exclusively for the company for the term of five years, and had he neglected or failed, he would have been liable in dam- ages. If he was bound for that length of time, it necessarily fol- lows that the company must also have been bound; for mutu- ality was essential to the validity of the agreement. It very frequently happens that contracts on their face and by their express terms appear to be obligatory on one party only; but in such cases, if it be manifest that it was the intention of the parties, and the consideration upon which one party assumed an express obligation, that there should be a corresponding and correl- ative obligation on the other party, such corresponding and cor- relative obligation will be implied. As, if the act to be done by the party binding himself can only be done upon a corresponding act being done or allowed by the other party, an obligation by the latter to do or allow to be done the act or things necessary for the completion of the contract, will be necessarily implied. (Pordage vs. Cole, 1 Wm. Saund. 319; Churchward vs. The Queen, 6 B. & S. 807; Black vs. Woodroto, 39 Md. 194.) When the plaintiff bound himself to give his exclusive services to the defendant for the period of five years, there was a correlative and corresponding obligation upon the part of the defendant, to give him employment and allow him to pursue and execute the terms of the contract. This was manifestly the intention of the parties. The defendant's insolvency or inability furnished no excuse for its breach of the contract. Had it desired to be exempted from liability in such an event, it should have stipulated for the exemption upon the happening of the con- tingency. The criterion of damages would be to ascertain how much the plaintiff has lost by the defendant's breach of the contract. Upon 272 Oases on Agency. [Book I the trial it was shown how much he had realized during the exist- ence of the contract, and the estimate in the verdict seems to have heen placed upon the past actual earnings, together with the testi- mony of actuaries as to what probably would be the value of the renewals on policies already obtained. A custom or usage has sprung up, and exists with insurance companies, by which adjust- ments are made as to the value and renewals of policies for any given length of time. By the use of statistical tables and com- parisons, a remarkable degree of accuracy is obtained, and where a connection ceases between an agent and the company, it is the only mode of ascertaining or adjusting the agent's interest. The calcu- lation by the actuary has been reduced to scientific principles, and it must be resorted to, else there would be a failure of justice on one hand, or on the other, the damages would be purely specula- tive. In Fnsworth vs. The New York Life Ins. Co., 7 Am. Law. Reg. (N. S.) 332; s. c. 1 Bigel. Ins. Cas. 645, an action was brought against an insurance company by the agent for breach of contract, whereby the company agreed to give the agent a certain percentage on renewals of policies while they continued in force. It was held that the action was sustainable, and that the probable duration of the policies might be proved; and a judgment was given for the full value of the commissions on the renewal of premiums to become due, during their estimated probable life time, after deduct- ing the costs of collection. The plaintiff was permitted to show the amount of his collec- tions from time to time, from July 1, 18G9, to March 1, 1872, and the amount of his commissions during that time, both in the aggre- gate and per month on the average. These commissions were all paid, and it is evident from the amount of the verdict, that the jury must have considered the commission on premiums for the above named period as a fair criterion of what plaintiff would have earned in the future, had the contract not been broken. Without some other evidence of the probable amount of the business, these damages would be too much of a speculative character. The new business might depend on various circumstances and be affected by numerous contingencies, and these should be shown as entering into the computation of damages. The court refused to allow the defendant to show that the plaintiff had made a contract with another insurance company,, and had entered into its service shortly after ho ceased to be agent Chap. VII] Lewis vs. Insurance Co. 273 for the defendant. It was competent for the plaintiff to recover what he had lost by reason of the breach of the contract, for the residue of the term of his agency, but the defendant should have been allowed to show in mitigation of damages, what he was making in another company during the remainder of the time covered by the contract. For this reason we affirm the judgment. (84 Georgia, 714, 8 L. E. A. 410.) STANDARD OIL COMPANY vs. GILBERT. (Supreme Court of Georgia, March, 1890. J Action on account against Gilbert & Co., and plea of set-off, with prayer for judgment for the excess claimed of plaintiff's demand. Verdict in favor of the defendants for that excess. The decision states the facts of the case. Denmark, Adams & Adams, for plaintiff. Garrard & Meldrim, for defendants. Bleckley, C. J. There was no dispute or controversy as to the facts. Their legal significance, nothing else, was for determi- nation, the parties having agreed that the only question should be whether the contract could be terminated before October 1st by the notice of December 15, 1886. The presiding judge decided this question in the negative, and directed a verdict accordingly. The notice referred to, dated December 15, 1886, was in these terms: " Owing to the present low prices of oil, and the possibility of a continuance of the same, we cannot, after December 31, 18S6, oontinue to allow you $75 per month rebate, as heretofore. We solicit a continuance of your orders, and will be glad to allow you jobbers* rebate, the same as we are now paying the other merchants." The contract between the parties, as originally made, was in writ- ing. It bore date October 1, 11 80. The obligations which it imposed on the agents (Gilbert & Co.) were these: (1) To sell coal oil for their principals at such prices as the latter might fix from time to time; ("J) to handle no other oil for the period of one year from the date of the contract; (3) to 18 274 Oases on Agency. [Book I receive the oil at their wharf and store it in their warehouse with- out charge for wharfage or storage; (4) to pay on the 10th of each month for all oil sold during the previous month. The obligationa imposed upon the principals were: (1) To pay to the agents $75 per month for one year from the date of the contract; (2) to keep them supplied with merchantable oil at all seasons of the year; (3) to deliver the oil at their wharf or warehouse; (4) to pay them one dollar per barrel on the excess, if any, over 900 barrels sold by them during the year for which the agreement was made. Within a month or two after the year expired, the contract was renewed, as the result of written correspondence, for a second year, termi- nating October 1st, 1882. No subsequent negotiations took place, but the parties continued to deal in harmony with the terms of the written contract through all subsequent years up to December 15, 1886, when the notice above recited was given. Afterwards, and until October of the following year, their dealings went on, but the oil sent during that period was furnished and received without prejudice to the claim of either party. The credit of $75 per month in the oil account, as kept by the principals, ceased with December, 18S6; and from that time forward the credits entered as rebates amounted in the aggregate to only $18.84. In other words, compensation for nine months, which according to the written contract would be $675, was reduced to $18.84. To which of these sums were the agents entitled? According to its letter, the notice did not seek to terminate the contract in any respect except as to the amount of compensation. It merely warned the agents that the principals would not pay as they had done theretofore, but would substitute the ordinary rebates allowed the trade. It did not propose to discharge the agents from any of their obligations, which, as we have seen, were not to handle any other oil, to receive and store without charge, and to pay unconditionally on the 10th of each month for all oil sold during the previous month. It admits of no doubt that the notice thus construed would not be effective for any purpose. But construing it, as both parties probably did, to be an effort to ter- minate the agency altogether, and to release both parties from any and all obligations as to future dealings after January 1st, 1887, the question is, was there a legal right so to do? We think not. It is clear that during the first or second year both parties were bound, not from month to month only, but throughout the year, Chap. VII] Standabd Oil Co. vs. Gilbeet. 275 as there was an express undertaking on the part of the oil company to keep the agents supplied with oil at all seasons of the year, and to pay them 875.00 per month for one year. The case does not fall within the principle of such cases as Burton vs. Great North- ern R'y Co., 9 Exch. 507; Rhodes vs. Forward, L. R. 1 App. Cas. 256 {ante ); and Orr vs. Ward, 73 111. 318, in which it was ruled that it was not obligatory on the employer to furnish business to the agent or employ^ throughout the whole period embraced in the contract, the reason of such ruling being that the employer had not stipulated so to do. Here, on the contrary, the stipula- tion was no less express on behalf of one party than of the other. If such a notice as we are considering would not have dissolved the engagement pending the first or second year of the service, it could not have that effect pending the seventh year unless, by reason of not having been expressly renewed or continued after the second year, it ceased to be a contract for a whole year and became indefinite as to time, or a contract at will only. Tested by the law of ordinary hiring, or of master and servant, there can be no doubt that services rendered without a new agreement after the contract term has expired are to be compensated at the same rate, and to that extent the prior contract is renewed or continued in force. N. H. Iron Factory vs. Richardson, 5 N. H. 294; Wallace vs. Floyd, 29 Pa. St. Ib4, 72 Am. Dec. 620; Ranch vs. Albright, 36 Id. 367; Nicholson vs. J'atchin, 5 Cal. 474; Vail vs. Jersey, etc., Co., 32 Barb. 574; Weise vs. Board of Supervisors, 51 "Wis. 564. And where the term of employment does not exceed one year, the authorities seem to us decisive that the prior contract is renewed or continued for an equivalent time, as w r ell as at an equal rate. "Where the hiring is under a special agreement, the terms of the agreement must of course be observed. If there be no special agreement, but the hiring is a general one without men- tion of time, it is construed to be for a year certain. If the servant continue in the employment beyond that year, a contract for a second year is implied, and so on." Smith's Mer. Law, 266; same by Pomeroy, sec. 508. " Where a person has been employed by another for a certain definite term at fixed wages, if the services are continued after the expiration of the term in the same business, it is presumed that the continued services are rendered upon the same terms; but this is a mere presumption, which may be over- come by proof of a new contract, or of facts and circumstances that show that the parties in fact understood that the terms of the 276 Cases on Agency. [Book I old contract were not to apply to the con tinned services." Wood's Master and Servant, sec. 96. "A person who has been pre- viously employed by the month, year or other fixed interval, and who is permitted to conthme in the employment after the period limited by the original employment has expired, will, in the absence of anything to show a contrary intention, be presumed to be employed until the close of the current interval, and upon the same terms." Mechem on Agency, sec. 212. " Tacit relocation is a doctrine borrowed from the Roman law. It is a presumed renovation of the contract from the period at which the former expired, and is held to arise from implied consent of parties, in consequence of their not having signified their intention that the agreement should terminate at the period stipulated. * * * Though the original contract may have been for a longer period than one year, the renewed agreement can never be for more than one year, because no verbal contract of location can extend longer." Fraser on Mas. & Ser. 58. This last is a Scotch authority, but on this question the law of Scotland seems to coincide with our own, and with the law of Louisiana. See Alia vs. Morarity, 36 La. An. 680; Lalande vs. Aldrich, (la.) 6 So. Rep. 28; Tallom vs. Mining Co., 55 Mich. 147; Sines vs. Supts. of the Poor, 58 Mich. 103; McCullough Iron Co. vs. Carpenter, 67 Md. 554; Tatterson vs. Suffolk Mfg. Co., 106 Mass. 56; Capron vs. Strout, 11 Nev. 304; Beeston vs. Lollyer, 4 Bingh. 309. In the argument notice was taken of the difference between the English and American rule as to presuming that an indefinite hiring is for a whole year. It was said that in the former country this presumption holds, but in the latter it does not. Wood's Mas. and Ser. sec. 136. We think, however, this presumption has nothing to do with the matter; for whether the first hiring has its duration fixed by express or implied contract, if it be fixed in either way, the term (if not longer than one year) admits of dupli- cation by tacit as well as express agreement. When we have a definite term of service, no matter how we get it, subsequent ser- vice of the same kind, where no new contract is made and nothing appoirs to indicate a change of intention, may be referred to the previous understanding and to a tacit renewal of the engagement. Thus far we have dealt with the question without any special reference to the law of agency as distinguished from that of master and servant generally. This was a commercial agency, compre- Chap. VII] Standard Oil Co. vs. Gilbert. 277 hending not only personal services, bat the use of a wharf for landing oil and of a warehouse for storing it; and attended with a guaranty of the proceeds of all sales, the agents being obliged to pay within ten days for the oil sold in each month. The agents, if not del credere agents technically, were upon the same footing as such; they had to pay for all the goods they sold. No doubt the power of revoking the agency pending a current year's busi- ness existed, but the right to revoke it without sufficient cause did not exist; and a wrongful revocation leaves the principal liable to make reparation to the agent. Mechem on Agency, §§ 209, 614, 620, 621; Code, § 2183. Here no cause was assigned but the low price of oil and the prospect of its continuance. Neither of the parties had retired, or so far as appears, wished to withdraw from business, and accord- ing to the evidence, fifteen days' notice would be too short a time within which to make arrangement with other dealers for oil; to do that would require several months. We can see nothing what- ever in the record to justify the revocation of the agency by such a notice as was given, and we agree with the presiding judge in the opinion that the oil company had no legal right to terminate the contract before October 1, 1887, without mutual consent. The engagement was one from year to year, and not merely at the will of either party. There was no contention that the amount claimed by the defendants in excess of the plaintiffs' demand was more than they ought to recover upon their plea of set-off, if they were entitled to recover at all, and the verdict being for that amount, it was correct, and the court did not err in refusing a new trial. Judgment affirmed. (125 United States, 339.) MISSOURI, EX EEL. WALKEE vs. WALKER. (United States Supreme Court, April, 1SSS.J In March, 1881, the General Assembly of Missouri enacted a statute authorizing the fund commissioners of the State to employ a competent agent to prosecute to final settlement before Congress and the proper departments at Washington, certain specified claims 278 Oases on Agency. [Book I of the State against the United States. He was to give security, prosecute the claims at his own expense and for his services was to have such commissions on the amount collected by him as might be agreed upon between himself and the fund commissioners, not to exceed a certain per centage. The commissioners appointed John R. Walker as such agent and he gave the security and entered upon the discharge of his duties. In March, 1885, the statute was repealed without any saving clause. Afterwards a claim arose of the kind contemplated by the first statute, and Walker demanded it for collection pursuant to the Act of 1881, but it was refused on the ground that that statute had been repealed. Thereupon Walker applied to the Supreme Court of the State for a mandamus on the auditor to make the delivery, on the ground that the Act of 1885 impaired the obligation of his contract with the State under the Act of 1881, and was therefore void. The court denied the writ, holding that his employment was "one of agency, pure and Bimple," which the State could revoke at will, as it did by the repealing act. For a review of the judgment this writ of error was brought. Wm. M. Williams, for plaintiff in error. B. O. Boone, Attorney General of Missouri, for defendant in error. Waite, 0. J. (After stating the facts.) The fund commis- sioners were only authorized to employ an agent for the State, and to agree with him as to the commissions he should receive on the amount collected, as full compensation for his services and all expenses incurred by him in that behalf. This they did and there can be no doubt that the agency thus created was withdrawn by the repealing act of 1885, unless a consideration was given for it, or it was so coupled with an interest in the subject matter of the agency, that is to say, in the claims to be collected, as to make it irrevocable. There was no consideration in money paid for the employment. The agreement to prosecute the claims faithfully is no more than would be implied in law from the acceptance of the employment, and the provision for the payment of expenses is only a declaration that the commissions stipulated for shall be in full for services and disbursements. There is nothing, therefore, in the consideration for the employment to prevent this agency from being revoked like any other. Chap. VII ] Missouri vs. "Walkeb. 279 The interest implied with a power, to make it irrevocable, must be an interest in the thing itself. As wat, said by Chief Justice Marshall in Hunt vs. Eousmanier, 8 Wheat. 174, 204 (post, — ), " the power must be engrafted on an estate in the thing. The words themselves seem to impart this meaning. ' A power, coupled with an interest/ is a power which accompanies or is con- nected with an interest. The power and the interest are united in the same person. But if we are to understand by the word ' inter- est,' an interest in that which is to be produced by the exercise of the power, then they are never united. The power to produce the interest must be exercised, and by its exercise is extinguished. The power ceases when the interest commences and therefore cannot in accurate law language, be said to be ' coupled ' with it." Such is undoubtedly the rule. Here there was no actual assignment of the claims or any part of them. Walker had no authority under his employment to take the money from the United States except to the extent of his com- missions. The vouchers and evidences of debt were not turned over to him. All he could do was to present the claims in the name of the State and as its representative. He could not even get the vouchers or other evidences of debt which were necessary for the establishment of the claim, by application to the proper custodian, but must go to the governor of the State for his written order directing their delivery to him. There is nothing whatever in the transaction, from the begin- ning to the end, which shows an intention on the part of the legis- lature to part with any interest in or control over the claims, except to the extent of the commissions of the agent after they had been earned. Walker was given no power to compromise any claim. All he could do was to establish the claim, and when the state was ready to pay it, take his commissions. Clearly such an agency is not irrevocable in law, because of its being coupled with an inter- est in the thing to be collected. If the vouchers and other evi- dences of debt had actually been delivered to him for collection, and he had expended time or money under his employn.n.t, in endeavoring to make the collection, a revocation of his authority might not require him to return the papers he held, until he was compensated for what he had already done; but that is not the question here, because the purpose of this suit is to get possession of new vouchers, not to assert a lien upon 6uch as he already had in hand. 280 Cases ojnt Agency. [Book 1 There is nothing in the cases of Hall vs. Wisconsin, 103 TJ. S. 5, or of Jeffries vs. Mutual Life Insurance Company, 110 U. S. 305, in conflict with this. In Hall's case the question was whether his employment was an office or nnder a contract for work and labor, and it was held to be nnder a contract, because although he was appointed a commissioner to make a " geological, mineralogical and agricultural survey of the state," the law providing for the survey and for his appointment required that the governor " make a written contract " with him for the performance of his allotted work, and " the compensation therefor;" and it also declared that " such contract shall expressly provide that the compensation to such commissioner shall be at a certain rate per annum, to be agreed upon, and not exceeding the rate of two thousand dollars per annum, and that payment will be made only for such part of the year " as he may actually be engaged in the discharge of his duty as such commissioner. The contract actually entered into was by its terms " to continue till the third day of March, 1863, unless the said Hall should be removed for incompetency or neglect of duty, * * * or unless a vacancy shall occur in his office by his own act or default." . In deciding the case it was said: "In a sound view of the subject, it seems to us that the legal position of the plaintiff in error was not materially different from that of parties who, pursuant to law, enter into stipulations, limited in point of time, with a state, for the erection, alteration or repair of public buildings, or to supply the officers or employes who occupy them with fuel, light, stationary, and other things necessary for the public service." There was in that case a positive contract by the State for employment in a par- ticular service, for a particular term, made under the authority of law; and because it was such a contract the State could not, any more than a private individual, rescind it at will. The employ- ment in this case, however, has no such provision. There is no agreement as to time, and the matter stands precisely as that of Hall would, if a statute had been passed authorizing a geological, mineralogical and agricultural survey of the State, and he had been employed to make it and receive for his services a compensation dependent on the amount of work actually done, or the time actu- ally employed. It would hardly have been contended that under such a contract the State could not stop the survey and require Hall to quit work at any time it pleased. The difference between the two cases is the difference in the two contracts. Chap. VII] Missouri vs. Walker. 281 In Jeffries' case the contract was by an administrator of a deceased person's estate with a firm of attorneys to prosecute a doubtful claim, "for a portion of the proceeds, with full power to compromise it as they should please," and we held that such an agency was not revoked by the death of the administrator who made the contract and the appointment of another in his place. The question was as to the validity of a compromise made by the attorneys, on that authority, after the death of the first admin- istrator. In the present case there was no authority to compromise. Walker could do nothing to establish the claim. He could not even receive the money belonging to the state after he had got the allowance of the claim by the United States. We find no error in the record and the judgment is affirmed. (65 Maryland, 359, 57 Am. Rep. 331.) NORTON vs. COWELL. (Court of Appeals of Maryland, April, 1886.) Robert Riddell Brown, for the appellant. Richard Hamilton, for the appellee. Alvey, C. J., delivered the opinion of the court. This action was brought to recover wages alleged to be due from the appellant to the appellee on a contract of hiring. The appellant, residing at Rio de Janeiro, in South America, was owner of certain ships, trading to and from ports in the United States; and the appellee having been in the service of the appellant for eighteen months or more prior to the 20th of August, 1883, the latter addressed to the appellee the following letter, which waa given in evidence as proof of the contract of hiring sued on: Rio de Janerio, 20th August, 1883. Capt. John Cow ell : Dear Sir: Your conduct during the last eighteen (18) months that you have been in my employ has given me great satisfaction, and now, as I put all my ships under my own flag, I appoint you superintendent of all my ships, both here and at any ports in U. S. America; and you will please help all my captains to get quick dispatch, and also see that no damaged or bad cargo is ship- 282 Oases on Agency. [Book I ped, as all the lumber cargo are shipped on my ac. Yon have my permission to take your family, or any of them, in any of my ships, whenever it may suit your convenience, from U. S. to Eio and back, and your wages will bo ($100) one hundred dollars per month, with all hotel and other expenses; and if you give me sat- isfaction at the end of the first year, I will increase your salary accordingly. I am, dear sir, yours truly, A. M. Noeton, Ship-owner. It is admitted that the appellee accepted the proposal contained in the letter, and continued in the service of the appellant for about three months thereafter, under the new terms of employment, when he was discharged from further service, without legal cause therefor, as contended by him, but was paid his wages down to the time of his discharge. And having thus been illegally discharged, as contended by the appellee, he brought this action to recover of the appellant the balance of the year's wages, upon the theory that the letter, and the acceptance of the terms thereof, constituted a contract of hiring for one year, at the rate of $100 per month, and expenses, and therefore the discharge of the appellee was not justi- fied by the terms of the contract, it being conceded that he had fur- nished no justifiable cause of discharge. As the case is presented on this appeal, the only question is whether the letter in evidence, by legal construction, constituted a contract of yearly, or monthly, hiring, or a contract of hiring at will merely. The court below held, and so instructed the jury, that the letter, and its acceptance, by legal construction, created a con- tract of hiring for one year; and in that construction this court concurs. As will be observed, there is no express limitation in the letter as to the term of service, though the wages were to be at the rate of $100 per month. But stipulations for the payment of wages quarterly, monthly, or even weekly, are not inconsistent with a yearly hiring. Fawcett vs. Cash, 5 B. & Ad. 908. For, as said by Lord Ken yon, 0. J., in the case of The King vs. Birdbrooke, 4 T. R. 245, "whether the wages be to be paid by the week or the year can make no alteration in the duration of the service, if the con- tract were for a year." Here the written agreement furnishes a clue to the real intention of the parties, when it says, " if you (the appellee) give me satisfaction at the end of the first year, I will Increase your salary accordingly." Why, at the end of the year, Chap. VII] Noeton vs. Cowell. 283 rather than at any other time, if the contract was monthly, or only at will, as contended by the appellant. This passage of the letter, taken in connection with the situation of the parties, and the nature of the service to be performed, would seem to leave no room for doubt as to what was really contemplated by the contract of employ- ment. It would not be reasonable to suppose that it was intended that the appellee should have the right to terminate the contract at will, and thus to imperil the interests of his absent principal; and if such right was not designed to be possessed by the appellee, there is no principle that would justify the court in holding that such right could be exercised by the appellant with impunity, as there is nothing in the contract, or the nature of the employment, to indi- cate such want of mutuality. Being of opinion that the contract was of a yearly hiring, we shall affirm the judgment of the court below. Judgment affirmed. (141 Unitei States, 627.) WILCOX & GIBBS SEWING MACHINE COMPANY vs. EWING. (Supreme Court of the United States, November, 1891.) Action by Ewing to recover damages for an alleged breach of contract by the company. Verdict for plaintiff and defendant brings error. By a contract between the parties made in May, 1867, Ewing had been the company's agent for the sale of its machines in Philadelphia and vicinity. In October, 1874, all pre- vious contracts were abrogated and a new one entered into, of which the important parts are as follows: " The first party hereby appoints, subject to conditions hereinafter expressed, the second party its exclusive vendor for its sewing machines, parts and attachments, in and for the following named territory, to wit: the city of Philadelphia, Pa., and the adjacent country lying within a radius of ten miles from the city hall of said city. The second party hereby accepts said appointmont." Then follow clauses as to territory and prices. " Machines or parts, needles or attach- ments counterfeiting, infringing or in any degree trespassing upon ours, or in any eflect trading upon our name, must not be dealt in 284 Cases on Agency. [Book I or countenanced by second party, but it is hereby agreed that hia time, attention and abilities mnst primarily be devoted to the for- warding of the interest of the party of the first part. If, for any reason, at any time the connection hereby formed shall cease, the first party shall have the right to bny back of its goods sold to second party all such goods as first party may select, first party to pay therefor same prices as charged second party." " Second party agrees to purchase from first party during the year 1875 at least $20,000, net, worth of machines, parts and accessories, to be taken in equal monthly parts, and to be paid for as stated therein. Violation of the spirit of this agreement shall be sufficient cause for its abrogation. Permission is granted second party to trade in all former territory occupied by him until such time as first party shall form other connections for occupying the territory not contained in that designated therein as belonging to second party. "And it is agreed and understood that this appointment or agency is not salable or transferable by second party without obtaining the written consent of first party, but such consent is to be given providing the purchaser or other person is acceptable to Baid first party. First party consents to renew and extend second party's note, $10,000, maturing January 23-26, 1875, for one year from said date, without interest, upon consideration of this agree- ment alone. All contracts or agreements made prior to the date first written alone are hereby nullified and satisfied." In October, 1879, the company gave Ewing notice that at the expiration of sixty days it would terminate the contract, and did so, Ewing not consenting. Wayne Mac Yeagh and A. H. Winter steen, for plaintiff in error. Frank P. Prichard and John O. Johnson, for defendant in error. Mr. Justice Haelan, after stating the case, delivered the opin- ion of the court. If this action was based upon the agreement of 1867, there would be some ground for holding that the company was obliged, by that agreement, to continue Ewing as agent so long as he performed its stipulations. We are only concerned, however, with the agree- ment of 1874, which materially differs from that of 1807, and expressly provides that all prior contracts between the parties "are hereby nullified and satisfied." It is only for a breach of the contract of 1874 the plaintiff sues. Looking at all the provisions of the last Chap. VII] Sewiko Machine Co. vs. Ewlktg. 2S5 agreement, it is clear that Ewing — although bound, while the con- tract was in force, to devote his time, attention and abilities, pri- marily, to the interests of the company, within the territory allotted to him — was not compelled to continue in its service for any given number of years, at least after 1875, or indefinitely, but was at liberty after that year, if not before, upon reasonable notice, to surrender his position and quit its service, subject to the com- pany's right to buy back such of its goods sold to him as it might select, and for the prices at which they were charged to him. He may have been entirely satisfied with the manner in which the company acted towards him, and yet may have preferred — it is immaterial for what reason — not to remain in its service after 1875, or to continue in the business of selling sewing machines. We specify the year 1875, because Ewing agreed to purchase, during that year, $20,000 of the company's machines. But he did not bind himself to purchase any given number during subsequent years. It would be a very hard interpretation of the contract to hold that he was bound by the agreement of 1874, to serve the com- pany within the designated territory so long as it kept the con- tract, and was satisfied with him as its agent. None of its pro- visions would justify such an interpretation. If Ewing had the privilege, upon reasonable notice, oi severing the connection between him and the company after 1875, upon what ground could a like privilege be denied the company if it desired to dispense with his services? He contends that his life, or the continuance of the company in business, was the shortest duration of the contract, consistently with its provisions, provided he did his duty. This position is untenable. His appointment was made and accepted subject to the conditions expressed in the agreement. No one of those conditions is to the effect that so long as he devoted his time, attention and abilities to the company's business, he should retain his position as its exclusive vendor, within the territory named, without regard to its wishes. If the parties intended that their relations should be of that character, it was easy to have so stipulated. The only part of the contract that gives color to the theory for which the plaintiff contends, is the part declaring that a violation of the spirit of the agreement "shall be sufficient cause for its abrogation." This clause, it may be sug- gested, was entirely unnecessary if the parties retained the right to abrogate the contract after 1875, at pleasure, and implies that it could be abrogated only for sufficient cause, of which, in case of 28d Cases on Agency. [Book I suit, the jury, under the guidance of the court as to the law, must judge in the light of all the circumstances. We cannot concur in this view. The clause referred to is not equivalent to a specific provision declaring, affirmatively, that the contract should continue in force for a given number of years, or without limit as to time, unless abrogated by one or the other party for sufficient cause. It was inserted by way of caution, to indicate that the parties were bound to observe equally the spirit and the letter of the agreement while it was in force. There was some discussion at the bar as to whether Ewing was, strictly, an agent of the company. We think he was. He was none the less an agent because of his appointment as " exclusive vendor " of the defendant's machines within a -particular territory, or because of the peculiar privileges granted to or the peculiar restrictions imposed upon him. One clause of the contract pro- hibits him from soliciting trade, directly or indirectly, in the ter- ritory "of other agents; " another, that he will bind "all sub- vendors or agents " to sustain the established retail prices of the company; and still another imposes restrictions upon the sale of his " appointment or agency." The agreement constituted him the sole agent of the company for the sale of its machines within a cer- tain territory. It is true that the machines he undertook to sell were to be purchased by him from the company at a large discount. But he could not sell them by retail below the regular retail prices. This arrangement was the mode adopted to protect the company's interests, and to secure the plaintiffs such compensation for his services as would induce him to devote his time, attention and abilities to the company's interests. He was still a mere agent to sell such machines as might be delivered to him under the contract. We perceive nothing in the agreement of 1874 to take the case out of the general rule that " the principal has a right to determine or revoke the authority given to his agent at his own mere pleasure; for, since the authority is conferred by his mere will, and it is to be executed for his own benefit and his own purposes, the agent cannot insist upon acting when the principal lias withdrawn his confidence, and no longer desires his aid/' Story on Agency, §§ 462, 463. So far as the company's power of revocation is concerned, the ease is not materially different from what it would be if the plaint- iff had agreed to sell such machines as were delivered to him at the established retail prices, receiving, as compensation for his services, the difference between those prices and the amount he agreed to Chap. VII] Sewing Machine Co. vs. Ewino. 28? pay for them under the contract of 1874. In either cace, his rela- tion to the company would be one of agency, that could be termi- nated at its will or by renunciation upon hia part, at least after 1875. Of course the revocation by the principal of the agent's authority could not injuriously affect existing contracts made by the latter under the power originally conferred upon him. For the reasons stated the court below erred in not instructing the jury, as requested, to return a verdict for the defendant. The judgment is reversed, with directions to grant a new trial and for further proceedings consistent with this opinion. ( 23 Louisiana Annual, 395.) JACOBS v. WARFIELD. (Supreme Court of Louisiana, May, 1871. ) Saucier & Michinard, for plaintiff and appellee. John H. Ilsley, for defendant and appellant. Wylt, J. The defendant has appealed from the judgment con- demning her to pay the plaintiff $2,610 for violating the contract which she made with him on the sixth day of October, 1865, and for money advanced by him for her benefit under said contract. In this contract the plaintiff was employed as an agent to superintend all the business of the defendant in the parish of St. John the Baptist, in relation to certain wild lands which the defendant owned in said parish, and he was especially authorized to take charge of and exercise general control over said property; to pre- vent the commission of trespass or wastes upon said lands, and to appear in court to prosecute and defend all suits in reference thereto, as occasion might require, "with the distinct understand- ing that no other charge shall be made by the said Jacobs for his services in taking charge of the said lands, and removing therefrom all trespassers, than one-fourth interest in the revenue derived from the sale of wood and timber cut therefrom by said Jacobs and his employes, as herein expressed, which shall be a full and adequate remuneration and compensation for all services that he, said Jacobs, may render the said Mrs. Warfield under and by virtue of this procuration." 288 Cases on Agency. [Book I It was further stipulated that the said agent was not to institute proceedings against any trespassers without first obtaining the written consent of the defendant; and also, that the said Jacobs was in no wise to disturb or interfere with such persons as might have the written sanction of Mrs. Warfield to be on said lands and cut and sell timber therefrom. There was no period fixed in the act as the term for which the said Jacobs was employed. Under this contract we think the defendant had the right to dis- charge her agent and employ^ whenever she saw fit to do so. From the evidence, we are satisfied that the plaintiff did not comply with his contract, and the defendant had good cause to discharge him. His demand for damages for breach of contract must, therefore, fail. It appears, however, that the plaintiff paid ten dollars to an attorney and twenty-five dollars costs in a suit for the benefit of the defendant, and we think he was justifiable in doing so under the act of procuration. For these sums he should have judgment. The demand for the other sums which the plaintiff claims to have paid for the defendant pursuant to the contract is not supported by the evidence. It is therefore ordered that the judgment herein be reduced to thirty-five dollars, and as thus amended that it be affirmed. It is further ordered that the plaintiff pay costs of this appeal. Rehearing refused. (34 Minnesota, 98.) AHERN vs. BAKEE. ( Supreme Court of Minnesota, July, 1SS5.J Linden & Williams, for appellant. Berry hill & Davison, for respondent. Vandeebuegh, J. The defendant, on the 9th day of Septem- ber, 1884, specially authorized one "Wheeler, as his agent, to sell the real property in controversy, and to execute a contract for the sale of the same. lie in like manner on the same day empowered one Fairchild to sell the same land, the authority of the agent in each instance being limited to the particular transaction named. On the same day, Wheeler eilccted a sale of the land, which was Chap. VII] Ahern vs. Baker. 289 consummated by a conveyance. Subsequently, on the 10th day of September, Eairchild, as agent for defendant, and having no notice of the previous sale made by Wheeler, also contracted to sell the same land to this plaintiff, who, upon defendant's refusal to perform on his part, brings this action for damages for breach of the contract. This is a case of special agency, and there is nothing in the case going to show that the plaintiff would be estopped from setting up a revocation of the agency prior to the sale by Fairchild. A revocation may be shown by the death of the principal, the destruc- tion of the subject matter, or the determination of his estate by a sale, as well as by express notice. The plaintiff had a right to employ several agents, and the act of one in making a sale would preclude the others without any notice, unless the nature of his contract with them required it. In dealing with the agent, the plaintiff took the risk of the revocation of his agency. 1 Pars. Oont 71. Order affirmed and case remanded. (42 Wisconsin, 311, 24 Am. Rep. 415.) DIERLNGER vs. MEYER. {Supreme Court of Wisconsin, August, 1887. ) Action for damages for breach of a contract of service. The plaintiff was employed for the year 1875 by the defendant to super- intend the latter's lumber and wood yard. In June of that year, defendant discharged plaintiff and paid him to the time of such discharge. Plaintiff claimed to recover the agreed wages for the remainder of the year, or from the time of the discharge until he obtained other employment. At the trial the evidence tended to show that plaintiff, while so in defendant's employ, carried on the wood business on his own account. The jury were instructed, among other things, that "the plaintiff had a right to be interested in any kind of business, but his interest in such business must not in any way interfere with his time and attention to the business of his employer. " The plaintiif recovered in the action, and defendant appealed. 19 290 Cases on Agency. [Book I D. Balcoch and David Taylor, for appellant. Shepard & Shepard, for respondent. Lyon, J. It is well settled that if a servant, without the con- sent of his master, engage in any employment or business for him- self or another, which may tend to injure his master's trade or business, he may lawfully be discharged before the expiration of the agreed term of service. This is so because it is the duty of the servant, not only to give his time and attention to his master's business, but, by all lawful means at his command, to protect and advance his master's interests. But, when the servant engages in a business which brings him in direct competition with his master, the tendency is to injure or endanger, not to protect and promote, the interests of the latter. It was said by Lord Ellenborough, in a discussion on this subject in Thompson vs. Havelock, 1 Camp. 527, that " No man shall be allowed to have an interest against his duty." Manifestly, when a servant becomes engaged in a business which necessarily renders him a competitor and rival of his master, no matter how much or how little time and attention he devotes to it, he has an interest against his duty. It would be monstrous to hold that the master is bound to retain the servant in his employment after he has thus voluntarily put himself in an atti- tude hostile to his master's interests. The fact may be, in certain cases, that notwithstanding the ser- vant has engaged in a rival business, still he has given his whole time and attention to the business of his master. An attempt was made to show that this is such a case. But the existence of that fact will not take a case out of the rule above stated, for the reason that the servant would yet have an interest against his duty. The cases which sustain or tend to sustain the doctrine here laid down are very numerous. For convenience we cite a few of them: Singer vs. NcC'ormiclc, 4 W. & S. 265; J affray vs. King, 34 Md. 217; Adams Express Co. vs. Trego, 35 Id. 47; Lacy vs. Osbaldiston, 8 C. & P. 80; Read vs. Dunsmore, 9 Id. 588; Nichol vs. Martyn, 2 Esp. 732; Gardner vs. McCutcheon, 4 Beav. 534; Ridgeway vs. Market Co., 3 Ad. & E. 171; Amor vs. Fearon, 9 Id. 548; Horton vs. McMurtry, 5 Hurl. & N. GG7. See, also, Wood on Muster and Servant, § 116, and cases cited in notes. If the plaintiff became engaged in a business which necessarily made him a competitor of his employer in the purchase of wood at Chap. VII] Diekingee vs. Meyer. 291 New Cassel, or in selling the same at Fond du Lac, such business had a direct tendency to raise the price at the former place and depress it at the latter, as well as to decrease the defendant's business; and hence its tendency was hostile to the defendant's interests, and it was equally hostile, even though the plaintiff conducted it entirely by agents, and gave his whole time and attention to the business of the defendant. The learned circuit court charged the jury, in effect, that it was no valid cause for discharging the plaintiff before the expiration of the term for which he was employed, that he engaged, in such rival and hostile business, if he gave his whole time and attention to the business of the defendant. Within the rules of law above stated, this instruction was erroneous, and the verdict may have been predicated upon the instruction and controlled by it Hence the error is material, and fatal to the judgment. As to whether the contract of hiring was or was not for a specified term of service, we express no opinion upon the evidence; but we have decided the case on the theory that there was a hiring for a year, that being the most favorable to the plaintiff. By the court — Judgment reversed, and cause remanded for a new trial. Note.— See Orr vs. Ward, 78 111. 818. On right to terminate for agent's misconduct, see Callo vs. Brouncker, 4 C. & P. 518; Atkin vs. Acton, Id. 208; Bixby vs. Parsons, 49 Conn. 483, 44 Am. Rep. 246; Phillips vs. Foxall, L R. 7 Q. B. 666; Newman vs. Reagan, 65 Ga. 512; Pearce vs. Foster, 7 Q. B. Div. 536, 88 Eng. Rep. (Moak) 499; Shaver vs. Ingham, 58 Mich. 649, 55 Am. Rep. 712; Drayton vs. Beid, 5 Daly. (N. Y.) 442; Physioc vs. Shea, 75 Ga. 466. (82 Alabama, 452, 60 Am. Kep. 748.) BASS FUKNACE CO. vs. GLASSCOCK. {Supreme Court of Alabama, December, 1SSG.J This was an action brought by Glasscock against the furnace company to recover damages for an alleged breach of a contract of employment. Verdict for plaintiff and defendant appeals. The opinion states the facts. Walden & Sons, for appellant. 292 Cases on Agexcy. [Book I Matthews & Daniel, contra. Someeville, J. 1. The first portion of the charge given by the court, to which exception is taken, raises the inquiry, under what circumstances an employer is justified in discharging an employe from his service on the ground of drunkenness. The plaintiff was employed by the defendant company, to reduce to charcoal, or as expressed by the witness, to •' coal " the wood on a tract of land owned by the company, for which he was to be paid wages at the rate of fifty dollars per month. The evidence tends to show that the plaintiff, a short while before his discharge, was drunk on the premises of the defendant, where an iron furnace was in process of operation, about four miles away from " the coaling," as it is called, and, while so intoxicated, he there "raised a dis- turbance and had a fight with a man." At another time, he was seen " drunk, in a wagon with some negro women, going towards the coaling." This is all that is shown by the evidence bearing on this point, no details being given. The court charged the jury, that " the fact that the plaintiff was drunk once, or a number of time3, at the furnace or elsewhere, during his employment under the contract, is no evidence against the plaintiff's right of recovery, unless the drunkenness incapacitated and caused the plaintiff to fail in his part of the contract." Is this a correct statement of the law on this subject? To justify an employer in discharging a servant, or employe, the rule, no doubt, is that the servant must have been guilty of conduct which can be construed to be a breach of some express or implied provision in the contract of service. It seems to be settled, that it is an implied part of every contract of service, that the employ 6 will abstain from habitual drunkenness, or repeated acts of intoxi- cation, during the period of his employment. If he be guilty of this indulgence, his conduct will justify his dismissal. 2 Addison on Contracts (Morgan's Ed.) sec. 890; Wise vs. Wilson, 1 Car. & K. G62; 2 Parsons on Contracts, 36, note (f); Gonsvlis vs. Gear- heart, 31 Mo. 585; Huntington vs. Clafiin, 10 Bosw. (N. Y.) 262. There may be circumstances, however, under which a single act of drunkenness would warrant a servant's discharge; as for example, in the case of a minister of the gospel, where the act might bring personal reproach, and tends to degrade the moral standard of religion; or of a family physician, where it might result in negli- gence, or malpractice in pharmacy or surgery. Wood on Master Chap. VII ] Furnace Co. vs. Glasscock. 293 and Servant, sec. Ill, p. 213. The same act when committed by a day laborer, in privacy, and when off duty, or on some rare occasion when great temptation was presented, might not be a sufficient excuse for his discharge. The rule is stated by a recent author to be, that "intoxication, while in service, is generally a good excuse for discharging a servant, particularly when it is habitual, and interferes with the discharge of his duties, or will be likely to. But it is held, that as to whether it is to be regarded as a proper excuse, depends upon the occasion." Wood on Master and Servant, sec. Ill, p. 213. We do not doubt that public drunkenness of any employe, while in the service of his employer, and manifesting itself in boisterous and disorderly conduct either towards the employer or third per- sons, is such misconduct as to constitute a violation of the stipula- tion, implied in every contract of service, that the employe will conduct himself with such decency and politeness of deportment as not to work injury to the business of the employer. This he can do by a single act of drunkenness, which may tend to offend the reasonable prejudices or tastes of the public, or impair their confi- dence, or render him disagreeable in social or business intercourse. The drunkenness of employes may well deter the patrons of any business establishment from continuing their business intercourse with it, especially when social contact is frequently necessary to its consummation. It may prove, also, equally offensive to the master or employer, who may justly regard sobriety as an indispensable element of efficient service. The charge of the court laid down the rule, that no drunkenness justified the plaintiff's discharge, unless it incapacitated him, and caused him to fail in the perform- ance of his part of the contract. This, under the principles above declared, was erroneous, and must work a reversal of the cause. * * Reversed and remanded. 204 Cases on Agency. [Book I (66 New York, 301.) CLAFLIN vs. LENHEIM. (New York Court of Appeals, June, 1876.) Action to recover for merchandise alleged to have been Bold by plaintiff to defendant. The opinion states the facts. Judgment for defendant and plaintiffs appealed. A. J. Yanderpoel, for appellants. A. G. Rice, for the respondents. Kapallo, J. The plaintiffs seek to recover in this action the price of certain merchandise which they allege that they sold and delivered to the defendant, through his brother H. S. Lenheim, as his agent. To establish the agency, they proved that this brother of the defendant had, for several years prior to July, 1867, conducted the business of a store at Meadville, Pennsylvania, in the name of the defendant, and had been in the habit of purchasing goods for that store from the plaintiffs. These purchases were all made in the name and on the credit of the defendant, and the bills thereof were rendered to and paid by him. The defendant concedes, in his testimony, that previous to a fire which took place in July, 1867, in the store at Meadville, his brother was authorized by him to make purchases and carry on that store in his, the defendant's name, but contends that after the fire he terminated such authority. The purchases for which this action was brought were made by the brother, for the Meadville store, in November and December, 1869, in the name of the defend- ant. The plaintiffs claim that they had no notice of the revocation of the agency, and sold on the credit of the defendant. The last bill paid by the defendant for goods sold for the Meadville store, was for upwards of $8,000, and was paid in August, 1867. It was for goods sold before the fire. There was a difficulty between the plaintiffs and the defendant about this bill. An action was brought upon it and an attachment issued against the property of the defendant, and he was required to pay the costs of the^e proceedings, which he did in August, 1867. The defendant had for several years previously carried on another store at Great Bend, Pennsylvania, and had been in the habit of purchasing goods Chap. VII ] Olaflin v. Lenheim. 295 from the plaintiffs for that store; but after this difficulty he sus- pended all his dealings with the plaintiffs until the month of October, 18G9, when he resumed his business relations with them by the purchase of goods, personally, for the store at Great Bend. In the following months of November and December, 18G9, the brother made the purchases now in controversy, in the name of the iefendant, for the Meadville store. The defendant gave evidence on the trial tending to show actual notice to the plaintiffs of the revocation of the agency, after the fire of July, 1867. It was conceded that the plaintiffs had notice of the burning of the store at Meadville, but the evidence of the notice of the revocation of the agency was controverted. The court submitted to the jury the question whether the plaintiffs had notice of the revocation, but charged that if the jury came to the conclusion "that the circumstances of the case were such, independently of the question of notice, that in fair dealing between man and man, plaintiffs should have inquired by telegraph or by letter of the defendant at Great Bend whether he continued the Meadville store, and whether the brother continued to have authority to buy goods in his name, that will end the recovery in this case;" and, further, that if the jury came to the conclusion " that no notice in fact was given and that the circumstances were such as to put the plaintiffs fairly upon inquiry as to whether that business was continued by the defendant and the brother had authority to continue it by making these purchases, that ends the responsibility on the part of the defendant." Exceptions were duly taken to the portions of the charge above quoted. It is a familiar principle of law that when one has constituted and accredited another his agent to carry on his business, the authority of the agent to bind his principal continues, even after an actual revocation, until notice of the revocation is given; and, as to persons who have been accustomed to deal with such agent, until notice of the revocation is brought home to them. The case of such an agency is analogous to that of a partnership, and the notice of revocation of the agency is governed by the same rules as notice of the dissolution of a partnership. As to persons who have been previously in the habit of dealing with the firm, it is requisite that actual notice should be brought home to the creditor, or at least, that the credit should have been given under circumstances from which notice can be inferred. Where the circumstances are con- troverted, or where notice is sought to be inferred as a fact, from 296 Cases on Agency. [Book 1 circumstances, the question is for the jury; they must determine, as a question of fact, whether the party claiming against the part- nership or the principal, did have notice of the dissolution or revo- cation; and there being some evidence of the fact of notice, the court, in the present case, properly submitted to the jury this question of fact. But the court submitted to the jury the further question whether, independently of the question of notice in fact, the circumstances were such as to put the plaintiffs on inquiry as to whether the authority of the agent continued, and charged them that if they were, the plaintiffs were charged with notice of the facts which the inquiry would have disclosed. In other words, the question was submitted to the jury whether, although the plaintiffs had no notice in fact, they had constructive notice of the revocation of the agency. Assuming that the doctrine of constructive notice is applicable to cases of this description, what circumstances amount to con- structive notice is a question of law. Where the facts are in dis- pute, a mixed question of law and fact is presented, and then of course the question is to be determined by the jury, under instruc- tions by the court, as to the effect of the circumstances which they may find to have existed. But the question whether circum- stances which are undisputed, or are found by the jury, are suf- ficient to put a party on inquiry and thus charge him with con- structive notice, is not for the jury, but for the court. In this case, throwing out of view the evidence bearing upon the question of actual notice, there was no controversy about the facts. These were, that the store at Meadville was burnt in July, 18G7, and the plaintiffs knew of the fire; that the plaintiffs brought an action and issued an attachment against the defendant for the bill then due for goods furnished to the store at Meadville; that this claim and the cost of the proceedings were paid by the defendant in August, 1807, and the defendant thereafter suspended all deal- ings with the plaintiffs until October, 1869, when he resumed them, and that in November, 18G9, the brother resumed his purchases for the Meadville store, from the plaintiffs, on credit, in the name of the defendant, and the plaintiffs gave him credit as the agent for the defendant. Whether these circumstances were sufficient to put the plaintiffs on inquiry, or, in other words, whether they amounted to constructive notice of the fact, which an inquiry would have disclosed, viz., the revocation of the agency, was a Chap. VII] Claflin vb. Lenheim. 297 question of law,, to be determined by the court, and it was error to submit it to the jury. Am. Linen Thread Co. vs. Wortendyhe, 24 N. Y. 550; Howe vs. Thayer, 17 Pick. (Mass.) 91. Constructive notice is a legal inference from established facts, and when the facts are not controverted, the question is one for the courts. Whether, under a conceded state of facts, the law will impute notice, is not a question for the jury. Birdsall vs. Russell, 29 N. Y. 220, 249. This error, however, would not be ground for reversing the judg- ment if it appeared that the court would have been justified in holding, as matter of law, that the circumstances were sufficient to put the plaintiffs on inquiry, and we must, therefore, examine that question. The mere fact that the store at Meadville was burnt did not indi- cate that the defendant intended to discontinue business there; and if business had been promptly resumed and purchases for that store renewed by the defendant's brother, there could have been no reason, in the absence of any notice from the defendant, to sup- pose that the agency had been discontinued. The principal feature in the case is the delay of two years and upwards between the fire and the resumption of purchases, by the defendant's brother, for the Meadville store. But, under the circumstances, this delay might well have been attributed by the plaintiffs to the difficulty between them and the defendant, in July and August, 1867, which resulted in the defendant suspending all dealings with the plaint- iffs, notwithstanding that he continued his business at Great Bend. And when the defendant, in 1869, resumed his dealings with the plaintiffs, without giving them notice of any change in his business arrangements with his brother, at Meadville, the plaintiffs were warranted in believing that the suspension of the dealings of the brother were attributable to the same cause which had deterred the defendant himself from making purchases; and when, immediately after the defendant himself resumed dealings, the brother applied to make purchases as before, for the Meadville store, the plaintiffs would not, naturally, attribute the suspension of dealings for that store, in the meantime, to a revocation of the agency, nor suspect that the brother was committing a fraud. "We must, in consider- ing the portion of the charge .excepted to, assume, as we have assumed, that no notice was given by the defendant to the plaintiffs that he had discontinued his business at Meadville or revoked the authority of his brother, and that the plaintiffs knew nothing of it, 298 Oases on Agency. [Book I for the charge expressly suhmits the question of constructive notice, independently of the question of notice in fact, and expressly statea that the jury are to pass upon it in case they find that there waa no notice in fact. We think that the circumstances existing at the time of the sale of the goods in question were not sufficient to constitute con- structive notice of the revocation of the agency, and that the case should have been submitted to the jury only upon the question of notice in fact. In this there is no hardship upon the defendant; it was his duty, after he had accredited his brother for a series of years as authorized to deal in his name and on his responsibility, when he terminated that authority, to notify all parties who had been in the habit of dealing with his agent, as the plaintiff had been to his knowledge. This was an act easily performed and would have been a perfect protection to him and prevented the plaintiffs from being deceived. Justice -to parties dealing with agents requires that the rule requiring notice in such cases should not be departed from on slight grounds, or dubious or equivocal circumstances substituted in place of notice. If notice was not in fact given, and loss happens to the defendant, it is attributable to his neglect of a most usual and necessary precaution. The jury may have been satisfied that notice was given, but under the charge they may have rendered their verdict solely on the ground of constructive notice; the judgment must, therefore, be reversed and a new trial ordered, with costs to abide the event. All concur. Judgment reversed. Note. — As to the necessity of giving notice of the termination of a gen- eral agency to third persons: Hatch vs. Coddington, 95 U. S. 48; Rice vs. Barnard, 127 Mass. 241; Wright vs. Herrick, 128 Mass. 240; Tier vs. Lampson, 35 Vt. 179, 82 Am. Dec. 634; Baudouine vs. Grimes, 64 Iowa, 870; Meyer vs. Hehner, 96 111. 400; Howe Machine Co. vs. Simler, 59 Ind. B07. In the case of a special agency, see Watts vs. Kavanaugh, 35 Vt. 84; Btrachan vs. Muxlow, 24 Wis. 21; Fellows vs. Steamboat Co., 88 Conn 197. Chap. VII] Insurance Co. vs. McCain. 299 (96 United States, 84.) INSURANCE COMPANY vs. McCAIN. ( United States Supreme Court, October, 1S77.J This was an action on a policy of insurance issued by the Southern Life Insurance Company, a corporation created by the laws of Tennessee, upon the life of Adam S. McCain, commencing on the 10th day of December, 1868. The insurance was for the sum of $5,000, and was effected by the wife of the insured, for the sole use of herself and children. The policy was received from an agent of the company, one B. F. Smith, who was appointed to solicit applications for policies and collect premiums for a district of country embracing a part of Mississippi and also a part of Alabama, in which the insured resided. To him the first premium was paid. The second premium, due on the 10th of December, 1869, was paid on the 5th of that month, to his sub-agent, who, before the 10th, handed him the amount, and it was credited in his account rendered to the company in April following. The account disclosed the fact that the amount was received upon the policy in question. After its receipt no communication was made by the company to the assured that Smith was not its agent at the time of the payment, nor was any objection made to the sufficiency of the payment. The insured died in June, 1870, and this action was commenced on January, 1873, in a state court, and, on application of defendant, was trans- ferred to the Circuit Court of the United States. The proper pre- lhninaryproof of the death of the insured was made, and the case turned upon the sufficiency of the second payment. The company, in its defense, denied the authority of Smith to receive the premium, contending that his agency had previously ceased, under the rules and regulations of the company, by his accepting the agency of another insurance company; and, further, that its agents were only empowered to collect renewal premiums upon special receipts, sent out from the office of the company for each case, signed by its president and secretary, and countersigned by the agent. The evidence established the existence of such regu- lations, and tended to show that the agent had resigned his agency previous to the 1st of December. It appeared also that no renewal receipt, signed as required, was given in the case. But the court held 300 Oases on Agency. [Book I and in substance instructed the jury, that if Smith was the general agent of the company, and as such had authority to bind the com- pany by a receipt of the renewal premium before the 10th day of December, 1869, a payment to him was sufficient, unless previ- ously to such payment the assured had notice that the agent's authority had been revoked; and that though, as a general rule, a person dealing with an agent must inquire into his authority, yet that the powers of an agent were prima facie co-extensive with the business intrusted to his care, and would not be narrowed by limi- tations from his principal not communicated to the person with whom he dealt; and that, unless the assured was informed that a payment would not be good in the absence of a particular form of receipt, a payment by him within the time prescribed by the policy was sufficient, though a different form of receipt was used. The court also held, and instructed the jury, in substance, that if the company received, in April, 1870, a statement of the agent Smith, showing the receipt by him of the renewal premium pay- able on the 10th of December, and the company did not notify the assured, who lived more than a month afterwards, that it repudi- ated the transaction, it would be a fraud on its part to repudiate the payment after his death, and that the payment would bind the company. The jury found a verdict for the plaintiff, upon which judgment was entered; and the insurance company brought the case here on writ of error. Mr. John D. McPherson, for the plaintiff in error. Mr. P. Phillips, contra. Mr. Justice Field, after stating the facts of the case, deliv- ered the opinion of the court. The law embraced by the instructions to the jury is clearly and correctly stated. No company can be allowed to hold out another as its agent, and then disavow responsibility for his acts. After it has appointed an agent in a particular business, parties dealing with him in that business have a right to rely upon the continu- ance of his authority, until in some way informed of its revocation. The authorities to this effect are numerous, and will be found cited in the treatises of Paley and Story on agency. The law is equally plain, that special instructions limiting the authority of a general agent, whose powers would otherwise be coex- tensive with the business intrusted to him, must be communicated to the party with whom he deals, or the principal will be bound to Chap. VII] Insurance Oo. vs. McCain. 301 the same extent as though such special instructions were not given. Were the law otherwise, the door would he open to the commission of gross frauds. Good faith requires that the princi- pal should he held by the acts of one whom he has publicly clothed with apparent authority to bind him. Story on Agency, sects. 126, 127, and cases there cited. The law on the silence of the company, after receiving the state- ment of the agent that the premium had been paid, is also free from doubt. Silence then was equivalent to an adoption of the act of the agent, and closed the mouth of the company ever after- wards. It does not appear that the company ever objected to the payment of the premium to him until after the death of the insured. It was then too late. As pertinently said by counsel, the com- pany cannot be permitted to occupy the vantage ground of retain- ing the premium if the party continued in life, and repudiating it if he died. Judgment affirmed. (83 New York, 378, 38 Am. Rep. 441.) SIBBALD vs. BETHLEHEM IRON COMPANY. (New York Court of Appeals, December, 18S0.J Action for commissions. The opinion states the facta. The plaintiff had judgment below. Albert Stickney, for appellant. Thomas Hy. Edsall, for respondent. Finch, J. The evidence satisfactorily shows that the defend- ant employed the plaintiff to sell the steel rails of the former's manufacture to the Grand Trunk Railroad Company. The exist- ence of such a contract was strenuously denied on the part of thd appellant, but the proofs establish it and leave it without substan- tial contradiction. The plaintiff swears that in December, 1873, he met and was introduced to Mr. Hunt, the president of the defendant corporation, and was requested by him to use the plaint- iff's exertions and interest in selling steel rails of the Bethlehem Iron Company's make, and particularly to the Grand Trunk Rail- way of Canada, and that the plaintiff agreed to do so if he could Hunt was afterward examined, and does not contradict this state- 302 Cases on Agency. [Book I ment. Indeed, he almost admits it. He says: " I presume I was introduced to Mr. Sibbald in December, 1873. I have no recollec- tion of it. After my introduction to him I may have called upon him in his office in New York. He says I did, and I accept hia statement up to his sale of 14th of April." Mr. Evans, in whose presence the conversation detailed by plaintiff took place, was also examined as a witness by the defendant. He admits the meeting on that occasion; that he introduced Sibbald to Hunt asanmn engaged in selling steel rails; that several railways were named as purchasers from plaintiff, "the Grand Trunk doubtless among them;" and then he adds, "I do not remember that anything definite was said as to his selling any rails for the Bethlehem Com- pany, but there may have been/' Upon this state of facts it is very evident that there was a gen- eral employment of the plaintiff by the defendant to sell its rails so far as he was able, and especially to the Grand Trunk Railway, with whose purchasing officers he was supposed to be in communica- tion and to have influence. It follows that the first alleged error committed upon the trial, that the court refused a request to direct a verdict for the defendant on the ground that the plaintiff had not proved as to the transaction in suit any employment by the defend- ant, cannot be bo regarded. The general employment was suf- ficiently definite and broad to have related and applied to the sale finally made, if indeed that resulted from plaintiff's influence and exertion. Nor do we see any fault in the charge of the court in this connection, that it was immaterial whether the broker was originally employed, or whether, after he had brought the thing about, the principal availed himself knowingly of the fruits of the action of the broker. This is only Baying that the contract of employment may be established either by proof of an express and original agreement that the services should be rendered, or by facts showing, in absence of such express agreement, a conscious appropriation of the labors of the broker. Indeed, the learned counsel for the defendant very fairly and justly concedes that the contract may be established in some cases "by a mere acceptance of the labors of a broker." It follows also that there was no error in the further charge of the court, tb at the only remaining question was whether plaintiff was the producing canse of the sale. Having been employed to make it, the only remaining inquiry was of necessity whether he did make it either directly, or as its efficient and producing cause. Chap. VII] Sibbald vs. Ikon Co. 303 That inquiry brings up for our consideration what the plaintiff in fact did, and what inferences are to he justly drawn from the attendant circumstances. The question, simple up to this point, grows rapidly difficult and complicated, partly by reason of the inherent uncertainty and ambiguity of the subject itself, and partly, perhaps, because of a wide range of judicial discussion not always entirely harmonious. The learned judge who tried the case at the Circuit, in his charge to the jury, realized and explained the difficulty of applying the appropriate legal rules to the particular facts of transactions like that under discussion. It may aid therefore to clearness of statement and accuracy of conclusion, and perhaps remove some elements of debate, if we consider the legal attitude of a broker employed to buy or sell property, and his relative rights and duties as the basis of his claim for compensation. The duty he undertakes, the obligation he assumes as a condition of his right to demand commissions, is to bring the buyer and seller to an agreement. In that all the authorities substantially concur, although expressing the idea with many differences of phrase and illustration. The description and definition of a broker involves this view of his duty. Story says, " The true definition of a broker seems to be that he is an agent employed to make bargains and contracts between other persons in matters of trade, commerce or navigation for a compensation commonly called brokerage." Story on Agency, § 28, p. 25. In Pott vs. Turner, 6 Bing. 702, 706, a broker is more tersely and quite accurately described as " one who makes a bargain for another and receives a commission for so doing." In Barnard vs. Monnot it was said, that the duty of the broker consisted in bringing the minds of the vendor and vendee to an agreement. 34 Barb. 90. In Wylie vs. Marine National Bank, 61 N. Y. 416, it was held that to entitle the broker to com- missions, he must produce a purchaser ready and willing to enter into a contract on the employer's terms. This implies and involves the agreement of buyer and seller, the meeting of their minds, produced by the agency of the broker. In Moses vs. Sterling, 31 31 N. Y. 462, it was declared that the authorities clearly estab- lished the proposition that until the broker has faithfully dis- charged the obligation assumed in the contract with his principal, he is not entitled to his agreed commission, and that obligation is fulfilled only when he produces a party ready to make the pur- chase at a satisfactory price. In Glentworth vs. Luther, 21 Barb. 304 Gases oh Agency. [Book I 147, it was declared that the commissions were earned when the broker produces to his principal a party with whom the owner ia satisfied, and who contracts for the purchase at an acceptable price. It was not meant by these cases, and we do not mean, that the broker must of necessity be present and an active participator in the agreement of buyer and seller when that agreement is actually concluded. He may just as effectually produce and create the agreement, though absent when it is completed and taking no part in the arrangement of its final details, And it is to describe such instances that courts have used a different form of expression, entirely accurate in its proper application, but capable of being warped from its obvious meaning. In Lloyd vs. Matthews, 51 N. Y. 132, the phrase used was that the broker was entitled to reward when the sale was effected through his agency as the procuring cause. And in Lyon vs. Mitchell, 36 N. Y. 237, the broader language is used that his efforts must have lead to the negotiations that resulted in the purchase of the vessel. But in all the cases, under all and varying forms of expression, the fundamental and correct doctrine is, that the duty assumed by the broker is to bring the minds of the buyer and seller to an agreement for a sale, and the price and terms on which it is to be made, and until that is done his right to commissions does not accrue. AlcGarock vs. Woodlief, 20 How. 221; Barnes vs. Roberts, 5 Bosw. 73; Holly vs. Gosling, 3 E. D. Smith, 262; Jacobs vs. Kolff, 2 Hilt. 133; Kock vs. Emmerling, 22 How. 72; Coming vs. Calvert, 2 Hilt. 56; Trundy vs. New York & H. Steam Co. 6 Robt. 312; Van Lien vs. Burns, 1 Hilt. 134. We have been thus particular in the examination and statement of the rule, because of a possible tendency growing out of a vari- ety of circumstances and modified forms of expression, to give it an extent and meaning not at all intended. It follows as a necessary deduction from the established rule, that a broker is never entitled to commissions for unsuccessful efforts. The risk of a failure is wholly his. The reward comes only with his success. That is the plain contract and contempla- tion of the parties. The broker may devote his time and labor, and expend his money with ever so much of devotion to the interest of his employer, and yet if he fails, if without effecting an agree- ment or accomplishing a bargain, he abandons the effort, or hia authority is fairly and in good faith terminated, he gains no right to Chap. VII] Sibbald vs. Ikon Co. 305 commissions. lit loses the labor and effort which was staked upon success. And in such an event it matters not that after his failure, and the termination of his agency, what he has done proves of use and benefit to the principal. In a multitude of cases that must necessarily result. He may have introduced to each other parties who otherwise would never have met; he may have created impressions, which under later and more favorable circumstances naturally lead to and materially assist in the consummation of a sale; he may have planted the very seed from which others reap the harvest; but all that gives him no claim. It was part of his risk that failing himself, not successful in fulfilling his obligation, others might be left to some extent to avail themselves of the fruit of his labors. As was said in Wylie vs. Marine National Bank, 61 N. Y. 416, in such a case the principal violates no right of the broker by sell- ing to the first party who offers the price asked, and it matters not that sale is to the very party with whom the broker had been negotiat- ing. He failed to find or produce a purchaser upon the terms prescribed in his employment, and the principal was under no obligation to wait longer that he might make further efforts. The failure therefore and its consequences were the risk of the broker only. This however must be taken with one important and necessary limitation. If the efforts of the broker are rendered a failure by the fault of the employer; if capriciously he changes his mind after the purchaser, ready and willing, and consenting to the prescribed terms, is produced; or if the latter declines to complete the con- tract because of some defect of title in the ownership of the seller, some unremoved incumbrance, some defect which is the fault of the latter, then the broker does not lose his commissions. And that upon the familiar principle that no one can avail himself of the non-performance of a condition precedent who has himself occa- sioned its non-performance. But this limitation is not even an exception to the general rule affecting the broker's rights, for it goes on the ground that the broker has done his duty, that he has brought buyer and seller to an agreement, but that the contract is not consummated and fails through the after-fault of the seller. The cases are uniform in this respect. Moses vs. Bierling, Glent- worth vs. Luther, Van Lien vs. Burns, supra. One other principle applicable to such a contract as existed in the present case needs to be kept in view. Where no time for the 20 306 Cases on Agency. [Book I continuance of the contract is fixed by its terms, either party is at liberty to terminate it at will, subject only to the ordinary require- ments of good faith. Usnully the broker is entitled to a fair and reasonable opportunity to perform his obligation, subject of course to the right of the seller to sell independently. But, that having been granted him, the right of the principal to terminate his authority is absolute and unrestricted, except only that he may not do it in bad faith, and as a mere device to escape the payment of the broker's commissions. Thus, if in the midst of negotiations instituted by the broker, and which were plainly and evidently approaching success, the seller should revoke the authority of the broker, with the view of concluding the bargain without his aid, and avoiding the payment of commissions about to be earned, it might well be said that the due performance of his obligation by the broker was purposely prevented by the principal. But if the latter acts in good faith, not seeking to escape the payment of commissions, but moved fairly by a view of his own interest, he has the absolute right before a bargain is made, while negotiations remain unsuccessful, before commissions are earned, to revoke the broker's authority, and the latter cannot thereafter claim compen- sation for a sale made by the principal, even though it be to a cus- tomer with whom the broker unsuccessfully negotiated, and even though, to some extent, the seller might justly be said to have availed himself of the fruits of the broker's labor. Thus, in Sat- terthwaite vs. Vreeland, 3 Hun, 152, it was held that the broker earned his commissions by making a sale on the terms fixed by the principal while the authority continued. Judge Daniels said, and we think correctly, that "to main- tain a claim by the broker for his commissions, it was necessary that he should be able to show that he had either procured a pur- chaser for the property at the price for which he was empowered to sell, or that the defendant had deprived him of the opportunity to do so while the privilege lasted." In that case, after the termina- tion of the broker's authority, the principal sold to the person with whom the broker had negotiated at a less price; and it was held that he had a right to do so, unless his action was a mere device to escape the payment of commissions. Any other rule would pro- long a contract with a broker indefinitely. No man could know when he was freed from its obligations, and a liability would be imposed not contained in the terms of the contract, and essenti- ally perverting its legitimate construction. Ohap. VII] Sibbald vs. Iron Co. 807 We may now apply these principles to the facts of the present case. The plaintiff began his efforts to sell the steel rails of the Bethle- hem Iron Company very soon after authority was given him. In the latter part of December, 1873, he went to Canada, and pro- posed to Mr. Brydges, who was managing director of the Grand Trunk Railway, to sell him the steel rails of the defendant's manu- facture. Brydges declined the proposition, saying he was not then in the market, but when he was, would let the plaintiff know. On the 5th of January, the defendant having reduced its price and fixed it at $108 per ton, plaintiff wrote to Brydges telling him of the reduction and that the defendant offered to sell at $108 cur- rency. At the close of his letter the broker adds, " I think a firm cash offer of $105 to $107 currency would be accepted by the Bethlehem Iron Company. " This suggestion is severely criticised by the appellant's counsel and with some apparent reason. The broker was bound to main- tain a steady fidelity to the interests of his principal. He had no right to sacrifice the interest of the latter for the benefit of the buyer, and yet it may well be that buyer and seller could only be brought to the consent of a bargain by some moderate concession as to price, and that the broker acted fairly, in view of his talk with Hunt about a reduction, in making the suggestion which is assailed as a violation of duty. On the 9th of January plaintiff again wrote Brydges that defendant was anxious for an order, and inclined to accept a reduction. On February 5th the broker again wrote substantially the same thing. Between the 20th of that month and the 8th of March he was in Montreal having other busi- ness for other parties and accomplished nothing. On the 7th of April he received a telegram from Brydges asking the price of one thousand tons of steel rails, " either of English or American manufacture," for immediate delivery. This seemed a hopeful inquiry. Plaintiff after getting the price from Evans, tele- graphed an offer for the defendant at $106 currency. At the same time the plaintiff wrote Brydges, repeating the offer but also transmitting offers by other parties of English rails. What that meant, and what its effect on defendant's interests was, is made plain by the further fact that no order came for the defendant's rails, but Sibbald bought for the Grand Trunk, on the 11th of April, five hundred and twenty tons, and on the 14th of April eighty tons of English rails. Meanwhile, on the 11th of April, he caused to be sent to the Grand Trunk Railway a broken piece of 308 Cases on Agency. [Book I defendant's rail to show the quality of the steel. On the 21st of April he wrote to Hannaford, the chief engineer of the Grand Trunk, explaining the object of sending the fractured rail, and that the defendant would roll to that company's section, and if required, punch or bore holes round in rails. On or about the 23d of April, 1ST4, plaintiff received a telegram from the Grand Trunk railway, asking upon what terms one thou- sand tons of steel rails of the Bethlehem Iron Company would be delivered at Portland. On the same day he telegraphed to the defendant to know the lowest price, and stating that the rails inquired about were for the Grand Trunk. Just such an incident had occurred once before, as we have seen, and nothing had come of it. At that time a price had been named but no purchase had resulted. Was it unreasonable if the patience and confidence of the principal became exhausted? Mr. Hunt telegraphed that he would see plaintiff the next day. He did so, and in that interview declined to name a price, or negotiate further through plaintiff. On that same day the latter telegraphed and wrote to the Grand Trunk officers that the Bethlehem Company declined to name a price. This ended the agency, terminated the contract, left each party at entire liberty, if the action of the defendant was within its legal rights and exercised fairly and in good faith. The efforts of the plaintiff had been thus unsuccessful. He had not made a bargain, he had failed to bring buyer and seller to an agreement, after having had four months of opportunity, and now his authority was terminated without his haviug earned commis- sions. Very plainly he had acquired no right to them, and could acquire no right to them from anything which might happen in the future, unless upon the sole and only ground that the defendant terminated the agency in bad faith and as a device to get the bene- fit of plaintiff's labors without paying for them. It is difficult to see how that could be maintained, and yet in his charge to the jury, the trial judge called attention to the claim that on this same 23d of April, Evans, who as a broker, made the final sale, and who had learned on the street that the Grand Trunk Railway was in the market for steel rails, wrote that fact to the defendant and began the negotiations which ended in a sale. He did write such a letter to Hunt, but it is plain that the latter did not receive it until the 25th at the earliest, and not until after he had terminated plaintiff's agency. He could not, therefore, have been influenced by it, and the evidence of bad faith had nothing Chap. VII ] Sibbald vs. Iron Co. 309 left on which to rest except the fact of the actual sale to the Grand Trunk Railway on the 13th of May, which sale was made through Evans and his brokerage paid. Keeping in view this state of facts, we are prepared to consider certain other alleged errors in the final disposition of the case. The court was asked to direct a verdict for the defendant on the ground that although the plaintiff had first applied to the defend- ant for the price of the rails, the defendant was entirely at liberty to refuse his services and to make a sale itself, directly or through another broker. The request was refused. We cannot quite say that this was error in view of the possible question of bad faith in terminating the agency. Slender as may have been its foundation there was perhaps enough in the circumstances of the case and the facts of the transaction to make it proper to submit that question to the jury. It was a question peculiarly within their province, and which the court could hardly be justified in withholding from their consideration. The court was then asked to charge that the defendant, under the circumstances, had the right to refuse to use the services of Mr. Sibbald, if the action was taken in good faith, without any intent to deprive him of his commission. The proposition involved in this request was, as we have already shown, entirely accurate and sound, and should have been so presented to the jury. The trial judge however was unwilling to so charge without adding a material qualification. He said, " I charge that proposition, but I charge it with qualification, that the defendant had no right to refuse to avail itself of those things which the broker had done and then, indirectly — no matter whether in good faith or in bad faith — by other channels, avail itself of the efforts of the broker with whom it has declined to continue the negotiations." There was an exception both to the refusal to charge and to the qualification added. It is apparent that the request and the charge, taken together, plainly instructed the jury two things; first, that a seller cannot, even in good faith, terminate the authority of a broker and effect a sale afterwards through other agencies, and freed from any liability to the broker, if in the making of such after-sale the latter's pre- vious unsuccessful efforts are in fact useful and aid and assist in the final bargain; and second, that the circumstances of the case were such as to justify the inference that in the sale actually made the seller did in fact avail himself of the previous labors of the 310 Cases on Agency. [Book I broker. This last proposition, without being distinctly asserted, was plainly assumed a^ the basis upon which the qualification of the request to charge rested and was rendered necessary. The practical result of the instruction thus given was in hostility to the conclusions we have derived from the authorities. It made immaterial the good faith of the defendant in terminating the authority of the broker, and explicitly denied such right as affect- ing commissions, if the after-sale was in fact aided and assisted by the plaintiff's previous unsuccessful efforts. The test of the right to recover is changed from the question of the principal's good faith in terminating the agency, to the question whether, notwithstand- ing that fact, the new and independent sale was helped and bene- fited by the previous action of the broker. The logical result of such a doctrine would be to prevent the defendant from ever making a sale of steel rails to the Grand Trunk railway, except on condition of paying a commission to the plaintiff. For the one only useful thing which he did was to introduce the Bethlehem rails to the notice of that railway company. There could be no sale there- after would not be as much due to such original act of the broker as the one in question. It could always be said with equal truth that the iron company was availing itself of the broker's labor. The doctrine asserted permits a recovery for unsuccessful efforts, for trying to effect an agreement without accomplishing one, for merely asking a purchaser to buy without getting his assent, because though the agency had ended without commissions earned, a later and independent negotiation was probably easier and more likely to succeed by reason of such previous efforts. The charge had a clear tendency to mislead the jury. Because the broker originally brought the Bethlehem rails to the notice of the Grand Trunk purchasing officers, and thereafter accomplished nothing more than to lessen the principal's price and sell the rails of its rivals to the proposed customer, he is held entitled to recover commissions on a sale made without his inter- vention and after his agency had been fairly and lawfully terminated. Grant that what he did may justly be said to have aided in the making of the after-sale, yet that does not furnish ground for recovery, as we have already seen. If it did, such an agency might pass utterly beyond the principal's control. The trial judge, in the earlier part of this charge, had stated the general rule correctly, and as we hold it should be. lie said to the jury, " If vou find from the evidence in any given case, that the broker has Chap. VII ] Sibbald vs. Iron Co. 811 failed to carry out any particular transaction, and that his efforts, although he may have introduced the parties, have terminated, and that he has not succeeded in making the trade, then the priucipal has a perfect right to resort to other resources for the purpose of effectuating that trade." If the charge had stopped here no error would have heen committed. But it did not stop here. At its very close, and as the last words left with the jury, the doctrine, before correctly announced, is qualified by the introduction of a new and wrong element which could scarcely fail to lead the jury astray. It not only denied that unearned commissions were finally cut off by a termination of the broker's authority exercised in good faith, but confusing the essentially different ideas of an endeavor to make some sale, and negotiations about a particular sale, assumed that the last existed when the authority terminated, and on that unwarranted assumption asserted the right to commissions on the sale actually made. He should have submitted the question of good faith in terminating the agency to the jury, and told them if they found that fact, that no commissions could accrue on the after-sale, however much in making it the seller availed himself of the previous labors of the broker. If, after the broker has been allowed a reasonable time, within which to produce a buyer and effect a sale, he has failed to to so, and the seller in good faith and fairly has terminated the agency and sought other assistance by the aid of which a sale is consum- mated, it does not give the original broker a right to commissions, because the purchaser is one whom he introduced and the final sale is in some degree aided or helped forward by his previous unsuccess- ful efforts. If the charge was intended to mean this, and no more than this, the language chosen was unfortunate, for its direct tend- ency was to covey to the jury an entirely different idea and one with which we do not concur. For this error the judgment should be reversed. Judgment reversed; new trial granted, costs to abide the event. Judgment reversed. All concur, except Rapallo, J., absent. Note.— See, also, Cassady vs. Seeley, 69 Iowa 509; Fisk vs. Henarie, 13 Oreg. 156; Stewart vs. Mather, 32 Wis. 344; Desmond vs. Stebbins, 140 Mass. 339; Veazie vs. Parker, 72 Me. 443; Sussdorff vs. Schmidt, 55 N. Y. 319; Attrill vs. Patterson, 58 Md. 226; Conkling vs. Krakauer, 70 Tex. 735; Armstrong vs. Lowe, 76 Cal. 616; Fischer vs. Bell, 91 Ind. 243; Goss vs. Stevens, 32 Minn. 472; Keilson vs. Lee, 60 Cal. 555; Potvin vs. Curran, 13 Keb. 302; Hamlin vs. Schulte, 34 Minn. 534. 312 Oases on Agency. [Book I (41 Kansas, 496.) DURKEE vs. GUNN. ( Supreme Court of Kansas, January, 18S9.J Durkee and Stout on the 1st of June, 1886, entered into a writ- ten contract with Gunn & Marr, by which the latter were given the exclusive sale of certain real estate belonging to Durkee & Stout. Gunn & Marr were to plat, advertise and push the sale at their own expense and were to have for their commission one half of the profits above $300 per acre. The contract was to continue until October 1, 1887. Gunn & Marr caused the ground to be platted, advertised it and entered upon the sale of the land. On July 23, 1886, Marr sold out his interest in the business of Gunn & Marr, including his interest in the contract, to Gunn, and the latter continued to advertise and push the sale alone, to the knowl- edge of Durkee & Stout, who knew of their dissolution, and with- out objection. Early in February, 1887, Gunn reported the sale of two lots to Durkee & Stout, when they notified him that he was no longer their agent and repudiated his authority. At that time, the land would have sold for $750 per acre. The court below found Gunn entitled to recover for the breach of the contract and assessed his damages at his share of the profits at thai price. Defendants allege error. J. D. Mc Cleverty, for plaintiffs in error. Ware, Biddle & Cory, for defendant in error. Horton, C. J. I. It is claimed by Messrs. Durkee & fitout, who entered into a contract with Messrs. Gunn & Marr on June 1, 1886, that the dissolution of the firm of Gunn & Marr terminated their agency; that Marr, the retiring member of the firm, had no authority to sell or transfer his interest or the interest of the firm in the contract of June 1, 1886, to Gunn; therefore, that as no new contract was made in writing by Gunn, he could not recover as agent or otherwise for any damages or services subsequent to July 23, 1886, the date of the dissolution. Against this it was urged that Gunn, from the findings of the trial court, as continu- ing partner, succeeded by the terms of his agreement with Marr *o all the rights of the firm, if Messrs. Durkee & Stout recognized or approved of his agency after the dissolution of the firm. It is held bj * Chap. VII] Durkee vs. Gunk. 313 number of cases that an assignment by one partner of all his interest in the partnership is ipso facto a dissolution of the partnership, though the assignment is made to another partner. Marquand vs. Mfg. Co., 17 Johns. (N. Y.) 525; Edens vs. Williams, 36 111. 252; Rogers vs. Nichols, 20 Tex. 719. But in Taft vs. Buffam, 14 Pick., { Mass.) 322, it is held that an assignment by one partner to another of his interest in the partnership property i8 not ipso facto a dissolution of the partnership. Whether it so operated depended on its terms as to the intention of the parties. See also Monroe vs. Hamilton, 60 Ala. 226; Buford vs. Neely, 2 Dev. Eq. 481. The findings of the trial court, however, show that the assign- ment from Marr to Gunn was recognized by Durkee & Stout after it was made. Marr does not claim any interest in the contract, either for himself or for the old firm of Gunn & Marr. After the dissolution on July 23, 1886, Gunn continued to act under the con- tract of June 1, with the knowledge and without the objection of Durkee & Stout. * * * In our opinion, on account of the conduct and acts of all the parties, the rights, duties and liabilities of W. C. Gunn were the same after dissolution as before, excepting that the contract of June 1, 1886, was to be fully carried out on the part of Gunn & Marr by Gunn only. Therefore, the point made that the contract of June 1, was in its nature personal only, and hence not assignable, need not under the findings be discussed. * * * II. As neither Messrs. Gunn & Marr nor the continuing member of the firm, "W. C. Gunn, had any interest in the land described in the contract, but only shared in the surplus or profits, the agency of Gunn was revocable. Hawley vs. Smith, 45 Ind. 183. But, although Messrs. Durkee & Stout had the power to annul the con- tract and refuse to permit Gunn to act, yet when they so refused, without any just reason or excuse, after having recognized Gunn as the continuing member of the firm, they were liable to him for all damages resulting proximately from the breach of the contract. III. The court allowed Gunn as his measure of damages one- half of what the land would have sold for at the commencement of his action above the price Messrs. Durkee & Stout agreed to accept for the land, as stated in the contract. It is contended that the rule followed was erroneous. * * * "We think that Gunn, owing to the wrongful revocation of his agency by Messrs. Durkee & Stout in the early part of February, 1887, was entitled to recover such compensation or damages as 314 Cases on Agency. [Book I would be equal in amount to his share of the profits which would have resulted had the lands been sold by him. UawUy vs. Smith, supra. This is what he really recovered. Therefore no erroneous rule was followed, nor are the damages allowed excessive. Messrs, Dnrkee & Stout cannot take advantage of their own wrongful acts, and as Gunn was prevented by them from performing a contract, his remedy is the same as if he had performed. We perceive no error in the record, and therefore the judgment of the district court will be affirmed. (42 Minnesota, 526.) ALWOKTH vs. SEYMOUR. (Supreme Court of Minnesota. February, 1890.) Appeal by defendant from an order overruling her demurrer to plaintiffs complaint, which alleged the following facts. Defendant, who was a widow residing in Canada, had an interest in lands left by her husband in Minnesota, but the location, value and amount of these lands were unknown to her. Plaintiff was an abstracter of titles, and made an agreement with defendant to look up and recover her interests in these lands, by suit if necessary, at his own expense if unsuccessful, but if successful, for half of the proceeds after deducting the expenses. After doing work worth $100, and becoming liable to attorneys for services to the amount of $100, the defendant repudiated the agreement. Defendant's interest was worth $25,000. The complaint prayed specific performance of the agreement; that defendant be enjoined from conveying any of the lands until plaintiffs expenses had been paid and one-half of the land conveyed to him and that his disbursements and expenses be declared a lien. True & Wetherby, for appellant. Draper & Davis, for respondent. Mitchell, J. The complaint in this action was evidently framed with reference to compelling specific performance of the contract declared on. The point urged by defendant in support of her demurrer is that the contract is champertous. I. It is not necessary to determine here whether or not the com- Chap. VII] Alworth vs. Seymotjb. 315 mon law as to champerty is in force in this state, becanse there are at least two reasons why plaintiff cannot have specific perform- ance in this case: (1) The contract did not create a power " coupled with an interest," but a mere naked agency, by which the defendant employed plaintiff as her agent to perform certain services, as compensation for which he was to receive a share of the results of the execution of the agency. It is not enough to consti- tute a " power coupled with an interest " that plaintiff was to have an interest in the proceeds arising from the execution of the agency. There must be an interest in the thing itself which is the subject of the power, and not merely in that which is produced by the exercise of the power. A power " coupled with an interest " is one engrafted on an estate, or on the thing itself; and the power and the estate must be united and co-exist. This could not be under this contract, for by its terms the plaintiff was only to have an interest in the property recovered through the execution of the agency. It being, therefore, a case of a mere agency or naked power, the defendant had the power (as distinguished from the right) to revoke it at any time. Of course if she revoked it without right, plaintiff would have his action for damages for breach of the con- tract, if a valid one. Mechem, Ag. §§ 207-209; Hunt vs. Rousma- nier, 8 Wheat. 174^o^p. 322$ Gilbert vs. Holmes, 64111. 548; Hart- ley's Appeal, 53 Pa. St. 212; 91 Am. Dec. 207; Barr vs. Schroeder, 32 Cal. 609. (2) But, even assuming, that the contract created a "power coupled with an interest," still the court would not decree specific performance, because, from the very nature of the contract, it could not enforce complete performance by both parties. In other words there is no mutuality of remedy. It calls for the personal services of the plaintiff as agent for the defendant. These services are as yet mainly unperformed. The court has no power by its decree to compel him to perform them, much less to direct how he shall perform them; and specific performance will not be decreed unless the court can at the time enforce the contract on both sides so that the whole agreement will be carried into effect according to its terms. If this cannot be judicially secured on both sides it ought not to be compelled on one side, and the other party left at liberty to perform or not, or to perform in such a way as suits his own interests. Fry, Spec. Perf. § 440; Pom. Eq. Jur. § 1405, and notes; Pom. Spec. Perf. §§ 165, 166. II. But, although the complaint does not state a case entitling 316 Cases on Agency. [Book I plaintiff to the relief asked for, viz., specific performance, yet the demurrer was properly overruled, because it states facts entitling him to judgment for $200, the value and amount of his services and disbursements rendered and made or incurred in the execution of his agency. It is well settled by the decisions of this court, that if a complaint states facts constituting a cause of action entitling the party to any relief, either legal or equitable, it is not demurrable because it asks for the wrong relief. Canty vs. Latter ner, 31 Minn. 239; Leuthold vs. Young, 32 Minn. 122. There was nothing illegal in the character of the services contracted for. If there was anything unlawful, it was in the provision as to com- pensation. But, admitting that the contract was void, as champ- ertous, it does not follow that plaintiff thereby forfeits his right to compensation for the services he has performed, and the disburs- ments he has made, for the defendant as her agent. Stearns vs. Felker, 28 Wis. 594; Thurston vs. Percival, 1 Pick. 4. 15; Rust vs. Larue, 4 Litt. (Ky.) 411, 14 Am. Dec. 172; Walsh vs. Shumway, 65 111. 471. Order affirmed. Note 1 — Courts will not grant specific performance of contracts for the rendition of personal services involving the exercise of special skill, judg- ment and discretion, continuous in their uature and running through an indefinite period of time. Iron Age Publishing Co. vs. Western Union Telegraph Co., (1887) 83 Ala. 498, 8 Am. St. Rep. 758. "Contracts for per- sonal service are matters for courts of law. and equity will not undertake a specific performance; 2 Kent's Com. 258, note C; Hamblin vs. Dinneford, 2 Edw. Ch. (N. Y.) 529; Sanquirico vs. Benedetti, 1 Barb. (N. Y.) 315; Eaight vs. Badgeley, 15 Barb. (N. Y.) 499; De Rivafinoli vs. Corsetti, 4 Paige (N. Y.) 264, 25 Am. Dec. 532." Per Andrews, C. J., in The William Rogers Mfg. Co. vs. Rogers (1890) 58 Conn. 35G, 18 Am. St. Rep. 278. See. also, Clark's Case, 1 Blackf. (Ind.) 122, 12 Am. Dec. 213 and note. See, also, following case and note. (18 Oregon, 221, 17 Am. St. Rep. 726.) OORT vs. LASSARD. {Supreme Court of Oregon, December, 1SS9.J Action for injunction to prevent violation of a contract to render personal services. Refused. Plaintilf appeals. Sears & Beach, for the appellant. Chap. VII] Cort vs. Lassard. 817 C. H. Eewitt s for the respondents. Lord, J. This is a suit wherein the plaintiff, who is a theatrical manager, seeks to enjoin and prevent the defendants, who are acrobats, from performing at a rival theater in the same place. The plaintiff alleges, among other things, that the plaintiff and defendants entered into a contract whereby it was agreed that the defendants were to perform as acrobats exclusively for the plaintiff during a period of six weeks, at a salary of sixty dollars per week, etc.; that the plaintiff has performed all the conditions of his said contract, and gone to large expense in advertising, etc., and would have derived large emoluments from the performance of the defendants, which are alleged to be unique and attractive; that said defendants, after performing for the plaintiff for the space of three weeks, refused to perform longer, and engaged themselves to perform as acrobats at another theater mentioned, in said city; and that said performance of the said defendants will attract large crowds, etc., and will largely diminish, if permitted to be given, the receipts of the plaintiff, and cause an irreparable loss, etc., and diminish the attractions of his said theater, etc., that the said defendants are entirely impecunious, and unable to respond to an action for a breach of the contract, etc. The answer denies nearly all the material allegations, but admits the hiring, etc., and then avers affirmatively that the plaintiff failed to fulfill his part of the contract, etc., and that the plaintiff discharged them, etc. ; all of which was put in issue by the reply. Upon all the issues presented by the pleadings, the finding of the court was favorable to the plaintiff, with this exception: "That the performance of the said defendants was not of a unique or unusual character, but that of an ordinary acrobat and tumbler, which could have been easily supplied, with little or no delay or expense; and that said service was of a common and ordinary char- acter, and not such as could be enjoined in equity for a breach of contract to perform," etc. As a result, the court found, as a con- clusion of law, that the plaintiff was not entitled to any relief in equity, and that his suit be dismissed. The contention of counsel for the plaintiff is to this effect: 1. That it is immaterial whether the performance is unique, or involves special knowledge or skill; and 2. That the finding is contrary to the evidence, which will show that the performance was unique and unusual. In this case there is no negative clause in the contract; but the suit, as decided 318 Oases on Agency. [Book I by the court, assumes and admits that such a stipulation is not a prerequisite to the exercise of jurisdiction, but that it is enough to warrant equity to interfere if the contract alleged to have been broken stipulated for services which are unique and extraordinary in their character, or which involve personal skill or knowledge or ability, and provided that such services were to be rendered at a particular place or places, and for a specified time. The question whether a court of equity will apply the preventive remedy of injunction to contracts for the services of professional workers of special merit, or leave them to the remedy at law for damages, has been the subject of much discussion, and the existence of the jurisdiction fully established. It is not, perhaps, possible, nor is it neces- sary, to reconcile the decisions; but the ground of the jurisdic- tion, as now exerted, rests upon the inadequacy of the legal remedy. In an early English case, where the jurisdiction was invoked to prevent the actor Kean from performing at another theater upon a contract for personal services, at which there was a stipulation to the effect that he should not perform at any other theater in Lon- don during the period of his engagement, it was held, as the court could not enforce the positive part of the contract, it would not restrain by injunction a breach of the negative part. Eemlle vs. Kean, 6 Sim. 333. But this case was expressly overruled in Lum- ley vs. Wagner, 1 De Gex, M. & G. 604, upon a like contract for personal services, to sing during a certain period of time, at a particular theater, and not to sing elsewhere without written authority, upon the ground that the positive and negative stipula- tions of such contract formed but one contract, and that the court would interfere to prevent the violation of the negative stipula- tion, although it could not enforce the specific performance of the entire contract. In delivering this opinion, among other things, the lord chancellor said: "The agreement to sing for the plaintiff, during three months, at his theater, and during that time not to sing for anybody else, is not a correlative contract. It is, in effect, one contract; and though, beyond all doubt, this court could not inter- fere to enforce the specific performance of the whole of this con- tract, yet, in all sound construction, and according to the true spirit of the agreement, the engagement to perform for three months at one theater must necessarily exclude the right to per- form at the same time at another theater. It was clearly intended Chap. VII] Coet vs. Lassaed. 819 that J. Wagner was to exert her vocal abilities to the utmost to aid the theater to which she agreed to attach herself. I am of opinion that if she had attempted, even in the absence of any negative stipulation, to perform at another theater, she would have broken the spirit and true meaning of the contract, as much as she would with reference to the contract into which she had actually entered." In Montague vs. Floclcton, L. E. 16 Eq. 189, it was held that an actor who enters into a contract to perform for a certain period at a particular theater may be restrained by injunction from perform- ing at any other theater during the pendency of his engagement, notwithstanding that the contract contains no negative clause restricting the actor from performing elsewhere. Referring to Lumley vs. Wagner, 1 De G. M. & G. 604, the vice- chancellor said: "It happened that the contract did contain a negative stipulation, and finding it there, Lord St. Leonard relied upon it; but I am satisfied that if it had not been there he would have come to the same conclusion, and granted the injunction on the grounds that Mdlle. Wagner, having agreed to perform at Mr. Lumley's theater, could not at the same time be permitted to per- form at Mr. Gye's. But however that may be, it is comparatively unimportant, because the subsequent authorities have completely settled this point." As a result of these English authorities, while conceding that specific performance of such contracts could not be enforced, the jurisdiction is established that relief may be granted on a contract for such services, even though it contains no negative clause, upon the ground that a contract to act or play at a particular place for a specified time necessarily implies a prohibition against performing at any other place during that period. The American courts, while they recognize the existence of the jurisdiction, have exhibited much hesitancy in applying it to such enlarged uses. Until Daly vs. Smith, 49 How. Pr. 150, was decided, the doctrine of Lumley vs. Wagner, 1 De Gex, M. & G. 604 was either entirely rejected or only partially accepted; Sanquirico vs. Benedetti, 1 Barb. 315; Hamblin vs. Dinncford, 2 Edw. Ch. 528; Fredricks vs. Mayer, 13 How. Pr. 566; Butler vs. Gallelti, 21 How. Pr. 465; Burton vs. Marshall, 4 Gill, 487; Hayes vs. Willio, 11 Abb. Pr. N. S., 167. In that case {Daly vs. Smith. 49 How. Pr. 150), the authorities are carefully discriminated, and the injunction was granted restraining an actress from violating her agreement to play at the plaintiff's theater for a stated period; and the case is on all fonra 320 Oases on Agency. [Book I with Lumley vs. Wagner, 1 De Gex, M. & G. 604. See, also, Hahn vs. Concordia Society, 42 Md. 465; McOaull vs. Braham, 16 Fed. Rep. 37. In Fredericks vs. Mayer, 13 How. Pr. 567, and Butler vs. Galletti, 21 How. Pr. 466, the court indicates the principle that where the services involve the exercise of powers of the mind, as of writers or performers, which are purely and largely intellec- tual, they may form a class in which the court will interfere, upon the ground that they are individual and peculiar. In these cases the element of mind furnishes the rule of distinc- tion and decision, as distinguished from what is mechanical and material, and would exclude professional workers, such as dancers and acrobats, whose performances are largely mechanical, however unique or extraordinary such performance may be. But it is apprehended that this distinction cannot be maintained: for the fact is that such actors do often possess special merit of extra- ordinary qualifications in their line, which makes their professional performances distinctly personal and peculiar, and that, in case of their default on a contract for services, there would be the same difficulty in supplying their places, or in obtaining from others the same service, as would happen with actors whose merits were largely intellectual, showing the same reason to exist as much in the one case as in the other for the application of the preventive remedy by injunction. Relative to this subject, the authorities indicate that the Ameri- can courts have refused to interfere, unless there was a negative clause forbidding the services sought to be enjoined. Such a stipu- lation existed in the contract in Daly vs. Smith, 49 How. Pr. 150, upon which relief was granted, although the opinion is broad enough to include contracts without such stipulation, when the facts show that the contract is reasonable, the complainant without fault, and that he has no adequate remedy at law. To my mind, this is the correct principle to apply to such cases, even though the con- tracts contain no negative stipulation; for, in the nature of things, a contract to act at a particular theater for a specified time neces- sarily implies a negative against acting at any other theater during that time. The agreement to perform at a particular theater for a particular time of necessity involves an agreement not to perform at any other during that time. According to the true spirit of such an agreement, the implication precluding the defendant from acting at any other theater during the period for which he has agreed to act for the plaintiff follows as inevitably and logically aa Chap. VII] Cort vs. Lassard. 321 if it was expressed. So that, according to all the authorities, where one contracts to render personal service to another which requires special merit or qualifications in the professional worker, and, in case of default, the same service is not easily obtained from others, although the court will not interfere to enforce specific per- formance of the whole contract, yet it will exert its preventive power to restrain its breach. While it is true that the court cannot enforce the affirmative part of such contract, and compel the defendant to act or perform, it can enjoin its breach, and compel him to abstain from acting elsewhere than at the plaintiffs theater. The principle upon which this doctrine rests is, that contracts for such services are individual and peculiar, because of their special merit or unique character, and the inadequacy of the remedy at law to compensate for their breach in damages. " Where," says Prof. Pomeroy, "a contract stipulates for special, unique, or extraordinary personal services or acts, or for such services or acts to be rendered or done by a perty having special, unique, and extraordinary qualifica- tions, as, for example, by an eminent actor, singer, artist, and the like, it is plain that the remedy at law of damages for its breach might be wholly inadequate, since no amount of money recovered by the plaintiff might enable him to obtain the same or the same kind of services or acts elsewhere, or by employing any other per- son. " Pomeroy's Eq. Jur., sec. 1343. Damages for a breach of such contracts are not only difficult to ascertain, but cannot, with any certainty, be estimated; nor could the plaintiff procure, by means of any damages, the same services in the labor market, as in case of an ordinary contract of employment between an artisan, a laborer, or a clerk, and their employer. It results, then, that if the services contracted for by the plaint- iff to be rendered by the defendants were unique or extraordinary, involving such special merit or qualifications in them as to make such services distinctly personal and peculiar, so that in case of a default by them the same or like services could not be easily pro- cured, or be compensated in damages, the court would be warranted in applying its preventive jurisdiction and granting relief; but other- wise, or denied, if such services were ordinary, and without special merit, and such as could be readily supplied or obtained from oth- ers without much difficulty or expense. But the present case is far from being one of such character as falls under the principle of 21 322 Cases on Agency. [Book I the authorities in which the preventive remedy by injunction has been allowed. There is absolutely nothing in the evidence to show that the performances of the defendants were unique or of any special merit. The plaintiff himself will not even admit that they are; while others say that the performances were " great/' " pretty good," "do a fair act," etc., and others, that their performances were merely that of the ordinary acrobat, and that there would be no trouble in supplying their places, or, as one of a good deal of professional experience says, " in getting a thousand to do just as good variety business." Indeed, according to our view of the evidence, the plaintiff fails to make a case within the principle in which equity allows relief for a breach of contract for personal services, and the court below committed no error in dismissing the bill. Note. — Where a person has entered into a definite contract to perform services of such a personal and unique kind that they cannot be easily replaced, and the loss of them cannot adequately be compensated by damages, while the court will not undertake to enforce specific performance of the contract (see Ahvorth vs. Seymour, ante) it will by injunction restrain the person from violating the contract, even though no negative clause is included in the contract. See, in addition to the cases cited in the opinion: Duff vs. Russell (1892), 14 N. Y. S. 134; Metropolitan Exhib. Co. vs. Ward (1890) 3 N. ¥. S. 779: Pratt vs. Montegriffo (1890), 10 N. Y. & 90S. III. BT OPERATION OF LAW. (8 Wheaton, 174.) HUNT vs. ROUSMANIER. (Supreme Court of the United States, February, 18S3.J Appeal from the circuit court of Rhode Island. The original bill, filed by the appellant, Hunt, stated that Louis Rousmanier, the intestate of the defendants, applied to the plaint- iff, in January, 1820, for the loan of one thousand four hundred and fifty dollars, offering to give, in addition to his notes, a bill of sale, or a mortgage of his interest in the brig Nereus, then at sea, Chap. VII] Hunt vs. Eousmanieb. 323 as collateral security for the repayment of the money. The sum requested was lent; and, on the 11th of January, the said Rous- manier executed two notes for the amount; and, on the 15th of the same month, he executed a power of attorney, authorizing the plaintiff to make and execute a bill of sale of three-fourths of the said vessel to himself, or to any other person; and, in the event of the said vessel or her freight being lost, to collect the money which should become due on a policy by which the vessel and freight were insured. This instrument contained, also, a proviso, reciting that the power was given for the collateral security for the payment of the notes already mentioned, and was to be void on their payment; on the failure to do which, the plaintiff was to pay the amount thereof, and all the expenses, out of the proceeds of the property, and to return the residue to the said Rousmanier. The bill farther stated, that on the 21st of March, 1820, the plaintiff lent to the said Rousmanier the additional sum of seven hundred dollars, taking his note for payment, and a similar power to dispose of his interest in the schooner Industry, then at sea. The bill then charged, that on the 6th of May, 1820, the said Rousmanier died insolvent, having paid only two hundred dollars on the said notes. The plaintiff gave notice of his claim, and, on the return of the Kerens and Industry, took possession of them, and offered the interest in them for sale. The defendants forbade the sale, and this bill was brought to compel them to join in it. The defendants demurred generally, and the court sustained the demurrer, but gave the plaintiff leave to amend his bill. The amended bill stated, that it was expressly agreed between the parties, that Rousmanier was to give specific security on the Nereus and Industry, and that he offered to execute a mortgage on them. That counsel was consulted on the subject, who advised that a power of attorney, such as was actually executed, should be taken in preference to a mortgage, because it was equally valid and effectual as a security, and would prevent the necessity of changing the papers of the vessels, or of taking possession of them on their arrival in port. The powers were accordingly executed, with the full belief that they would, and with the intention that they should, give the plaintiff as full and perfect security as would be given by a deed of mortgage. The bill prayed that the defend- ants might be decreed to join in a sale of the interest of their intestate in the Nereus and Industry, or to sell the same them- selves, and pay out of the proceeds the debt due to the plaintiff. 324 Oases on Agency, [Book I To this amended bill, also, the defendants demurred, and on argu- ment the demnrrer was sustained, and the bill dismissed. From the decree, the plaintiff appealed to this court. Mr. Wheat on, for the appellant. Mr. Hunter, for the defendants. Mr. Chief Justice Marshall delivered the opinion of the court. The counsel for the appellant objects to the decree of the circuit court on two grouds. He contends: 1. That this power of attorney does, by its own operation, entitle the plaintiff, for the satisfaction of his debt, to the interest of Eonsmanier in the Nerens and the Industry. 2. Or, if this be not so, that a court of chancery will, the con- veyance being defective, lend its aid to carry the contract into execution, according to the intention of the parties. We will consider, 1. The effect of the power of attorney. This instrument contains no words of conveyance or of assign- ment, but is a simple power to sell and convey. As the power of one man to act for another, depends on the will and license of that other, the power ceases when the will, or this permission, is with- drawn. The general rule, therefore, is, that a letter of attorney may, at any time, be revoked by the party who makes it; and is revoked by his death. But this general rule, which results from the nature of the act, has sustained some modifications. Where a letter of attorney forms a part of a contract, and is a security for money, or for the performance of any act which is deemed valuable, it is generally made irrevocable in terms, or if not so, is deemed irrevocable in law; 2 Esp. N. P. Rep. 5C5. Although a letter of attorney depends, from its nature, on the will of the person making It, and may, in general, be recalled at his will; yet, if he binds him- self for a consideration, in terms, or by the nature of his contract, not to change his will, the law will not permit him to change it. Rousmanier, therefore, could not, during his life, by any act of his own, have revoked this letter of attorney. But does it retain its efficacy after his death? We think it does not. We think it well settled, that a power of attorney, though irrevocable during the life of the party, becomes extinct by his death. This principle is asserted in Littleton (sec. GC), by Lord Coke, in his commentary on that section (52b.), and in Willes' Reports (105 note and 565). The legal reason of the rule is a plain one. It seems founded on the presumption that the substitute acts by Cliap. VII] Hunt vs. Rousmanieb. 325 virtue of the authority of his principal, existing at the time the act is performed; and on the manner in which he must execute his authority, as stated in Comle's case, 9 Co. 7GG. In that case it was resolved that "when any has authority as attorney to do any act, he ought to do it in his name who gave the authority." The reason of this resolution is obvious. The title can, regularly, pass out of the person in whom it is vested only by a conveyance in his own name; and this cannot be executed by another for him, when it could not, in law, be executed by himself. A conveyance in the name of a person who was dead at the time, would be a manifest absurdity. This general doctrine, that a power must be executed in the name of a person who gives it, a doctrine founded on the nature of the transaction, is most usually engrafted in the power itself. Its usual language is, that the substitute shall do that which he is empowered to do in the name of his principal. He is put in the place and stead of his principal, and is to act in his name. This accustomed form is observed in the instrument under considera- tion. Hunt is constituted the attorney, and is authorized to make and execute, a regular bill of sale in the name of Eousmanier. Now, as an authority must be pursued, in order to make the act of the substitute the act of the principal, it is necessary that this bill of sale should be in the name of Eousmanier; and it would be a gross absurdity that a deed should purport to be executed by him, even by attorney, after his death; for the attorney is in the place of the principal, capable of doing that alone which the principal might do. This general rule, that a power ceases with the life of the person giving it, admits of one exception. If a power be coupled with an "interest," it survives the person giving it, and may be executed after his death. As this proposition is laid down too positively in the books to be controverted, it becomes necessary to inquire what is meant by the expression, "a power coupled with an interest? " Is it an interest in the subject on which the power is to be exercised, or is it an interest in that which is produced by the exercise of the power? We hold it to be clear, that the interest which can protect a power after the death of a person who creates it, must be an interest in the thing itself. In other words, the power must be engrafted on an estate in the thing. The words themselves would seem to import this meaning. " A 326 Cases on Agency. [Book I power coupled with an interest/' is a power which, accompanies, or is connected with an interest. The power and the interest are united in the same person. But if we are to understand by the word " inter- est/' an interest in that which is to be produced by the exercise of the power, then they are never united. The power, to produce the interest, must be exercised, and by its exercise, is extinguished. The power ceases when the interest commences, and, therefore, cannot, in accurate law language, be said to be " coupled " with it. But the substantial basis of the opinion of the court on this point, is found in the legal reason of the principle. The interest or title in the thing being rested in the person who gives the power, remains in him, unless it be conveyed with the power, and can pass out of him only by a regular act in his own name. The act of the substitute, therefore, which, in such a case, is the act of the prin- cipal, to be legally effectual, must be in his name, must be such an act as the principal himself would be capable of performing, and which would be valid if performed by him. Such a power neces- sarily ceases with the life of the person making it. But if the interest or estate passes with the power, and vests in the person by whom the power is to be exercised, such person acts in his own name. The estate being in him, passes from him by a conveyance in his own name. He is no longer a substitute, acting in the place and name of another, but is a principal acting in his own name, in pursuance of powers which limit his estate. The legal reason which limits a power to the life of the person giving it, exists no longer, and the rule ceases with the reason on which it is founded. The intention of the instrument may be effected without violating any legal principle. This idea may be in some degree illustrated by examples of cases in which the law is clear, and which are incompatible with any other exposition of the term "power coupled with an interest." If the word " interest " thus used, indicated a title to the proceeds of the sale, and not a title to the thing to be sold, then a power to A. to sell for his own benefit, would be a power coupled with an interest; but a power to A. to sell for the benefit of B., would be a naked power, which could be executed only in the life of the person who gave it. Yet, for this distinction, no legal reason can be assigned. Nor is there any reason for it in justice; for, a power to A. to sell for the benefit of B., may be as much a part of the contract on which B. advances his money, as if the power had been made to himself. If this were the true exposition of the term, then a power Chap. VII] Hunt vs. Rocsmanier. 32? to A. to sell for the use of B., inserted in a conveyance to A, of the thing to be sold, would not be a power coupled with an interest, and, consequently, could not be exercised after the death of the person making it; while a power to A. to sell and pay a debt to himself, though not accompanied with any conveyance which might vest the title in him, would enable him to make the conveyance and to pass a title not in him, even after the vivifying principle of the power had become extinct. But every day's experience teaches us that the law is not as the first case put would suppose. We know that a power to A. to sell for the benefit of B., engrafted on an estate conveyed to A., may be exercised at any time, and is not affected by the death of the person who created it. It is, then, a power coupled with an interest, although the person to whom it is given has no interest in its exercise. His power is coupled with an interest in the thing which enables him to execute it in his own name, and is, therefore, not dependent on the life of the person who created it. The general rule, that a power of attorney, though irrevocable by the party during his life, is extinguished by his death, is not affected by the circumstance, that testamentary powers are exe- cuted after the death of the testator. The law, in allowing a testa- mentary disposition of property, not only permits a will to be con- sidered as a conveyance, but gives it an operation which is not allowed to deeds which have their effect during the life of the person who executes them. An estate given by will may take effect at a future time or on a future contingency, and, in the mean time decends to the heir. The power is, necessarily, to be executed after the death of the person who makes it, and cannot exist dur- ing his life. It is the intention that it shall be executed after his death. The conveyance made by the person to whom it is given, takes effect by virtue of the will, and the purchaser holds his title under it. Every case of a power given in a will, is considered in a court of chancery as a trust for the benefit of the person for whose use the power is made, and as a devise or bequest to that person. It is, then, deemed perfectly clear, that the power given in this case, is a naked power, not coupled with an interest, which, though irrevocable by Kousmanier himself, expired on his death. • • • Reversed on other grounds. Note — The death of a partner dissolves the firm and with it terminates agencies in which the firm was principal. Such a termination is act Ml Dei, and the agent cannot recover damages though employed for a term 328 Cases on Agency. [Book I not yet expired: Griggs vs. Swift, 82 Ga. 392, 5 L. R. A. 405. So of the death of a sole principal: Yerrington vs. Greene, 7 R. I. 589, 84 Am. Dec. 578. See, also, Tasker vs. Shepherd, 6 H. & N. 575; Fereira vs. Sayres, 5 Watts & S. (Pa.) 210, 40 Am. Deo. 496. (10 Paige, Ch. 205, 40 Am. Dec. 241.) KNAPP vs. ALVORD. (New York Court of Chancery, April, lS^S.) Exceptions to master's report, stating the account of the defend- ant as administratrix of Alvord, deceased, filed by certain credit- ors of the estate. The estate was insufficient to pay all the debts, and the master allowed the administratix, for a certain sum, retained by one Meads ont of the proceeds of the property of the estate sold by him, to cover two notes on which he was indorser for the deceased. It appeared that the deceased, who was a cab- inetmaker, wishing to go abroad for his health, gave Meads, who was his indorser on his note to one Eector, the general manage- ment of his business, and entire possession and control of his property, with a written power of attorney, authorizing him to conduct the business, to purchase stock, to hire hands, and to col- lect moneys and apply the same in the business and to the support of the principal's family, etc. ; and expressly empowering him to Bell and dispose of any or all of the property " at any time or in any manner " which he might deem advisable, and apply the pro- ceeds, in whole or in part, to the payment or security of a certain note indorsed by Whitney and Van Vechten, or any note given in renewal thereof, and to the payment or security of and of his note indorsed by Meads, or for which Meads might become responsible. He also left with him certain notes signed in blank, to be used in renewal of notes. He gave Whitney also a mortgage on the fur- niture, stock, etc., of his cabinet shop, to secure the note on which he was indorser, but the same was not recorded until after Alvord's death. Before Alvord's death, Meads renewed the Whitney and Van Vechten note with one of the blanks in his hands, they again indorsing, and also renewed the Rector note, putting his own name as indorser on both notes, and they being protested for non- Chap. VII] Knapp vs. Alvobd. 329 payment after Alvord's death, he took them both up. He claimed a lien to reimburse him for the moneys so paid, on the property in his hands, of which he kept possession, and continued to manage the business, with the consent of the administratrix, until 1838, when, with the like assent, he sold the property at auction, and retaining enough to reimburse himself, paid the proceeds to the defendant. Ira Harris, for the excepting creditors. S. Stevens and 0. Meads, for the defendant. Walwoeth, Chancellor. The personal mortgage to Whitney not being filed till after the death of Alvord, and not being accompanied by an immediate delivery and continued possession of the property it may be doubtful whether it was sufficient to give Whitney, who was liable to Meads as the last indorser of the note of one thousand eight hundred dollars, a preference in payment over the other creditors of Alvord. This case, however, does not turn upon that question; as I am satisfied that an equitable lien upon the property was created by the special clause in the power, in reference to the one thousand eight hundred dollar note, and to notes drawn by Alvord and indorsed by Meads. And as that instrument was accompanied by an actual delivery and continued change of possession of the property, until it was converted into money and applied in payment of the two several notes, it was not necessary that the instrument which created that lien should be recorded, under the act of 1833. It is the duty of the court to give such a construction to the language of a written instrument as to carry into effect the inten- tion of the parties, so far as that intention can be collected from the whole instrument and the situation of the jjarties at the time the writing was executed. And I think no one who reads this special clause in connection with the evidence, or rather the admis- sions, of extrinsic facts which are proper to be taken into con- sideration, can believe that Alvord did not intend to give the indorsers of the one thousand eight hundred dollar note, and to Meads, as the indorser of the Rector note, and other notes which he might thereafter indorse, a beneficial interest in the execution of this power, for their security and indemnity. It clearly shows that Alvord anticipated that it would probably be necessary for Meads to incur further responsibility, as his indorser, in the discharge of 330 Cases on Agency. [Book I the duties of his agency, and that something more than an ordinary power of attorney was necessary to protect him from loss. And as the possession of the property was delivered to Meads, in connection with this power to dispose of it for the security and protection of himself and the other indorsers, the property must be considered as pledged to him for that purpose. The power to sell, therefore, was coupled with an interest in the property thus pledged, and survived. Bergen vs. Bennett, 1 Cai. Cas. in Err., (2 Am. Dec. 281); Ray- mond vs. Squire, 11 Johns. 47. In the case decided by the supreme court of the United States, Hunt vs. Rousmanier* 8 Wheat. 174, ( post, p. 322) there was no actual pledge of the property. But a mere power of attorney was executed, authorizing the plaintiff to transfer it in the name of Rousmanier. It was upon that ground, as I understand the case, that Chief Justice Mae- shall held that the power was not coupled with any interest in the vessels. And I presume his opinion on that point would have been different if the power had been accompanied by an actual delivery of the vessels as a pledge for the payment of the debt. But even in that case the court protected the rights of Hunt as an equitable mortgagee of the vessels; though the decision was placed on the debatable ground that a party may be relieved in equity against a mistake of law merely. Being satisfied that Meads had a lien upon the property in his hands, and a right to retain for the amount of these notes, under the special clause in the written power executed by Alvord, it is not necessary to inquire whether he is not also to be considered as the factor of Alvord; so as to entitle him to retain for his advances and liabilities, entirely independent of this special provision in the power of attorney to him. If the arrangement between Alvord and Meads gave to the latter the character of a factor, there can be no doubt as to his lien upon the property in his hands, and his right to retain for all his advances and responsibilities in the busi- ness with which he was intrusted by his principal. Although it was doubted, previous to the case of Kruger vs. Wilcox, Amb. 252, it is now well settled that a factor has a lien and may retain for a general balance, including responsibilities incurred in the execu- tion of his agency. Whit, on Lien, 103; 2 Kent's Com. 640; Story on Agency, 34, sec. 34. And the case of Foxcraft vs. Wood, 4 Russ. 487, was probably decided upon the ground that the arrangement under which the business at Birmingham was carried Chap. VII] Knapp vs. Alvord. 331 on constituted Foxcraft the factor of Lanning, although he received a fixed salary instead of the usual mercantile commissions for his services. The decision of the master was right in allowing to the adminis- tratrix the amount retained by Meads for the two notes. The exceptions are therefore overruled with costs, and the report of the master is confirmed. (113 New York, 600.) WEBER vs. BRIDGMAN". (New York Court of Appeals, June, 18S9.J Appeal from an order reversing a judgment in favor of the plaintiff. In 1871, Weber executed to Hartwig a power of attorney, author- izing him, among other things, to collect and receive moneys becoming due from any person to his principal, and to execute dis- charges thereof, etc. Hartwig purchased a bond and mortgage, receiving an assignment thereof to Weber, and as agent collected the interest thereon as it fell due, receipting therefor in the name of Weber. The latter died in Germany in January, 1874. The bond fell due in May of that year and was paid by Bridgman, the then owner of the mortgaged premises, to Hartwig, who executed a satisfaction of the mortgage and delivered to the payor the bond and mortgage, the assignment and the power of attorney. Hart- wig knew at the time of the death of Weber, but he did not dis- close the fact to Bridgman, and the latter made no inquiries. In an action brought in 1885 to foreclose the mortgage, the court found that Hartwig never accounted to plaintiff, the widow and administratrix of Weber, for the bond and mortgage or the proceeds, and that plaintiff never assented to or ratified the payment, and did not know of the existence of the bond and mortgage or the cancel- lation thereof until within a short time of the commencement of the action. Alex. S. Bacon, for appellant. Thomas H. Rodman, for respondents. Danforth, J. It should be assumed, without argument, that 332 Cases on Agency. [Book 1 the plaintiff is not bonnd by the act of Hartwig, nnless his author- ity to receive the money and discharge the mortgage was established, or nnless she has, with knowledge of the facts, recognized that trans- action and adopted it. The respondents' contention is that both alternatives are established, viz. : That the payment to Hartwig was a valid payment, and also that Hartwig acconnted with the plaintiff and paid over to her the money so received by him. As Bridgman dealt with Hartwig as an agent, and now seeks to charge the rep- resentatives of Weber as if his dealings had been with the principal, the burden of proof was on him to show either that the agency existed, and that the agent with whom he dealt had the authority he assumed to exercise or that the plaintiff is estopped from disput- ing it. That an agency of some kind did at one time exist in favor of Hartwig was sufficiently manifest by the power of attorney and proof of its due execution and delivery by Weber. If it be con- ceded that the act in question was within the authority which Hartwig once had, it would not aid the defendant, for that author- ity was determined by the death of Weber before the act was performed, and although Bridgeman had no notice of his death the act was void and the estate of the principal is not bound. The question is not new, and it has been uniformly answered by our decisions to the effect that the death of the principal puts an end to the agency, and, therefore, is an instantaneous and unqual- fied revocation of the authority of the agent. 2 Kent's Com. 646; Hunt vs. Bousmamer, 8 W r heat. 174, {post, p. 322). There can be no agent where there is no principal. There are, no doubt, exceptions to the rule, as where an agency is coupled with an interest (Knapp vs. Alvord, 10 Pai. 205, 40 Am. Dec. 241 {ante, p. 328 ; Hunt vs. Rousmanier, supra; Hess vs. Rait, 95 N. Y. 359); or where the principal was a firm and only one of its members died. Bank vs. Vanderhorst, 32 N. Y. 553. But both cases recognize the general rule to be as above stated. In Davis vs. Windsor Sav- ings Bank (46 Vt. 728), the rule was applied. The defendant paid money to the agent after the death of his principal, but in ignorance of it, and the administrator of the deceased recovered. It is quite unnecessary to go through the cases on this subject. The rule at common law which determines the authority of an agent by the dentil of his principal is well settled, and no notice is necessary to relieve the estate of the principal of responsibility, e?en on con- tracts into which the agent had entered with third persons who were ignoraot of his death. Those who deal with an agent are held Chap. VII] Weber vs. Bktdgman. 333 to assume the risk that his authority may he terminated hy death without notice to them. This rule was established in England (Leake on Con. 487), although now modified by Etatute, and is generally applied in this country. Story on Agency, sec. 488; Pars, on Con. vol. 1, p. 71; 2 Kent's Com. (12th ed.) 645, 646. In rome states alterations have been made by statute; and, fol- lowing the civil law, it was held in Pennsylvania (Cassidy vs. M'Eenzie, 4 Watts & Serg. 282, 39 Am. Dec. 76,) that the act of an attorney, done after the death of his principal, of which he was ignorant, are binding upon the parties. This was, however, in opposition to the current of authority. 1 Pars, on Con. 71; 2 Kent's Com. 646. But even that case does not aid the defendant, for here the agent knew of the death of his principal. Moreover, the defendant might have known it had he taken the precaution to inquire. He had never before dealt with the agent. The power of attorney was not of recent date, and the defendant should be held to hav6 assumed the burden of showing that Hartwig was, at the moment of the transaction, a person authorized to act so as to hind the real owner of the bond and mortgage, whoever that person might prove to be. There is no equity in his favor, for the loss, if any, is from his ow r n negligence. It is claimed, however, by the learned counsel for the respond- ents, that the rule has application only where the act of the agent is required to be done in the name of the principal, and his con- tention is, as we understand it, that, inasmuch as Hartwig had possession of the bond and mortgage, the defendant from that fact had a right to infer an agency to collect, and so the payment was valid. However that might be under other circumstances, the contention has no force in this instance. The pow r er of Hartwig was not left to inference. Whatever it was it came before the defendant in writing. The power of attorney was in his hands. It authorized such acts only as could be performed in the name of the principal, and so the defendant understood it. He caused the power to be recorded, took a discharge of the mortgage under it executed by Hartwig as agent for Weber, and gave the check payable to the order of Hartwig in that character. Except for the power of attorney and its recital, and the acts of Hartwig under it, the defendant would not have even the shadow of a defense. In his own name Hartwig could do nothing, and of this the defendant had full notice. The power of attorney which accompanied 334 Cases on Agency. [Book I possession of the securities defined the actual authority, and the defendant had notice of its contents at the same moment that he saw the bond and mortgage in the hands of the attorney. The authority which might be gathered from their mere possession is, nnder these circumstances, of no force. The giving of an author- ity in writing imports that the extent of the authority is to be looked for in its terms, and not elsewhere. But a more difficult question remains, one on which the courts below differed, and in consequence of which difference we have jurisdiction to pass upon it. Code, §§ 1337, 1338. It is a question of fact whether, with knowledge of the circumstances, the plaintiff ratified the payment. • * ■ • (The omitted portion of the opinion discusses the evidence as to knowledge and ratification oi payment by plaintiff; the court coming to the conclusion that it failed to show such knowledge or ratification.) It is true that between the time of payment and the beginning oi this suit, many years elapsed, but the fact of payment was unknown to plaintiff. It is also true that she failed, before this action and during all these years, to demand either principal or interest from the defendant, but she was altogether ignorant that the security existed, by means of which either had become due. To show the contrary was the duty of the defendant, if the truth enabled him to do bo. The trial judge found that he had failed in this respect, and we have no hesitation in saying that a different finding would not have been justified by the testimony. The con- clusion actually reached was the only one permitted by the evidence. The appeal necessarily succeeds. Sherwood vs. Mauser, 94 N. Y., 626; Baird vs. Mayor, etc., 96 Id., 567; Crane vs. Baudouine, 55 Id., 256; Westerlo vs. DeWitt, 96 Id., 340. The order of the general term should, therefore, be reversed, and the judgment of the special term affirmed, with costs. Chap. VII] Refining Co. vs. McJIahon's Admb. 335 (38 New Jersey Law, 536.) MATTHIESSEN & WEICHERS REFINING COMPANY vs. McMAHON'S ADMR. ( Court of Errors and Appeals of New Jersey, March, 1876. J Action of trover by the administrator of McMahon to recover from the Refining Company the value of goods alleged to have been sold by McMahon to the company while he was insane. The goods were delivered by one Shindly as agent of McMahon. R. Gilchrist, for plaintiffs in error. J. Linn, contra, Depue, J. * * * Notwithstanding the declaration of Chancellor Kent (2 Kent, 645) " that the better opinion would seem to be that the fact of the existence of the lunacy must have been previously established by inquisition before it could control the operation of the power," the weight of authority, as well as sound reasoning, lead to the conclusion that the after-occurring insanity of the principal operates, per se, as a revocation or sus- pension of the agency, except in cases where a consideration has previously been advanced in the transaction which was the subject- matter of the agency, so that the power became coupled with an interest; or where a consideration of value is given by a third per- son, trusting to an apparent authority in ignorance of the princi- pal's incapacity. Story on Agency, § 481; Bunce vs. Gallagher, 5 Blatch. C. 0. 481; Davis vs. Lane, 10 New Hamp. 156. Justice Story states the principle to be that " as the party him- self, during his insanity, could not personally do a valid act, his agent cannot, in virtue of a derivative authority, do an act for and in his name which he could not lawfully do for himself." From this principle the conclusion inevitably results, that transactions of third parties, which, under the circumstances, would be invalid if had directly with the principal, must be equally invalid though they be done with the agent. Saving the rights of persons who, before the insanity intervened, became interested in the power by reason of a consideration advanced, or who, in ignorance of the incapacity, in good faith parted with a consideration of value, 336 Cases on Agency. [Book I relying on the apparent authority of the agent, complete justice will be done, and the law on this subject be made to harmonize. * * * Note.— See, also, Davis vs. Lane, 10 N. H. 156; Drew vs. Nunn, 4 Q. B. Div. 661, 29 Moak's Eng. Rep. 92; Hill vs. Day, 34 N. J. Eq. 150; Bunce vs. Gallagher, 5 BlatcM. (U. S. C. C.) 481. ( 95 United States, 425.) INSURANCE CO. vs. DAVIS. ( United States Supreme Court, October, 1877. J This was an action to recover upon a policy of life insurance, issued by a New York company upon the life of a citizen and resi- dent of Virginia. Payments of premiums had been regularly made until the beginning of the war, the last one having been paid December 28, 1860. Before the war the company had an agent, Garland, in Virginia, to whom the premiums were paid; he entered the Confederate service as a major and served through the war. Tender of the premium due in December, 1861, was made to this agent which he refused to receive, as he had received no receipts from the company for that year. A similar tender was also made after the war, with like result. The agent testified that he refused to receive any premiums, had no communication with the company during the war, and after its close did not resume his agency. The insured died in 1867. It was claimed by plaintiff that the failure to pay premiums during the war was due to the fault of the company, as it had not supplied its agent with receipts and rendered it impossible for the insured to pay. Defendant claimed that the war terminated the authority of the agent to receive payment. Verdict for plaintiff below, and defendant brought error. Matt. H. Carpenter, for plaintiff in error. Samuel B. Paul, for defendant in error. Bradley, J. (After disposing of a preliminary question.) That war suspends all commercial intercourse between the citizens of two belligerent countries or states, except so far as may be allowed by the sovereign authority, has been so often asserted and explained In this court within the last fifteen years, that any further discus- Chap. VII ] Insurance Co. vs. Davis. 337 eioii of that proposition would be out of place. As a consequence of this fundamental proposition, it must follow that no active business can be maintained either personally or by correspondence or through an agent, by the citizens of one belligerent with the citi- zens of the other. The only exception to the rule recognized in the books, if we lay out of view contracts for ransom and other matters of absolute necessity, is that of allowing the payment of debts to an agent of an alien enemy, where such agent resides in the same state with the debtor. But this indulgence is subject to restrictions. In the first place, it must not be done with the view of transmitting the funds to the principal during the continuance of the war, though, if 60 transmitted without the debtor's conniv- ance, he will not be responsible for it. Washington, J., in Conn vs. Penn, Pet. C. Ct. 496; Buchanan vs. Curry, 19 Johns (N. Y.) 141. In the next place, in order to the subsistence of the agency during the war, it must have the assent of the parties thereto, — the principal and the agent. As war suspends all intercourse between them, preventing any instructions, supervision or knowl- edge of what takes place on the one part, and any report or application for advice on the other, this relation necessarily ceases on the breaking out of hostilities even for the limited purpose before mentioned, unless continued by the mutual assent of the parties. It is not compulsory; nor can it be made so on either side, to subserve the ends of third parties. If the agent continues to act as Buch, and his so acting is subsequently ratified by the principal, or if the principal's assent is evinced by any other circumstances, then third parties may safely pay money for the use of the principal into the agent's hands; but not otherwise. It is not enough that there was an agency prior to the war. It would be contrary to reason that a man without his consent should continue to be bound by the acts of one whose relations to him have undergone such a fundamental alteration as that produced by a war between the two countries to which they respectively belong; with whom he can have no correspondence, to whom he can com- municate no instructions, and over whom he can exercise no control. It would be equally unreasonable that the agent 6hould be compelled to continue in the service of one whom the law of nations declares to be his public enemy. If the agent has property of the principal in his possession or control, good faith and fidelity 22 338 Cases on Agency. [Book I to his trust will require him to keep it safely during the war and to restore it faithfully at its close. This is all. * * * " What particular circumstances will be sufficient to show the consent of one person that another shall act as his agent to receive payment of debts in an enemy's country during war may some- times be difficult to determine. Emerigon says that if a foreigner is forced to depart from one country in consequence of a declara- tion of war with his own, he may leave a power of attorney to a friend to collect his debts and even to sue for them. Traite des Assurances, Vol. 1, 567. But though a power of attorney, to col- lect debts, given under such circumstances, might be valid, it is generally conceded that a power of attorney cannot be given daring the existence of war by a citizen of one of the belligerent countries resident therein, to a citizen or resident of the other; for that would be holding intercourse with the enemy which is forbidden. Perhaps it may be assumed that an agent ante helium, who continues to act as such during the war in the receipt of money or property on behalf of his principal where it is the manifest interest of the latter that he should do so, as in the collection of rents and other debts, the assent of the principal will be presumed unless the contrary be shown; but that where it is against his interests, or would impose upon him some new obligation or burden, his assent will not be presumed, but must be proved, either by his subsequent ratification or in some other manner. In some way, however, it must appear that the alleged agent assumed to act as such and that the alleged principal consented to his so acting, * * * In some recent cases in certain of the State courts of last resort, for whose decisions we always entertain the highest respect, a dif- ferent view has been taken; but we are unable to concur therein. In our judgment, the unqualified assumption on which those decisions are based — namely, " Once an agent always an agent/' or, in other words, that an agency continues to exist notwithstanding the occurrence of war between the countries in which the principal and agent respectively reside — is not correct, and that the continu- ance of the agency is subject to the qualifications which we have stated above. * * * We do not mean to say that, if the defendant had continued its authority to the agent to act in the receipt of premiums during the war, and he had done so, a pay- ment or tender to him in lawful money of the United States would not have been valid; nor that a stipulation to continue such author- Chap. VII] Insurance Co. vs. Davis. 339 ity in case of war, made before its occurrence, would not have been a valid stipulation, nor that a policy of life insurance on which no premiums were to be paid, though suspended during the war, might not have revived after its close. We place our decision simply on the ground that the agency of Garland was terminated by the break- ing out of the war, and that, although by the consent of the parties it might have been continued for the purpose of receiving payments of premiums during the war, there is no proof that such assent was given, either by the defendant or by Garland; but that, on the con- trary, the proof is positive and uncontradicted that Garland declined to act as agent. Judgment reversed. Note. — See, also, New York L. Ins. Co. vs. Statham, 93 U. S. 24; Ward vs. Smith, 7 Wall. (U. S.) 447; Brown vs. Hiatts, 15 Id. 177; Fretz vs. Stover, 22 Id. 198. The decisions of the State courts are usually opposed to the principal case though earlier in point of time; Sands vs. Life Ins. Co., 50 N. Y. 626, 10 Am. Rep. 535; Manhattan L. Ins. Co. vs. Warrick. 20 Gratt, (Va.) 614, 3 Am. Rep. 218; Robinson va. Life Ansur. Co., 43 N. Y. 54, 1 Am, Rep. 490. 340 Cases oar Agency. [Book II BOOK II. OF THE AUTHORITY CONFERRED; ITS NATURE AND EFFECT. CHAPTER I. OF THE NATURE OF THE AUTHORITY. (9 Wallace, 766.) BUTLER vs. MAPLES. ( United States Supreme Court, December, 1869. j Butler and others, during the late rebellion, were copartners doing business under the firm name of Bridge & Co., at Memphis, Tenn. One Shepherd professed to act as their agent. He had been authorized, by written agreement in 1863, to purchase cotton for them in Desha county, Arkansas, and its vicinity. He was to buy on the best possible terms, paying not more than 30 cents per pound on the average, and it was agreed that he should pay as little as possible on the cotton until it should be delivered on a boat or within the protection of a gunboat. There was also the testi- mony of one Martin that he had been sent to Arkansas by defend- ants, Bridge & Co., with money and instructions for Shepherd, the instructions being that he should purchase cotton for the firm, but was not to pay more than from 30 to 35 cents per pound. He might make small advances, but was instructed not to pay the bal- ance of the purchase money, or make it payable, until the firm should be able to send a boat up the Arkansas river for the cotton, Brad until it was in their possession, weighed and placed on the Chap. I J Butleb ts. Maples. 841 boat. He was directed to take no risk for the firm of the destruc- tion of the cotton except to the extent of the money advanced. "While so professing to act as the agent of Bridge & Co., Shep- herd purchased 144 bales of cotton from Maples, buying it as it lay, and agreeing to pay 40 cents a pound for it as soon as weighed. Having been weighed, he removed 54 bales of it, but 90 bales were burned before they could be placed on a boat to be carried up the river. The 54 bales went through to Memphis, and Maples went there to see Bridge & Co. He saw one of the firm, who wholly denied Shepherd's authority, refused to pay anything for the cotton lost, but agreed to pay 50 cents a pound for the 54 bales. Maples took this, believing what was told him as to Shepherd's authority. Having learned more regarding this matter, he sued Bridge & Co. for the price of the cotton burned. Verdict for the plaintiff, and defendants removed the case to the Supreme Court. Mr. Palmer, for plaintiff in error. P. Phillips and D. McRae, contra. Steong, J. At the trial, it was, of course, incumbent upon the plaintiff to prove not only the contract of sale, but also that Shepherd, with whom the contract had been made, had authority to act for and bind the defendants. Accordingly, evidence was submitted to show that the cotton was purchased by Shepherd when professing to act as an agent for the defendants. There was hardly any controversy about this fact, and no questions are now raised respecting the competency, or sufficiency of the proof, or the manner in which it was submitted to the jury. But the authority of Shepherd to make the contract for the defendants, and bind them to its performance was stoutly denied, and it is now strenuously insisted that the court erred in the instructions given to the jury respecting the evidence of his agency. The defendants insist the court erred in charging that the written agreement between him and Bridge & Co. constituted him their general agent. We do not find that the court did thus instruct the jury, though it must be admitted the charge may have been thus understood. The jury was instructed that if Shepherd held himself out as the general agent of Bridge & Co., the defendants were bound by the contract he made with the plaintiff for the cot- ton, though in making the contract he transgressed the instruc- tions he had received, and secret limitations of his authority, which instructions and limitations were not revealed to the plaint- 342 Cases on Agency. [Book II iff. It is true, as has been noticed, there was other evidence of a general agency beyond that which the agreement furnished, but as it was parol evidence, its force and effect were for the jury, and hence the court could not rightly have charged that the defendants were bound by the contract unless the agreement did itself con- stitute Shepherd a general agent. But did it not? The distinction between a general and a special agency, is in most cases a plain one. The purpose of the latter ia a single transaction or a transaction with designated persons. It does not leave to the agent any discretion as to the persons with whom he may contract for the principal, if he be empowered to make more than one contract. Authority to buy for a principal a single article of merchandise by one contract, or to buy several articles from a person named, is a special agency, but authority to make purchases from any persons with whom the agent may choose to deal, or to make an indefinite number of purchases, is a general agency. And it is not the less a general agency because it does not extend over the whole business of the principal. A man may have many gen- eral agents — one to buy cotton, another to buy wheat, and another to bny horses. So he may have a general agent to buy cotton in one neighborhood, and another general agent to buy cotton in another neighborhood. The distinction between the two kinds of agencies is that the one is created by power given to do acts of a class, and the other by power given to do individual acts only. Whether, therefore, an agency is general or special is wholly inde- pendent of the question whether the power to act within the scope of the authority given is unrestricted, or whether it is restrained by instructions or conditions imposed by the principal relative to the mode of its exercise. Looking to the agreement between Bridge & Co. and Shepherd, it cannot be doubted that it created a general agency. It was a delegation of authority, to buy cotton in Desha county and its vicinity, to buy, generally, from whomsoever the agent, not his principals, might determine. It had in view not merely a single transaction, or a number of specified transactions, which were in the minds of the principals when the agent was appointed, but a class of purchases, a department of business. It is true that it con- tained guards and restrictions which were intended as regulations between the parties, but they were secret instructions rather than limitations. They were not intended to be communicated to the parties with whom the agent should deal, and they never were Chap. I] Butler vs. Maples. 343 communicated. It was, therefore, not error to instruct the jury as the court did, that the agency was a general one, and that the defendants were bound by the contract, if Shepherd held himself out as authorized to buy cotton, and if the plaintiff had no knowledge of the instru ctions respecting the mode in which the agent was required to act. It may be remarked here, that the reasons urged by the plaintiffs in error, in support of their denial of liability for the engagements made by Shepherd, are, that he agreed to pay forty cents per pound for the plaintiff's cotton, that he bought the cotton where it lay instead of requiring delivery on board a steamboat, or within the protection of a gunboat; and that he did not obtain a permit from the government to make the purchase. The argument is that in the first two particulars he transcended his powers, and that his authority to buy at all was conditioned upon his obtaining a permit from the government. All this, however, is immaterial, if it was within the scope of his authority that he acted. The mode of buying, the price agreed to be paid, and the antecedent qualifications required of him, were matters between him and his principals. They are not matters in regard to which one dealing with him was bound to inquire. But even as between Bridge & Co. and Shepherd a purchase at forty cents per pound was not beyond his authority. He was authorized to buy '* on the best possible terms, not paying an average of more than thirty cents per pound." This contemplated his agreeing to pay in some cases above thirty cents. The average was regulated, but no maximum was fixed. Nor is there anything in the agreement that forbade his purchasing cotton deliverable at once where it lay, though not on a boat or in the protection of a gun-boat. He was authorized to purchase deliverable at such times and places of shipment as might be agreed upon; that is, deliverable when and where it might be stipulated between him and the seller. True, he was to pay as little as possible until the cotton was delivered on a boat, or within the protection of gun-boat; and when thus delivered, the property in the goods was to vest in the principals, excepting his share of the profits, but he was not prohibited from paying the whole price, or agreeing to pay the whole price, if insisted on by the vendor. The stipulation respecting the vesting of ownership was nothing more than a definition of right between him and his principals, as is manifested by the exception. Nor was Shepherd bound to procure a permit in his own name. He 344 Cases on" Agehcy. [Book II might have been, had it been necessary, but if under the permit granted by Bridge & Co. he could purchase as their agent, it was all the agreement required. It is further objected to the charge given to the jury respecting general and special agency, that it was not applicable to the proof in the case, and was therefore irrelevant and calculated to mislead the jury, and, because, as stating abstract questions of law, the instruction was erroneous. If, in truth, it was irrelevant, it was not on that account necessarily erroneous and calculated to mislead the jury. We are not shown, nor do we perceive, how the jury could have been misled by it. They were instructed that, in cases of special agency, one who deals with the agent must inquire into the extent of his authority, but that a principal is bound by all that his general agent has done within the scope of the business in which he was employed, and this, though the agent may have violated Bpecial or secret instructions given him, but not disclosed to the party with whom the agent deals. Surely this was correct, and it was applicable to the evidence in the case. It has been intimated during the argument that the court should have added that no such liability can exist to one dealing with an agent with notice that the particular act of the agent was without authority from the prin- cipal. To this several answers may be made. The exception to the general rule, which it is said the court below should have recognized, is implied in what the court did say. Again, there was no request for any such instruction, and still again, the evidence in the case did not demand it. There was no pretense that the plaintiff had any notice of secret instructions given to Shepherd, or of any limitations upon his authority. Nor was there anything that imposed upon him the duty of making inquiry for secret instructions or for restrictions. There were no circumstances that should have awakened suspicion. The plaintiff was not apprised that the authority was in writing. The argument is very far-fetched that infers a duty to inquire whether the agent had private instruction from the fact that the contract was made in a region that had been in a state of insurrec- tion. * * * Judgment affirmed. Note.— See, also, Munn V8. Commisson Co., 15 Johns. (N. Y.) 48, 8 Am. Dec. 219; Rossiter vs. Eossiter, 8 Wend. (N. Y.) 494, 24 Am. Dec. 62; Com- mercial Bank vs. Kortright, 22 Wend. (N. Y.) 348, 34 Am. Dec. 317; Odiorne vs.Maxcy, 13 Mass. 178; Williams vs. Getty, 31 Perm. St. 401, 72 Am. Dec. 757; Lisler vs. Allen, 31 Md. 513, 100 Am. Dec. 78. Chap. I] Hatch vb. Taylor. 845 (10 New Hampshire, 538.) HATCH vs. TAYLOR. ("Superior Court of Judicature of New Hampshire, July, 1840.J Trespass for taking a horse of the plaintiff's. It appeared on the trial that defendant was the owner of two horses, and let them to one Clark for the purpose of drawmg a load from Lowell, Mass., to Thornton, N. H. While Clark had the horses in Thornton, he exchanged one of them with the plaintiff for a mare and colt; the plaintiff supposing that the horses belonged to Clark. The mare died while Clark was on his return to Lowell. The other horse and the colt were returned to defendant, but defendant refused to sanction the trade, and told Clark to take the colt away. Clark soon after sold the colt to one Emerson, who knew of the trade. Defendant knew of this sale and made no objection, but furnished Emerson the money to buy the colt. Emerson traded the colt for a mare with one Spofford, defendant furnishing Emerson the money to pay the difference. Emerson then sold this mare to defendant. Defendant then went to plaintiff and took away the horse which Clark had traded to him, denying Clark's authority to make the trade. There was some evidence on the part of plaintiff tending to show that Clark, when he left Lowell, was authorized by defendant to sell or exchange this horse. This defendant denied, and alleged that if Clark had any authority, it was a permission to sell both horses if he could get a good price, but not to sell either alone, and that any such authority to sell would not authorize an exchange. Plaintiff contended that defendant's subsequent dealings in refer- ence to the colt amounted to a ratification. Verdict for the plaint- iff and defendant moved for a new trial. Bell & Quincy, for defendant, contended that Clark's authority was special — to sell both or neither — and hence that defendant was not bound. Bar/left & Rogers, for plaintiff, contended that the instruc- tions to Clark did not limit his authority, and also that defendant had ratified the exchange. Parker, C. J. It cannot be known, from the case before us, whether the jury found that Clark did not exceed his authority 346 Cases 02* Agency. [Book II in making the exchange, or whether the verdict was based upon a ratification of the transaction, by the acts of the defendant after- wards. If, therefore, the instructions to the jury were not sub- stantially correct upon either of these points, there must be a new trial. There was sufficient evidence to warrant a finding that Clark, when he received the horses from the defendant, had an authority, of some description, given him respecting a sale or exchange of one or both of them. What this authority was, whether to sell or exchange, and what were the limitations upon it, or the instruc- tions of the defendant relative to the manner of its execution, did not very clearly appear; the authority itself having been conferred verbally, and the evidence establishing its existence, and what was said about it, being derived mainly from the subsequent, and in some instances contradictory, declarations of the defendant himself. The instructions to the jury take a distinction between the authority given to an agent, which he is not only bound to pursue, in duty to his principal, but a deviation from which will render his act void (unless he has been held out, or enabled to hold himself out, as having a different authority), and the instructions or direc- tions which he may receive from his principal, relative to the man- ner in which he is to execute his authority, which are matters between the principal and agent, so that a disregard of them, by the latter, although it may make him liable to the principal, will not vitiate the act, if it be done within the scope of the authority itself. It is very apparent that such a distinction must exist in some cases of agency, the particular instructions from the principal, relative to the circumstances under which the agent is to act, being intended as directions for his guidance, but not operating as limi- tations upon the authority which is conferred. Thus, in case of a general agent, authorized to transact all business of a particular kind, although he can bind his employer only by acts within the scope of his authority, yet that authority is distinct from private orders or instructions relative to the mode in which it is to be exe- cuted, and the latter cannot limit or impair the authority, or affect the rights of a party dealing with the agent, unless he had knowl- edge of such private instructions. The books so uniformly con- cur in establishing this principle, that it is unnecessary to cite authorities in support of it. Strangers cannot look at the private Chap. I] Hatch vs. Tayloe. 347 communications that may pass between a principal and his agent. 15 East, 43, 408; 5 Bing. 442 (E. C. L. R. 500). But whatever was the extent of Clark's authority in the present case, he was not a general, hut a special agent, authorized to make a Bale, or exchange, of one or two horses only; and the question arises, how far the same rule is applicable to agencies of that character. To a very considerable extent, the principles applicable to gen- eral agencies apply also to those of a special and limited character. Thus, the general principle that the acts of the agent, within the scope of his authority, bind his employer; and that his acts beyond that point are void unless the principal has held him out, or enabled him to hold himself out, as having more enlarged powers than he actually possessed, or unless the employer ratifies his acts, is appli- cable to all classes of agencies. It is contended, however, that the distinction between authority and instructions does not apply in cases of special agents, and the defendant's counsel rely particularly upon a treatise on agency, recently published, which, it must be admitted, in some measure sustains their position. Speaking of the nature and extent of the authority of agents, the author refers to " The distinction commonly taken between the case of a general agent, and that of a special agent; the former being appointed to act in his principal's affairs generally, and the latter to act concerning some particular object; " and says: " In the former case the principal will be bound by the acts of his agent within the scope of the general authority conferred on him, although he violates by those acts his private instructions and directions, which are given to him by the principal, limiting, qualifying, sus- pending or prohibiting the exercise of such authority under partic- ular circumstances. In the latter case, if the agent exceeds his special and limited authority conferred on him, the principal is not bound by his acts; but they become mere nullities, so far as he is concerned; unless, indeed, he has held him out as possessing a more enlarged authority." Story on Agency, 115. The phraseology of his last clause is similar in substance to that of other elementary writers. 2 Kent's Com., Lecture 41; 1 Livermore on Agency 108. Taken strictly, as it stands, there can be no doubt of the correct- ness of the rule. If a special agent exceeds his special and limited authority, without doubt the principal is not bound by his acts, unless he has held him out, or enabled him to hold himself out as 818 Cases on Agency. [ Book II possessing a more enlarged authority. But from its connection with the preceding clause, and from its general connection with the context, this clause is understood as asserting that if a special agent exceeds the special and limited private instructions or direc- tions which are given him by the principal, limiting or qualifying suspending or prohibiting the exercise of his agency, under par- ticular circumstances, the principal will not be bound, unless he has held the agent out as possessing a more enlarged authority than the right to act, coupled with the instructions, would give him. In other words, that instructions or directions to a special agent, notwithstanding they are private or secret, if intended to operate upon, and limit, qualify, suspend or prohibit the action of the agent under certain circumstances, become part and parcel, and of the essence of the authority itself, so that the agent will not be act- ing within the scope of his authority, or apparent authority, if he disregard them. So it seems to be understood by the defendants counsel, and upon a subsequent page it is stated, that if a common person, not a factor, should be employed to make a sale, "and he should violate his private instructions, and deviate from his author- ity in the sale, the principal would not be bound." Story on Agency, 122. If this is so, there can be, ordinarily, no such thing as instruc- tions, contra-distinguished from authority, in the case of a special agent; as, whatever directions he receives respecting the mode and manner in which he is to perform his duties, will partake of the nature of authority, or qualification of authority, and limit or Buspend his right to act, and to bind the principal unless there has been some holding out of the agent as having an authority beyond the import of such directions. But it is, we think, apparent enough, that all which may be laid to a special agent about the mode in which his agency is to bo executed, even if said at the time that the authority is conferred, or the agency constituted, cannot be regarded as part of the authority itself, or as a qualification or limitation upon it. There may be, at all times, upon the constitution of a special agency, and there Dften is, not only an authority given to the agent, in virtue of which he is to do the act proposed, but also certain communica- tions, addressed to the private ear of the agent, although they relate to the manner in which the authority is to be executed, and ire intended as a guide to direct its execution. These communications may, to a certain extent, be intended to Chap. I] Hatch vs. Taylor. 349 limit the action of the agent; that is, the principal intends and erpects that they shall be regarded and adhered to in the execution of the agency; and should the agent depart from them he would violate the instructions given him by the principal, at the time ■when he was constituted agent, and execute the act he was expected to perform in a case in which the principal did not intend that it 6hould be done. And yet, in such case he may have acted entirely within the scope of the authority given him, and the priucipal be bound by his acts. This could not be so, if those communications were limitations upon the authority of the agent. It is only because they are not to be regarded as part of the authority given, or a limitation upon that authority, that the act of the agent is valid, although done in violation of them; and the matter depends upon the character of the communications thus made by the prin- cipal, and disregarded by the agent. Thus, where one person employs another to sell a horse, and instructs him to sell him for $100 if no more can be obtained, but to get the best price he can, and not to sell him for less than that sum, and not to state how low he is authorized to sell, because that will prevent him from obtaining more. Such a private instruction can with no propriety be deemed a limitation upon his authority to sell, because it is a secret matter between the principal and agent which any person proposing to purchase is not to know, at least until the bargain is completed. And if no special injunction of secrecy was made, the result would be the same, for, from the nature of the case, such an instruc- tion, so far as it regards the minimum price, must be intended as a private matter between the principal and ageut, not to be com- municated to the persons to whom he proposed to make a sale from its obvious tendency to defeat the attempt to obtain a greater Bum, which was the special duty of the agent. It will not do to say that the agent was not authorized to sell, unless he could obtain that price. That is the very question, whether such a private instruction limits the authority to sell. It seems very clear that anyone who proposes to deal with a special agent has the right, in the first place, to know what author- ity he possesses, and all the limitations upon it. He deals with him at his peril, because he is bound to enquire into the nature and extent of the authority conferred. Snow vs. Perry, 9 Pick. R. 542; ScMmmelpennick vs. Bayard, 1 Peter's S. C. R. 264; Story on Agency, 124. The principal is not to be bound by the acts of the special agent 350 Cases on Agency. [Book II beyond what he has authorized, because he has not misled the con- fidence of the party dealing with him, or enabled the agent to practice any deception; has never held the agent out as having any general authority whatever in the premises, and if the other party trusts without enquiry, he trusts to the good faith of the agent, and not to that of the principal. Story on Agency, 125. But to what purpose is the party dealing with the agent to enquire, respecting that which he is not to know, and what duty exists upon him to know that, which by the express direction of the principal, or from the nature of the case, is to be concealed from him? Or how can it be said that he trusts the agent, respecting the limit at which he is authorized to sell or purchase, when if he asks respecting that limit, the principal has precluded him from ascertaining what it is? Who, in fact, places confidence in the agent in a case like that above stated, and who has enabled the agent to practice deception, if deception takes place? So far as a party dealing with a special agent is bound to enquire respecting his authority, so far he is entitled to a definite and dis- tinct answer. And so far as he is bound to enquire and to know, it is bad faith and fraud to conceal any thing from him. But would it be deemed bad faith in the agent to say nothing as to the price at which he was instructed to sell, if the market would afford him no better? It may very safely be asserted that this is not usually practiced, either by general or special agents; and a great change in the ordinary mode of dealing must take place before the morality of contracts could be considered as requiring such a disclosure. It would certainly not be required of the owner of property, in making a sale, to state what was the lowest price he had determined to receive, if the party proposing to purchase would give no more; and it is as little expected of an agent, who is employed to get the best price he can obtain, but directed not to sell for less than a certain sum. So in the case of a person employed to purchase, if the employ- ment be to purchase an article at the best possible price, with private directions that he may give a certain sum, but no more. The permission to give this sum, and the direction not to exceed it, are not ordinarily to be communicated to those with whom he nego- tiates for a purchase, although intended to control the action of the agent himself. The employer trusts the agent. No man is at liberty to send another into the market, to buy or sell for him, as his agent with secret instructions as to the manner in which he shall execute his agency, which are not to be commu- Chap. I] Hatch vs. Taylor. 351 nicated to those with whom he is to deal; and then, when his agent has deviated from those instructions, to say that he was a special agent— that the instructions were limitations upon his authority— and that those with whom he dealt, in the matte i of his agency, acted at their peril, because they were bound to enquire, where enquiry would have been fruitless, and to ascertain that, of which they were not to have knowledge. It would render dealing with a special agent a matter of great hazard. If the principal deemed the bargain a good one, the secret orders would continue sealed; but if his opinion was otherwise, the injunction of secrecy would be removed, and the transaction avoided, leaving the party to such remedy as he might enforce against the agent. From this reasoning we deduce the general principle, that where private instructions are given to a special agent, respecting the mode and manner of executing his agency, intended to be kept secret, and not communicated to those with whom he may deal, such instructions are not to be regarded as limitations upon his authority; and notwithstanding he disregards them, his act, if otherwise within the scope of his agency, will be valid, and bind his employer. It is unnecessary to multiply instances in which the principle is applicable. It may be added that instructions which are not to be communicated to the other party are justly no more to be regarded as limitations upon the authority of the agent, than instructions not to sell unless the agent can obtain a good price, or not to pur- chase without he can obtain the property cheap; or, as stated by some of the evidence in this case, not to exchange " unless he could get a good five year old horse, and boot enough;" in which cases the instruction is not a limitation upon the authority, and the transaction to be held void unless the principal, or a jury, should consider that the agent had complied with the direction. The principal in such cases trusts the agent, who has a discretion in the matter (Hicks vs. Hanhin, 4 Esp. R. 114), and it would be most mischievous to hold such direction as a condition, upoa a compliance with which depended the validity of the act. It may be otherwise if the principal directs his agent to offer his horse for sale at the sum of $100, and to take no less; or to pur- chase ten bales of cotton, if to be had at a certain sum, and to give no more; for in those cases the whole matter would be open to the knowledge of any one proposing to purchase, or sell, and the direc- 352 Cases on Agency. [Book II tion may stand as part and parcel of, and a limitation upon the authority itself. The view we have thus taken is strongly supported by the doc- trine in relation to agencies, where there is a written authority. Mr. Justice Story, in another part of his work, speaking of agencies of that description, says: ""We are, however, carefully to distinguish in all such cases, between the authority given to the agent, and the private instructions given to him as to his mode of executing that authority. For, although where a written authority is known to exist, or is, by the very nature of the transaction, pre- supposed, it is the duty of persons dealing with the agent to make inquiries as to the nature and extent of such authority, and to examine it; yet no such duty exists to make inquiries as to any private letter of instructions from the principal to the agent; for such instructions may well be presumed to be of a secret and con- fidential nature, and not intended to be divulged to third persons. Indeed, it may perhaps, be doubted, if upon this subject there is any solid distinction between the case of a special authority to do a particular act, and a general authority to do all acts in a par- ticular business. Each includes the usual and appropriate means to accomplish the end. In each case the party ought equally to be bound by the acts of his agent, executing such authority by any of those means, although he may have given to the agent separate, private, and secret instructions of a more limited nature. " Story on Agency, 70. But he adds in a note: "The case intended to be put in the text, is that of an authority distinct, and not derived from the instructions; for, if the original authority is restricted and qualified, the restrictions and qualifications constitute a part of the power itself, and govern its extent. " It is undoubtedly true that " if the original authority is restricted and qualified, the restrictions and qualifications constitute a part of the power itself, and govern its extent." But the question is, when is it so restricted and qualified, and it is not easy to dis- tinguish the difference, in principle, between a written authority, with a private letter of instructions of a secret and confidential nature, and not intended to be divulged; and a verbal authority, with verbal instructions of a secret and confidential nature, which also are not intended to be divulged. There is another view of the case which, perhaps, ought not to be omitted, leading to the result at which we have already Chap. I] Hatch vs. Tatloe. 353 arrived. In the case of general agents, the principal will be bound by the acts of his agent, within the scope of the general authority conferred upon him, although he violates, by these acts, hia private instructions and directions. He is acting within the scope of his authority, or apparent authority. So a special agent, who has private instructions for his government, but which are not to be communicated to those dealing with him, is acting within the scope of his authority, or apparent authority, when he is acting within the scope of what he is to communicate, and what only the party dealing with him is authorized to know, or is to know if he enquires. In fact, there seems to be, in such case, a holding out of the agent, or an authorization to him to hold himself out, as having an authority beyond the private instructions intended to limit his action upon the subject matter; and upon that principle the employer should be bound. "The principle which pervades all cases of agency, whether it be a general or special agency, is this: The principal is bound by all acts of his agent within the scope of the authority which he holds him out to the world to possess; although he may have given him more limited private instructions unknown to the persons dealing with him." Story, 118, note. "For I am bound by the contracts which my agent makes in my name, if they do not exceed the power with which he was ostensibly invested, and it will not avail me to show that I have given him secret instructions to the contrary, which he has not pursued." 1 Liver- more on Agency 107. When the principal sends his agent into the market with directions to sell for him ten bales of cotton, or a horse, and says to him that he may sell for a certain sum, if he cannot obtain more, but not to sell for less than that, and to get as much more as he can, he has not only enabled, but directed, the agent to hold himself out as having authority to sell. That matter is to be communicated to any one to whom he proposes to make a sale; and he is acting within the scope of the authority, which he is thus held out as possessing, when he makes the sale, notwithstanding he may disregard the secret limit upon the price which he was directed to require. It is believed there is little in the cases conflicting with the views now expressed. In some of them there is a mere statement of the general principle that if a special agent exceeds his author- ity, his act is void. In others, the instruction was not private, or 23 354 Cases on Agency. [Book II there was a clear excess of authority. 2 Kent's Com. 484 Lee. 41; Jeffrey vs. Bigelow, 13 Wend. (N. Y.) 518, 28 Am. Dec. 47G; Rossiter vs. Rossiier, 8 "Wend. 494, 24 Am. Dec. 62; Munn vs. Commission Co., 15 Johns. 44, 8 Am. Dec. 219; Andrews vs. Kneeland, 6 Cowen, (N. Y.) 357; 1 Pet. (IT. S.) 264; 9 Pick. (Mass.) 542; Denning vs. Smith, 3 Johns. (N. Y.) ch. 344; Fenn vs. Harrison, 3 D. & E., 760; Bast India Co. vs. Hensley, 1 Esp. 112; Runqnist vs. Ditchell, 3 Esp. 65; Batty vs. CarsweU, 2 Johns. 48; Gibson vs. Colt, 7 Johns. 390; Beals vs. Allen, 18 Johns. 3G3, 9 Am. Dec. 221; Thompson vs. Steivart, 3 Conn. 183, 8 Am. Dec. 168. Sed vide, 11 Wend. R. 90; 15 East, 467. In the present case, there was some contradiction in the evidence, whether any anthority was given to Clark; or, if any was given, what it was. It became necessary, of course, to submit a question upon that to the jury. And from the uncertainty respecting what was said by the defendant, and how it was said, it was also left to the jury to find, in case an authority was given, how far it extended, and whether what was said about not parting with one horse unless both were disposed of, was said in a way to be a limitation upon the authority, or as mere instructions and directions. It does not seem to have appeared, distinctly, whether what was said about disposing of one only, if anything of that kind was in fact said, was a private direction to Clark, or was in fact incorporated into, and part of the authority itself. If Clark had an authority to exchange, and the defendant told him, as he himself afterwards stated, "not to part the span," but "if he could put them away, and get a good five year old horse, and boot enough, he might," this declaration, so far as it relates to a good horse, and boot enough, cannot be held to be a limitation on the authority; and if this is regarded as instructions, what was said in connection with it, about parting the span, might well partake of the same character. The principle now settled that whatever is not to be communi- cated to the person with whom the agent may deal is not to be regarded as a limitation upon his authority, was not adverted to. But no objection is taken that the matter was not properly sub- mitted to the jury, on the evidence before them, if there may be instructions to a special agent, given at the same time with the authority, which are not limitations upon his authority to execute the agency, but private directions, intended to limit his action in the matter, and a disobedience of which may make him liable to Chap. I ] Hatch vs. Taylob. 355 hie principal, but will not avoid the act done. It is apparent that in some cases the evidence may be of such a character that it must be submitted to a jury to determine, in effect, how far the authority, so called, extended, by finding what in fact was said by the principal, and what was intended as mere private instructions to the agent; and this seems of that description. On the view we have taken, therefore, there is nothing in the instructions upon this point, on which to set aside the verdict. The instructions to the jury respecting a ratification were fully warranted by the evidence reported. That evidence is quite suffi- cient to authorize a belief that when the colt was sold, and the defendant furnished the money to make the payment to Clark, and when he was afterwards exchanged, by Emerson, with Spofford, for the mare, and he furnished the money to pay the difference, Clark and Emerson were puppets in his hands, moving as he pulled the wires. Emerson was poor, and the mare was immediately sold, as it was called, to the defendant. Upon this part of the case the jury ought to have found for the plaintiff, if there had been no evidence of any previous authority in Clark to make the exchange. 1 Liver- more on Agency, 45; Codwise vs. Hacker, 1 Caines' R. 52G; Ward vs. Evans, 2 Salk. 442; Story on Agency, 247, and authority cited. Having been active in the sale of the colt, the defendant's declara- tion that he would not sanction the trade, cannot avail him. 1 Livermore, 395; Cornwall vs. Wilson, 1 Ves. Sen. 509. Judgment on the verdict. Note. — Garrard vs. Haddan, 67 Penn. St. 82, 5 Am. Rep. 412; Carmi- chael vs. Buck, 10 Rich. (S. C.) 332, 70 Am. Dec. 226; Webster vs. Wray, 17 Neb. 579; Van Duzer vs. Howe, 21 N. Y. 531. (26 Mainb 84, 45 Am. Deo. 96.) BRYANT vs. MOORE. ( Supreme Judicial Court of Maine, May, IS46.J Assumpsit. The defense was a want of consideration, and a breach of warranty. Verdict for the plaintiff, and exception by the deiendant. The other facts are stated in the opinion. Gerry, for the defendant. 356 Cases ox Agesct. [Book II Hammons, for the plaintiff. By the Court, Shepley, J. This suit is upon a promissory note, made by the defendant on March 30, 1844, and payable to Peter H. McAUaster or order. The bill of exceptions in substance states that McAUaster on that day exchanged a pair of the plaint- iff's oxen with the defendant for a pair of steers, and received of the defendant a note for twelve dollars for the estimated difference in value. That he returned the steers and note to the defendant on the same day, and informed him that the plaintiff would not consent that the exchange should be thus made, but directed him to say that the " defendant must send him a note for fifteen dollars or change back." That they then spoke of a bunch on the jaw of one of the oxen, and defendant said he would give the note for fifteen dollars if McAUaster would warrant that the ox would not be injured by the bunch; that McAUaster did so warrant, and thereupon the note in suit was made. The question presented is, whether the plaintiff is bound by that warranty. The authority of a general agent may be more or less extensive; and he may be more or less limited in his action within the scope of it. The limitation of his authority may be public or private. If it be public, those who deal with him must regard it, or the principal will not be bound. If it be private, the principal will be bound, when the agent is acting within the scope of his authority, although he should violate his secret instructions. A special agent is one employed for a particular purpose only. He also may have a general authority to accomplish that purpose, or be limited to do it in a particular manner. If the limitations respecting the manner of doing it be public or known to the person with whom he deals, the principal will not be bound, if the instructions are exceeded or violated. If such limitations be pri- vate, the agent may accomplish the object in violation of his instructions, and yet bind his principal by his acts. The case of a servant of a horse dealer, who on sale of a horse warranted him to be sound in violation of his instructions, and yet bound his principal, is an example of the kind of agency last named. This case differs from it in this respect only, that the manner, in which he was to perform the particular act, was communicated to the defendant. But that makes an essential difference; for, in such case, the principal is not bound. After the first bargain the defend- ant was informed that McAllister had acted without authority, and Chap. I] Bey ant vs. Mooke. 357 of the terms, upon which the plaintiff would make the exchange; and he had no right to conclude that McAllister had any authority to vary them. There being no warranty in the first bargain he could not be authorized to infer, that McAllister might make one as a part of the second. On the contrary, he should have been admonished, by what had taken place, that he had no general authority to make an exchange. There is no doubt that if one person knows that another has acted as his agent without authority, or has exceeded his authority as agent, and with such knowledge accepts money, property or security, or avails himself of advantages derived from the act, he will be regarded as having ratified it. This will not be the case, when the knowledge that the person has exceeded his authority, is not received by the employer so early as to enable him, before a material change of circumstances, to repudiate the whole transac- tion without essential injury. If, for instance, a merchant should authorize a broker, by a written memorandum to purchase certain goods at a price named, and the broker should exhibit it to the seller, and yet should exceed the price, and this should be made known to the merchant when he received the goods; if he should retain or sell them, he would ratify the bargain made by the broker, and be obliged to pay the agreed price. But if he had received the goods without knowledge that they had been purchased at an advanced price, he would not be obliged to restore them, or pay such advanced price, if he could not, when informed of it, repudiate the bargain without suffering loss. In such case he would not be in fault. The seller would be, and he should bear the loss. When the plaintiff in this case was first informed that his agent had exceeded his authority, he had lost the services of the oxen for two months and a half; and the agent was present and denied that he had made the warranty. The defendant appears to have been sensible that the plaintiff would then suffer loss by a rescission of the contract, and to have offered compensation therefor. "Whether the offer was a reasonable one or not, is immaterial, for the plaintiff, under such circumstances, was not obliged to rescind. He does not appear to have made any movement in the first instance to effect the exchange, or to have desired it, or to have been in fault when first informed uf the war- ranty. The defendant could not at that time prescribe the terms upon which the contract should be rescinded, or insist apon it. Exceptions overruled. OiH Cases on Agency. [Book II (23 New Hampshire, 360, 55 Am. Deo. 195.) TOWLE vs. LEAYITT. (Superior Court of Judicature of New Hampshire, December, 1851.) Replevin for a phaeton. Plaintiff, the owner, left the carriage with one Lane, nnder an agreement by which he was to make some repairs on it, and then sell it if he could. Plaintiff instructed him to sell it for forty-five dollars if possible, and if he could not get that much to take forty dollars for it. Lane's property was then under attachment and advertised to be sold. It consisted of carriages. "When the sale of his property was over, Lane told the auctioneer to put up the phaeton in suit for sale, having previously employed a person to bid, with directions not to let the phaeton go for under forty dollars. The carriage was struck off to the defendant Leavitt for seventeen dollars, and he paid the amount and took possession of the carriage. Lane, against the defendant's objection, testified that he had no authority to sell for less than forty dollars. The court instructed the jury that Towle, having instructed Lane not to sell the property for less than forty dollars, he had no authority to sell it for less, unless the limitation was intended to be kept secret, and that unless it appeared that the limitation was not to be disclosed, the authority of Lane was limited by it, and unless the price paid for the property was forty dollars, he could not give title to it. Verdict for the plaintiff, which the defendant moved to set aside. Wood and J. S. Wells, for the defendant. Marston, contra. Eastman J. (After disposing of another question.) The ques- tions connected with the agency of Lane, which are presented by the case, are more intricate than the one already considered, and it has not been without some difficulty that the court have arrived at a conclusion in regard to them. Upon the facts reported, it does not appear that Leavitt knew that the carriage had ever belonged to the plaintiff. This, however, would be material, only as making it, or not, necessary for Leavitt to inquire into the nature of Lane's agency in selling the property. If an agency be known, and it is special, it is the duty of the party who deals with the Chap. I] Towle vs. Leavitt. 3ij\) agent to inquire into the nature and extent of the authority con- ferred by the principal, and to deal with the agent accordingly. Snow vs. Perry, 9 Pick. 542; Story on Ag. § 133; Denning vs. Smith, 3 Johns. Ch. 344; Schimmelpenick vs. Bayard, 1 Pet. 2G4, 290; Hatch vs. Taylor, 10 N. H. 547 (ante, p. 343.) But where the agency is not known, and the principal has clothed the agent with powers calculated to induce innocent third persons to believe that the agent owned the property or had power to sell, the principal is bound, and strangers will not suffer. Story on Ag. § 93. In like manner, an implied authority may be deduced from the nature and circumstances of the particular act done by the principal. If the principal sends his commodity to a place where it is the ordinary business of the person to whom it is confided to sell, it will be intended that the commodity is sent thither for the purpose of sale. And where an article is sent in such a way, and to such a place, as to exhibit an apparent purpose of sale, the principal will be bound, and the purchaser will be safe, although the agent may have acted wrongfully, and against his orders or duty, if the purchaser has no knowledge of it. Id. sec. 94; Paley on Ag. 167; 2 Kent's Com. G21; Pickering vs. Busk, 15 East, 38; Everett vs. Saltus, 15 Wend. 474; Dyer vs. Pearson, 3 Barr. & Cress. 42; Hern vs. Nichols, 1 Salk. 288; Sanford vs. Handy, 23 Wend. 260. Lane was a carriage maker. His business was to make and sell carriages, and also to repair them when brought to his shop for that purpose, as was the case with this carriage of Towle's. If Lane's sole business had been to make and sell carriages, the deposit of the one in question with him might come within the principle of the preceding cases; but such was not the fact; and a purchaser would have no such right to presume that a second-hand carriage in Lane's possession was his as would protect him from the claim of a bona fide owner. It is to be observed, too, that this carriage was set up and sold after the property of Lane, which had been previously attached and advertised, was disposed of by the officer. The case does not so state in terms, but probably it was well known to Leavitt and others present that the carriage belonged to Towle. But, however that may have been, we think that the situation of the property was such, taken in connection with Lane's circumstances and the attachment and advertisement of his property, as to put a purchaser upon inquiry. Assuming that Leavitt knew that Lane was acting as the special 360 Cases on Agency. [Book II agent of Towlc in selling the property, or proceeding upon the ground that the property was so situated as to put a purchaser upon inquiry, the question arises, whether the private instructions given by Towle to Line not to sell the carriage under forty dollars, were in the nature of a limitation to his authority, or were instruc- tions not to be disclosed. The acts of a general agent, known as such, govern his principal in all matters coming within the proper and legitimate scope of the business to be transacted, although he violates by these acts his private instructions; for his authority cannot be limited by any private instructions, unless known to the person dealing with him. Whitehead vs. Tuckett, 15 East. 400; Lightbody vs. North American Insurance ( o., 23 Wend. 22; Lobdell vs. Baker, 1 Met. 202, 35 Am. Dec. 358; 2 Kent's Com. 620; Allen vs. Ogden, 1 Wash. 174; Story on Ag. § 12G; Paley on Ag. 200; Fenn vs. Harrison, 3 T. R. 757; Munn vs. Commission Co., 15 Johns. 44, 8 Am. Dec. 219. With regard to a special agent, the law appears to be equally well settled, by the authorities above quoted, that if he exceeds the authority given, his acts will not bind his principal. But it is to be observed that a distinction is to be taken between the limited authority of a special agent, one appointed for a specific purpose, to do certain and specified acts, and the private instruc- tions given to such agent. Where the authority is limited in a bona fide manner, and the limitation is to be disclosed by the agent, and is disclosed either with or without inquiry, any departure from such authority or instructions will not bind the principal; but where the authority or instructions given are in the nature of private instructions, and so designed to be, they will not be bind- ing upon the parties dealing with the agent. And if the instruc- tions are of such a nature that they would not be communicated if an inquiry was made (even though it be the duty of the person dealing with the agent to make the inquiry), it is not necessary that it should be made, for it would not be communicated if made. Hatch vs. Taylor, 10 N. II. 538 (ante, p. 345); Bryant vs. Moore, 26 Me. 84, 45 Am. Deo. 96 (ante, p. 355 ). Upon this view of the question, it would seem that the directions not to sell the carriage for less than forty dollars would be in the nature of private instructions. The fact does not seem to us to have been intended to be communicated. This, however, may admit of some doubt, and were the case to turn upon this point, a more minute examination would perhaps be necessary. Chap. I] Towle vs. Leavitt. 3G1 Brit it appears to the court, that there is one point that must settle the case for the plaintiff. This carriage was sold at auction, and this we think must be regarded as exceeding any authority or instructions given, that could bind the plaintiff. The defendant knowing the property to be the plaintiff's, or if he did not know it, the situation of the property being such as to render it incum- bent on him to make all necessary inquiries, was bound, on seeing it exposed to sale in an unusual manner, to inquire as to the right of Lane thus to sell it. Had he done this, probably all difficulty would have been avoided, and whether the directions not to sell for less than forty dollars be considered as a limitation upon the agent's authority or as private instructions, nothing was said about Lane's selling at auction, and no inquiries made in regard to it. A sale at auction implies a sale at any price that may be offered. It is ordinarily the last resort to reduce property into money, and we should be slow to ratify the doings of an agent clothed with the usual powers to sell who should pursue such a course. Had there been any evidence that Towle authorized Lane to sell the carriage at auction, so that the question could have been properly submitted to the jury, this obstacle in the defendants' case might perhaps have been overcome; but we find nothing that would warrant the court in giving the instructions desired in this respect. A court cannot be required to instruct the jury upon any supposed state of facts. The sale, then, must be held void, and as a necessary conse- quence the defendant has no right to the property, and cannot sustain his defense, notwithstanding there may have been error in some of the rulings made against him. It is unnecessary to comment further upon the questions raised in the case. We will remark, however, that Lane was a competent witness. The balance of his interest was against the party calling him. The statement in the case that the phaBton was of the valne of fifty dollars is evidently incidental and the mere allegation of the writ. There is no proof that it was of that value. The case of Kingsbuiy vs. Smith, 13 N. H. 110, settles the question. Judgment on the verdict. 362 Cases on Agency. [Book II ( 86 Alabama, 398, 2 L. R. A. 808.) WHEELER vs. McGUIRE. ('Supreme Court of Alabama, December, 1888. J Action to recover for goods sold and delivered. The opinion states the facts. J. Wheeler, for appellant. TJios. N. McClellan, contra. Cloptox, J. Appellees seek to recover the price of certain goods, which they allege were sold and delivered to the appellant through T. A. Tatham as his agent. The agency was not dis- puted, but defendant contends that Tatham was in his employ merely as a clerk, and was not authorized to purchase goods on a credit and bind him. The plaintiffs contend that Tatham was a general agent, having authority to transact all of defendant's mer- cantile business, or was held out by defendant, or permitted to hold himself out as such, so as to justify the belief that he was clothed with the powers of a general agent. The question mainly controverted by the parties relates to the character of the agency, and the extent of his authority. The general rule is that one who deals with an agent is bound to ascertain the nature and extent of his authority; but, in the application of the rule, a distinction is observed between general and special agencies. The power to do everything necessary to its accomplishment may be included in a particular agency, so that private instructions as to the particular mode of execution, which are not intended to be communicated, and are not communicated to the party with whom the agent may deal, will not be regarded as limitations on his power. But with this qualification, a special authority must be strictly pursued. A general agent may exceed his express authority, and the principal nevertheless be bound. The scope and character of the business, which he is empowered to transact, is, as to third persons, the extent and measure of his authority. By his appointment the principal is regarded as saying to the public, that he has the authority to transact the business in the usual and customary modes. Secret limitations on his power, or private instructions as to the mode of transacting the business, Chap. I] Wheeler vs. McGuieb. 3Gb will not affect the rights of third persons, who have no notice of such limitation or instructions. When a general agent transacts the business intrusted to him, within the usual and ordinary scope of such business, he acts within the extent of his authority; and the principal is bound, provided the party dealing with the agent acts in good faith, and is not guilty of negligence which proximately contributes to the loss. Louisville Coffin Co. vs. Stokes, 78 Ala. 372. Third persons, dealing with a person as a general agent, are not acquitted of all duty to inquire and ascertain the character and extent of his agency, but if on inquiry, it is ascertained to be general, actually or apparently, they are not bound to inquire whether there are secret limitations, or private instructions, unless they have knowl- edge of facts which should put them on such inquiry. As to these issues, the burden is on the plaintiffs, to establish by proof that Tatham was the general agent of defendant, or that the latter, by acts, conduct, or negligence, justified the belief that he had authority to purchase goods on credit for the store. If these issues be found in favor of plaintiffs, no subsequent misconduct of the agent, misappropriating the goods or otherwise, will affect their rights. After having given a general charge, which in the main is in accord with the foregoing principles, the court instructed the jury at the instance of the plaintiffs, "that if defendant employed Tatham, and put him in charge of his retail store at Wheeler's Station to conduct his mercantile business, and placed money to his credit in Louisville, Kentucky, and Nashville, Tennessee, and authorized him to use this money and also that taken in from cash sales, to replenish the stock, and instructed him not to purchase on credit; he was as to innocent third persons, the general agent of defendant in that business, and had authority to do whatever was usual or customary in conducting the same; and if plaintiffs sold to Tatham, as such agent, the goods for the price of which this suit is brought, their verdict must be for plaintiffs, unless they had notice that Tatham's authority was limited to purchases for cash." In considering the correctness of the instruction, any evidence, if there be such, tending to show that Tatham was apparently clothed with the powers of a general agent can not be taken into consideration. The proposition of the charge is that as to third persons, the facts recited therein, of themselves, without the aid of extrinsic facts and circumstances, 364: Cases on Agency. [Book II constituted Tatham a general agent possessing authority to pur- chase goods on credit, in other words, that he was a general agent as to plaintiffs, though they may have known the terms of his employ- ment, including the deposit of money with which to purchase goods, except the instruction not to purchase on credit. The most general powers that may be conferred on an agent are necessarily limited to the business or purpose for which the agency is created. The terms of the employment of Tatham " in charge of his retail store at Wheeler's Station to conduct his mer- cantile business/' in connection with the limitations on his author- ity to purchase, limit his powers as a general agent, to the trans- action of the local mercantile business of defendant. In the mat- ter of buying goods, his power was expressly restricted to the use of money specially deposited for that purpose, and to cash receipts. In appointing Tatham his agent, defendant withheld power to buy and pledge his credit under any circumstances. By the terms of his commission, Tatham may be regarded a general agent to conduct the local business of the store, with special powers to purchase. To construe it otherwise, would be to estab- lish the rule, that a merchant who furnishes his clerks with funds to purchase goods and make immediate payment, clothes him with power to buy on his principal's credit, and that persons dealing with him are relieved of the obligation to ascertain the nature and extent of his warrant of authority. This would press too far the application of the doctrine of general agency. Jaqucs vs. Todd, 3 Wend. (N. Y.) 83; Clealand vs. Walker, 11 Ala. 1058, 46 Am. Dec. 238, 1 Amer. Leading Cases, 679; 1 Pars. Contr. 43. When an express authority is given, the extent thereof must be ascertained from its terms; and another or different authority can- not be implied, unless facts are shown from which such other authority may be presumed, or arises by implication of las. Therefore proof of facts or circumstances from which the authority is presumed, or arises by implication of law — an appear- ance of authority, caused not by the agent himself, but by the defendant— is essential to his liability for Tatham's acts, not within the scope of his commission. In such case, it is incumbent upon the plaintiff to prove that defendant, by ratification, assent, or acquiescence in previous acts, held out Tatham as clothed in the character in which he assumed to act, which fairly led the plaintiffs to believe that more extensive powers had in fact been given than were conferred by the terms of the appointment Chap. I] Wheeler vs. McGuire. 3C5 On this question, all the circumstances of the transaction, the previous conduct of the defendant, and the usages of the business, may be properly considered. It should, however, be remarked, that in order to bind the defendant by ratification, assent, or acquiescence in prior acts of his agent in excess of the authority actually given, knowledgo of the material facts must be brought home to the defend- ant, and if, in the absence of express authority to bind defendant in the manner in which he is sought to be charged, his liability is rested on previous recognition of similar acts of Tatham as his agent, it is requisite to show that plaintiffs sold the goods to Tatham on the faith of such previous recognition. St. John vs. Redmond, 9 Port. Ala. 428; Blevins vs. Pope, 7 Ala. 371. In this aspect of the case, any evidence is relevant, which shows prior similar acts of Tatham, and tends to prove or disprove defendant's knowledge, and plaintiff's reliance on his recognition of them. The charge under consideration is objectionable in another respect. The authority, as hypothetically stated therein, was conferred in November, 1881, when the defendant was on the eve of leaving home, to be absent for months. There is evidence tending to show that on his return, in June, 1882, the authority to purchase was revoked. The transactions with the plaintiffs were in January, February, and March, in 1883, and were the first transactions which Tatham had with plaintiffs as agent of defend- ant. An authority conferred is always revocable, unless coupled with an interest, or founded on a valuable consideration; and may be revoked expressly, or by acts clearly inconsistent with its con- tinuance. When third parties have dealt with an agent clothed with general powers, the agency continues as to them, after revo- cation, until they have notice thereof. Also, the principal may be liable for the acts of the agent after revocation to third persons who never dealt with him previously, if they, in common with the public at large are justified in believing that such agency existed, and have no notice of its revocation. Claflin vs. Lenheim, 66 N. Y. 301 {ante, p. 294), 1 Pars. Contr. 70. On the case as presented by the record, these questions should have been submitted to the jury. They were withdrawn from their consideration by the instruction to find a verdict for the plaintiffs, independent of the evidence in regard to the revocation of the authority of Tatham, and notice to plaintiffs. The court also charged the jury that if the defendant placed Tatham in charge of his retail store, with instructions to buy for 3G6 Cases ojt Agency. [Book II cash only, it was the duty of defendant to keep himself posted as to the manner in which his agent conducted his business, and to see that his instructions were obeyed; and if he knew the agent was buying on credit, or could have known it by the exercise of ordinary diligence, he is estopped to deny the authority of Tatham to purchase on credit. The rule is stated by Mr. Wharton as follows: " When a principal conducts his affairs so negligently, as to lead third persons to reasonably suppose that his agent has full powers, then if the agent exceeds his authority the principal must bear the loss. It is true that the principal is not chargeable with culpa levessima. He is not chargeable, in other words, with the conse- quences of those slight negligences into which good business men are liable to fall. But, if he is negligent to an extent beyond what is usual with good business men in his department, and if in conse- quence of his negligence, third parties repose trust on the sup- posed agent, then the loss, if loss accrue, must fall on the principal. " Whart. on Agency, § 123. Though mere negligence, mere want of ordinary diligence, may furnish the agent an opportunity of undne assumption of authority, it does not of itself work an estoppel. A principal is not required to distrust his agent, nor to keep a vigilant watch over the manner in which he exercises his authority, and to see that his instructions are obeyed. He may act on the presumption that third parties, dealing with his agent, will not be negligent in ascertaining the extent of his authority, as well as the existence of his agency. And negligence, to constitute a ground of liability, must have caused the plaintiffs to repose trust on the authority of Tatham, and the negligence of plaintiffs must not have proximately contributed to the loss. The charge exacts of the principal a degree of diligence not required by the law. Many cases hold that notice to an agent is notice to his princi- pal, though acquired before the relation is created, if present in his mind at the time of the particular transaction, and he can communicate it or act upon it, without violating a legal moral duty. It was, however, early settled in this State, that knowledge of an agent, to operate as constructive notice to the principal, must have been acquired after the relation of principal and agent was formed. This rule having been followed ever since, whatever might be our opinion were it an open question, it would not be prudent to disturb it now. Mundine vs. Pitts, 14 Ala. 84; McCor- mick vs. Joseph, 83 Ala. 401; Frenkel vs. Hudson, 82 Ala. 158. Chap. I] Wheeler vs. McGuirb. 367 If the jury should find that the evidence as to any fact, essential to plaintiff's rights of recovery, and as to which the burden of proof rests on them, is evenly balanced, or in equilibrium, their verdict must be for the defendant. Vandcvcnisr vs. Ford, 60 Ala. 610. We have not deemed it necessary to specifically consider the numerous exceptions to the rulings of the court on the evidence, and in instructing the jury, each of which is assigned for error. We have endeavored to select such as related to the issues properly made by the evidence in its different aspects, and involved the principles on which the rights of the parties must ultimately depend, and which should govern the court in putting the case before the jury. Evidence which proximately tends to prove or disprove these principal issues should be received; and that excluded which is incapable of affording a reasonable presumption of their truth or falsity. And charges based on partial facts, ignoring other material facts, such as a bare shipment of goods to defendant, and the appropriation of them to his use by him or his authorized agent, omitting reference to the fact of a prior purchase, and Tatham's authority, are calculated to mislead and confuse the jury, and should not be given. Reversed and remanded. ( 124 Pennsylvania State, 291, 10 Am. St. Rep. 585, 2 L. R. A. 823.) HUBBARD vs. TENBROOK. (Supreme Court of Pennsylvania, March, 1889. J Action to recover for goods sold to the alleged agents of defend- ants. Plaintiffs recovered and defendants bring error. Joseph L. Tull, for plaintiffs in error. Joseph De F. Junkin, for defendants in error. Mitchell, J. (After criticizing the plaintiffs' statement.) Fortunately for the plaintiffs, their statement is helped out, as to the first fact, by the bill of particulars, which, being sworn to be a copy of their book of original entry, imports delivery as well as sale. 368 Cases on Agency. [ Book II The agency, though stated in the objectionable form of an inference from the previously recited evidence, is clearly intended to be averred and may fairly be so treated. Taking the statement therefore in its plain intent, it sets out that t he plaintiffs _sold and delivered a quantity of hams. to one Sides, who was conducting a grocery business in his o wn name, but with the property and as the agent of defendants. The defendants filed an affidavit of defense, and a supplementary one, the substance of which is that " Sides was not the agent of defend- ants to purchase from plaintiffs or anyone else," and that he " was employed as salesman only, by said defendants without any authority whatever to act for or bind defendants for the purchase of any goods or merchandise upon credit of the said defendants." We have thus the question presented, whether an agent may be pnt forward to conduct a separate business in his own name, and the principal escape liability by a secret limitation upon the agent's authority to purchase. The answer is not at all doubtful. A man conducting an appar- ently prosperous and profitable business obtains credit thereby, and his creditors have a right to suppose that his profits go into his assets for their protection in case of a pinch or an unfavorable turn in the business. To allow an undisclosed principal to absorb the profits, and then when the pinch comes to escape responsibility on the ground of orders to his agent not to buy on credit, would be a plain fraud on the public. No exact precedent has been cited. None is needed. The rule so vigorously contended for by the plaintiffs in error, that those deal- ing with an agent are bound to look to his authority, is freely con- ceded; but this case falls within the equally established rule that those clothing an agent with apparent authority are, as to parties dealing on the faith of such authority, conclusively estopped from denying it^ The affidavits set up no available defense, and the judgment is affirmed. Note. — See following case. Chap. I ] Watteau vs. Fenwick. 3G9 ( Law Eeports (1893), 1 Queen's Bench Division, 346.) WATTEAU vs. FENWICK. {'English Court of Queen's Bench, December, 1892. J Action for goods sold. The opinion states the facts. Finlaij, Q. C. (Scott Fox with him), for defendants. Boy dell Eougliton, for plaintiff. Wills, J. The plaintiff sjaes the defendants for the price of cigars snpplied to the Victoria Hotel, Stockton-npon-Tees. The house was ke pt, not Fy the defendants, but by a person named Humble , w hose name was o ver the door. Thejplaintiff gave credit to Humble, and to him alone, and^adjuev^er heard of the defend- ants. The business, ho wever , was really the defend ants', and they had put ffumbie int o it to manage it fo r them, andjhad forbidden Trim to buy cigarson credit. The_cigars, bowever^jwere such as would usuall y be supplied to and dealt in_ at juch_an establish- ment. "The learned coujo^yj^u^ Judge held_ that the defendants were liable. I am of opinion that he was right. >. There seems to be less of direct authority on the subject than one would expect. But I think that the Lord Chief Justice during the argument laid down the correct principle, viz. : Once it is established that the defendant was the real principal, the ordinary doctrine as to principal and agent applies — that the principal is l iable for-3- 11 *■"*» acts of ^ e agent which are within the authority usually confided to_an__agent of that^character, notwithstanding limitations, asTbetween the principal and the agent> put uponjthat authority. It isTlaid that it is only so where there has been a// holding out of authority — which cannot be said of a case wherei the person supplying the goods knew nothing of the existence of a| principal. But I do not think so. Otherwise, in every case of | undisclosed principal, or at least in every case where the fact of 1 there being a principal was undisclosed, the secret limitation of n authority would prevail and defeat the action of the person deal- (/ ing with the agent and then discovering that he was an agent and/ had a principal. But in the case of a dormant partner it is clear law that no limi- tation of authority as between the dormant and active partner will 24 370 Cases on Agency. [Book II avail the dormant partner as to things within the ordinary author- ity of a partner. The law of partnership is, on such a question, nothing but a branch of the general law of principal and agent, and it appears to me to be undisputed and conclusive on the point now under discussion. The principle laid down by the Lord Chief Justice, and acted upon by the learned county court judge, appears to be identical with that enunciated in the judgments of Cockburn, C. J., and Mellor, J., in Edmunds vs. Bushell, Law Rep. 1 Q. B. 97, the circumstances of which case, though not identical with those of the present, come very near to them. There was no holding out, as the plaintiff knew nothing of the defendant/ I appreciate the distinction drawn by Mr. Finlay in his argument, but the principle laid down in the judgments referred to, if correct, abundantly covers the present case. I cannot find that any doubt has ever been expressed that it is correct, and I think it is right, and that very mischievous consequences would often result if that principle were not upheld. In my opinion, this appeal ought to be dismissed with costs. Lord Coleridge, C. J., concurred. Appeal dismissed. Note. — Compare with the preceding cas& Chap. II] Savings Society vs. Savings Bank. 371 CHAPTER II. OF THE CONSTRUCTION OF THE AUTHORITY GENERALLY. (36 Pennsylvania State, 498, 78 Am. Deo. 390.) LOUDON SAVINGS FUND SOCIETY vs. HAGERSTOWN SAVINGS BANK. ('Supreme Court of Pennsylvania, 1860. J This was an action of assumpsit brought by the bank against forty-three persons doing business in the name of the Loudon Sav- ings Fund Society, to recover on a certificate of deposit signed by one Easton, the treasurer of the society. The defendants denied his authority to make or issue the certificate. The court below directed a verdict for the plaintiff. llellly & Sharpe, for plaintiffs in error. McLelland & McClure, for defendant in error. Woodward, J. (After stating the facts.) It is apparent that the great question raised upon the record had reference to the character and extent of Easton's authority as the agent of the defendants. The party who avails himself of the act of an agent must, in order to charge the principal, prove the authority under which the act is done. If the authority be created by power of attorney or other writing, the instrument itself mu6t in general be produced; and since the construction of writings belongs to the court, and not to the jury, the fact and scope of the agency are, in such cases, questions of law, and are properly decided by the judge. But the authority may be by parol, or it may be implied from the conduct of the employer in sanctioning the credit given to a person acting in his name, and in many cases the acts of an agent, though not in conformity to his authority, may yet be binding upon his employer, who is left in such cases to seek his remedy against his agent. Whether an employer be or be not bound by such acts as 372 Cases on Agency. [Book II are not conformable to the commission given by him, depends prin- cipally upon the authority being general or special. By a general agent is understood not merely a person substituted in the place of another, for transacting all manner of business, but a person whom a man puts in his place to transact all his business of a particular kind, as to buy and sell certain kinds of wares, to negotiate certain contracts, and the like. An authority of this kind empowers the agent to bind his employer by all acts within the scope of his employment, and that power cannot be limited by any private order or restriction, not known to the party dealing with the agent. A special agent is one who is employed about one specific act or certain specific acts only, and he does not bind his employer unless his authority be strictly pursued. Paley on Agency, 199 et seq. "A general authority/' said Lord Ellen- bobough, in Whitehead vs. TucTcett, 15 East, 408, "does not import an unqualified one, but that which is derived from a multi- tude of instances; whereas a particular authority is confined to an individual instance." And in all instances where the authority, whether general or special, is to be implied from the conduct of the principal or where the medium of proof of agency is per testes, the jury are to judge of the credibility of witnesses and of the implications to be made from their testimony. As the plaintiff here did not produce any written evidence of Easton's agency, it was the duty of the court to inform the jury what constitutes agency, express or implied, special or general, and to refer to them the questions: 1. Whether the evidence satisfied them that Easton was either the general or special agent of the defendants; and, 2, Whether the issuing of the certificate in suit was within the scope of his authority. Peries vs. Aycinena, 3 Watts & S. 79; Jordan vs. Stewart, 23 Pa. St. 247; Seiple vs. Irwin, 30 Id. 513; Williams vs. Getty, 31 Id. 461, 72 Am. Dec. 757. Or, if it was not a case of strict agency, if Easton acted without any authority in issuing the certificate, or transcended such as had been delegated to him, the question of ratification by the defend- ants was also a mixed question of law and fact. What would in law amount to a ratification was for the court; whether such proofs were found in the case, was for the jury. Such adoptive authority relates back to the time of the original transaction, and is deemed, in law, the same to all purposes as if it had been given before. Lawrence vs. Taylor, 5 Hill (N. Y.), 107-113; and see 1 Liver- Chap. II] Savings Society vs. Savings Bank. 373 more on Principal and Agent, 44-50; Philadelphia W. & B. Rail- road Company vs. Cowell, 28 Pa. St. 337, 70 Am. Dec. 128. * * Reversed. Note.— See, alRO, Millay va. Whitney, 63 Me. 522 ; Hartford Ins. Co. vs. Wilcox, 57 111. 182 ; Rountree vs. Denson, 59 Wis. 522 ; Danby vs. Coutts, L. R. 29 Ch. Div. 500. (72 New York, 279, 28 Am. Rep. 150.) CRAIGHEAD vs. PETERSON. (New York Court of Appeals, January, 187S.J Peterson gave to Packard, his son-in-law, a power of attorney authorizing Packard " to draw and indorse any check or checks, promissory note or notes, on any bank in the city of New York in which I may have an account, and especially in the Irving National Bank of said city, and to do any and all matters and things con- nected with my account in said Irving National Bank, or any other bank in said city, which I myself, might or could do," etc. The words "promissory note or notes," were interlined. Packard executed in the name of Peterson, and delivered to plaintiff's testa- tor, two promissory notes, payable at a bank where Peterson had no account. Afterwards, at Packard's request, Peterson executed a mortgage, upon lands really owned by Packard, but title to which had been taken in Peterson's name without his knowledge, to secure the payment of the notes executed by Packard. Peterson supposed the mortgage was for the benefit of Packard or his wife, and did not know that it was given to secure notes purporting to be executed by him. The notes were not given in Peterson's business nor" for his benefit. In an action on the notes, defendant had judgment, and plaintiff appealed. A. C. Fratiseoli, for appellants. W. H. Van Colt, for respondents. Allen, J. The plaintiffs' testator, taking the notes in suit, made by an agent professing to represent the defendant as his principal, is presumed to have known the terms of the power under which the agent assumed to act. He was bound to ascertain and know the character and extent of the agency, and the words of the 374 Cases on Agency. [Book II instrument by which it was created, before giving credit to the agent. If the testator dealt with the agent without learning the extent of the powers delegated to him, he did so at his peril, and most abide by the consequences, if the agent acted without or in excess of his authority. Story on Agency, § 72. If there was an ambiguity in the language of the power of attorney, there is no reason why in this case there should be a forced or unnatural interpretation of the instrument to save the testator or his repre- sentatives from loss. The transaction was in the city of New York where as well the supposed principal, as Mr. Pike, the plaintiffs' testator, and the professed agent resided, and if the power of attorney was ambiguous in its expression, or of doubtful interpre- tation, the defendant was accessible either to make the notes in person, or assent to and ratify the act of the agent. There may be cases in which, from necessity, a party dealing with an agent must act upon his own interpretation of the author- ity, and take the risk of any doubtful or ambiguous phraseology. But not so here. The record is barren of evidence as to the origin or consideration of the notes. The powers conferred upon the agent were limited, and by the power of attorney as first drawn, Packard, the agent, was only authorized to diaw and indorse checks on any bank in which the testator had an account, " and to do any and all matters and things connected with his (my) account in " such banks which the principal might or could do. The last and general words only gave general powers to carry into effect the special purposes for which the power was given. Attwood vs. Mannings, 7 B. & C. 278; Perry vs. Holl, 2 DeG. F. & J. 38; Rossiter vs. liossiler, 8 Wend. (N. Y.) 494, 24 Am. Dec. 62; Story on Agency, § 62. The primary and special purpose of the power of attorney was to authorize Packard to draw checks in the business of the prin- cipal upon and against his accounts in bank, and to indorse checks probably for deposit to the credit of the same accounts. The inser- tion of the words "promissory note or notes " by an interlineation after " check or checks," and before " on any bank," etc., must be read with the limited and special purpose of the power as first pre- pared in view, and not as intending to give a more extended or general power. The making and indorsing of promissory notes, either for discount or payable at the principal's bank, was a natural adjunct of the authority given to draw and indorse checks, and thus deal with and in respject of the bank accounts of the testator. Chap. II] Ckaiquead vs. Peterson. 375 The dealings and business relations of the testator with the banks with whom he dealt, and his accounts with such banks, was the subject of the agency, and the instrument creating the agency restricted the powers of the agent to the making and indorsing of commercial instruments having an immediate connection with the banks with which the principal had dealings and which would properly enter into his accounts with them. The act of making the notes in suit was ultra vires, and the defendant is not liable thereon. A formal instrument delegating powers is ordinarily subjected to strict interpretation, and the authority is not extended beyond that which is given in terms, or which is necessary to carry into effect that which is expressly given. They are not subject to that liberal interpretation which is given to less formal instruments, as letters of instruction, etc., in com- mercial transactions which are interpreted most strongly against the writer, especially when they are susceptible of two interpreta- tions, and the agent has acted in good faith upon one of such interpretations. Wood vs. Goodridge, 6 Cush. (Mass.) 117, 52 Am. Dec. 771; Attwood vs. Munnings, supra; Hubbard vs. Elmer, 7 Wend. (N. Y.), 446, 22 Am. Dec. 590; Hodge vs. Combs, 1 Black (U. S.) 192. The evidence of ratification and adoption of the acts of the agent by the giving the mortgages is very slight. The evidence is that the title to the property mortgaged was but nominally in the defendant, having been taken in his name without his knowledge, and as is to be inferred, by Packard, the real owner, and this mortgage with another was executed at the request and as was sup- posed by the defendant, for the benefit of Packard or his daughter, and upon transactions with which the defendant had no connection. The reading of the recital of the considertion by the gentleman who presented the mortgage to the defendant for execution at the request of Packard, cannot be said to have given him an intelligent appreciation of the fact recited, or the effect it would have upon the legal liability of the defendant, who testified that he did not understand or know that the mortgage was given to secure notes of which he was the maker. The evidence is very decided that the notes were not given in the business of the defendant or for his benefit, and he had never received any benefit or derived any advantage from them so far as appears. A ratification undei such circumstances should be the deliberate and intentional act of the party sought to be charged with full knowledge of all the cir- 876 Cases on Agency. [Book II cumstances. Story on Agency, § 239. The jury have found upon satisfactory evidence that there has been no adoption of these notes, or ratification of Packard's acts by the defendant. There was no error in the admission of evidence. All the testi- mony offered and given by the defendant was in respect to the res gestce, and the transactions given in evidence by the plaintiffs, and to disprove any connection with the making of the notes, or the consideration upon and for which they were made, and the relation in which he stood to the property mortgaged, and was all compe- tent, bearing more or less directly upon the question of agency and the alleged ratification of the acts of the agent. The question to the defendant, as to his intent to ratify the giv- ing the notes, was not the most appropriate interrogatory to draw out the evidence sought. The intent of the act was immaterial, if the defendant had deliberately and understandingly executed a deed reciting the notes as made by him and covenanting to pay them. The legal effect of such an instrument would not be evaded by the want of an actual intent to confirm the acts of the agent by whom the notes were made. The answer of the witness only went to the fact that he did not deliberately and understandingly execute the mortgage as one given to secure these two notes as his notes past due. There was no error upon the trial, and the judgment must be affirmed. Note. — See, also, Vanada vs. Hopkins, 1 J. J. Marsh, (Ky.) 285, 19 Am. Dec. 92; Reese vs. Medlock, 27 Tex. 120, 84 Am. Dec. 611; Franklin vs. Ezell, 1 Sneed, (Tenn.) 497; Strong vs. Stewart, 9 Heisk. (Term.) 137; Ben- jamin vs. Benjamin, ante, p. 72; Huntley vs. Mathias, post, p.408-; Graves vs. Horton, ante, p. 82; Shackman vs. Little, 87 Ind. 187. (44 New Jersey Law, 257.) CAMDEN SAFE DEPOSIT AND TRUST COMPANY vs. ABBOTT. (Supreme Court of New Jersey, June, 1889.) Action upon a promissory note drawn to the order of J. R. Abbott, and signed with the name of defendant by J. R. Abbott, who acted under a power of attorney stating, " This is to certify Ohap. II ] Teust Co. vs. Abbott. 377 that J. R. Abbott * * • is this day appointed with power of attorney, and authorized by me to sign my name to any paper or papers, notes, etc.-T. Abbott." Verdict for plaintiff, and rule to show cause why a new trial should not be granted. Chas. T. Reed, for the rule. Samuel H. Grey, contra. Dixok, J. (After stating the facts.) On the trial a question was raised whether the words, "notes, etc.," were not added fraudu- lently after the defendant had executed the instrument, but the jury found against this proposition. Such an inquiry seems scarcely important, for the language of the power, without those words, is so general that it is hardly possible to interpret them in such man- ner as to exclude an authority to sign notes on proper occasions. Bat, in whichever form the instrument was delivered, it did not justify the signing of notes for purposes outside of the principal's business. Gulick vs. Grover, 33 N. J. L. 465, 97 Am. Dec. 728; Stainer vs. Tysen, 3 Hill, (N. Y.) 279. The note in suit was not given for such a purpose, but was put forth for the personal benefit of the attorney, who converted its proceeds to his own use. It was, there- fore, issued under an apparent authority, but in fraud of the princi- pal. The holders of such notes can recover of the principal only on showing that they took them for value, before maturity, and bona fide. North River Bank vs. Aymar, 3 Hill, (N. Y.) 262; Duncan vs. Gilbert, 29 N. J. L. 521; Hamilton vs. Vought, 34 N. J. L. 187; Bird vs. Daggett, 97 Mass. 494. The only evidence touching this matter, in the record before us, is that the attorney received the amount of the note, but when, from whom, and under what circumstances, do not appear. The verdict for the plaintiff must therefore be set aside, and a new trial granted. Note. — Authority must be construed as authorizing execution only in the separate private business of the principal and for his benefit. Steinback vs. Read, 11 Gratt. (Va.) 281, 62 Am. Dec. 648; Attwood vs. Mannings, 7 Barn. & Cress. 278 ; Wood vs. McCain, 7 Ala. 800, 42 Am. Dec. 612 ; Adams Express Co. vs. Trego, 35 Md. 47. 378 Cases on Agency. [Book II CHAPTER III. OF THE CONSTRUCTION OF AUTHORITIES OF CERTAIN KINDS. OP AGENT AUTHORIZED TO SELL LAND. (99 United States, 668.) LYON vs. POLLOCK. ("Supreme Court of the United States, October, 1878.) In this action it was sought to have a deed, purporting to be executed from Lyon to Pollock, by one Paschal as his agent, but which had been held to be insufficient to pass the title, declared to be a contract to convey, and, as such, to be specifically enforced. Decree below for such performance. Defendant appeals. Philip Phillips and W. H. Phillips, for the appellant. No counsel for appellee. Field, J. This case turns upon the construction given to the letter of Lyon to Paschal, of the 24th of August, 1865. That letter clearly did not authorize the execution of a conveyance by Paschal in the name of Lyon to the purchaser. Its insufficiency in that respect was authoritatively determined in the action at law for the land; the instrument executed by Paschal as the deed of Lyon being held inoperative to pass the legal title. The question now is, was the letter sutlicient to authorize a contract for the sale of the lots? To determine this, and give full effect to the language of the writer we must place ourselves in his position, so as to read it, as it were, with his eyes and mind. It appears from his answer, as well as his testimony, that he was in great danger of personal violence in San Antonio, shortly after the commencement of the rebellion, owing to his avowed hostility to secession, or at least that he thought he was in such danger. He apprehended that his life was menaced, and was in consequence induced to flee the country. He possessed at the time a largo amount of property, real and personal, in San Antonio. Chap. Ill] Lyon vs. Pollock. 379 This he confided to the care of his partner, Bennett, to whom he gave a power of attorney, authorizing him to take charge of and control the same, and sell it for whatever consideration and upon such terms as he might judge best, and execute all proper instru- ments of transfer; and also to collect and receipt for debts due to him. Bennett took possession of Lyon's property and managed it until July, 18G5, when he transferred it, with the business and papers in his hands, to Paschal, and at once informed Lyon by letter of the transfer. It was under these circumstances that the letter of Lyon to Paschal, which is the subject of consideration, was written. Its language iB: "I wish you to manage (my prop- erty) as you would with your own. If a good opportunity offers to sell everything I have, I will be glad to sell. It may be parties will come into San Antonio who will be glad to purchase my gas stock and real estate. " Situated as Lyon then was, a fugative from the state, it could hardly have been intended by him that if propositions to purchase his property or any part of it were made to Paschal, they were to be communicated to him, and to await his approval before being accepted. He was at the time at Monterey, in Mexico, and com- munication by water between that place and San Antonio was infrequent and uncertain; and he states himself that it was impossible to send letters by Matamoras, as the road was blockaded. "Writing under these circumstances, we think it clear that he intended by his language, what the words naturally convey, that if an opportunity to sell his property presented itself to Paschal, he should avail himself of it and close a contract for its sale. His subsequent conduct shows, or at least tends to show, that such was his own construction of the letter, and that he approved, or at least acquiesced in, the disposition made of his property. * * * Holding the letter to confer sufficient authority to contract for the sale of Lyon's real property in San Antonio, there can be no doubt of the right of the complainants to the relief prayed. The deed executed to them by Paschal in the name of Lyon, though invalid as a conveyance, is good as a contract for the sale of the property described in it; and is sufficient, therefore, to sustain the prayer of the bill for a decree directing Lyon to make a conveyance to them. Decree affirmed. Note — See, also, Marr vs. Given, 23 Me. 55, 39 Am. Dec. 600; Rice vs. Tavernier, 8 Minn. 2-18, 83 Am. Dec. 778; DeCordova vs. Knowles, 37 Tex, 19; Billings vs. Alori-oiv, 7 Cul. 171, G8 Am. Dec. ~35. •duo Cases on Agency. [Book II (45 Minnesota, 121, 22 Am. St. Rep. 724.) GILBERT vs. HOW. {Supreme Court of Minnesota, December, 1890. J Ejectment. Plaintiff claimed title by virtue of a foreclosure proceeding, to which George A. Bucklin was made the sole defend- ant. Bucklin derived his title through Mary A. Clark under a conveyance purporting to be made by Mary A. Clark and Benjamin F. Bucklin, by Franklin Chase, their attorney in fact. Judgment below for defendant. H. J. Peck, for appellant. Southworth & Cotter, for respondent. Collins, J. The deed in which Mary A. Clark and B. F. Bucklin were named as grantors, and George A. Bucklin as grantee, was executed by Bucklin in person, and by Franklin Chase in behalf, and as the attorney in fact, of Mary A. Clark. The land described therein was then the sole property of the grantor last mentioned, so far as was shown by the record, Bucklin having no interest in it. The power of attorney, by virtue of which Chase assumed to act, was a joint power, executed and delivered to him by Mary A. Clark and B. F. Bucklin. By its terms, the latter con- stituted and appointed Chase " our true and lawful attorney for us, and in our names," to enter upon and take possession of all lands " to which we are or may be in any way entitled or interested, and to grunt, bargain, and sell the same, * * * and for us and in our names to make * * * and deliver good and sufficient deeds; * * * and we do hereby further constitute the said Chase our attorney, and in our names to transact and manage all business; * * * and also in our names to demand, sue for, recover, and receive all sums of money," etc. All powers of attorney receive a strict interpretation, and the authority is never extended by intendment, or construction, beyond that which is given in terms, or is absolutely necessary for carrying the authority into effect, and that authority must be strictly pur- sued. Rossiter vs. Rossiter, 8 Wend. (N. Y.) 494, 24 Am. Dec. 62; Brantley vs. Insurance Co., 53 Ala. 554; Bliss vs. Clark, 16 Gray, (Mass.) 60. This rule was applied in Rice vs. Tavcrnier, 8 Minn. 248, 83 Am. Dec. 778; Qrcve vs. Coffin, 14 Minn. 345, 100 Chap. Ill ] Gilbeet vs. How. 381 Am. Dec. 229; Bcrfcey vs. Judd, 22 Minn. 287. And a party deal- ing with an agent is chargeable with notice of the contents of the power nnder which he acts, and must interpret it at his own peril. Sundford vs. Handy, 23 Wend. (N. Y.) 260; Nixon vs. Hyserott, 5 Johns. (N. Y.) 58. The power nnder which Chase pretended to convey a tract of land, the sole property of Mary A. Clark, mnst be construed as authorizing him to convey such lands, only, as were held and owned by his two constituents jointly, or in common, and not the lands held and owned by either, and separately. By its terms, the attorney was not empowered to convey land held and owned as the undivided property of one, and in which the other had no interest, nor was he given authority to transact any business, except that in which the parties were jointly concerned. The authority was special, and the written power joint, in form. No mention was made of the separate property or business of either of the parties who executed it, and it cannot be inferred that they intended to confer upon Chase the power to convey such property, or to transact Buch business. Dodge vs. Hopkins, 14 Wis. 630 {ante, 215) ; Johnston vs. Wright, 6 Cal. 373. This rule is also recognized in Holladay vs. Daily, 19 Wall. (U. S.) 606, although the point was not directly in issue. The deed referred to was a nullity, and did not convey the land to George A. Bucklin, and, when the mortgage given by Mary A. Clark was foreclosed by action brought against Bucklin alone, the proper party, the owner of the land, was not made a defendant. The foreclosure sale was void, and a purchaser thereat acquired no interest in the land sold. As the plaintiff's rights were predicated upon this sale, he failed to establish title to the land in himself upon the trial. Affirmed. Note.— See note to the principal case in 23 American State Reports, 726. See, also, Deakin vs. Underwood, ante p. 68. 383 Cases on Agency. [Book II (8 Howard, 451.) LEROY vs. BEARD. ( United States Supreme Court, January, 1850. J This was an action by Beard against LeRoy and wife to recover for the breach of a warranty contained in a deed executed by LeRoy and wife through an agent Starr, by authority of a letter of attorney. Verdict for plaintiff, and defendants allege error. Mr. Blunt and Mr. Webster, for plaintiff in error. Mr. Seeley and Mr. Baldwin, for defendant in error. Woodbury, J. (After disposing of another question.) The next instruction to which the original defendant objected, and which is the chief and most difficult one that can properly be con- sidered by us, under the present bill of exceptions, is that the power of attorney by LeRoy and his wife to Starr, their agent, was broad enough to confer upon him " authority to give a deed of the land with covenant of warranty. " This power of attorney is given in extenso in the statement of the case. It appears from its contents that LeRoy, after authorizing Starr to invest certain moneys in lands and real estate in some of the western states and territories of the United States, at the dis- cretion of the said Starr, empowered him " to contract for the sale of and to sell either in whole or in part, the lands and real estate so purchased by the said Starr," and " on such terms in all respects as the said Starr shall deem most advantageous. " Again he was authorize! to execute " deeds of conveyance necessary for the full and perfect transfer of all our respective right, title," etc., "as sufficiently in all respects as we ourselves could do personally in the premises," "and generally as the agent and attorney of the said Jacob Le Roy " to sell " on such terms in all respects as he may deem most eligible." It would be difficult to select language stronger than this to jus- tify the making of covenants without specifying them eo nomine \\ hen this last is done, no question as to the extent of the power can arise, to be settled by any court. But when, as here, this last is not done, the extent of the power is to be settled by the language employed in the whole instrument (4 Moore, 448) aided by the situation of the parties and of the property, the usages of the coun- Chap. Ill ] Leroy vs. Beard. 383 try on such subjects the acts of the parties themselves, and any other circumstance having a legal bearing and throwing light upon the question. That the language above quoted from the power of attorney is sufficient to cover the execution of such a covenant would seem naturally to be inferred, first from its leaving the terms of the sale to be in all respects as Starr shall deem most advantageous. " Terms " is an expression applicable to the conveyances and cov- enants to be given, as much as to the amount of, and the time of paying, the consideration. Rogers vs. Kneeland, 10 Wendell, (N. Y.) 219. To prevent misconception, this wide discretion is reit- erated. The covenants, or security as to the title, would be likely to be among the terms agreed on, as they would influence the trade essentially, and in a new and unsettled country must be the chief reliance of the purchasers. To strengthen this view, the agent was also enabled to execute conveyances to transfer the title " as sufficiently in all respects as we ourselves could do personally in the premises," and it is mani- fest that inserting certain covenants which would run with the land might transfer the title in some events more perfectly than it would pass without them; and that, if present " personally," he could make such covenants, and would be likely to if requested, unless an intention existed to sell a defective title for a good one, and for the price of a good one. It is hardly to be presumed that anything so censurable as this was contemplated. Again, his authority to sell, "on such terms in all respects as he may deem most eligible," might well be meant to extend to a term or condition to make covenants of seizin or warranty, as without such he might not be able to make an eligible sale, and obtain nearly so large a price. Now all these expressions, united in the same instrument, would prima facie, in common acceptation, seem designed to convey full powers to make covenants like these, and although a grant of powers is sometimes to be construed strictly, (Com. Dig. Poiar, B. 1 and c 6; 1 Bl. It. 283;) yet it does not seem fit to fritter it away in a case like this, by very nice and metaphysical distinctions, when the general tenor of the whole instrument is in favor of what was done under the power, and when the grantor has reaped the benefit of it by receiving a large price, that otherwise would probably never have been paid. Nind vs. Marshall, 1 Brod. and Bingh. 319; 10 Wendell, 21 9, 252. This he must refund when the title 384 Cases on Agency. [Book II fails, or be accessory to what seems fraudulent. 1 J. J. Marsh, 292. Another circumstance in support of the intent of the parties to the power of attorney to make it broad enough to cover warranties, is their position or situation as disclosed in the instrument itself. Solly vs. Forbes, 4. Moore, 448. LeRoy resided in New York, and Starr was to act as his attorney in buying and selling lands in the "Western States and Territories/* and this very sale was as remote as Milwaukee, in Wisconsin. For aught which appears, LeRoy, Beard, and Starr, were all strangers there, and the true title to the soil little known to them; and hence they would expect to be required to give warranties when selling, and would be likely to demand them when buying. The usages of this country are believed, also, to be very uniform to insert covenants in deeds. In the case of the Lessee of Clark vs. Courtney, 5 Peters, (U. S.) 349, Justice Story says: "This is the common course of conveyances/' and that in them " covenants of title are usually inserted." See, also, 6 Hill, (N. Y.) 338. Now if in this power of attorney no expression had been employed beyond giving an authority to sell and convey this land, saying nothing more extensive or more restrictive, there are cases which strongly sustain the doctrine that, from usage as well as otherwise, a warranty by the agent was proper and would be binding on the principal. It is true that some of these cases relate to personal estate, and some perhaps should be confined to agents who have been long employed in a particular business, and derive their authority by parol, no less than by usage, and consequently may not be decisive by analogy to the present case. 3 D. & E. 757; Helyear vs. Haivke, 5 Es. Ca. 72, note; Pickering vs. Busk, 15 East. 45; 2 Camp N. P. 555; 6 Hill (N. Y.) 338; 4 D. & E. 177. So of some cases which relate to the quality and not to the title of property. Andrews vs. Kneeland, 6 Cowen, (N. Y.) 354; The Monte Allegre, 9 Wheat. (U. S.) 648; 6 Hill, (N. Y.) 338. But where a power to sell or convey is given in writing, and not aided, as here, by language conferring a wide discretion, it still must be construed as inteuding to confer all the usual means or sanction the usual manner of performing what is intrusted to the agent. 10 Wendell, 218; Howard vs. Baillie, 2 H. Bl. 618; Story on Agency, p. 58; Dawson vs. Laiuly, 5 Es. Ca. 65; Ekins vs. Maclish, Ambler, 186; Salk. 283; Jeffrey vs. Bigelow, 13 Wend. (N. Y.) 527; 28 Am. Dec. 476; 6 Cowen, (N. Y.) 359. Nor is the Chap. Ill] Leroy vs. Beaed. 385 power confined merely to usual "modes and means/' but whether the agency be special or general, the attorney may use appropri- ate modes and reasonable modes; such are considered within the scope of his authority. 6 Hill, (N. Y.) 338; 2 Pick. Mass. 345; Bell on Com. L. 410; 2 Kent's Com. 618; Vanada vs. Hopkins, 1 J. J. Marsh, (Ky.) 287, 19 Am. Dec. 92; Sandford vs. Handy, 23 Wendell, (N. Y.) 268. We have already shown that, under all the circumstances, a covenant of warranty here was not only usual, but appropriate and reasonable. Again, "All powers conferred must be construed with a view to the design and object of them." 1 J. J. Marsh, 287. Here, that design was manifestly in the discretion of the agent, to sell as he might deem most advantageous. Again, if a construction be in some doubt, not only may usage be resorted to for explanation (Story on Agency, p. 73; 5 D. & E. 564), but the agent may do what seems from the instrument plausible and correct, and though it turns out in the end to be wrong, as understood by the principal, the latter is still bound by the conduct of the agent. Lomaz vs. Cartwrighi, 3 Wash. C. C. 151; 2 lb. 133; 4 lb. 551; 6 Cowen, 358, in Andrews vs. Kneeland. Because the person who deals with the agent is required, like him, to look to the instrument to see the extent of the power (7 Barn. & Cres. 278; 1 Peters, 29G0; and if it be ambiguous, so as to mislead them, the injurious con- sequences should fall on the principal, for not employing clearer terms. 2 Barn. & Aid. 143, in Baring vs. Corric; 1 Peters, (IT. S.) 290; Courtier vs. Hitter, 4 Wash. C. C. 551; 23 Wend. 268. In the next place, the acts of the parties themselves, tend here to strengthen the construction of the words in the power, so as to authorize a warranty, and these acts, it is competent to consider in order to remove doubt. 17 Pick, 222; 1 Metcalf, 378; Paley on Agency, 198; Mechanics' Bank of Alexandria vs. Bank of Colum- bia, 5 Wheat. (U. S.) 326; and Bac. Abr. Covenant, F.; 5 D. & E. 564; 1 Greenleaf on Ev. § 293. The agents' acts on this subject are strong. He construed the instrument as if empowering him to make the warranty, and made it accordingly. He was to gain nothing for himself by such a course, if wrong, and does not appear to have done it collnsively with anybody. 2 Bro. eh. 638. The principal, too, when asked for redress, and when correspond- ing on the subject, does not appear to have set up as a defense, that he 25 386 Cases on Agency. [Book II did not intend, by this instrument, to authorize a conveyance with warranty. On the contrary, for some time he conducted himself towards both the agent and the plaintiff as if he had meant cove- nants should be made. 14 Johns. 238; All Saints Church vs. Lovett, 1 Hall, 191. Finally, the decided cases on this question, though in some respects contradictory, present conclusions as favorable to this construction as do the peculiar language used in the power and the weight of analogy. See 23 Wendell, 260, 267, 268; Nelson vs. Cowing, 6 Hill, 336; Vanada vs. Hopkins, 1 J. J. Marsh, 293; 13 Wendell, 521, Semble. Some earlier cases were contra. Nixon vs. Hyserott, 5 Johns. (N. Y.) 58; Van Eps vs. Schenectady, 12 Johns. (N. Y.) 436, and Ketchum vs. Evertson, 13 Johns. 365; 7 Johns. 390. But in these the power was merely to give a deed of a certain piece of property, and could be construed as it was without directly impugning our views here; whereas, in the present case, the power was manifestly broader in terms and design. Wilson vs. Troup, 2 Cowen (N. Y.) 195, 14 Am. Dec. 458; 6 Cowen, 357. The earlier cases in New York, bearing on this subject are also considered by its own courts as overruled by the later ones. Bronson, J., in 6 Hill, 336. It may be proper to add, that the general conclusions to which we have arrived are more satisfactory to us, if not more right, because they accord with what appears to be the justice of the case, which is, that the plaintiff should not keep money which would probably not have been obtained except by these very cove- nants, and which it must be inequitable, therefore, to retain and at the same time avoid the covenants. The judgment below is affirmed. Note —In Schultz vs. Griffin, (1890) 121 New York, 294, it is said: " The rule that an agent to sell personal property has implied power to warrant, in the absence of any restriction, where sale with warranty is usual and customary in similar cases, was declared in Nelson vs. Cowing, 6 Hill, 336, substantially overruling Gibson vs. Colt, 7 Johns. 490. There seems to be no well-founded distinction between real and personal property, requiring a different construction of an agency for sale in the two cases. The great preponderence of authority now is that a power without restriction to sell and convey real estate gives authority to the agent to deliver deeds with general warranty binding on the principal, where, under the circumstances, this is the common and usual mode of assurance. LeRoy vs. Beard, 8 How. Chap. Ill] Lekoy vs. Beard. 38? (U. S.) 451; Peters v. Farnsworth, 15 Vt. 155, post p. 387; Vanada vs. Hop- kins, 1 J. J. Marsh, 293; Taggart vs. Stanberry, 2 McLean, 543; Eawle on Cov. § 20, note." (15 Vermont, 155, 40 Am. Deo. 671.) PETERS vs. FARNSWORTH. (Supreme Court of Vermont, January, 18%3.) Case. Defendant, acting as attorney of Cadwallader and Astley, conveyed to plaintiff a certain lot of land, with covenants of war- ranty and seizin. Subsequently plaintiff was evicted by title par- amount. He now brought an action on the case, alleging in his declaration that defendant had falsely represented himself as pos- sessed of authority to bind Cadwallader and Astley by deed with covenants of warranty, and thereby deceived and misled him. Defendant introduced in evidence, after plaintiff had rested, the power of attorney under which he acted. The operative clause will be found set forth at large in the opinion. The court below was of the opinion that the power of attorney was insufficient to authorize the execution of the deed with covenants of warranty. Plaintiff had a verdict. H. R. & J. J. Beardsley, for the defendants. Smalley and Adams, contra. By the court, Williams, 0. J. Exceptions were taken to the decision of the county court by both plaintiff and defendant. The exception taken by the plaintiff is to the rule of damages laid down by the court. Those taken by the defendant involve the inquiry whether the plaintiff can maintain any action against the defend- ant on the facts appearing in the case; and this depends on the construction to be given to the letter of attorney from Cadwallader and Astley to the defendant, for if that letter of attorney author- ized him to execute the conveyance to the plaintiff, with the cove- nant of warranty, the suit of the plaintiff fails. In certain sales of personal property, the agent who is empowered to sell, is authorized to give a warranty of the soundness of the article sold, on the ground, as was said by Lord Ellenborough, Alexander vs. Gibson, 2 Camp. 555, that, as it is now usual, on the sale of horses, to require a warranty, the agent may fairly be pre- 388 Cases ok Agency. [Book II snmed to be acting within the scope of his authority. Were we without the authority of any adjudged case upon the subject, I should strongly incline to the opinion, that, inasmuch as it is usual and customary to insert covenants in most deeds of conveyance, more or less restricted, as the interest of grantor may require, a letter of attorney, authorizing any one to sell, and to execute deeds or assur- ances, would authorize the inserting in the deed or assurance any such reasonable covenants as are usual in such deeds, limited only by the discretion of the attorney. And it appears to me that such a principle was recognized in the case of Wilson vs. Troup, 2 Cow. (N. Y.) 195, 14 Am. Dec. 458, where it was holden, that under a power to mortgage, the agent was authorized to insert a power to sell, on default of payment. It is true, it was holden in the case of Coles vs. Kinder, Cro. Jac. 571, that on a promise to make reasonable assurance of land, the defendant was not bound to exe- cute a conveyance with ordinary and reasonable covenants; but in the case of Laffels vs. Catierton, reported in 1 Mod. 67, and in Raym. 190, it was said by Twisden that the law is altered since the Coles and Kinder case, as to covenants in a conveyance if they be reasonable. It appears to me it would but be extending the principle of the latter case to the present, to say that, under a promise, or under a power of attorney to sell and deed, a deed with a covenant to secure the title, such as is usual, should be required. The court of appeals in Kentucky have decided that a power to sell lands includes an authority to con-vey with covenants of general war- ranty. Vanada vs. Hopkins, 1 J. J. Marsh, 293, 19 Am. Dec. 92. The case of Nixon vs. Hyserott, 5 Johns. (N. Y.), 58, is, however, opposed to this view; and the authority of the latter case is recog- nized both in 7 and 12 Johns, and 2 Cowen. Upon this subject it is very desirable that the law should be considered the same in the dif- ferent states. In the case of Nixon vs. Hyserott, it is to be observed that the letter of attorney authorized the attorney "to grant, bargain, sell, release, convey and confirm in fee/' to any person, certain specified lots, and that these are the operative words made use of in the granting part of a deed, and had no reference to the species of conveyance which the attorney might adopt. The further words, "to execute," etc., " such conveyances, assurances," etc., neither enlarged, extended, nor limited the authority first given, but only left it to the attorney to adopt such conveyance as, in his judgment, might be needful to transfer the title. The letter of Chap. Ill] Peters vs. Farnswoeth. 389 attorney gave no other authority, except to sell and execute such deeds as the attorney might think necessary to effectuate the sale. It was so treated in the cases of Gibson vs. Colt, 7 Johns. (N. Y.), 390, and in Van Eps vs. Schenectady, 12 Id. 436, 7 Am. Dec. 330, where the case was mentioned. In the case before us, the letter of attorney to the defendant authorized him to do all that was necessary in relation to certain tracts of land in Bakersfield and Fairfax to obtain possession, and to " sell for the best prices, either by public auction or private con- tract, as he might think most advantageous. And upon sale thereof, or any part thereof, and on receipt of the money arising from such sale or sales, to give sufficient releases, acquittances, and discharges for the 6ame, and to sign, seal, and execute all or any such contracts, agreements, conveyances and assurances, and to do and perform all such acts and things for perfecting such sale or sales thereof, or any part thereof, as shall be requisite and necessary in that behalf." Under this letter of attorney he was bound to make such contracts as would be most advantageous to his princi- pals, and to obtain the best prices, and was authorized to make such contracts or agreements — which if under seal would be cove- nants — as were requisite; and could bind his principals thereby. He could bind them to make a good title by warranty deed, or other- wise. The authority was plenary to bind the principals by a con- tract, covenant or agreement, to secure the title to the purchaser, and he could execute a deed, conveyance or assurance, with such covenants as were necessary to procure the best prices and most advantageous terms of sale. "We think, therefore, that under this letter of attorney he was fully authorized to execute the deed to the plaintiff with the covenants therein contained, and by such covenants Cadwallader and Astley were obligated to assure the title, and the defendant did not exceed his authority and was not liable in this action. The judgment of the county court is reversed. Note. — See Kroeger vs. Pitcaim, post, p. — ; Simmons vs. More, post, p. — . 390 Cases on Agency. [Book II (5 Heiskell, 655.) LUMPKIN vs. WILSON. ( Supreme Court of Tennessee, June, 1871. ) Bill in chancery by Lnmpkin to have perfected his title to a lot of ground bought by him of one James Wilson, an agent of the owners, Mrs. Keene and Mrs. Talbot. There was a cross-bill to set aside the conveyance. Humes, Poston & Webb, for complainant. Estes & Jackson, for defendants. Sneed, J. (After stating the fact3.) In his original bill com- plainant states that the interests of Mrs. Keene and Mrs. Talbot in the lot were paid for by selling and delivering to James Wilson a stock of goods, wares and merchandise, and in his answer to the cross-bill, he repeats the substance of his original bill. The first question presented on these facts is, whether the power of attorney authorized the agent to convey the lot for goods, wares and merch- andise? And the answer to this depends upon the question, whether he was thereby constituted a general or a special agent. The power conferred was, " to bargain, sell, alien, enfeoff, transfer, and convey, by deed in fee simple, " etc., and " to do and perform any and all acts and deeds necessary to be done, in and about the premises." The agency was clearly special. It was confined to selling and conveying the lot. There were no directions or instruc- tions beyond the selling and conveying, and the doing of such things as might be necessary to carry out the power. Under this power the agent had no right to sell and convey for any other con- sideration than for money. Harrold vs. Gillespie, 7 Humph. (Tenn.) 57; Baldwin vs. Merrill, 8 Id. 132; Kenny vs. Hazeltine, 6 Id. 62. The agency being special, the power is to be strictly construed. This is the settled rule in the construction of powers of attorney, and the principal cannot be bound beyond the limits prescribed by himself. Bank of Mobile vs. Andrews, 2 Sneed, (Tenn.) 540. The distinction between a general and special agent is laid down with clearness by Judge Kent, Com. vol. 2, 806. He says: "The special authority must be strictly pursued. Whoever deals with an agent consticuted for a special purpose, deals at his peril when the agent passes the precise limits of his power." Chap. Ill] Lumpkin vs. Wilson. 391 In the case before us, the complainant says he examined care- fully the power of attorney, and had it examined by his legal adviser, and that he made the purchase upon his own judgment and that of his legal adviser that the agent had power to sell the lot for goods, wares and merchandise. He acted at his own peril, and got no title to the lot, unless the act of the agent was after- wards ratified and confirmed by the principal. * * * ( The court further held that no ratification had been shown.) Complainant's bill dismissed, and decree for complainants in the cross-bill. Note. — That power to sell land confers no power to sell on credit, see, also, School District vs. JEtna Insurance Co., ante, p. 194. II. OP AGENT AUTHORIZED TO SELL PERSONAL PROPERTY. (58 Maryland 305, 42 An. Eep. 332.) LEVI vs. BOOTH. ("Court of Appeals of Maryland, April, 1882.) Trover. The opinion states the case. The plaintiff had judg- ment below. Robert D. Morrison, for appellants. Geo. Hawkins Williams, for appellee. Alvey, J. In this case it appears that the plaintiff was the owner of a valuable diamond ring, and he placed it in the hands and pos- session of a party by the name of De Wolff, a dealer and trader in jewelry, for the purpose of obtaining a match for it, or failing in that to get an offer for it; and there is nothing in the proof to show that it was given into the possession of De Wolff for any other pur- pose, or that he was in any manner authorized to sell it. The defendants were pawnbrokers and dealt in articles of jewelry. De Wolff dealt with them and made purchases on credit, and settled from time to time; and among the articles of jewelry, he purchased diamond rings, earrings, studs, watches, etc., and became consider- ably indebted to the defendants. He appears to have been a sort of 392 Cases on Agency. [Book II street peddler of articles of Jewelry — going from place to place and disposing of his articles on the best terms he could make. He had no shop or established place of business. On the part of the defendants the evidence tended to show that DeWolff sold the ring to Henry Levi, one of the defendants, for a certain price — part paid in cash and the other part in goods. But on the part of the plaintiff, proof was given that before such alleged sale, Henry Levi had been informed that the ring belonged to the plaintiff, and that DeWolff had no power or authority to sell it. DeWolff, as witness, proved that he left the ring with Henry Levi to obtain an offer for it, but with no authority to sell it; while on the other hand, Henry Levi testified that he purchased the ring of DeWolff, supposing him to have been the real owner of it. It was also proved by the admission and statement of Henry Levi, when demand was made of the defendants by the plaintiff for the ring, that the ring had been sold to some person whose name he did not know or could not furnish. The plaintiff brought his action in trover for the conversion of the ring, and recovered a verdict and judgment for the supposed value thereof. At the trial, upon the evidence offered, the plaintiff submitted two prayers for instruction to the jury, and they were both granted, and the defendants submitted six prayers, all of which were refused; and to the ruling of the court in respect to ihese several prayers the defendants excepted. Upon these prayers thus submitted, three principal questions are presented: 1. Supposing it to be true, as contended by the defendants, that DeWollf did sell the ring to Henry Levi, one of the defendants, as if he were the owner thereof, when in fact he was not the owner, and had no express authority to sell it, whether under the facts disclosed in the evidence, such sale was good and effective at the common law as between the defendants and the real owner? 2. If not, whether such sale was good and effective in view of the facts disclosed, as between the real owner of the ring and the defendants under the provisions of what is known as the Factor's Act, Code, art. 3, § 4? 3. If neither of the defendants acquired title to the ring, whether under the facts of the case, there was such conversion thereof by the defendants, or one of them, as would entitle the plaintiff to recover? Chap. Ill] Levi vs. Booth. 393 1. It is certainly a well-established principle of the common law, founded as it would seem upon a maxim of the civil law, nemo plus juris in alium transferre potest quam ipse habet, that a sale by a person who has no right or power to sell is not effective as against the rightful owner. Sales made in market overt were an exception to this general rule; but the old Saxon institution of market overt has never been recognized in this state, nor, as far as we are informed, in any of the United States. Browning vs. Magill, 2 H. & J. 308; Moiorey vs. Walsh, 8 Cow. 238; Dame vs. Baldwin, 8 Mass. 518; Yentress vs. Smith, 10 Pet. 175. At common law, therefore, a person in possession of goods can- not confer upon another, either by sale or pledge, any other or better title to the goods than he himself has. To this general rule there is an apparent exception in favor of bona fide purchasers or pledgees, where the party in possession making the sale or pledge has a title defeasible on account of fraud, or by reason of a condition in the contract of sale under which he holds. Hall vs. EinJcs, 21 Md. 406; Donaldson vs. Farwell, 93 U. S. G31. There- fore, to make either a sale or pledge valid as against the real owner, where the sale or pledge is made by another person, it is incumbent upon the person claiming under such sale or pledge to show that the party making it had authority from the owner. Cole vs. Korthioestem Bank, L. R., 10 C. P. 354, 3G3; Johnson vs. Credit Lyonnais, 2 C. P. Div. 224, affirmed on appeal, 3 Id. 32. If, however, the real owner of the goods has so acted as to clothe the seller or pledgor with apparent authority to sell or pledge, he will even by the common law be precluded from deny- ing, as against those wlio may have acted bona fide on the faith of that apparent authority, that he had given such authority, and the result as to them is the same as if he had really given it; but it is, of course, otherwise in respect to those who may have acted with notice of the want or limitation of authority in point of fact. This principle of estoppel, as applied to sales or pledges of goods or merchandise, is aptly and completely illustrated in the familiar and often cited case of Pickering vs. Bush, 15 East, 38. The case was decided before the passage of any of the English Factor Acts, and the facts were that the true owner had bought parcels of hemp through Swallow, who was a broker and an agent for sale. At the instance and request of the plaintiff, the real owner, the hemp was transferred on the books of the wharfinger from the name of the seller to that of Swallow, who without express authority from 394 Cases on Agency. [Book II the owner afterwards sold it. In an action of trover by the real owner, to recover for the conversion of the hemp thus sold, it was held that the transfer on the books of the wharfinger by the direction of the plaintiff to the name of Swallow authorized the latter to deal with the hemp as owner with respect to third persons, and that the plaintiff, who had thus enabled Swallow to assume the appearance of ownership to the world, should abide the conse- quences of his own act. Lord Ellenbokough said: "It cannot fairly be questioned in this case but that Swallow had an implied authority to sell. Strangers can only look at the acts of the parties, and to the external indicia of property and not to the private com- munications which may pass between a principal and his broker; and if a person authorize another to assume the apparent right of disposing of property in the ordinary course of trade it must be presumed that the apparent authority is the real authority." And in conclusion he said: " The sale was made by a person who had all the indicia of property; the hemp could only have been so transferred into his name for the purposes of sale, and the party who has transferred it cannot now rescind the contract. If the plaintiff had intended to retain the dominion over the hemp, he should have placed it in the wharfinger's books in his own name." The same principle, though applied in a case quite different in its circumstances, was adopted by this court in the case of Lister vs. Allen, 31 Md. 543. And in the recent English cases of Cole vs. Northwestern Bank, L. R., 10 C. P. Ex. Ch, 354; Johnson vs. The Credit Lyonnais, 2 C. P. Div. 224, affirmed on appeal, 3 Id. 32; and City Bank vs. Barrotv, 5 App. Cas. H. L. 664, the same principle with its proper limitations was fully expounded, both as it exists at the common law, independently of statute, and as it has been modified by what i3 known as the Factors' Acts; and those cases fully and clearly maintain the principles we have stated. In this case there is no evidence that there was any express authority by the plaintiff to DeWolff to sell the ring, though there is evidence that DeWolff was authorized to procure an offer for it. This of course reserved to the plaintiff the right to accept or reject the offer if one was made. With this limitation of authority there can be no question of the principle propounded in the plaintiff's first prayer; for that goes upon the hypothesis that there was no sale in fact to Levi, but that the ring was simply left with the defendants, and that they afterwards without other authority sold it. If it be true that there was no sale to the defendants, or one Chap. Ill] Levi vs. Booth. 395 of them, and that they, simply having the possession and without authority for so doing, sold or disposed of the ring, it is clear they were wrongdoers, and therefore liable for the conversion. This was the theory and principle upon which the plaintiff's case appears to have been presented in the court below. 2. But on the part of the defendants the case was presented in a different aspect. According to the theory of the fourth, fifth and sixth prayers of the defendants, there was a sale by De Wolf to the defendants, or one of them, and the court was asked by the fourth and fifth prayers to instruct the jury that if they found that De Wolff was a dealer in jewelry, and with knowledge of that fact the plaintiff intrusted him or intrusted him as agent with the possession of the diamond ring, and thereby put it in his power to act as apparent owner thereof, and that the defendants acted upon the faith of such apparent ownership, and purchased the ring for value and without notice of the ownership of plaintiff, then the plaintiff could not recover. The sixth prayer proposed to submit to the jury to find whether the ring had not been delivered or intrusted to De Wolff by the plaintiff, with authority to sell or dispose of it under certain limi- tations as to price. But, as we have already said, there was no evidence of such authority being delegated to De Wolff and the court therefore would not have been justified in submitting that question to the jury. That prayer, therefore, was properly refused. But with respect to the propositions involved in the fourth and fifth prayers, other and different considerations are presented. Independently of the provisions of the statute in regard to the dealings with agents and factors,, it is very clear, upon the princi- ciples that we have already stated, that the bare possession of goods by one, though he may happen to be a dealer in that class of goods, does not clothe him with power to dispose of the goods as though he were owner, or as having authority as agent to sell or pledge the goods, to the preclusion of the right of the real owner. If he sells as owner there must be some other indicia of property than mere possession. There must, as in the case of Pickering vs. Busk, supra, and more fully expounded and illustrated in Jolmson vs. The Credit Lyonnais, mpra, be some act or conduct on the part of the real owner whereby the party selling is clothed with the apparent ownership, or authority to sell, and which the real owner will not be heard to deny or question to the prejudice of an inno- 306 Cases on Agency. [Book II cent third party dealing on the faith of such appearances. If it were otherwise, people would not be secure in sending their watches or articles of jewelry to a jeweler's establishment to be repaired, or cloth to a clothing establishment to be made into garments. If De Wolff, instead of being a mere peddler of jewelry, had occupied a shop where he carried on the business of a jeweler, and the ring had been left with him, either to be mended, or reset, or to be exposed to inspection in order to procure an offer for it, without any authority to sell it, we suppose it to be clear, that the owner could not have been divested of his property by an unauthorized sale by the jeweler under such circumstances. And if he could not be divested of his property by sale under such circumstances, we do not perceive how the present case could be distinguished, in prin- ciple, from that just stated. (Omitting the other questions.) Upon the whole record we find no error in any of the rulings excepted to, and we must therefore affirm the judgment. Judgment affirmed. (105 New York, 283, 59 Am. Rep. 502.) SMITH vs. CLEWS. (New York Court of Appeals, April, 1887.) Action to recover personal property. The opinion states the case. The plaintiff had judgment below. Albert A. Abbott, for appellant. Charles H. Woodbury, for respondent. Peckham, J. This is an action under the code to obtain the delivery of personal property alleged to belong to plaintiffs and to be wrongfully withheld by defendant. The plaintiffs had a verdict which was affirmed at General Term, and the defendant has appealed here. The plaintiffs claimed to be the owners of what they called a pair of diamond ear-knobs, of the value of $1,400, which came into the possession of defendant, as shown by tho evidence in the following manner. Elijah Miers was a dealer in diamonds in New York. His business was to procure diamonds from the larger dealers and sell them to his customers. Before the 13th of January, 1879, he had Chap. Ill ] Smith vs. Clews. 397 procured from an authorized agent of the plaintiffs a pair of diamond ear-rings which on that day he had sold to the defendant for $300, and had received the check of defendant, payable to his order in payment therefor. Before the 23d day of January, 1879, Miers had procured another pair of ear-rings from plaintiffs' said agent, and sold them on that day to defendant for $450, receiving in payment the first pair of ear-rings and the check of defendant for the balance of $150. Miers paid to plaintiffs' agent the price of these diamonds after the sale to defendant. The defendant had purchased them in good faith from Miers, assuming him to be the owner. He intended the first pair as a present for his wife, but when shown to her she preferred a more expensive pair, and hence the second purchase. These also proved unacceptable, and it was some time after their purchase by defendant before the diamonds in question were pre- sented to him for purchase, he having in the meantime kept the second pair, and upon the purchase of the diamonds in question of the same man Miers, he gave back the second pair and paid $G50 in addition, thus making $1,100, the purchase-price of these last diamonds. There is no question of the lona fides of the series of purchases by the defendant. The evidence is uncontradicted as to the man- ner in which Miers obtained the last diamonds from the plaintiffs. They had delivered them to Plumb, the diamond broker, who had delivered the other diamonds to Miers. One of the plaintiffs was asked how it happened that he delivered these diamonds to Plumb, and he testified that he could not say whether it was at Miers' request or not, but that Miers had called on him before he delivered them to Plumb and had said to him that he had a customer for a pair of diamond ear-knobs, and although the plaintiff could not say that he told Miers that he would send him the diamonds through Plumb, yet he says he stated to Plumb that he would do so, and he did so, and authorized Plumb to deliver the diamonds to Miers and that that is the way Miers got them. The witness also said he knew Miers had the diamonds in his possession immediately, that they were taken from the plaintiffs' office and delivered to Miers by Plumb; they were delivered to Plumb on the 12th of April, and by him to Miers on that day. When Plumb delivered them to Miers he took from him a receipt in this form: "New York, April 12, 1879. "Received from Alfred H. Smith & Co. by their representative, 398 Cases on Agency. [Book II B. W. Plumb, a pair of single stone diamond earrings 10-J carats, of the value of fourteen hundred dollars, on approval to show to my customers, said knobs to be returned to said A. H. Smith & Co. on demand. "E. Miers." Having thus become possessed of the diamonds, Miers, as has been stated, sold them to defendant, and the question is, did he get a good title as against the plaintiffs? Taking the undisputed evidence and reading this receipt in the light thereof, we cannot resist the conclusion that the plaintiffs con- ferred upon Miers the power to sell these diamonds and of course to give a good title, and therefore the court should have directed a verdict for the defendant. The plaintiffs were dealers in diamonds and they knew Miers and that he was engaged in the business of a diamond dealer — a seller of the stones to whomever he chose. They had on two former occasions intrusted, through their agent, diamonds to Miers, who had sold them and accounted for the pro- ceeds of the sale without any fault being found so far as appears on account of any lack of authority to sell. They were informed by Miers on this particular occasion, that he had a customer for a pair of diamond ear-rings, and these dia- monds were then intrusted to Miers by the plaintiffs, through their agent, Plumb. Upon taking them, Miers gave the receipt spoken of. Now, upon these facts, what other meaning can be attached to that receipt than that Miers had power to take these diamonds, show them to his customer, and if approved of by the customer, sell them to him? The fact that Miers agreed to return them to plaintiffs on demand, must be construed with reference to the obvious purpose for which the diamonds were intrusted to him, viz.: that of a sale; and so construed, the plain meaning is that if not already sold, the plaintiffs had the right to demand the return of the diamonds any time, and Miers would then be bound to return them. The information given to plaintiffs, by Miers, that he (Miers), had a customer for a pair of diamond ear-knobs, is sus- ceptible of no other interpretation than that he had a customer who wanted to buy a pair. Under such circumstances, what could a dealer in diamonds mean by intrusting them to another dealer who had a customer who wanted to buy them, and who came to this dealer for the purpose of being supplied by him with diamonds of a kind which his customer wanted to buy? Enlightened by these facts, the interpretation of the receipt Chap. Ill ] Smith vs. Clews. 399 signed by Miers is an easy matter. It can mean nothing else than an authority to sell the stones to the customer if they met his approval, and if not actually sold before demand made, they should be returned to the plaintiffs upon such demand. This conclusion as to what was the actual authority given to Miers does not in the least affect the propriety of the decisions cited by the counsel for the respondents and in the opinion of the court at General Term, to the effect that one intrusted simply with the possession of personal property, with no power to sell or pass title, cannot give title to the property even to a bona fide purchaser for value. The question here is simply what was the authority with which the man Miers was clothed, and upon the undisputed evi- dence in the case, we hold it was an authority to sell. The judgment of the General Term and of the circuit should be reversed, and a new trial ordered, costs t( abide the event. All concur. Judgment reversed. Note.— bee, also, Towle vs. Leavitt, ante, p. 308. (55 Wisconsin 515, 42 Am. Rep. 740.) McKINDLY vs. DUNHAM. ( Supreme Court of Wisconsin. August, 1882.) Action for price of goods. The opinion states the facts. The defendant had judgment below. Geo. D. Waring and T. C. Ryan, for appellant. W. W. D. Turner, for respondent. Orton, J. A short time before August 11, 1879, one W. L. Kilbourn called upon the defendant at Berlin, Wisconsin, exhib- ited the cards of the plaintiffs' house in Chicago, and solicited and obtained from the defendant an order for 1,000 cigars of a certain brand upon, and sent the same to, the plaintiffs, and the plaintiffs on that day shipped the cigars and sent the bill thereof ($30 at sixty days) to, and they were duly received by, the defendant. About thirty days thereafter the said Kilbourn called upon the said defendant and asked him " if he would just as soon pay him for those cigars as not," and the defendant replied " that he would as soon pay it then as any other time," and paid the same, and said Kilbourn receipted the original bill produced by the defend- 400 Cases on Agenci. [Book II ant in the firm name of the plaintiffs by himself. Kilbourn's real authority as agent of the plaintiffs was to solicit from country merchants orders on them for goods, and if such orders were accepted and filled, Kilbourn was entitled to a small commission thereon. We have no evidence of what the terms of this order were, and are left to presume that it was a mere order or request by the defendant to the plaintiffs for 1,000 cigars, and perhaps at a certain price. The main question in the case is the authority of Kilbourn to receive payment of this bill. There is no proof of numerous or indeed of any other acts done by this agent of this character, with the express or tacit consent of the plaintiffs, or of any general habit of dealing, or of any other transaction between these parties of any kind, or that the real scope of his authority beyond what appeared was disclosed at this time. There is nothing besides this one transaction from which his authority and the full scope of his authority can be implied or inferred. It is his apparent or ostensible authority in this one act to do another act of the same kind, and nothing more. The only question here is, what was his apparent or ostensible authority in this one act? " His implied agency cannot be construed to extend beyond the obvious purposes for which it was apparently created." "The intention of the parties, deduced from the nature and circumstances of this particular case, constitutes the true ground of exposition of the extent of his authority. " Story on Agency, § 87; Wright vs. Hood, 49 Wis. 235. A principal is responsible for any act of his agent which justifies a party dealing with him in believing that he has given the agent his authority to do such act (1 Pars, on Con. 44; Kasson vs. Noltner, 43 Wis. 637); or as Pothier says, " if the agent does not exceed the power with which he was ostensibly invested." This agent did not appear or pretend to have any other authority from the plaintiffs than to solicit orders for goods, and send them to the plaintiffs. This is all he did in this case, and all he pretended he had authority to do. In this case he could not possibly do his principal any harm. To this extent they authorized him and trusted him; but they might not have been willing to trust him further with the large and dangerous power of receiving payments, and they did not, so far as is possible to infer from this transaction. But it is said by the learned counsel of the respondent the agent Kilbourn sold the goods to the defendant, and in this power to sell is implied the further power to receive the consideration or Ohap. Ill ] McKindlt vs. Dunham. 401 payment therefor, and the learned judge of the circuit court in effect so charged the jury, as follows: " Presumptively, Mr. Dun- ham had the right to pay this bill to the person from whom he purchased the goods" (meaning Kilbourn the agent); and again: "The plaintiffs sending the goods to Dunham upon that sale or order,presumptively Kilbourn had the right to collect that debt." If what Kilbourn did could properly be called a sale of the goods, even then this instruction is questionable as an abstract statement of the law; for it does not always, as a general rule, follow that the power to collect the moneys upon them is included in the power of an agent to make contracts for his principal. Story on Ag. § 98; Higgins vs. Moore, 34 N. Y. 417; Mynn vs. Joliffe, 1 Moody & K. 326. But the agent did not sell the goods or even contract to sell them. When the defendant had completed his transaction with Kilbourn, there had been no binding contract made, or any sale, absolute or conditional. The defendant could have countermanded his order at any time before the goods were shipped, and the plaintiffs could have refused to accept the order. Neither party had become bound by anything then done. The order of the defendant was a mere proposal, to be accepted or not, as the plaintiffs might see fit, and he could have withdrawn it before its acceptance. The minds of the parties had not met, and there had been no mutual assent or aggregatio mentium. Benj. on Sales, §§ 40, 70; Johnson vs. Fillcington, 39 Wis. 62. Even as a broker (and he was less rather than more in the authority he exercised in this instance), he need not even see to the delivery of the goods (Story on Sales, § 85); and if his negotiation had been broken off, and the contract not finally completed, he would not be entitled to his commissisons. Story on Sales, § 86. As is said in Higgins vs. Moore, supra, "The duty of a broker, in general, is ended when he has found a purchaser, and has brought the parties together. He is a mere negotiator or middleman between the seller and purchaser." It is only in cases where the broker has possession of the goods that he can sell, and in that case, even, if he parts with the securities he receives on the sale to his principal, his implied authority to receive payment, if he had any, ceases with their possession. Strachan vs. Muxlow, 24 Wis. 1. Aside from the clear and obvious reason from the general principles of bargain and sale, and principal and agent, why Kilbourn was not author- 26 402 Cases on - Agency. [Book II ized to receive payment as the agent of the plaintiffs in this case, the four following cases, all of them closely analogons, and two of them precisely parallel, are abundant authority: Baring vs. Cor- rie, 2 B. & Aid. 137; Higgias vs. Moore, supra; Kornemann vs. Monaghan, 24 Mich. 36; Clark vs. Smith, 88 111. 298. It follows, therefore, that so far the circuit court committed two flagrant errors: First, in ruling and instructing the jury that Kil- bourn, as agent of the plaintiffs, made a sale of the goods to the defendant, and was authorized so to do; and, secondly, that if he did sell the goods, he had therefore authority to receive payment therefor. We omit to consider, whether admitting both these propositions, he could have received payment before it was due according to the terms of the assumed sale, or whether the fact of his proposing payment so long before due did not cast suspicion upon his act, especially as he had not been intrusted with the bill of the goods even, and did not pretend that he had authority to receive payment; leaving to the defendant the mere voluntary act of payment, in answer to the request, " If he would just as soon pay him for those cigars as not." We have so far treated the case as if nothing else appeared on the face of the bill of goods or figured in the transaction, for this is the most favorable treatment of the case for the defendant. We might omit entirely this other element in the case, if it were not passing over evidence of authority in the agent to receive payment in this particular case, by construction or presumption, and silently sanctioning a judicial practice which we cannot approve. On the face of the bill sent to the defendant, and directly under his address, there appears in large, legible print, in red ink, as if stamped upon it, the words, " Agents not authorized to collect." Through these words, lengthwise, appears drawn a pen line in dark ink as an erasure. The positive testimony of one of the plaintiffs, at least, is that such erasure was not there when the bill was sent to the defendant. The testimony of the defendant and in his behalf was only that it was there when the bill was paid, and that neither the words nor the erasure were observed when it was received. It might well be said that there was no contradiction of the testimony of the plaintiffs that the erasure was not made before the bill was sent to the defendant, and that such fact was at least prima facie established. Even on that hypothesis, the Circuit Court refused to instruct the jury, as requested by the counsel of the Chap. Ill] McKindlt vs. Duniiam. 403 appellant, that these words were notice to the defendant whether he saw them or not. We think this was clearly erroneous. If these words, so legible and prominent on the face of the bill, would not be notice, it would seem to be impossible to give a pur- chaser such a notice. By all authorities he must be presumed to have observed these words, and to have had such notice, when they were so prominent on the face of a bill of goods in his possession, and in which he alone was interested as purchaser. It might as well be said that the contents of any written or printed notice of any kind, or for any purpose, were not presumed to have been brought home to and to be known by a party on his receipt of the notice. It is the law, and ought to have been given as asked, and not left to the problematical finding of the jury. Mamlock vs. Fairbanks, 46 Wis. 415. (Omitting a minor point). The judgment of the Circuit Court is reversed, and the cause remanded for a new trial. Judgment reversed. Note.— See, also, Putnam vs. French, 53 Vt. 402, 38 Am. Rep. 682; Trainor V8. Morrison, 78 Me. 160, 57 Am. Rep. 790. (75 Wisconsin, 619.) HIBBARD vs. PEEK (Supreme Court of Wisconsin, January, 1890. J Action by Hibbard, Spencer & Bartlett against George W. Peek, to recover for goods sold and delivered. Miles & Shea, for appellant. Tomkins, Merrill & Smith, for appellee. Cole, C. J. * * * The real contest in the case is upon the counter-claim or offset of the defendant for commissions. The facts on which the counter-claim arises are stated by the defendant in his testimony substantially as follows: " Benrut [the plaintiff's salesman] came to my store at Ashland, and asked if I wanted some goods. I told him I thought so; I would look around. I asked him how he would like to take a stock order. lie Baid, ' That is what I would like/ and said: 'Where is it?' I said I wanted something for it. I generally charge for information that is valu- 404 Cases on Agency. [Book II able. He wanted to know what I wanted, and I told him five per cent, on the amount. He asked me who it was, and I said: * You give me five per cent, and I will tell you. He said he did not know about it; that he would take a little while, and go over to Garnich's. He went into Garnich's, and came back, and said he knew who that party was, and said it was Nelson. I said, ' That is right, but/ I said, ' it won't do you any good/ as I was positive he could not get the order without me; and he said: 'I will give you five per cent. Give me the order/ I dictated an order, and told Bennet to deliver it to Nelson/' It appears that Bennet took this order or letter, and went to Washburn, and sold a bill of goods, amounting to $2,300 or $2,400, to Nelson. Nelson testified, in effect, that he did not buy on the defendant's credit, and that the only influence that the defendant's letter had upon him was that the defendant recommended the firm, and that he bought on that ground; that he knew the house before, and that it had been recom- mended to him by half a dozen other men; that he probably should have bought the same stock if the defendant had not sent the letter. Now, upon these facts, is there any ground for holding that there was a valid contract entered into between Bennet and the defendant to pay the 5 per cent, commissions on the bill of goods sold Nelson? There is surely no ground for claiming that Bennet had any authority from the plaintiff to give such commissions for any aid or information which the defendant might give or render in making the sale. The secretary of the plaintiff corporation testifies distinctly and positively that the agent who sold the goods to the defendant had no authority to promise the defendant a commission on goods sold to other people, or to Nelson, and that such promise, if ever made, was never ratified or confirmed so as to make it binding on the principal. Indeed, the evidence is per- fectly satisfactory and conclusive that the plaintiff never gave its traveling salesmen any authority whatever to grant commissions, or even credits, on goods sold by them. It is clear, therefore, that Bennet had no express authority to bind his principal to pay the defendant commissions on goods sold Nelson, even if such a contract were made. Had he an implied authority, growing out of the usage or custom in the hardware trade to render his principal liable for such com- missions? On this point, depositions were taken of a number of traveling salesmen, representing hardware houses in Detroit, Chi- cago and Milwaukee, who testified that it was customary for travel- Chap. Ill ] Hibbaed vs. Peek. 405 ing men, in that line of business, to agree to pay, and to pay, com- missions to third parties for procuring orders, and that such con- tracts were sanctioned by the different houses which they represented. But there was considerable countervailing proof on this question of custom; and the circuit court held that the alleged custom, espe- cially iu Chicago and Ashland, was not sufficiently established to warrant submitting the case to the jury on the alleged usage. On that point, we think, the learned circuit court was clearly right. We do not think there was any proof given of a custom or usage in the hardware trade of traveling salesmen paying such commis- sions, or agreeing to pay them, which was sufficiently long-con- tinued and uniform so that the court would be justified in assum- ing that the parties contracted with reference to it, or that the salesman had authority to bind his principal to pay such commis- sions by reason of its existence. The practice of a considerable number of houses in the hardware trade of giving their traveling salesmen authority to pay such commissions would not warrant a court in presuming that agents generally had such authority who were sent out by hardware houses to sell their goods. The authority of an agent in any given case is incident to the character bestowed upon him by the principal. If the principal has, by his express act, or as the logical result of his words or con- duct, impressed upon the agent the character of one authorized to act and speak for him in a given capacity, authority so to speak and act follows as a necessary incident of the character, and the principal, having conferred the character, will not be heard to assert, as against third parties who have relied thereon in good faith, that he did not intend to impose so much authority, or that he had given the agent express directions not to exercise it; and where the principal confers upon the agent an authority of a kind, or empowers him to transact business of a nature, in reference to which there is a well-defined and publicly-known usage, it is the presumption of law, in the absence of anything to indicate a con- trary intent, that the authority was conferred in contemplation of the usage. Mechem, Ag. §§ 278, 281; Whart. Ag. §§ 134, 676, 696. The usage of a particular trade or business, or a particular class of agents, may be shown, not for the purpose of enlarging the powers of the agent employed therein, but for the purpose of interpreting those powers which are actually given; for the means ordinarily used to execute the authority are included in the power, 406 Oases on Agency. [Book II and may be resorted to by all agents, and especially by commercial agents. Story, Ag. § 77. But the evidence of the usage, in a case like this, should be clear and satisfactory, and should show that the usage has so long continued, and has -been so uniform, that merchants in that kind of business may be presumed to authorize their agents to sell their goods in the ordinary way in which such goods are sold, and in reference to such custom. The evidence, in the present case, falls far short of establishing the usage or custom in the hardware business of traveling salesmen making contracts on behalf of their principals to pay commissions to third parties for aid in procuring orders from those to whom goods are sold. It is quite clear that the defendant's recommendation sent to Nelson, did not have any influence upon the latter in inducing him to make the purchase he did; but, had the fact been otherwise, we do not think the plaintiff was bound, by the contract of Bennet, to pay the defend- ant the commissions he claims, as it was beyond the scope of his authority to make such a contract. It follows from these views that the judgment of the circuit court must be affirmed. Note. — See, also, Adams vs. Pittsburgh Ins. Co. 95 Penn. St. 348, 40 Am. Rep. 663; Day vs. Holmes, 103 Mass. 806; Daylight Burner Co. vs. Odlin, 51 N. H. 56, 12 Am. Rep. 45; Randall vs. Keillor, 60 Me. 37; Upton vs. Suffolk County Mills, 11 Cush. (Mass.) 586, 59 Am. Dec 163: Pickert vs. Marston, post. p. 411 . (80 Maine, 496.) BILLINGS, TAYLOR & COMPANY vs. MASON. (Supreme Judicial Court of Maine, August, 1888. J The opinion states the facts. Wiswell, King & Peters, for plaintiff. Hale & Hamlin, for defendants. Danforth, J. In this action no material facts are in dispute. The court, allowing certain alleged payments, directed a verdict for the balance, to which order the plaintiff excepts, on the ground that no part of such payment should be allowed. <3hap. Ill ] Billings, Taylor & Co. vs. Mason. 407 The action is assumpsit upon an account annexed. The defend- ant admits that he received from the plaintiff the goods charged and makes no question as to the prices. This makes a prima facie case against him, and though technically it does not change the burden of proof, it devolves upon him, if he would avoid this responsibility, to give some reason why. The explanation offered by the defendant is that, though he received the goods from the plaintiff, he received them by virtue of an express agreement with an agent or traveling salesman of the plaintiff, one element of which was that certain goods, of a like kind which the defendant then had should be taken in payment. This agreement with the agent is not questioned, but the answer to it is two-fold; first, that the agent had no authority to make such a contract, and secondly that the contract under which the action is sought to be maintained was made directly with the plaintiff, though in some degree through the instrumentality of the agent. Assuming under the first that the agent had no authority to make the contract he did, and the evidence is quite conclusive upon that point, still it does not change the conceded fact that he not only assumed the authority to do so, but did actually make such a contract. Waiving for the moment the second point raised, this wa s the only contract having the assent of the defendant, the contract under which he acted and by virtue of which he obtained the goods. It is quite clear that the plaintiff cannot hold him upon a contract he did not make or repudiate the contract in part and hold the remainder valid. Brigham vs. Palmer, 3 Allen, 450-452. Nor can he be holden upon an implied contract, for that is excluded by the express. The second point relied upon by the plaintiff must fall with the first. True, the order for the goods was sent to the principal, pre- sumably by the agent, with the consent of the defendant. But as to the nature of the order received there is a singular absence of testi- mony, though we have the evidence of the plaintiff's business man- ager. Whether it was accompanied with a statement of the con- tract it does not appear. It is certain the agent had no authority to send any other, and by no other would the defendant be bound. He had a right to suppose that the plaintiff's own agent would send the order correctly, and that when he received the goods they were sent according to the contract. If such were the case, the contract of the agent would be affirmed by the principal, in sending the goods. If such were not the case, the defendant would certainly 408 Oases on Agency. [Book II be no more bound than the plaintiff, who first gave credit to the agent. This case differs materially from that of Clongh vs. WJiitcomb, 105 Mass. 482, in which an order in writing signed by the defend- ant, was sent to the plaintiff; nor is it like that of Finch vs. Mans- field, 97 Mass. 89, in which the agent did nothing more than solicit an order and forward it as received for the action of his principal. But in the principle involved this case is like that of Wilson vs. Sfratton, 47 Maine, 120, in which the agent assumed to make the contract of sale with some conditions, and it was held that the contract was not completed until the conditions were com- plied with. It is not, however, now a question as to the validity of the con- tract made, but what was that to which the defendant assented. He can be held to that and to no other. In any view we can take of the case there seems to be no doubt as to the terms of the agree- ment to which his assent was given. If that was a valid contract the ruling was clearly correct. If it was not, the ruling was more favorable to the plaintiff than it was entitled to in this form of action. In either case the exceptions must be overruled. (90 North Carolina, 101, 47 Am. Rep. 616.) HUNTLEY vs. MATHIAS. (Supreme Court of North Carolina, February, 1881>.) Action of damages for over-driving a horse hired by a traveling agent of the defendant. The opinion states the point. The plaint- iff had judgment below. Little and Parsons and Haywood & Haywood, for plaintiff. J. A. Lockhart and S. T. Ashe, for defendants. Merrimon, J. In the absence of any written instrument, agencies in many cases arise from verbal authorizations, from implications, from the nature of the business to be done, or from the general usages of trade and commerce. It is a general principle, applicable in all such cases, whether the agency be general or special, unless the inference is especially nega- tived by some fact or circumstance, that it includes the authority to Chap. Ill] Huntley vs. Mathias. 409 employ all the usual modes and means of accomplishing the pur- poses and ends of the agency, and a slight deviation by the agent from the course of his duty will not vitiate his act, if this be imma- terial or circumstantial only, and docs not, in substance, exceed his power and duty. Such an agency carries with and includes in it, as an incident, all the powers which are necessary, proper, usual and reasonable, as means to effectuate the purposes for which it was created, and it makes no difference whether the authority is general or special, expressed or implied, it embraces all the appro- priate means to accomplish the end to be attained. The nature and extent of the incidental authority, in such cases, turn oftentimes upon very nice considerations of actual usage, or implications of law, and it is sometimes difficult to apply the true rule. Incidental powers are generally derived from the nature and purposes of the particular agency, or from the particular business or employment, or from the character of the agent himself. Some- times the powers are determined by mere inference of law; in other cases by matter of fact; in others by inference of fact and in others still to determine them becomes a question of mixed law and fact. Story on Agency, §§ 85, 97, 100; Gilbraith vs. Lineberger, 69 N. C. 145; Eatzenstcin vs. Railroad, 84 Id. 688; Bank vs. Bank, 75 Id. 534; Williams vs. Windley, 86 Id. 107; 1 Wait Act. & Def. 221, 230. In the case before us the allegations of the complaint are very general and the evidence is meagre, but applying the rules of law above stated to the whole case, we think the court properly held that there was evidence to go to the jury in respect to the authority of the agent to hire the horse. It is alleged in the complaint that Mathias was the agent of the defendant corporation, and this is admitted in the answer, and the evidence went to show that the object of the agency was, that the agent should travel about the country, from place to place, and sell steam engines for his principal. Now, common experience and observation show, that generally, a man, whether as principal or agent, going about the country from place to place, and in various directions, to sell steam engines or merchandise of any kind that people generally purchase, does not go on foot, but on railroads when he can, on horseback, or in light, convenient vehicles. This is done almost uniformly, with a view to expedi- tion as well as the reasonable comfort of the person traveling. In the general order of things this is done, and it is reasonable an^ 410 Cases on Agency. [Book II proper that it should be. And ordinarily, where an agent is sent out on such service, his principal fnrnishes the means of trans- portation. This is not, perhaps, uniformly, but it is generally so, and if there is not a legal presumption of authority in the agent to hire a horse or vehicle for the purpose of getting from place to place, the fact certainly raises the ground for an inference of fact to that effect, to be drawn by the jury. The nature of the agency in this case rendered it necessary that the agent should from time to time have a horse to enable him to get from one place to another, and this gives rise to the inference that his employer gave him authority to hire one. The corporation defendant sent its agent out to travel from place to place to sell its goods, and it gave him credit as a trustworthy man in and about the business of the agency. In view of the habits of men, the cus- tomary course of business, especially the custom in such agencies as that under consideration, there arose the ground for an inference that the jury might properly draw, not conclusive in itself, but to be made and weighed by the jury, to the effect that the agent Mathias had authority to hire the horse for the purpose of his agency. Katzenstein vs. Railrood, supra; Bank vs. Bank, supra; Bentley vs. Doggett, 51 Wis. 224, s. c. 37 Am. Rep. 827. That the prin- cipal is liable to third persons for torts, deceits, frauds, malfeas- ance and non-feasance and omissions of duty of his agent in the course of his employment, cannot be questioned, even though the principal did not authorize, justify or participate in or know of such misconduct. Story on Agency, 452 et seq.; Jones vs. Glass, 13 Ired. 305; Cox vs. Hoffman, 4 Dev. & Bat. 180 {ante, p. 39). The evidence in this case tended to show, and the jury found, that the agent hired the horse in the course of the business of his agency, and for the benefit of his principal, and while he had pos- session of and used the horse in the course of his business he neg- ligently and carelessly drove him too rapidly, or otherwise mal- treated him, whereby he was seriously injured to the damage of the plaintiff. The court fairly left the question of authority in the agent to hire the horse, and the character and extent of the injury to him to the jury, and we cannot see that the defendant has any just ground of complaint. There is no error, and the judgment must be affirmed. No error. Chap. Ill ] Pickeet vs. Maestou. ±11 (68 Wisconsin, 465, 60 Am. Rep. 876.) PICKERT vs. MARSTON. {Supreme Court of Wisconsin, January, 1887.) Action on account for goods. Defense, breach of warranty of other goods. The opinion states the facts. The defendant had judgment below. Bleekman, Tourtellote & Blooming dale, for appellant. 0. L. Hood, for respondents. Cassodat, J. The evidence is undisputed that the fish were in good condition when shipped to the defendants from Boston, and worthless when they reached the defendants at LaCrosse. The defendants made the contract of purchase at LaCrosse with the plaintiff's traveling salesman, who resided at Chicago. There was evidence tending to prove that the fish shipped were not the fish ordered; and also, that by the terms of the contract, the fish ordered were guaranteed by the traveling salesman to reach the defendant in LaCrosse in good merchantable condition. The evidence on the part of the plaintiff was to the effect that the traveling salesman had no authority to make such guaranty, nor any assurance as to the condition in which the fish should be on reaching LaCrosse; and that he so informed the defendants about a month prior to the taking of the order in question. The issue made does not arise between the principal and agent, but between the principal and the defendants who made the con- tract of purchase with the agent. The agency and the right to contract for the sale are admitted. But the authority to make the guaranty or warranty is denied. Beyond question, an agent may bind his principal if he does not exceed the power with which he is ostensibly invested, notwithstanding he has secret instructions from his principal to the contrary. Putnam vs. French, 53 Vt. 402, 38 Am. Rep. 682; Bentlcy vs. Doggett, 51 Wis. 224, 27 Am. Rep. 827; Bouch vs. Enos, 61 Wis. 664. Assuming that the traveling salesman had no actual authority to make such guaranty or warranty of the fish, then it became important to determine whether his authority to sell or contract for the sale clothed him with an implied authority to make such guaranty or warranty. " The general rule is, as to all contracts, including sales," said a 412 Cases on Agency. [Book II late learned author, "that the agent is authorized to do whatever is usual to carry out the object of his agency, and it is a question for the jury to determine what is usual. If in the sale of the goods conhded to him, it is usual in the market to give a warranty, the agent may give that warranty in order to effect a sale." 2 Benj. Sales, (4th Am. ed.) § 945, p. 824. The text is supported by the citation of numerous authorities. See Baylijfe vs. Buiterworth, 1 Exch. 425; Graves vs. Legg, 2 Hurl. & N. 210; Dingle vs. Hare, 97 Eng. Com. L. 145; Upton vs. Suffolk Mills, 11 Cush. (Mass.) 586, 59 Am. Dec. 163; Herring vs. STcaggz, 62 Ala. 180, 34 Am. Eep. 4; Smith vs. Tracy, 36 N. Y. 82; (ante, p. 154) Ahem vs. Goodspeed, 72 N. Y. 108. Thus in Dingle vs. Hare, supra, Erle, 0. J., observed: "The strong presumption is that when a principal authorizes an agent to sell goods for him he authorizes him to give all such warranties as are usually given in the particular trade or business;" and Byles, J., added: "An agent to sell has a general authority to do all that is usual and necessary in the course of such employment." So in Smith vs. Tracy, supra, Porter, J., speaking for the court, said: " The rule applicable to such a case is stated with discrimi- nation and accuracy in our leading text-book (Parsons) on the law of contracts: ' An agent employed to sell, without express power to warrant, cannot give a warranty which shall bind the principal, unless the sale is one which is usually attended with warranty/" Here the plaintiff offered to prove by different witnesses having the requisite knowledge the general custom of the trade as known and universally followed by dealers in fish, as to their being warranted or guaranteed against spoiling or turning red in transit; but it was excluded, and as we think erroneously, under the rules of law above stated. It would seem, however, that to be binding upon the defendants, such custom should be known to them or exist in their section of the country. Thus in Graves vs. Legg, supra, it was said by Cockburn, C. J.: " The only question is whether, when a merchant residing in London contracts with a Liverpool merch- ant in Liverpool, he is bound by the usage of trade at Liverpool. We think that as he employed an agent at Liverpool to make a contract there, it must be taken to have been made with all the incidents of a contract entered into at Liverpool, and one is that notice to the buyer's agent is notice to the principal." Cliap. Ill ] PlCKEBT vs. Maeston. 413 By the conrt: The judgment of the circuit court is reversed, and the cause is remanded for a new trial. III. OP AGENT AUTHOEIZED TO PUECHASE. (56 Wisconsin, 23.) KOMOKOWSKI vs. KRUMDICK. (Supreme Court of Wisconsin, October, 1839.) Action to recover for wheat alleged to have been sold to defend- ants through their agent, one Grist. Judgment below for plaintiff . E. O. Higbee, for appellants. Button Brothers, for respondent. ,, Tatloe, J. * * * The power of Grist as the agent of the defendants was limited to purchases for cash, and nothing else, and he was expressly prohibited from taking wheat in store on their account. When the principal furnishes his agent, to buy on his account, sufficient funds to make the purchases, the law does not raise any presumption that such agent may bind his principal by a purchase on credit, but the contrary. And in such case the principal will not be bound by a purchase made on credit, unless he has knowledge of the fact, and does something in ratification thereof, or unless it be shown that it is the custom of the trade to buy upon credit. The defendants furnished Grist the money to pay for all purchases made by him on their account, and the evi- dence tends to show that Grist did not deliver to them enough wheat to cover the amount of their advances. There is nothing in the evidence tending to show that the defendants held Grist out as having any other powers as their agent than those expressly conferred upon him. There is no evidence that the defendants had ever ratified any purchase by Grist for them upon credit. There is no evidence, in fact, that he ever made any purchase except of the plaintiff upon credit. Nor i here any evidence that an agent to purchase wheat for a princi- 414 Cases on Agency. [Book II pal at a given place, and to ship the same to the principal at another place, has any implied authority to make the purchases upon the credit of the principal. There is nothing in the nature of the business itself, in the absence of any evidence as to the custom of the trade, which would justify a court in determining as a question of law that an agent to purchase wheat or other grain may bind his principal by a purchase on credit. An agent to buy wheat or other grain must, in order to bind his principal, who furnishes in advance, the funds to make the pur- chases, buy for cash, unless he has express power to buy upon credit, or unless the custom of the trade is to buy upon credit; and in the absence of express authority, or proof of the custom of the trade to buy on credit, such agent cannot bind his principal by a purchase upon credit of a person who is ignorant of his real authority as between himself and his principal. Paley on Ag. 161, 162; Jaques vs. Todd, 3 Wend. 83; Schimmelpennick vs. Bayard, 1 Pet. 264; Story on Ag. §§ 225, 226; Berry vs. Barnes, 23 Ark. 411; Stoddard vs. Mclhain, 7 Rich. (S. C.) 525; Whart. on Ag. § 186; Adams vs. Boies, 24 Iowa, 96; Tabor vs. Cannon, 8 Met. 456; Temple vs. Pomroy, 4 Gray, 128; Bank vs. Bugbee, 1 Abb. Ch. App. 86. * * * If the evidence is sufficient to show a sale upon credit to Grist as agent of the defendants, and that the wheat was delivered to the defendants and received by them of Grist, still they would not be liable to the plaintiff unless they received the wheat knowing it had been bought upon credit, or they had received the wheat of Grist knowing they had no funds in his hands at the time sufficient to pay for the same. If they furnished money to their agent sufficient at all times to pay for all the wheat they received from him, they had the right to suppose that all the wheat bought by Grist for them was paid for at the time it was delivered to them, and, if he had not in fact paid for it they would only be liable to the seller under the circumstances above stated. * * * The judgment of the circuit court is reversed, and the cause remanded for a new trial. Note.— See Wheeler vs. McGuire, ante, p. 862; Hubbard vs. Tenbrook, ante, 867; Watteau vs. Fenwick, ante, p. 869. Chap. Ill ] Jackson bt al. vs. National Bank. 415 IV. OF AGENT AUTHORIZED TO SIGN NEGOTIABLE PA PEE. ( Tenn. , 20 S. W. Rep. 802, 18 L. R. A. 663.) JACKSON ET AL. vs. NATIONAL BANK OF McMINN- VILLE. (Supreme Court of Tennessee, January, 189S.J Action by Jackson, Mathews & Harris against the National Bank of McMinnville. The complainants were wholesale grocery mer- chants and had in their employ as a traveling salesmen or drummer one Gibson. Gibson's duty was to travel through the country, take orders from retail merchants for goods, and collect the bills as they became due. Gibson sold a bill of goods to Meadows. Before Meadows' bill became due, and while Gibson was still in the service of complainants, he proposed to Meadows that if he would then pay the bill, he would be allowed a discount of 2 per cent. Meadows agreed, and gave to Gibson his check on the defendant, payable to the order of Jackson, Mathews & Harris. On the face of the check was inserted the statement that it was "in full of acct. to date." Upon the back of the check Gibson indorsed the names of complainants, "Jackson, Mathews & Harris, by Gibson," and presented it to the defendant bank, where it was paid to him and charged against the deposit account of Meadows. Gibson failed to pay over or account to complainants for this money. Com- plainants having learned that Gibson had collected other money due them, and failed to account for it; discharged him. Gibson absconded. Subsequently complainants sent to J. J. Meadows a statement of his account, requesting payment. Meadows replied that he had paid the account to Gibson by giving him a check on the defendant bank, and had settled with the bank, and taken up the check. Complainants demanded of defendant payment to them of the check, which was refused. Complainants filed their bill to hold the bank liable, and to recover the amount of the check, alleging that Gibson had no right to indorse complainant's name, and that the payment of the check to him was unauthorized. The defend- ant answered, stating, in substance, that Gibson was authorized to 410 Cases on Agency. [Book II indorse complainants' name to checks and receive the money thereon; that, if not expressly empowered, he was by implication authorized so to do; that Gibson, while in complainants' service, had frequently received checks payable to complainants, indorsed complainants' name, and received the money thereon, and that these acts of Gibson were known to and had been ratified by the complainants; that they were estopped from denying his authority, and that it was inequitable for complainants to undertake to visit the consequences of their own negligence and misplaced confidence upon respondent. The chancellor dismissed the bill. Complain- ants appealed. T. C. Lind and Smith & Dickinson, for appellants. Murray & Fairbanks, for appellee. Holman, J. (After stating the facts and disposing of another mat- ter. ) All the members of complainants' firm testify that G ibson had not been empowered to indorse the firm's name on checks received in payment of goods. Several drummers were examined, as witnesses for defendant, to prove, and a majority of them say with some qualifi- cation, that it is the usage and custom of traveling salesmen and drummers, who are empowered to collect and receipt bills and accounts, to indorse the names of their principals to checks received in payment for goods; and it is insisted that by implication Gibson was authorized to indorse complainants' name to the check, and receive the money. We do not think the usage or custom sufficiently proven, nor do we intimate an opinion that such a power can be inferred from usage or by implication. A person cannot by proof establish a usage or custom which, in his own interest, contravenes the established commercial law. Vermilye vs. Express Co., 21 Wall. 139. No authority will be implied from an express authority. What- ever powers are strictly necessary to the effectual exercise of the express powers will be conceded to the agent by implication. In order, therefore, that the authority to make or draw, accept, and indorse commercial paper as the agent of another, may be implied from some other express authority, it must be shown to be strictly necessary to the complete execution of the express power. The rale is strictly enforced that the authority to execute and indorse billB and notes as agent, will not be implied from an express author- ity to transact some other business, unless it is absolutely necessary Obap. Ill] Jackson et al. vs. National Bank. 417 to the exercise of express authority. Tied. Com. Paper, § 77. Possession of a check payable to order, by one claiming to be agent of the payee, is not prima facie proof of authority to demand pay- ment in the name of the true owner. Id. § 312. A bank is obliged by custom to honor checks payable to order, and pays them at its peril to any other than the person to whose order they are made payable. Id. § 431. It must see that the check is paid to the payee therein named upon his genuine indorsement, or it will remain responsible. Pickle vs. Muse, 88 Tenn. 380, 17 Am. St. Ptep. 900. An authority to receive checks in lieu of cash in payment of bills placed in the hands of an agent for collection does not authorize the agent to indorse and collect the check. Grahom vs. Institu- tion, 46 Mo. 186; 1 Wait, Act. & Del p. 284; 1 Daniel, Neg. Inst.- § 294. The indorsement of the check was not a necessary incident to the collection of accounts. Graham vs. Institution, 46 Mo. 186. It follows that a drummer or commercial traveler, employed to sell and take orders for goods, to collect accounts, and receive money and checks payable to the order of his principal, is not by implication authorized to indorse such principal's name to such checks. No equitable considerations can be invoked to soften seeming hardships in the enforcement of the laws and rules fixing liability on persons handling commercial paper. These laws are the growth of ages, and the result of experience, having their origin in necessity. The inflexibility of these rules may occa- sionally make them seem severe, but in them is found general security. The decree of the chancellor is reversed, and a decree in favor of complainants against the defendant will be entered here for the amount of the Meadows check, with interest from date of filing the bill, and the costa. 27 418 Cases ox Agency. [Book II ( 77 Georgia, 235, 4 Am. St. Rep. 85.) KING vs. SPARKS. . * {Supreme Court of Georgia, January, 1887.) Action upon draft for $1,100. The opinion states the facts. Judgment below for plaintiff. Key & Preston, J. H. Lumpkin, R. V. Hardeman and Lanier & Anderson, for plaintiffs in error. Hardeman & Davis, for defendant in error. Blandford, J. Sparks brought his action upon a certain bill or draft which purported to be made by the Gordons and the plaintiffs in error. To this action the Kings pleaded non est factum. There was much evidence introduced to show whether Gordon had the right to sign the name of the Kings to this note or draft or to any note for any amount; but the plaintiffs' evidence clearly showed that he only had the authority from one of the Kings to sign his name to a note for five hundred dollars. The court charged the jury that if W. J. King authorized R. A. Gordon to sign his name to a note for five hundred dollars, and Gordon abused his authority, and signed King's name to a note for a larger amount than King authorized, and Sparks had no notice thereof, King would be liable. This charge of the court is the main excep- tion and error assigned. Gordon was but a special or particular agent to do a particular act, to wit, to sign King's name to a note for five hundred dollars; nor does it appear that Sparks knew that Gordon was King's agent for any purpose, as King's name was signed to the paper, and did not purport to have been signed by Gordon, agent. The agent had no authority to sign the name of King to this draft; his having done so is a mere forgery. King is not liable on the same to any one; it is not his act and deed, and he did nothing which estops him from so declaring. See Story on Agency, § 17; Code. § 219G; New York Iron Mine vs. Negaunee Bank, 39 Mich. G44, {post, p. 42 ). The money advanced b\ Sparks on the draft was to Gordon and for Gordon's benefit, and Sparks was chargeable with notice as to the genuineness of the paper. The principle that where one of two innocent persons must suffer by the act of a third person, he Chap. Ill ] King vs. Spaeks. 419 must bear the loss who put it in the power of snch third person to inflict the injury, does not apply in this case, because the third person who did the injury, did so of himself and without warrant or authority from any one; it was not an abuse of a power granted by King to Gordon, but it was an act by Gordon wholly unwar- ranted. Wood vs. Steele, 6 Wall (U. S.) 80, 83. The charge was manifest error. Judgment reversed. Note. — Authority to execute negotiable instruments will be strictly con- strued. Craighead vs. Peterson, ante, p. 373; Brantley vs. Southern L. Ins. Co., 53 Ala. 554; Blackwell vs. Ketcham, 53 Ind. 184; Breed vs. First Nat. Bank, 4 Colo. 481; First National Bank vs. Gay, 63 Mo. 33, 21 Am. Rep. 430. V. OF AGENT TO MANAGE BUSINESS. (46 New Jebsey. Law, 448, 50 Am. Kep. 442.) BROCK WAY vs. MULLIN. (Supreme Court of New Jersey, November, I8S4.J Action to recover for the loss of a wagon, harness, etc. The agreement under which they were furnished was made with the husband of appellant, who acted as her agent in carrying on the hotel, and was to the effect that horses and carriages furnished to guests of the hotel should be charged to the hotel, and that Brock- way, as such agent, was to be responsible for their safe keeping and return. Brockway ordered the horse, wagon, etc., for a guest, who absconded with them, and the horse only was recovered. R. Byington, for plaintiff in certiorari. J. H. Meeker, for defendant. Reed, J. The reason relied upon for the reversal of this judg- ment which I will first notice is that there is no evidence in the case from which the court could find that the contract set out in the finding of the court was entered into between the plaintiff and Frank S. Brockway. But while the testimony is not very clear, 420 Cases ox Agektjy. [ Book II yet there was, in that of the plaintiff detailing the conversation between himself and Frank S. Brockway relative to the furnishing of carriages to the guests of the hotel, [evidence] from which the deduction might be drawn that such a contract was entered into. The next reason, and the important reason, is that such a con- tract, if made, did not bind Mrs. Brockway, because it related to a matter which was outside of the agency with which she had invested her husband. The court found that the contract into which the husband entered with the plaintiff was, that he, the hus- band, as the agent of Mrs. Brockway, would be responsible for the safe keeping of the bailments, and to pay for the use of them. The authority of the husband was to manage her business of keeping a hotel. She never authorized specially, nor had she knowledge of the arrangement with the plaintiff into which her husband had entered. To support the case of the plaintiff, w T hich was against the wife as well as the husband, it is necessary to bring the contract of the husband within the scope of the general authority to bind her in matters appertaining to the management of the hotel business. No testimony was delivered upon the trial for the purpose of showing that the business of hotel keeping included supplying teams to guests, or if so, upon what terms. The court below must have held that it was a matter of judicial knowledge that the contract was made concerning a matter within range of the business in which the wife was engaged. Now, the legal liability of a hotel-keeper is to furnish lodging and food to guests and their accompanying horses. There is no legal liability to furnish horses or other means of locomotion. I am at a loss to find any ground for holding that this is within the occupation of the wife in this case. It is said in the brief of plaintiff's counsel that it is a matter of common knowledge that no well-regulated hotel could do business and accommodate the public without making some such arrange- ment as this, and that it is a well-known occurrence for a guest who wishes a horse and carriage to apply at the desk, and an order is sent to the livery stable keeper, who furnishes the equipment to a man he does not see, and so has no means of ascertainining his responsibility. He therefore says that a contract like the one found by the court is a natural and necessary one for the protection of the livery-man. Chap. Ill ] Brockway vs. Mullust. ±21 Suppose tliis be admitted and it be for the purposes of this argu- ment assumed that this is such a familiar transaction, that it rests within the cognizance of every one without proof of the fact, yet I do not think it makes in favor of the plaintiff's case. It only shows that the hotel, for the convenience of a guest, communicates with some one who furnishes the carriage. So also the communi- cation is made with an express company or railroad company to take charge of a guest's luggage. So in both instances, the charges are paid at the desk of the hotel for the guest and put in his bill. In neither is it known that the proprietor of the hotel assumes the character of an expressman or hirer of a vehicle, or any responsi- bility for the performance of the duties of either. And this usage as claimed to exist within the knowledge of every one, makes the guest, and not the hotel keeper, the bailee. If this be so, then if the hiring in this case was, as is claimed, a hiring to the hotel keeper, it was not within the scope of his business, and so did not bind the principal. If it was a hiring to the guest, then the contract of the husband encounters a legal difficulty in the shape of the statute of frauds. It was a verbal contract to answer for the default or miscarriage of another. Kirkham vs. Marter, 2 Barn. & Aid. 613; Brown Stat. Frauds, § 155. Therefore, to recover at all, it was essential for the plaintiff to stand upon a usage for hotel keepers to hire horses to their guests. For it is perceived that if he was the bailee, the letting to the guest was a new bailment in which he was the bailor. If a part of the business of a hotelkeeper is to let horses to his guests, and by reason of this the hotel proprietor is bound for a hiring of a horse for that purpose, with a contract extending the liability of the hirer to an absolute insurance, it is difficult to perceive the limit of the agent's authority in this direction. If he can hire, he can purchase. He can establish a stable with an unlimited number of animals, and for their price and food and attendance, the proprietor, although ignorant of the act, will, by reason of the general authority to manage the business of the hotel given to the agent, become responsible. I think, as the case stands upon the record, with no proof that the transaction concerning which this contract was made was incident to the hotel business, and with the fact that the proprietress was ignorant of the transac- tion, there is nothing to support the agent's authority to bind her by such an agreement. So far as appears, it was neither within the 422 Cases on Agency. [Book II real authority nor the appearance of authority which she had con- ferred upon him. Let the judgment, so far as it affects the defendant Josephine E. Brockway, be set aside. Judgment set aside. (11 Colorado, 391.) VESCELIUS vs. MARTIN. (Supreme Court of Colorado, April, 1888. J Action to recover a commission for finding a purchaser for appellant's business. The agreement to pay the commission was made with appellant's husband who managed the business for her. Plaintiff recovered and defendant appeals. Messrs. Tilford, Qilmore and Rhodes, for appellant, Mr. M. B. Carpenter, for appellee. De France, C. The evidence in this case fails to disclose that W. S. Vescelius was possessed of authority from his wife, the defendant, to make the contract sued upon. Without such proof the action must fail. The most that can be claimed for the evi- dence in this respect is that the husband was agent for the wife in conducting a retail grocery business. Granting the fact that his agency was a general one for this purpose, it does not follow that he had authority to sell out the entire business, stock and fixtures in one transaction. This authority is not to be implied from Buch an agency. But, if it were, the further authority in such agent to employ some one else to do so at the cost of his principal cannot be implied therefrom. It is not necessary to notice the other questions discassed by counsel. The evidence being insufficient to support the same, the judgment should be reversed and the cause remanded. Chap. Ill] Ieon Mine ys. Nat'l Bank. 423 (39 Michigan-, 644.) NEW YORK IRON MINE vs. FTRST NATIONAL BANK OF NEGAUNEE. ( Supreme Court of Michigan, October, 1878. J Action by the bank against the iron mine upon four promissory notes, three of $5,000, to the order of Wetmore & Bro., signed "New York Iron Mine, by W. L. Wetmore," and one for $1,000 made by the Munising Iron Company, to the order of New York Iron Mine, signed by " W. L. Wetmore, President/' and endorsed by the iron mine by Wetmore. The New York Iron Mine was a corporation whose works were at Ishpeming, Mich. Samuel J. Tilden of New York was the chief stockholder, and Wetmore held the rest of the stock except some nominal holdings necessary to make up the board of directors. Wetmore managed the mine, hired help and transacted all business at Ishpeming, and Mr. Tilden looked after the finances in New York, and this arrange- ment had continued about 14 years. Wetmore had paid the expenses of operations by drafts drawn upon Tilden and in this way had paid out over $3,000,000. The defense was a lack of authority in Wetmore to make or indorse this paper. Verdict below for plaintiff and defendant brought error. W. P. Healy and O. V. N. Lothrop, for plaintiff in error. Ball & Owen and Ashley Pond, for defendant in error. Cooley, J. (After stating the facts.) It was not disputed by the defense that the corporation as such had power to make the notes in suit. The question was whether it had in any manner delegated that power to Wetmore. We cannot agree with the plaintiff that the mere appointment of general agent confers any such power. White vs. Westport Cotton Mfg. Co., 1 Pick. (Mass.) 215, 11 Am. Dec. 168, is not an authority for that position, nor is any other case to which our attention has been invited. In McCullough vs. Moss, 5 Denio (N. Y.) 567, the subject received careful attention, and it was held that the president and secretary of a mining com- pany, without being authorized by the board of directors so to do, could not bind the corporation by a note made in its name. Murray vs. Bast India Company, 5 B. & Aid. 204; Benedict vs. Lansing, 5 Denio (N. Y.) 283; and The Floyd Acceptances, 7 424 Cases on Agency. [Book II Wall. (IT. S.) 666, are authorities in support of the same view. The plaintiff, then, cannot rest its case on the implied authority of the general agent; the issuing of promissory notes is not a power necessarily incident to the conduct of the business of mining, and is so susceptible of abuse to the injury, and, indeed, to the utter destruction of a corporation, that it is wisely left by the law to be conferred or not as the prudence of the board of direction may determine. But it was further insisted on the part of the plaintiff, that though Wetmore may never have had the corporate authority to make notes in the corporate name, yet, that the course of business was such, with the express or implied assent of Mr. Tilden, as to lead the public to suppose that his authority was ample, and that this course of business should be conclusive in favor of those who had taken the notes in good faith relying upon it. In support of this position, evidence was given that Wetmore was in the practice of taking notes from the creditors of the corporation, and procur- ing them to be discounted on his indorsement as general agent, and it appeared that the note of $1,000 counted on in this case was made for a balance remaining unpaid on a much larger note made by the Munising Iron Co., payable to the order of defendant and discounted by the plaintiff. And on this part of the case we are of opinion that enough appeared to warrant the jury in finding that the practice of Wetmore to indorse the paper of the company for collection or discount was known to Mr. Tilden and not objected to by him; that j)arties taking such paper had a right to believe the indorsement was authorized, and that it was made in the inter- est of defendant, and not in fraud of its rights. * * * But it is further insisted on the part of the plaintiff that the defendant corporation is chargeable with negligence in suffering Wetmore to manage the business independently, as he did for so long a period, and that this negligence was so gross and so likely to mislead as to call for the application of the familiar and very just principle, that where one of two innocent parties must suffer from the dishonesty of a third, that one shall bear the loss who by his negligence has enabled the third to occasion it. Merchants' Bank vs. Mate Bank, 10 Wall. (U. S.) 604; Bank of United Statu vs. Davis, 2 Hill (N. Y.) 4G5; Holmes vs. Trtnnper, 22 Mich. 427- 434, 7 Am. Rep. 661; Farmers', etc., Bank vs. Butchers', etc., Bank, 16 N. Y. 133; Wetland Canal Co. vs. Hathaway, 8 Wend. Ghap. Ill] Ieon Mine vs. Nat'l Bank. 425 (N. Y.) 480, 24 Am. Dec. 51; New York & N. II. R. R. Co. vs. Schuyler, 34 N. Y. 30. While the principle invoked is a very just and proper one, it is one that must be applied with great circumspection and caution. Any person may be said to put another in position to commit a fraud when he confers upon him any authority which is susceptible of abuse to the detriment of others; but if the authority is one with which it is proper for one man to clothe another, negligence cannot be imputed to the mere act of giving it. Any one who entrusts to another his signature to a written instrument furnishes him with the means of perpetrating a fraud by an unauthorized alteration or other improper use of it. But if the instrument was a proper and customary instrument of business, and has been issued without fraudulent intent in a business transaction, there is no more reason for imposing upon the maker the consequences of a fraudulent use of it than there is for visiting them upon any third person. In other words, it is not the mere fact that one has been the means of enabling another to commit a fraud that shall make him justly chargeable with the other's misconduct; but there must be that in what he has done or abstained from doing that may fairly be held to charge him with neglect of duty. * * * But before the maxim which the plaintiff invokes can be applied to the case, it is necessary to determine not only that fault is im- putable to the defendant, but also that the plaintiff is free from negligence. There must be one innocent party and one negligent party before the requirements of the maxim are answered; and the conduct of the plaintiff is therefore as important as that of the defendant. Was the plaintiff in this case free from negligence in discounting the three $5,000 notes? In law the officers of the bank must be held to have known that Mr. Wetmore had no right to make such paper without express authority, and we look in vain for any evidence that they demanded proof of such authority, or extended their inquiries beyond the agent himself. Moreover there was that on the face of these notes to suggest special caution; they were made by Mr. Wetmore in one capacity to himself and his associate in another capacity, and they indicated, or at least sug- gested, an interest on his part in making them which was adverse to the interest of his principal. The notes also bore the largest interest admissible under our statutes; and this fact, in the case of a corporation whose credit was such that its paper would 426 Cases on Agency. [Book II be readily discounted and having its office in the city of New York, might well have arrested attention. We do not think that when the bank discounted snch paper without inquiry into the authority of Wetmore, it gave such evidence of prudence and circumspection as placed it in position to complain of Mr. Tilden's course of business as negligent. A fair statement of the case for the plaintiff is that both parties have been over trustful in their dealings with Mr. Wetmore; the defend- ant not more so than the plaintiff. Unfortunately for the plaintiff, the consequences of the overtrust have fallen upon its shoulders. The circuit judge, in his instructions to the jury assumed that there was evidence in the case from which they might find that Wetmore was held out to the public as possessing the authority he assumed to exercise. We find no such evidence, and there must therefore be a new trial. The case of the $1,000 note is different, as already explained. * * * Eeversed. Note. — See, also, Perkins vs. Boothby, 71 Me. 91; Rossiter vs. Rossiter, 8 Wend. (N. Y.) 494, 24 Am. Dec. 62; Sewanee Mining Co. vs. McCcUl, 3 Head (Tenn.) 619. Chap. I] Thomas vs. Josllu. 427 BOOK III. OF THE EXECUTION OF THE AUTHORITY. CHAPTER I. IN GENERAL. (30 Minnesota, 388.) THOMAS vs. JOSLHST. (Supreme Court of Minnesota, May, 18SS.) Appeal by plaintiff from an order of the district court refusing a new trial, the action having been dismissed at the close of the plaintiff's evidence. W. P. Clough, for appellant. McNair & Gilfillan, for respondent. Beery, J. This action is brought to enforce specific perform- ance of an agreement to sell and convey certain land alleged to have been executed by Whitney as agent of defendant, by whom the land was owned. 1. As to the fact of agency, we are of opinion that the letters introduced upon the trial, and which compose all the evidence in the premises, constitute Whitney defendant's agent to sell the land for $2,500 cash, subject to Miller's lease, and for a compensation of $50. They do not purport to be a contract directly with the plaintiff, the alleged vendee, to sell to him, but an authority to Whitney to enter into a contract of sale with some one. 2. The seal which Whitney affixed to the agreement was unauthorized, because Whitney's authority was not under seal; but It may be rejected as a separable excess of authority, and the agree- 428 Cases on Agency. [Book III ment stand as a simple contract. Dickerman vs. Ashton, 21 Minn. 538; Long vs. Barf well, 34 N. J. Law, 116, (ante,-$. 92) ; Lawrenct vs. Taylor, 5 Hill, 107. 3. The agreement executed assumes to bind defendant to con- vey the land " in fee simple, and with a perfect title, free from all incumbrances." This is in excess of the authority conferred upon Whitney to make a sale subject to the Miller lease. "Where there is a complete execution of a power, and something ex abundanti added, which is improper, there the execution shall be good, and only the excess void; but where there is not a complete execution of a power, or where the boundaries between the excess and execu- tion are not distinguishable, it will be bad." Alexander vs. Alex- ander, 2 Ves. 640, 644; E well's Evans on Agency, 170; Story on Agency, §§ 165-168; Sugden on Powers, c. 9, § 2. The instru- ment executed by Whitney is not an agreement for a sale and con- veyance subject to the Miller lease, with something superadded in excess of Whitney's authority, in which case the excess might be rejected, and the rest of the agreement sustained. But the thing ostensibly contracted for is entirely different from that authorized, and therefore the purported agreement is not "a complete execu- tion of the power," and by consequence, not the agreement of Whitney's constituent, the defendant. Upon the facts as they now appear, the agreement is, therefore, under the rule above enunciated, bad and not enforceable. Order affirmed. Chap. II] McClure vs. Herring. 429 CHAPTER II OF THE EXECUTION OF SEALED INSTRUMENTS. (70 Missouri 18, 35 Am. Ebp. 404.) McCLURE vs. HERRING. ('Supreme Court of Missouri, October, 1879. ) Ejectment. The opinion states the facts. The defendant had judgment below. 8. P. Huston, for appellant. F. II. Earner and T. D. Neal, for respondent. Henry, J. The plaintiff brought suit in the Harrison Circuit Court to its March term, 1877, against defendant for the possession of the southwest quarter of section 20, township 66, range 27, in said county. The petition was in the ordinary form of petition in eiectment. The defendant's answer was a general denial. The plaintiff read in evidence, to maintain the issues on his part, a United States patent, conveying the land to Leo Tarlton. Plaintiff then read in evidence a power of attorney from Leo Tarlton and wife to Thomas W. Hawkins, authorizing him as their attorney in fact, in their names, to sell and dispose of, in fee simple, all lands of which they were seized in the counties of Atchison, Andrew, Har- rison, Grundy and Gentry in the State of Missouri, as well aa other lands situate and lying in the State of Missouri, and for them, in their names and as their act and deed, to sign, seal, exe- cute aud deliver such deeds and conveyances for the sale and disposal of any part thereof, as their said attorney should think fit. Plaintiff next offered in evidence a certified copy of the record of a deed from Thomas W. Hawkins, for himself and Leo Tarlton and wife, to Alfred W. Lamb, which deed was as follows, affecting said lands, towit: "Know all men by these presents, that I, Thomas W. Hawkins of Marion county, state of Missouri, for myself, and as attorney for Leo Tarlton and Mrs. G. Agusta Tarlton, his wife • • • 430 Oases on Agency. [Book III by their duly authorized letters of attorney, tinder their hands and seals, in consideration $1,850, to ns paid by Alfred W. Lamb of Marion county, state of Missouri, do sell and convey to said Alfred W. Lamb, and his heirs forever, the following described tracts or parcels of. land lying and situate in the county of Harri- son, and state of Missouri, to wit: The * * * southwest quarter of section 20, township 66, range 27 * * * To have and to hold the said tracts or parcels of lands, with all privileges, etc., to said grantee and his heirs forever. And we, the said Leo Tarlton and G. Agusta Tarlton, do covenant with said grantee and his heirs that we are rightly seized in fee simple of said tracts or parcels of land, etc., and that we and our heirs will warrant the said premises to said grantee and his heirs forever against the law- ful claims of all persons. In witness whereof, I, Thomas W. Haw- kins, in my own right, have hereunto set my hand and seal, and as attorney for said Leo Tarlton and Mrs. G. Agusta Tarlton, have hereunto set their hands and seals. "Thomas W. Hawkins, [L. S.] "Leo Tarlton, [L. S.] "G. Agusta Tarlton, [L. S.] "By Thomas W. Hawkins, their Attorney in fact." Defendant by his attorneys, objected to the introduction of said deed, because: 1st It was the deed of the attorney, Hawkins, and not that of Tarlton and wife; 2nd. It is ineffectual as a conveyance by Tarlton and wife, of any title owned by them in the land in controversy; 3d. The power of attorney under which the deed was made did not sufficiently designate the land to be conveyed by the attorney; 4th. The deed does not purport to be that of the principal, nor to convey the title of the principal, but only that of the attorney. The court sustained the defendant's objections, and rejected the deed as evidence, to which plaintiff excepted, and leave to set aside nonsuit taken being refused, plaintiff brings this case here by appeal. Mr. Washburn, in his work on Real Property (vol. 2, 2d ed., 576), reviews the cases on the subject presented for consideration here by the action of the court in excluding the deed from the jury, and admits that there is a conflict of opinion, but states the doctrine deduciblc from them thus: "The leading doctrine run- ning through them, though not always applied, seems to be that to make such a deed valid, the instrument itself must in terms show that it is the deed of the principal, that he makes the grants Chap. II ] McClurb vs. Herring. 431 and covenants, and that the seal is his. The instrument, in some part, must also show that its execution by the principal was done by the attorney named. If this all appears clearly in any part of the instrument, the precise form or arrangement of the words does not seem to be essential." In Elwell vs. Shaw, 16 Mass. 42, 47, 8 Am. Dec. 126, reported also in Am. Lead. Cas., as a leading case on the subject, the deed recited the power of attorney to Joshua Elwell, and then proceeded as follows: "Know ye that I, the said Joshua, by virtue of the power aforesaid, etc., do hereby bargain, grant, sell and convey, etc.," and concluded: " In testimony whereof, I have hereunto set the name and seal of said Jonathan, this, etc. Joshua Elwell. (Seal.)" The body of the deed there is similar in some respects to the deed in this case, but in the execution of the deed there is a marked and important difference. Here the names of the prin- cipals are signed as grantors, and their seals attached, while neither in the body nor in the execution of the deed in Elwell vs. Shaw, does the principal appear as grantor. In Afussey vs. Scott, 7 Cush. (Mass.) 216, 54 Am. Dec. 719, Metcalp, J. observes: " But how- ever clearly the body of the deed may show an intent that it shall be the act of the principal, yet unless it is executed by his attorney for him, it is not his deed, but the deed of the attorney or no one." On that principle alone Elwell vs. Shaw, may be maintained, and there are numerous other adjudged case3 which were controlled by that principle. Fowler vs. Shearer, 7 Mass. 15, is frequently cited in discussions on this subject. There John Fowler, the husband, gave his wife, Abigail, a power of attorney to execute a deed for land. She made a conveyance as follows: " Know ye that I, Abigail Fowler, of Palmer, etc., and also as attorney to John Fowler, etc., in con- sideration of, etc., paid by Daniel Shearer, of Palmer, have given, granted, and by these presents do give, grant, etc." The language of the remainder of the deed purported to be her convey- ance and her covenants. The instrument concluded: "In wit- ness whereof, I have hereunto set my hand and seal, this 7th day of August, 1805. Abigail Fowler. ( Seal.)" The court held that it was not the deed of the husband. As in Elwell vs. Shaw, the principal did not execute it, and therein both differ from the case at bar. Harper vs. Hampton, 1 Harr. & J. (Md.) 709, was a case in which the attorney signed his own name as attorney for his principal, and 432 Oases on Agency. [Book III it was held to be the deed of the attorney, and not of the principal. The contrary, however, was held by this court in Martin vs. Almond, 25 Mo. 133, and while the adjudications on the subject are not harmonious, we think the doctrine of that case fully sustained by the weight of authority. There is a general disposition to relax the rigid rules of the common law in regard to conveyances. The formality and exact- ness formerly deemed necessary are not now required. There is a disposition to effectuate the intention of the parties, where that can certainly be ascertained from the deed. But to return to the main question. Shanks vs. Lancaster, 5 Gratt. (Va.) 110, 118, 50 Am. Dec. 108, is a case directly in point. " The deed made by the attorney was in the name of Abraham Beckner, attorney in fact for Jacob Beckner and Catherine, his wife, of the first part." It pro- ceeded in the same style to convey the land, and in the same style he covenanted for himself, his heirs, and executors, in behalf of said Jacob Beckner and Catherine, his wife, under the authority of a power of attorney duly executed, and of record, to warrant the title to the plaintiff free from the claims of himself and his heirs, and from the claims of Jacob Beckner and wife, and their heirs, and it concluded: "In witness whereof, the said Abraham Beckner, attorney in fact, for Jacob Beckner and Catherine, his wife, as aforesaid, has hereunto set his hand and seal, etc. Jacob Beckner (seal) and Catherine, his wife (seal), by Abraham Beck- ner (seal) their attorney in fact." The court held the deed sufficient to pass the title of Jacob Beckner to the grantee. In Hale vs. Woods, 10 N. H. 470, 34 Am. Dec. 176, Daniel and Zachariah King were joint owners of a tract of land, and Daniel was empowered by Zachariah to sell and convey his interest. He sold the land and made the following conveyance: "I, Daniel King, as well for myself, as attorney for Zachariah King, doth for myself and said Zachariah, remise, release and forever quit- claim the premises (describing them) together with all the estate, etc., of us, the said Daniel and said Zachariah, which we now have, etc., and we, the said Daniel and said Zachariah, do hereby, for ourselves, our heirs and executors, covenant that the premises are free from all incumbrances, and that the grantee may quietly enjoy the same without any claim or hindrance from us, or any one claiming under us, or either of us. In witness, whereof, we, the aaiJ Daniel, for himself, and as attorney aforesaid, have hereunto set our hands and seal, etc. (Signed) Daniel Kiug, and also Daniel Chap. II] McClure vs. Herring. 433 King, attorney for Zachariah King, being duly autliorized aa appears of record," with seals affixed to each signature. The court held the power properly executed, and that the deed passed the title of Zachariah. Upham, J., said: " The covenants in this case in the deed are clearly the covenants of the principal; and we think from the terms used, the grant purports to be the act of the principal. The grant is for said Daniel and Zachariah, and of all the interest which we now have, or have heretofore had in the premises. If these terms, together with the covenants, purport a conveyance of the interest of the principal, the execution of the deed would seem to be sufficient to effect the intent of the instrument." Those cases are not distinguishable in principle form from the case at bar, and the facts in each case were such as to raise the precise question presented by this record. See, also, Butterfield vs. Beall, 3 Ind. 203; Varnum vs. Evans, 2 McMullan, (S. Car.) 409. In Townsend vs. Hubbard, 4 Hill, (N. Y.) 351, 359, Wal- worth, Ch., said: " To bind the principal by deed, no particular form of words is necessary, provided it appears upon the face of the instrument that it was intended to be executed as the deed of the principal, and that the seal affixed to the instrument is his seal, and not the seal of the attorney or agent merely." In Hunter's Admr. vs. Miller's Exrs., 5 B. Monr. (Ky.) 612, 620, the court laid down the following, which Messrs. Hare and "Wallace in their note to Elwell vs. Shaw, say is a reasonable rule: " If it clearly appears, on the face of the instrument, who is intended to be bound, and if the mode of execution be such as that he may be bound, the necessary consequence of the universal principle appli- cable to contracts is that he is bound, and that if such appears to be the intention of the parties, he alone is bound." Here in the body of the deed, Hawkins declares that he makes the conveyance as attorney for Leo and G. Agusta Tarlton, under their power of attorney, and said Tarlton and wife, in the body of the deed cove- nant with Lamb, the grantee, that they are rightfully seized in fee simple of the lands, and that they and their heirs will warrant the premises to said grantee and his heirs forever, etc. The considera- tion, $1,850, is acknowledged in the deed to have been paid to " us," not to the attorney alone. The names of the principals were sever- ally signed to the deed, with a seal to each, "By Thomas W. Hawkins, their attorney in fact." 28 434 Cases on Agency. [Book III The manner in which the deed was executed, the covenant entered into by Tarleton and his wife that they would warrant the title to Lamb, etc. ; the declaration in the deed that Hawkins is acting for the principals, naming them, by virtue of their power of attorney; the acknowledgement of the receipt of the money by "us," unmistakably show that it was the deed of the principals; and as this all appears clearly in the instrument, " the precise form or arrangement of the words does not seem to be essential. " A review or even brief notice of all the adjudications on this subject, besides requiring immense labor, would only serve to show the con- flict of the authorities, and the very nice distinctions occasionally drawn either to uphold or defeat a conveyance, but we are of opinion that a large majority of the courts in which the most rigid rules on the subject are maintained, would sustain this deed. The court erred in excluding it from the jury as evidence of title in Lamb. (Omitting a minor point.) All concurring, the judgment is reversed and the case remanded. Reversed and remanded. (48 New Jersey Law, 22, 57 Am. Rep. 534.) KNIGHT vs. CLARK. {'Supreme Court of New Jersey, February, 1886. J Action on the following contract: "$407.17, Five Points, Gloucester Co., N. J., October 28th, 1884. " For value received we, Allen S. Clark, William M. Colson and Joseph H. Knight, members of the township committee of the township of Harrison, county of Gloucester, N. J., and our suc- cessors in office, promise to pay to Edward B. Knight or order, in six months from the date hereof, with lawful interest from date, without defalcation. And in case of default of payment as aforesaid, we nereby empower any attorney at law to be appointed by said Edward B. Knight or his assigns, to appear in any court which said Edward B. Knight or his assigns may select, and commence or prosecute a Chap. II] Knight vs. Clark. 435 suit against us or otir successors in office on said note, to confess judgment for all and every part of the interest or principal on said note in the payments of which we or our successors in office may be delinquent. Witness our hands and seals, this 28th day of October, A. D. 1884. "Allen S. Clark, [L. S.] " William M. Colson, [L. S.] "Witness: "Joseph H. Knight, [L. S.] "Wm. F. Iredell." David A. Pancoast, for plaintiff. Robert S. Clymer, for defendants. Beasley, C. J. The court had been asked by the counsel of the respective parties to decide the question involved irrespectively of the pleadings. The case will be decided from the facts stated in the record, and the admitted fact that the debt secured by the sealed instrument sued on was the debt of the township of Harrison. The only inquiry therefore is whether the defendants, by the form of the deed executed by them, have made themselves personally respon- sible for this public debt. The counsel of the plaintiff, in support of the right of action, has referred to the case of Dayton vs. Warne, 41 N. J. L. 659. But that case is not in any degree applicable, for it was a case of a private agency, and the defendants, in the present instance, acted in a public capacity. The principle of decision in the reported case was that when a private agent does not attempt, in a sealed instrument, to bind his principal, but in terms imposes the obligation on himself he incurs by such an act a personal responsiblity. But it is well settled that a public agent does not stand on the same footing. It is much against public policy to cast the obligations that justly belong to the body politic upon this class of officials. Upon both reason and authority we think the law is against the plaintiff's claim. The case of Hodgson vs. Dexter, 1 Cranch., ("U. S.) 346 is directly in point. The facts were in brief the following, viz.: The action was in form of covenant against Dexter, who had lately been secretary of war, and was founded on covenants contained in a lease, to keep in good repair and deliver up in good order a cer- tain building hired for the use of the government. The building 436 * Cases on Agency. [Book III had been destroyed by fire, and the sole qnestion was whether Dexter was personally liable. The lease was a deed inter partes, which Dexter had sealed as an individual. In the commencement of the instrument. he had described himself " secretary of war/' and to the performance of the covenants he had bound himself (but not as secretary) and " his successors." Under these circumstances it was held that Dexter was not bound personally, Chief Justice Marshall saying: " A contrary doctrine would be productive of the most injurious consequences to the public, as well as to individuals." This decision has, we believe, been universally approved of, and it is evident that unless overruled by this court, it must conclude this controversy. With everything that was said in this case, as well as in the conclusion reached by the court, we entirely concur. It will be observed that in the sealed bill forming the basis of the present suit, the defendants describe themselves as " members of the township committee of the township of Harrison," and bind themselves and their successors in office, and authorize judgment to be entered against themselves or " their successors in office." These references to the official nature of the business embraced in the instrument, and the position of the defendants with reference to it, are quite as significant as those contained in the lease, the substance of which is above recited. The defendants must have judgment. Judgment affirmed. Note.— See Brown vs. Bradlee, post, p. — w (64 New York 357, 21 Am. Rep. 617.) BRIGGS vs. PARTRIDGE. (New York Court of Appeals, March, 1876. J Appeal by plaintiff from judgment of the General Term affirm- ing a judgment below for defendant. The action was brought to recover money claimed to be due upon a contract for the purchase of lands. According to the complaint and the evidence offered, it appeared that defendant had by parol, constituted one Hurlburd his agent, for the purpose of purchasing the lands in question Chap. II] Beiggs vs. Paeteidge. 437 belonging to the plaintiff; that thereupon Hurlburd, without dis- closing the agency, entered into a contract under seal with plaint- iff, whereby he agreed to purchase such lands at a specified price; the contract was executed by Hurlburd in his own name, and the plaintiff did not at the time know that the defendant was the real principal in the matter; a small part only of the purchase money was paid. Plaintiff in his complaint avowed himself ready to execute a good and sufficient deed. Such other facts as are material appear in the opinion. Edward D. McCarthy, for appellant. Wm. F. Shepard, for respondent. Andeews, J. The defendant was not a party to the agreement for the sale and purchase of the land. He did not sign it himself, nor did it purport to have been executed for him by Hurlburd. His name does not appear in it, and there is nothing upon the face of the agreement to indicate that he was in any way connected with or interested in the purchase. The covenants in the agree- ment are solely between the plaintiff and Hurlburd. The former covenants to sell and convey the lands to Hurlburd, and Hurlburd covenants to purchase and pay the purchase-money as stipulated. The defendant took no part in the negotiation of the agreement, and the plaintiff, when he made and executed it, had no knowledge that Hurlburd was acting as the agent of the defendant. The agreement was under seal, each party affixing his own seal to the instrument. Hurlburd, the apparent purchaser, was in fact acting in the transaction as the agent of the defendant, his undisclosed principal, under an oral authority to enter into the contract in his behalf; and the defendant furnished the money to make the down payment to the broker who negotiated the sale. This action is brought by plaintiff upon the agreement to recover the unpaid purchase-money, and it is sought to enforce it against the defendant as the real purchaser and party, upon the ground that Hurlburd, the nominal purchaser, was acting for him and by his authority in the transaction. The real question is, can the vendor, in a sealed executory agreement, inter partes, for the sale of land, enforce it as the simple contract of a person not mentioned in or a party to the instrument, on proof that the vendee named therein, and who signed and sealed it as his contract, had oral authority from such third person to enter into the contract of pur- chase, and acted as his agent in the transaction, and can the vendor 438 Oases on Agency. [Book III on this proof, there having been no default on his part, and he being ready and willing to convey, recover of such third person the unpaid purchase-money? This question here arises in a case where the vendor, so far as it appears, has remained in possession of the land, and where no act of ratification of the contract by the undis- closed principal has been shown. It is not disputed, and indeed it cannot be, that Hurlburd is bound to the plaintiff as covenanter, upon the covenants in the agreement. He covenants for himself and not for another, to pay the purchase money, and by his own seal fixes the character of the obligation as a specialty. He is liable to perform the contract irrespective of the fact whether it can be enforced against his nominal principal. On the other hand, it is equally clear that Hurlburd's covenant cannot be treated as or made the covenant of the defendant. Those persons only can be sued on an indenture who are named as parties to it, and an action will not lie against one person on a covenant which purports to have been made by another. Beckham vs. Brake, 9 M. & W. 79; Spencer vs. Field, 10 Wend. (N. Y.) 88; Townsend vs. Hubbard, 4 Hill (N. Y.), 351. In the case last cited, it was held that where an agent duly authorized to enter into a sealed contract for the sale of land of his principals, had entered into a contract under his own name and seal, intending to execute the authority conferred upon him, the principals could not treat the covenants made by the agents as theirs, although it clearly appeared in the body of the contract that the stipulations were intended to be between the principals and the purchasers, and not between the vendees and the agent. The plaintiffs in that case were the owners of the land embraced in the contract, and brought their action in covenant to enforce the covenant of the vendees to pay the purchase-money, and the court decided that there was no reciprocal covenant on the part of the vendors to sell, and that for want of mutuality in the agreement the action could not be main- tained. It is clear, that unless the plaintiff can pass by the persons with whom he contracted, and treat the contract as the simple contract of the defendant, for whom it now appears that Hurlburd was act- ing, this action must fail. The plaintiff invokes in his behalf the doc- trine that must now be deemed to be the settled law of this court, and which is supported by high authority elsewhere, that a principal may be charged upon a written parol executory contract entered into by an agent in his own name, within his authority, although the name Ohap. II ] Beiggs vs. Partridge. 439 of the principal does not appear in the instrument, and was not disclosed, and the party dealing with the agent supposed that he was acting for himself, and this doctrine obtains as well in respect to contracts which are required to be in writing, as to those where a writing is not essential to their validity. Higgins vs. Senior, 8 M. & W. 834 {post, p. ); Truman vs. Lodcr, 11 Ad. & El. 594; Dykers vs. Townsend, 24 N. Y. 61; Coleman vs. Bank, 53 N. Y. 393; Ford vs. Williams, 21 How. (U. S.) 289; Hunting- ton vs. Knox, 7 Cush. (Mass.) 371; The Eastern R. R. Co. vs. Benedict, 5 Gray, (Mass.) 566, 66 Am. Dec. 384; Hubbert vs. Bor- den, 6 Whart. (Pa.) 91; Browning vs. Insurance Co., L. K. 5 P. 0. 263; Colder vs. Dobell, L. E. 6 C. P. 486. Story on Agency, 148, 160. It is, doubtless, somewhat difficult to reconcile the doctrine here stated with the rule that parol evidence is inadmissible to change, enlarge or vary a written contract, and the argument upon which it is supported savors of subtlety and refinement. In some of the earlier cases the doctrine that a written contract of the agent could be enforced against the principal was stated, with the qualifi- cation that it applied when it could be collected from the whole instrument, that the intention was to bind the principal. But it will appear, from an examination of the cases cited that this quali- fication is no longer regarded as an essential part of the doctrine. Whatever ground there may have been originally to question the legal soundness of the doctrine referred to, it is now too firmly established to be overthrown, and I am of the opinion that the practical effect of the rule as now declared is to promote justice and fair dealing. There is a well recognized exception to the rule in the case of notes and bills of exchange, resting upon the law merchant. Persons dealing with negotiable instruments are presumed to take them on the credit of the parties whose names appear upon them; and a person not a party cannot be charged upon proof that the ostensible party signed or endorsed as his agent. Barker vs. Mechanics' Ins. Co., 3 Wend. (N. Y.) 94, 20 Am. Dec. 664; Pentz vs. Stanton, 10 Id. 271, 35 Am. Dec. 558; DeWitt vs. Walton, 9 N. Y. 570; Stackpole vs. Arnold, 11 Mass. 27, 6 Am. Dec. 150; Eastern R. R. vs. Benedict, supra; Beckham v. Brake, 9 M. & W. 79. That Hnrlburd had oral authority from the defendant to enter into a contract for the purchase of the land, and that he was acting for the defendant in making it is admitted; 440 Oases ox Agency. [Book III and if the contract had been a simple contract and not a specialty the defendant would, I think, have been bound by it within the authorities cited. No question would arise under the statute of frauds, for the statute prescribing what shall be necessary to make a valid con- tract for the sale of land requires only that the contract, or some note or memorandum thereof expressing the consideration, should be in writing and subscribed by the party by whom the sale is to be made, or his agent lawfully authorized. 2 K. S. 135, §§ 8, 9. In this case the contract was signed by the vendors; and even if it had been executed on their part by an agent pursuant to an oral authority, it would have been a valid execution within the statute. Lawrence vs. Taylor, 5 Hill, (N. Y.) 113; Worrall vs. Munn, 5 N. Y. 229, 55 Am. Dec. 330. But the vendee's contract need not be in writing. McCrea vs. Purmort, 16 Wend. (N. Y.) 469, 30 Am. Dec. 103. We return then to the question originally stated. Can a con- tract under seal, made by an agent in his own name for the pur- chase of the land, be enforced as the simple contract of the real principal when he shall be discovered. No authority for this broad proposition has been cited. There are cases which hold that when a sealed contract has been executed in such form, that it is in law, the contract of the agent and not of the principal, but the principal's interest in the contract appears upon its face and he has received the benefit of performance by the other party and has ratified and confirmed it by acts in pais, and the contract is one which would have been valid without a seal, the principal may be made liable in assumpsit upon the promise contained in the instrument, which may be resorted to to ascertain the terms of the agreement. Randall vs. Van Vechten, 19 Johns. (N. Y.) 60, 10 Am. Dec. 193; DuBois vs. Canal Co., 4 Wend. 285; Lawrence vs. Taylor, supra. See also Evans vs. Wells, 22 Wend. 324; Worrall vs. Munn, supra; Story on Agency, § 277; 1 Am. Lead Cas. 735, note. The plaintiff's agreement in this case was with Hulbnrd and not with the defendant. The plaintiff has recourse against Hulburd on his covenant, which was the only remedy which he contemplated when the agreement was made. No ratification of the contract by the defendant is shown. To change it from a specialty to a simple contract, in order to charge the defendant is to make a different contract from the one the parties intended. A seal has lost most Chap. II ] Beiggs vs. Paeteidgb. 441 of its former significance, but the distinction between specialties and simple contracts is not obliterated. A seal is still evidence, though not conclusive, of a consideration. The rule of limitation in respect to the two classes of obligations is not the same. "We find no authority for the proposition that a contract under seal may be turned into simple contract of a person not in any way appearing on its face to be a party to or interested in it, on proof dehors the instrument that the nominal party was acting as the agent of another, and especially in the absence of any proof that the alleged principal has received any benefit from it, or has in any way ratified it, and we do not feel at liberty to extend the doctrine applied to simple contracts executed by an agent for an unnamed principal so as to embrace this case. The general rule, is declared by Shaw, 0. J., in Huntington vs. Knox, 7 Cush. (Mass.) 374: "Where a contract is made by deed, under seal, on technical grounds, no one but a party to the deed is liable to be sued upon it, and, therefore, if made by an attorney or agent, it must be made in the name of the principal in order that he may be a party, because otherwise he is not bound by it." The judgment of the general term should be affirmed. All concur. Judgment affirmed. Note. — See also Mahoney vs. McLean, 26 Minn. 415; Lancaster vs. Knickerbocker Ice Co., 153 Penn. 427. 442 Cases on Agency. [Book III CHAPTER III. OF THE EXECUTION OF SIMPLE CONTRACTS, I. OF THE EXECUTION OF NEGOTIABLE PAPEB. (76 California, 203, 9 Am. St. Rep. 193.) HOBSON vs. HASSETT. (Supreme Court of California, May, 1888. J * Rutledge and McConnell, for the appellant. Vaughn and Cradlebaugh and G. A. Johnson, for the respondent. Belcher, C. C. This action was brought to recover the amount due on a promissory note which reads as follows: " September 7, 1881. "Si, 135. One day after date, without grace, we promise to pay A. D. Ilobson or order the sum of eleven hundred and thirty-five dollars, payable only in gold coin of the government of the United States, for value received, with interest thereon in like gold coin, at the rate of ten per cent, per year from date until paid. "A. Hassett, President." The court below found that prior to the year 1878, the Granger's Business Association of Healdsburg was duly organized as a corpo- ra t ion, and has existed as such ever since; that on the eighth day of Januar} T , 1878, the said corporation became indebted to the plaintiff in the sum of two thousand dollars, and on that day made and delivered its promissory note to plaintiff for that amount; that on the seventh day of September, 1881, plaintiff presented this note to one Bagge, who was the book- keeper and accountant of the corporation,for payment,and recmested that the corporation pay him nine hundred dollars in cash, and give him a new note for the balance; that defendant Hassett waa president of the corporation at that time; that Bagge paid the nine hundred dollars, and drew a new note for the balance and requested Chap. Ill] Hobson vs. Hassett. •443 defendant, as president of the corporation to sign it, which defend- ant intended to do, but signed only his own name, adding thereto the word " president; " that the note so executed is the note set out in the complaint; that defendant and Bagge only intended to make and deliver the note to the corporation, and did not then or at any other time say or do anything to lead plaintiff to believe that defendant intended to make or deliver his own note, and not Ihe note of the corporation; that plaintiff could not read writing, and did not at the time know in what manner the note was executed, but at the end of every month, for eighteen months thereafter, he presented it, and received from the corporation the interest due thereon, and never claimed or demanded from the defendant the payment thereof prior to the bringing of this action. Upon these facts the court found, as a conclusion of law, that the note was the note of defendant, and not of the corporation, and thereupon judgment was entered in favor of the plaintiff. The defendant appealed, and the case comes here on the judgment roll. The principal contention of the appellant is, that the note was the note of the corporation, and not of the defendant, and that the court erred in its conclusions of the law to the contrary. In view of the large number of adjudicated cases, it is some- times difficult to determine whether a note or a bill of exchange, drawn by an agent, but for the use and benefit of his principal, binds the agent personally or not. There are, however, some general rules upon the subject, which seem to be well settled. Judge Story says: " When, upon the face of the instrument, the agent signs his own name only, without referring to any prin- cipal, then he will be held personally bound, although he is known to be or avowedly acts as agent." Story on Promissory Notes, sec. 68. But, " if it can, upon the whole instrument, be collected that the true object and intent of it are to bind the principal, and not to bind the agent, courts of justice will adopt that construction of it, however informally it may be expressed." Id. sec. 69. Professor Parsons says: "If an agent make a note in his own name, and add to his signature the word ' agent/ but there is nothing on the note to indicate who is principal, the agent will be personally liable, just as if the word 'agent' were not added." 1 Parsons on Notes and Bills, p. 95. And "one who puts his name on negotiable paper will be liable personally, as we have seen, although he acts as agent, unless he says so, and says also who hia 444 Cases on Agency. [ Book III principal is; that is, unless he uses some expression equivalent, to use Lord Ellenborough's language, to 'I am the mere scribe.' For if the contruction may fairly be that while he acts officially, or at the request of others, yet what he does is still his own act, it will be so interpreted." Id. p. 102; and see, also, Sayre vs. Nichols, 5 Cal. 487; Stackpole vs. Arnold, 11 Mass. 27, 6 Am. Dec. 150; Williams vs. Bobbins, 16 Gray, 77, 77 Am. Dec. 396; Tucker Mfg. Co. vs. Fairbanks, 98 Mass. 101; Sturdevant vs. Hull, 59 Me. 172, 8 Am. Eep. 409; Pentz vs. Stanton, 10 Wend. 271, 25 Am. Dec. 558; Powers vs. Briggs, 79 111. 493, 22 Am. Eep. 175. The cases cited by appellant are not in conflict with the rules above stated. In Farmers' and Mechanics' Bank vs. Colby, 64 Cal. 352, the note was signed by '• G. A. Colby, Prest. Pac. Peat Coal Co., D. K. Tripp, Sec. pro tern." It was indorsed by Colby and four others. TJ»e action was against Colby and Tripp as makers, and the other defendants as indorsers. The court said: " Eead as a whole, we think it apparent from its face that it is the note of the company indorsed by the individuals." In Bean vs. Pioneer Mining Co., 66 Cal. 451, 56 Am. Eep. 106, the note was signed "Pioneer Mining Company, John E. Mason, Supt." The plaintiff sought to hold Mason personally responsible on the note, but the court considered him not bound. The court said: "The signature is not John E. Mason, superintendent of the Pioneer Mining Company," the last portion of which, in the absence of any words in the body of the note indicating an inten- tion that it should be an obligation of the company, might, it is claimed, be held to be merely descriptio persona. But here the words 'Pioneer Mining Company/ precede the name 'John E. Mason.' " In Mechanics' Bank of Alexandria vs. Batik of Columbia, 5 Wheat. (U. S.) 326, the question was whether a certain act done by the cashier of a bank was done in his official or individual capacity. The action was based upon a check, and the court said: "But the fact that this appeared on its face to be a private check is by no means to be conceded. On the contrary, the appearance of the corporate name of the institution on the face of the paper at once leads to the belief that it is a corporate and not an indi- vidual transaction; to which must be added the circumstance that the cashier is the drawer and the teller the payee; and the form of ordinary checks deviated from by the substitution of ' to order/ for ' to Chap. Ill ] Hobson vs. Hassett. 445 bearer.' The evidence, therefore, on the face of the bill, predomi- nates in favor of its being a bank transaction." In Carpenter vs. Farnsworth, 106 Mass. 561, 8 Am. Rep. 360, the action was on a check having the words "iEtna Mills" printed in the margin and signed «■ J. D. Farnsworth, Treasurer." The court said " that this check manifests upon its face that the writ- ing is the act of the principal, though done by the hand of an agent; or, in other words, that it is the check of the iEtna Mills, executed by Farnsworth as their treasurer and in their behalf." The other cases cited do not need special notice. In the light of the rules of law above announced, the question then is, did the defendant, by signing the note as he did, make himself personally responsible for its payment? It seems to us that there can be but one answer to this question, and that is, that he did. There is nothing on the face of the note to show that there was any principal back of the defendant. He signed his own name, and wholly failed to indicate, if he had a principal, who or what the principal was. The word "president," which he added to his name, must therefore be regarded as a mere descriptio persona. It is further contended that, as the promissory note of the defendant, it was without consideration. We do not think this position can be maintained. The note imports a consideration, and it must be presumed that when the old note was paid it was given up, and a new one taken in its place. The old note was a sufficient consideration for the new. "We think the court drew correct conclusions from the facts before it, and therefore advise that the judgment be affirmed. Note.— See, also, Davis vs. England, 141 Mass. 587; Exchange Bank vs. Lewis County, 28 W. Va. 273; Robinson vs. Kanawha Valley Bank, 44 Ohio St. 441; Tilden vs. Barnard, 43 Mich. 376, 38 Am. Rep. 197; EendeU vs. Harriman, 75 Me. 497; Burlingame vs. Brewster, 79 I1L 515, 22 Am. Rep. 177; Powers vs. Briggs, 79 111. 493, 22 Am. Rep, 175. 446 Cases ox Agency. [Book III ( 54 New Jersey Law 208, 16 L. R. A. 143.) REEVE vs. FIRST NATIONAL BANK OF GLASSBORO. (New Jersey Court of Errors and Appeals, February, 1S92.J Action to recover upon a promissory note. The opinion states the facts. Plaintiff had judgment below. J. J. Crandall, for plaintiff in error. Lewis Starr, for defendant in error. Reed, J., delivered the opinion of the court. This cause was tried at the Gloucester Circuit. The action was brought upon certain promissory notes, of which the following is a copy: " $97 70-100. Glassboro, N. J., Dec. 18, 1890. " Three months after date we promise to pay to the order of Thos. Reeve, at the First National Bank of Glassboro, ninety- seven and 70-100 dollars, without defalcation, value received. " Warrick Glass Works. "J. Price Warrick, Pres. Two additional notes, one for $90.80 and another for $140.10, were in the same form. Each was endorsed by the payee and held for value by the First National Bank of Glassboro. At maturity a demand of payment was made at the bank upon the Warrick Glass- Works, payment refused, and notice of protest duly given to Reeve, the payee and indorser. The defense interposed by the defendant's counsel was that the note was signed by the Warrick Glass Works and by J. Price Warrick as joint makers; that demand of payment should have been made upon each of the joint makers; and therefore it was insisted that the failure to make a demand upon Warrick relieved the indorser from liability. The only facts proved in the case bearing upon the question mooted were that the note was given by the corporation for feed furnished, and that J. Price Warrick was the president of the company. At the conclu- Bion of the plaintiff's case a motion to nonsuit was made and over- ruled. This action of the trial court was the subject of the only material exception. We are of the opinion that the refusal to non-suit was correct. The note was that of the Warrick Glass Works alone. The demand of payment was properly made upon the corporation only. Chap. Ill] Reeve vs. Nat'l Bank. 447 The cases in which the liability of parties to paper similar to this is determined are not uniform in their results. Indeed, great con- trariety of views can be found in the decisions upon this question. A detailed examination of those cases would not result in much profit. The result of the best considered decisions is this: Where nothing appears in the body of a note to indicate the maker, and the note is signed by a corporate name under which name appears the name of an officer of the company, with his corporate official title affixed thereto, in such case the note is taken conclusively to be that of the corporation. Where however, a note drawn in a similar form, except as to the signatures, is subscribed by the name of an officer of a corporation, to which name is affixed his title as an officer of a particular corporation, the result is not the same. In respect to notes drawn in the last mentioned form, the courts in most of the states hold that there is an ambiguity arising out of this manner of coupling the names of the natural person and of the corporation. It is therefore open to the parties to introduce extrinsic testimony to disclose facts from which it can be concluded which of the parties should be regarded as the maker. In this state the rule is that a note drawn in this form is prima facie the note of the person signing and not the note of the cor- poration; but this is only a disputable presumption, and, upon the ground of an existing ambiguity concerning the maker, evidence is admissible to show that it was intended to be the note of the cor- poration, which evidence can, of course, be met with counter-evi- dence of the same character. This rule was definitely settled in the case of Kean vs. Davis, 21 N. J. L. 6S3, 47 Am. Dec. 182. In this case a note was signed, "John Kean, Prest. F. & S. S. R. R. Co." It was held to be prima facie the note of Kean, but it was held that parol evidence might be introduced to show whether it really was the personal note of the officer or was the note of the railroad company. If, therefore, the present note had been signed " J. Price Warrick, President of the Warrick Glass Works," it, in the absence of parol testimony to show a contrary intention, would be regarded as the note of Warrick. As the notes are signed with the name of the corporation, followed by the words, "J. Price Warrick, Pres.," they are taken to be corporation paper. This conclusion seems to rest upon rational ground. The name of the corporation signed first stands as a principal, and t'nat of the officer as agent. The name of a corporation, so placed, raises the implication of a corporate liability. To so place it requires 448 Cases on Agency. [Book III the hand of an agent. The name of an officer of sneh corpora- tion, to which name the official title is appended, pnt beneath the corporate name, implies the relation of principal and agent. It means that, inasmnch as every corporate act mnst be done by a natural person, this person is the agent by whose hand the corpor- ation did the particular act. This form of signature is just as significant in respect to the notes in question as if the name the " "Warrick Glass Works " had been written, " Per Warrick, Agent." The following are cases in which notes in similar form to those now in suit have been held to be solely the notes of the corporation whose name first appeared, followed by the name of an officer: Bean vs. Pioneer Min. Co., 66 Cal. 451, 56 Am. Eep. 106; Atkins vs. Brown, 59 Me. 90; Castle vs. Belfast Foundry Co., 72 Me. 167; Millar vs. Roach, 150 Mass. 140, 6 L. E. A. 71; Draper vs. Massachusetts Steam Heat Co., 5 Allen, 338; Liebscher vs. Kraus, 74 Wis. 387, 17 Am. St. Eep. 171; 5 L. E. A. 496, {post, p. — ). I do not perceive any significance in the use of the words " we promise to pay," instead of " the company promises to pay." The contention was that the use of these words raised an implication that it was the joint note of the corporation and Warrick. But, as has been remarked in more than one of the cases cited, in which the notes contained a promise in like form, the word " we " is often used by a corporation aggregate. Draper vs. Massachusetts Steam Heat Company, supra; Bean vs. Pioneer Min. Co., supra; Ran- dolph Co. Paper, 143. Our conclusion iB that the demand was made upon the only maker, and therefore the refusal of the trial judge to nonsuit was right. Judgment affirmed. (74 Wisconsin, 387, 17 Am. St. Eep. 171, 5 L. E. A. 496.) LIEBSCHEE vs. KEAUS. (Supreme Court of Wisconsin, August, 18S9.J Action upon a note. The opinion states the facts. Defend* ant had judgment below. Frank J. Lenicheck and J. C. McKenney, for the appellant. Ohap. Ill] Liebscheb vs. Kraus. 449 Winkler, Flanders, Smith, Bottum and Vilas, for the respondent. Orton, J. This action was brought on the following promis- sory note: " $037.40. Milwaukee, January 1, 1887. " Ninety days after date, we promise to pay to Leo Liebscher, or order, the sum of six hundred and thirty-seven dollars and forty cents, value received. " San Pedro Mining and Milling Company, " F. Kraus, President." The plaintiff demands judgment on this note against both the corporation and Frederick Kraus, as joint makers. The defendant Kraus answered that he signed the note for the said San Pedro Mining and Milling Company, as its president, and not otherwise, and that his signature was placed upon said note for the purpose of showing who executed the same on behalf of said company, and as a part of the corporation signature to the note, and for no other purpose. The plaintiff offered to prove on the trial substan- tially that Kraus did not sign the name of the company, but signed his own name as a joint-maker, intending to bind himself, and that this was according to the understanding of the parties, at the time. This offer was rejected, and a verdict in favor of Kraus was directed by the court. This evidence is admissible only on the ground that there is an ambiguity in the signatures to the note. If, in the law, this signing imports that both the company and Kraus are jointly bound, or that only the company is bound, there is no ambiguity and parol evidence to alter or vary this effect is inadmis- sible. But if, in the law, such signing imports only that both are bound, or that the company only is bound, according to the facts and circumstances in explanation of it and the intention or understanding of the parties, then there is an ambiguity, and the evidence was proper. The contention of the learned counsel of the appellant that this Bigning imports that both are bound, is inconsistent with the offer of such evidence. The learned counsel of the appellant has expressed, in his brief, the true principle, as follows: "As to the question of parol evidence, the rule of law is, that such evidence cannot be admitted to vary the terms of a contract, or to show con- trary intention than that disclosed by the instrument, unless there 29 450 Cases on Agency. [Book III is an ambiguity." This has been often decided to be the law by this court. Foster vs. Clifford, 44 Wis. 569, 28 Am. Rep. 603; Cooper vs. Cleghorn, 50 Wis. 113; Hubbard vs. Marshall, 50 Wis. 322; Gilmann vs. Henri/, 53 Wis. 470. There appears to be an inconsistency in cases where it is first held that such a note ipso facto binds the person who signed it with his official name, and yet that parol evidence might be given to make it certain. Heffner vs. Brownell, 70 Iowa, 591. This case is mentioned as the only one in which it has been decided that such signing binds the person as well as the corporation; but there would seem to be somewhat of an ambiguity in the opinion. In Bean vs. Pioneer Mining Company, 66 Oal. 451, 56 Am. Rep. 106, it seems to have been decided that a similar note bound the company alone, but that the parol evidence was proper to explain it. No case is cited, and I can find none, where it has been decided squarely that such a note bound both the company and the person whose name appears below with the name of his office or agency, or bound the company alone, except the case of Chase vs. Pattberg, 12 Daly, 171, where the note was, "We promise to pay," etc., "(Signed) English S. M. Co., H. Pattberg, Manager;" and it was decided that the company was not bound, but that Pattberg was. The authorities are gen- erally the other way. In Draper vs. Massachusetts Steam Heat- ing Co., 5 Allen, 338, the note was, " We promise to pay," etc., "(Signed) Massachusetts Steam Heating Company; L. S. Fuller, Treasurer." In Castle vs. Belfast Foundry Co., 72 Me. 167, it was, " We promise to pay," etc., " at office Belfast Foundry Com- pany; (Signed) Belfast Foundry Company, W. W. Castle, President." In Falh vs. Moebs, 127 U. S. 597, it was, "We promise to pay," etc., "to order of Geo. Moebs, Sec. & Treas- urer, at," etc.; "(Signed) Peninsular Cigar Co., Geo. Moebs, Sec. & Treas.," and indorsed, " Geo. Moebs, Sec. & Treas." These notes were held to be unambiguous, and not explainable by parol evidence, and the notes of the companies alone. Many other cases of similar signing are found in the above ca^cs and in the text books. See also Mechem on Agency, section 439; 1 Randolph on Commercial paper, 188; 1 Daniel onKegotiable Instru- ments, sections 299-305; Gillett vs. Newmarket Savings Hank, 7 111. App. 499; Scaidan vs Keith, 102 111. 634, 40 Am. Rep. 624; I alham vs. Houston Flour Mills, 68 Tex. 127; Story on Agency, Chap. Ill] Liebscher vs. Keaus. 451 sec. 154; Parsons on Notes and Bills, 312. The question comes very near, if not quite, having been decided by this court in Houghton vs. First National Bank, 26 Wis. 003, 7 Am. Rep. 107, where it held tbat an indorsement on a note not belonging to the bank by "Geo. Buckley, Cas.," be being cashier of the bank, bound the bank, and not himself. In Ballston Spa Bah vs. Murine Bank, 16 Wis. 120, it is held that a note signed by ''J. H. Sidmore, Cash.," bound the bank alone. In Rockwell vs. Elkhorn Bank, 13 Wis. 653, where the bank promises to pay in the body of the note, and it is signed only by " D. D. Spencer, Cashier," it was held that the bank only was bound. The principle of these authorities seems to be "that if the agent sign the note with his own name alone, and there is nothing on the face of the note to show that he was acting as agent he will be personally liable; but if his agency appears with his signature, then his principal only is bound," Here the corporation could not sign its own name, and it is not otherwise shown on the face of the note than that Kraus signed the corporate name, and by adding the word " president" to his own name, he shows conclusively that, as president of the corporation, he signed the note, and not other- wise. Such is the natural and reasonable construction of these signatures, and so it would be generally understood. The affix " cashier," " secretary," " president," or " agent " to the name of the person sufficiently indicates and shows that such person signed the bank or corporate name, and in that character and capacity alone. The use of the word " by " or " per " or " pro " would not add to the certainty of what is thus expressed. It is not common to use these words in commercial business. It is sufficiently understood that the paper is signed by the officer or agent named, and for the corporation. But it is useless to prolong this discussion. It is almost too plain for argument. The note was that of the corporation alone, signed by Kraus as its president. The circuit court properly rejected the offer of parol proof, and correctly instructed the jury to find a verdict in favor of Kraus. The judgment of the circuit court is affirmed. Note.— In Keidan vs. Winegar, 95 Mich. -130. 54 N. W. Rep. 901, the rule, as to the admissibility of parol evidence stated in Mechem on Agency, § 443, is quoted with approval. 458 Cases on Agency. [Book III II. OP THE EXECUTION OF OTHEE SIMPLE CONTRACTS. (101 United States, [11 Otto] 392, 2 Myer's Fed. Deo. 170.) WHITNEY vs. WYMAN. (Supreme, Court of the United States, October, 1879. J This was an action brought by Whitney to recover the price of certain machinery alleged to have been sold by him to defendants, Wyman, Ferry and Storrs. The defense was that the defendants, in making the purchase, acted for and in behalf of the Grand Haven Fruit Basket Company and not personally. Defendants and a number of other persons had on January 5, 1869, organized a cor- poration bearing that name, and on January 21st the corporation had adopted by-laws and elected directors. On January 25, defend- ants were elected by the directors, a "prudential committee.'" The articles of association were not filed with the Secretary of State until February 19, 1869, and with the county clerk until May 12, 1869. The statute provided that the corporation should not com- mence business until the articles were so filed. On February 1, 1889, defendants, who were authorized by the directors to buy the machinery, wrote to Whitney saying, " Our company being so far organized, by direction of the officers, we now order from you," etc., giving a list of the machinery, and signed " Charles Wyman, Edward P. Ferry, Carlton L. Storrs, Prudential Committee, Grand Haven Fruit Basket Co." On Feb- ruary 10, plaintiff addressed a letter to the company acknowledging receipt of the order, saying he had already anticipated it by begin- ning work on the machinery and would push it with all his force. April 14, plaintiff addressed a letter to defendants enclosing the bill and stating that the machinery had been shipped. Plaintiff charged the machinery to defendants personally upon his books, and drew a draft upon them which they refused to accept. The company received the machinery and used it in its business, and its treasurer paid the freight. The company failed to pay, and plaintiff in this action sought to hold defendants personally liable. The court below instructed the jury that the letter of February 1, 1869, bound the company and not the defendants personally, if Chap. Ill ] Whitney vs. Wyman. 453 there was then a corporation; that if it was exercising its franchise as such it was a corporation de facto, and the irregularities in its organization were immaterial. Verdict for defendant. J. W. Champlin, for plain till' in error. M. J. Smiley, for defendants. S wayne, J. (After stating the facts.) "Where the question of agency in making a contract arises there is a broad line of distinc- tion between instruments under seal, and stipulations in writing not under seal, or by parol. In the former case the contract must be in the name of the principal, must be under seal, and must pur- port to be his deed and not the deed of the agent covenanting for him. Stanton vs. Camp, 4 Barb. (N. Y.) 274. In the latter cases the question is always one of intent, and the court, being untram- meled by any other consideration, is bound to give it effect. As the meaning of the law-maker is the law, so the meaning of the contracting parties is the agreement. Words are merely the symbols they employ to manifest their purpose that it may be carried into execution. If the contract be unsealed and the mean- ing clear, it matters not how it is phrased, nor how it is signed, whether by the agent for the principal, or with the name of the principal by the agent, or otherwise. The intent developed is alone material, and when that is ascertained it is conclusive. Where the principal is disclosed, and the agent is known to be act- ing as such, the latter cannot be made personally liable unless he agreed to be so. Looking at the letter of the defendants of the 1st of February, 1SG9, and the answer of the plaintiff of the 10th of that month, we cannot doubt as to the understanding and meaning of both parties with respect to the point in question. The former advised the latter of the progress made in organizing the corporation; that the order was given by the direction of its officers, and the letter is signed by the writers as the " Prudential Committee of the Grand Haven Fruit Basket Co.," which was the name in full of the cor- poration. The plaintiff addressed his reply to the " Grand Haven Fruit Basket Company, " thus using the name of the corporation as the party with whom he knew he was dealing, and omitting the names of the defendants, and their designation as a committee, according to the style they gave themselves in their letter. It seems to us entirely clear that both parties understood and meant that the contract was to be, and in fact was, with the corporation, 454 Cases on Agency. [Book III and not with the defendants individually. The agreement thns made conld not be afterwards changed by either of the parties without the consent of the other. Utley vs. Donaldson, 94 U. S. 29. But it is said the corporation at the date of these letters was for- bidden to do any business, not having then filed its articles of association, as required by the statute. To this objection there are several answers. The corporation subsequently ratified the contract by recognizing and treating it as valid. This made it in all respects what it would have been if the requisite corporate power had existed when it was entered into. Angell & Ames. Corp. § 804, and note. The corporation having assumed by entering into the con- tract with the plaintiff to have the requisite power, both parties are estopped to deny it. Id. § 635, and note. The restriction imposed by the statute is a simple inhibition. It did not declare that what was done should be void, nor was any penalty prescribed. No one but the State could object. The contract is valid as to the plaintiff, and he has no right to raise the question of its invalidity. National Bank vs. Matthews, 98 U. S. 621. The instruction given by the court to the jury with respect to acts of user by the corpora- tion in proof of its existence was correct. If there was any error, it was in favor of the plaintiff. Angell & Ames, Corp. sec. 635. • * * Judgment affirmed. (156 Massachusetts, 28, 15 L. E. A. 509.) BROWN vs. BRADLEE. (Supreme Judicial Court of Massachusetts, February, 1S0S.J Action to recover the amount of a reward. The opinion states the facts. The plaintiff recovered below. J. M. B. Churchill, for the defendants. C. Browne & J. J. Feeley («/. H. Taylor, with them), for the plaintiff. Holmes, J. This is an action to recover a reward which was offered in writing in the following terms: "$2,500 reward will be paid to any person furnishing evidence Chap. Ill] Brown vs. Bradlee. 455 that will lead to tlie arrest and conviction of the person who shot Mr. Edward Cunningham, November 21, 1889. "J. Walter Bradlee. "T. Edwin Ruggles. "J. Albert Simpson. " Selectmen of Milton. "Milton, Nov. 22, 1889." The main questions reserved by the report are really questions as to the construction of this instrument, namely, whether the defend- ants bound themselves personally by it, and what evidence would warrant a finding that the conditions of the offer were satisfied. On the first question, we are of opinion that the defendants are personally liable. No doubt the instrument would bind the town if made with authority and intent to bind it. Crawshaw vs. Box- bury, 7 Gray, (Mass.) 374; Janvrin vs. Exeter, 48 N. H. 83, 2 Am. Rep. 185. But the same words may bind two parties: the agent, because in their literal sense they purport to bind him; the principal, because he is taken to have adopted the name of the agent as his own for the purpose of the contract. Byington vs. Simpson, 134 Mass. 169, 45 Am. Rep. 314 {post, p. ); Calder vs. Dobell, L. R. 6 C. P. 486. The purport of the words used in this case is that the promise contained in the body of the paper is made by the signer. The only question is who is the signer? Do the defendants, by adding their official designation, take away from their names their ordinary significance as proper names, and make of their collective signatures a composit unit, which means the town of Milton and nothing else? We think not. But for the words, "Selectmen of Milton," the promise would be in the usual and proper form for a personal undertaking. Wenttvorth vs. Day, 3 Mete. (Mass.) 352, 37 Am. Dec. 145; Besse vs. Dyer, 9 Allen (Mass.) 151, 85 Am. Dec. 747; Lancaster vs. Walsh, 4 M. & W. 16; Lockhart vs. Barnhart, 14 M. & W. 674; Thatcher vs. England, 3 C. B. 254; Tamer vs. Walker. L. R. 1 Q. B. 641, L. R. 2 Q. B. 301. If it contained express words of personal promise, and the corporation was a private corporation, or the agents were not public officers, the mere addition of their office would not exonerate them. Simonds vs. Heard, 23 Tick. (Mass.) 120, 125, 34 Am. Dec. 41; Fullam vs. West Brookficld, 9 Allen, (Mass.) 1, 4; Tucker Mfg. Co. vs. Fairbanks, 98 Mass. 101, 104. The only argument which can be relied on for a different con- 456 Cases oh Agency. [Book III elusion here is that the defendants were public officers, and that a more liberal rule prevails with regard to them. It has been doubted how far there is such a difference with regard to agents or officers of a town; Simonds vs. Heard, supra; Hall vs. Cochrell, 28 Ala. 507; Providence vs. Miller, 11 R. I. 272, 23 Am. Rep. 454; and these cases show very plainly, if authority for the proposition is needed, that such officers will bind themselves personally if they purport to do so. As a test of what the defendants have purported to do by the literal meaning of their words, suppose that their offer had been under seal, We think it would have been impossible to say that the only meaning of the signature was the town of Milton. See Codding vs. Mansfield, 7 Gray, (Mass.) 272, 273. Perhaps our conclusion is a little strengthened by the considera- tion that, so far as appears, the defendants had not authority to bind the town for more than $500. Pub. Sts. c. 212, § 12. For although, of course, an agent does not make a promise his own by exceeding his authority if it purports to bind his principal only (Jefts vs. York, 4 Cush. [Mass.] 371, 50 Am. Dec. 791), still, when the construction is doubtful, the fact that he has no authority to bind the supposed principal is a reason for reading his words as directed toward himself. Hall vs. Cockrell, supra. (Omitting other considerations.) Judgment on the verdict. *fc>* Note. — See Knight vs. Clark, ante, p. 434. (8 Meeson & "Welsbt, 834.) HIGGINS vs. SENIOR. {English Exchequer of Pleas, June, I84I.J Special assumpsit. The opinion sufficiently states the case. Dundas and Crompton, for plaintiff. Cresswell, John Henderson and R. Denman, for defendant. Parke, B. The question in this case, which was argued before us in the course of the last term, may be stated to be, whether in an action on an agreement in writing, purporting on the face of it to be made by the defendant, and subscribed by him, for the lale and delivery by him of goods above the value of £10, it is Chap. Ill] Higgins vs. Senior. 457 competent for the defendant to discharge himself, on an issue on the plea of non-assumpsit, by proving that the agreement was really made by him by the authority of and as agent for a third person, and that the plaintiff knew those facts, at the time when the agreement was made and signed. Upon consideration, we think that it was not; and that the rule for a new trial must be discharged. There is no doubt, that where such an agreement is made, it is competent to show that one or both of the contracting parties were agents for other persons, and acted as such agents in making the contract, so as to give the benefit of the contract on the one hand to, {Garrett vs. Handley, 4 B. & C. 644; Bateman vs. Phillips, 15 East, 272), and charge with liability on the other, (Paterson vs. Gandasequi, 15 East, 62), the unnamed principals; and this, whether the agreement be or be not required to be in writing by the Statute of Frauds; and this evidence in no way con- tradicts the written agreement. It does not deny that it is binding on those whom, on the face of it, it purports to bind; but shows that it also binds another, by reason that the act of the agent, in signing the agreement, in pursuance of his authority, is in law the act of the principal. But, on the other hand, to allow evidence to be given that the party who appears on the face of the instrument to be personally a contracting party, is not such, would be to allow parol evidence to contradict the written agreement, which cannot be done. And this view of the law accords with the decisions, not merely as to bills of exchange {Sowerly vs. Butcher, 2 C. & M. 371; Letevre vs. Lloyd, 5 Taunt. 749), signed by a person, without stating his agency on the face of the bill; but as to other written contracts, namely, the cases of Jones vs. Littledale, 6 Ad. & Ell. 486; 1 Nev. & A. 677, and Magee vs. Atkinson, 2 M. & W. 440. It is true that the case of Jones vs. Littledale, might be supported on the ground that the agent really intended to contract as principal, but Lord Denman, in delivering the judgment of the court, lays down this as a general proposition, " that if the agent contracts in such a form as to make himself personally responsible, he cannot afterwards, whether his principal were or were not known at the time of the contract, relieve himself from that responsibility." And this is also laid down in Story on Agency, § 269. Magee vs. Atkinson, is a direct authority, and cannot be distinguished from this case. The case of Wilson vs. Hart, 7 Taunt. 295; 1 Moore, 45, which was cited on the other side, is clearly distinguishable. The con- 458 Cases on Agency. [Book III tract in writing was, on the face of it, with another person named Read, appearing to be the principal bnjer; but there being evi- dence that the defendant fraudulently put forward Read as the buyer, whom he knew to be insolvent, in order to pay a debt from Read to himself with the goods purchased, and having subsequently got posession of them, it was held, on the principle of Hill vs. Per- rott, 3 Taunt. 274, and other cases, that the defendant was liable; and as is observed by Mr. Smith, in the very able work to which we were referred (Leading Cases, vol. II, page 125), that decision turned altogether upon the fraud, and if it had not, it would have been an authority for the admission of parol evidence to charge the defendant not to discharge Read. Rule discharged Chap. II] People vs. Township Boaed. 459 BOOK IV. OF THE RIGHTS, DUTIES AND LIABILITIES ARIS- ING OUT OF THE RELATION. CHAPTER II. OF THE DUTIES AND LIABILITIES OF THE AGENT TO HIS PRINCIPAL. I. LOYALTY TO HIS TBUST. (11 Michigan, 222.) THE PEOPLE vs. TOWNSHIP BOARD OF OVERYSSEL. (Supreme Court of Michigan, April, 1863. J Application for mandamus to compel the township to issue bonds to pay for work done under a contract to improve a harbor. Defense that the contract was void because four of the Board who let the contract were among the contractors for doing the work. Balch & De Toe, for respondents. A. Russell, for relators. Manning, J. Four of the relators, who took the contract to build the piers, were members of the board of freeholders organized under the act for the purposes therein mentioned, and that let the contract on behalf of the public. So careful is the law in guarding against the abuse of fiduciary relations, that it will not permit an agent to act for himself and his principal in the same 460 Cases on Agency. [Book IV transaction, as to bny of himself, as agent, the property of hia principal, or the like. All snch transactions are void, as itrespecta his principal, unless ratified by him with a full knowledge of all the circumstances. To repudiate them he need not show himself damnified. Whether he has been or not is immaterial. Actual injury is not the principle the law proceeds on in holding such transactions void. Fidelity in the agent is what is aimed at, and as a means of securing it the law will not permit the agent to place himself in a situation in which he may be tempted by his own pri- vate interest to disregard that of his principal. Hence, the law will not permit an administrator to purchase at a public sale by himself, property of the estate on which he has administered; or a guardian the property of his ward, when sold by himself. All public officers are agents, and their official powers are fiduciary. They are trusted with public functions for the good of the public; to protect, advance and promote its interests, and not their own. And a greater necessity exists than in private life for removing from them every inducement to abuse the trust reposed in them, as the temptations to which they are sometimes exposed are stronger, and the risk of detection and exposure is less. A judge cannot hear and decide his own case, or one in which he is person- ally interested. He may decide it conscientiously and in accordance with law, but that is not enough. The law will not permit him to reap a personal advantage from an official act performed in favor of himself. For these reasons we hold the contract we are asked to enforce by mandamus void as against public policy. See Clute vs. Barron, 2 Mich. 192; DwigJit vs. Blackmar, 2 Mich. 330, 57 Am. Dec. 130; Ingerson vs. Starkweather, Walk. (Mich.) Ch. 346; Beaubicn vs. Poulard, Har. (Mich.) Ch. 206; Walton vs. Torrey, Har. Ch. 259; / erkins vs. Thompson, 3 1ST. II. 144; Obert vs. Hammel, 3 Harrison (N. J.) 74; Lazarus vs. Bryson, 3 Bin. (Pa) 54. We think it no exception to the rule we have stated, that all the the contractors were not members of the board of freeholders, or that those who were members were a minority of the board. The rule would not amount to much if it could be evaded in any such way. It might almost as well not exist, as to exist with such an exception. The public would reap little or no benefit from it. Being against the relators on this part of the case, I think it unnecessary to notice the other points made on the argument. The mandamus, I think, should be denied, with costs. Chap. II] People vs. Township Board. 461 Ciiristiancy, J., delivered a concurring opinion. Campbell concurred in the result, but held the contract voidable rather than void. ( 108 Illinois, 39, 48 Am. Rep. 541.) DAVIS vs. HAMLIN. (Supreme Court of Illinois, November, 18S3.J Bill to declare that Davis held a certain lease in trust for Ham- lin. Davis, who was the confidential agent of Hamlin, the lessee of a theater, shortly before Hamlin's lease expired secretly pro- cured a lease of the premises for a new term to himself, denying to Hamlin that he was competing for the lease. Plaintiff had judgment below. Egbert Jamieson and L. W. Pierce, for appellants. Leonard Swett and Quigg & Tuthill, for appellee. Sheldon, C. J. Under the facts in this case the only question arising is, whether Hamlin, by reason of Davis' agency and confi- dential relation to him, is entitled to the benefit of the lease exe- cuted by Borden to Davis. In the employment of an agent, the principal bargains for the disinterested skill, diligence and zeal of the agent for his own exclusive benefit. Upon entering into the employ of Ham- lin, there rested upon Davis the duty of fidelity to his employer's interest, and of acting for the furtherance and advancement of the business in which he was engaged, and not in its injury. We view the whole conduct of Davis in regard to the lease in question as violative of the duty of the relation in which he stood toward Hamlin. His first offer to rent the premises from Borden, about December, 1881, was an act hostile to the interest of his employer. He offered Borden a rent which was nearly $5,000 in excess of the rent which Hamlin was then paying. Borden knew that this was an offer made upon an exact knowl- edge of the profits of the business, which Davis, from his employ- ment, had peculiar means of knowing, and the natural effect would be to cause Hamlin to pay an enhanced rent when he should come to ask for a renewal of his lease. Davis violated the duty of his rela- 462 Cases ok Agency. £Book IV tion in concealing from Hamlin that he was attempting to get the lease. Davis excuses his denial to Hamlin of such attempt by saying this was on January 17, and that it was true that at that time he was not making such an attempt, but had given it over, not up to that time having received any response from Borden to Davis' offer to rent, made on December 1st, and that he was then, on January 17, making, or had made, preparations to go into another business. Taking this to be so, we find Davis only two days later, January 19, in the act of negotiating for the lease, and making an offer to Borden for the lease which the latter took time to consider. Now Davis knew that it was of vital importance to the interest of Hamlin that the latter should get a renewal of his lease; that Hamlin was most anxious to ascertain whether Davis — who alone, with Hamlin had exact knowledge of the profits of the business — was in competition for the lease; and from Davis, only two days before, denying that he was competing for the lease, Davis knew, on January 19, that the belief was resting on Hamlin's mind, from what Davis had told him two days before, that Davis was not a competitor for the lease. Under these circumstances Davis ought to have disabused the mind of Hamlin of the impres- sion, which Davis had caused, that the latter was not attempting to get the lease, and have informed Hamlin of what the fact was, to give the latter the opportunity to act accordingly, and Davis' not doing so was a breach of good faith toward his employer. The obtaining of the lease by Davis amounted to a virtual de- struction of his employer's whole business at the termination of the old lease, under which the latter was holding. By some ten years of labor Hamlin had built up a business of a very profitable char- acter. There was a good will attached to it, which was valuable. Hamlin was intending to make it a life-time business. Sustaining this lease to Davis at the expiration of Hamlin's lease, April 18, 1883, all this business would come to an end, and pass, good will and all, from Hamlin, the employer, into the hands of Davis, the employe. And this would have been accomplished by the means of a renewal lease obtained by a confidential agent, in violation of the duty of his relation, and acquired, presumably, because of peculiar means of knowledge of the profitableness of the business, afforded him by the confidential position in which he was employed. A personal benefit thus obtained by an agent, equity will hold to inure for the benefit of the principal. Public policy, we think, must condemn such a transaction as that Chap. II] Davis vs. Hamlin. 463 in question. To sanction it would hold out a temptation to the agent to speculate off from his principal to the latter's detriment. Davis very well knew that his employer would be willing to pay a much higher rent than that at which he obtained the lease, and that he could dispose of the lease to ITamlin at a large profit to himself, and such means of knowledge was derived from his posi- tion as agent. If a manager of a business were allowed to obtain such a lease for himself, there would be laid before him the inducement to produce in the mind of his principal an under-estimate of the value of the lease, and to that end, may be, to mismanage so as to reduce profits, in order that he might the more easily acquire the lease for himself. It is contended by the appellant's counsel that the rule we apply, which holds an agent to be a trustee for his principal, has no application to the case at bar, because Davis was not an agent to obtain a renewal of the lease, and was not charged with any duty in regard thereto ; that this was but the specific employment to engage amusements for the theater, and that he was an agent only within the scope of that emplo}-ment; that Hamlin having a lease which would expire April 16, 1883, had no right or interest in the prop- erty thereafter, and that Davis in negotiating for the lease did not deal with any property wherein Hamlin had any interest, and that such property was not the subject matter of any trust between them. Although there was here no right of renewal of the lease in the tenant, he had a reasonable expectation of its renewal, which courts of equity have recognized as an interest of value, secretly to interfere with which, and disappoint, by an agent in the manage- ment of the lessee's business, we regard as inconsistent with the fidelity which the agent owes to the business of his principal. There was the good will of the business, which belonged to the business as a portion of it, and this the agent got for himself. It is further argued that the relation here between Hamlin and Davis was that of master and servant, or employer and employee, and that the rule has never been applied to that relation as a class, and that the classes coming within that doctrine are embraced within the list of defined, confidential relations, such as trustee and beneficiary, guardian and ward, etc. The subject is not compre- hended within any such narrowness of view as is presented on appellant's part. In applying the rule, it is the nature of the rela- tion which is to be regarded, and not the designation of the one filling the relation. Of this principle Bispham says: "The rule 464 Oases on Agency. [Book IV under discussion applies not only to persons standing in a direct fiduciary relation toward others, such as trustees, executors, attor- neys and agents, but also to those who occupy any position out of which a similar duty ought in equity and good morals to arise." Bisph. Eq. sec. 93. In Greenlaw vs. King, 5 Jur. 19, Lord Chancellor Cottenham, speaking of this doctrine says: "The rule was one of universal application affecting all persons who came within its principle, which was that no party could be permitted to purchase an interest when he had a duty to perform which waa inconsistent with the character of a purchaser." " It is the duty of a trustee," said Lord Brougham, in Hamilton vs. Wright, 9 CI. & Fin. Ill, "to do nothing for the impairing or destruction of the trust, nor to place himself in a position inconsistent with the interests of the trust." And on page 124: " Nor is it only on account of the conflict between his interests and his duty to the trust that such transactions are forbidden. The knowledge which he acquires as trustee is of itself sufficient ground of dis- qualification, and of requiring that such knowledge shall not be capable of being used for his own benefit to injure the trust." Although this was said of a trustee, we think it may be equally said here with respect to Davis and the business which he was employed to manage. The rule we apply as to its broadness in extent is aptly expressed in the American note to Keech vs. Sand- ford, 1 Lead. Cas. in Eq. 53, as follows: " Wherever one person \s placed in such relation to another by the act or consent of that other, or the act of a third person, or of the law, that he becomes interested for him, or interested with him, in any subject of prop- erty or business, he is prohibited from acquiring rights in that subject antagonistic to the person with whose interests he has become associated." The view which we have above expressed we believe to be in accordance with the well established principles of equitable juris- prudence. See Devall vs. Burbridge, 4 W. & S. (Pa.) 305; Hdlvs. Frazicr, 22 Pa. St. 320; Fairman vs. Bavin, 29 111. 75; Gilman, Clinton & Springfield R. Co. vs. Kelly, 77 Id. 426; Bennett vs. Vansyckle, 4 Duer, 462; Gillenwaters vs. Miller, 49 Miss. 150; Grumley vs. Webb, 44 Mo. 446, 100 Am. Dec. 304. The judgment of the Appellate Court must be affirmed. Judgment affirmed. Note.— See, also, Vallette vs. Tedens, 122 111. 607, 3 Am. St. Rep. 502. Chap. II] Gaedueb vs. Ogden. 4G5 (22 New York, 327, 78 Am. Deo. 192.) GARDNER vs. OGDEN. (New York Court of Appeals, December, I860.) Plaintiff, who lived in New York, owned real estate in Chicago, and placed it in the hands of Ogden, Jones & Co., real estate agents there for sale. Smith and Hathaway were clerks of Ogden, Jones & Co. While Ogden was absent in Europe, Hathaway wrote to plaintiff, in the name of the firm, saying that they had an offer from Mr. Henry Smith, for the land of $7,500, and that it was doubtful if more could be obtained. Their relation to the firm was not disclosed. Plaintiff accepted the offer relying upon the advice given, and a deed from plaintiff and a note signed by Smith & Hathaway secured by a mortgage back upon the land signed by Smith and wife were exchanged. Before receiving the deed but after the acceptance of the offer, Smith sold portions of the lots for $8,250, and another portion for $1,000. A few months afterward, plaintiff notified Ogden, Jones & Co. of his dissatisfaction with the sale. This action was brought charging Ogden as a party to the fraud, asking that the conveyance be set aside or that Smith and Ogden should pay the highest price which the land had reached. Plaintiff had judgment and defendants appealed. William Curtis Noyes, for appellant. John H. Reynolds, for respondents. Davies, J. (After disposing of a question of jurisdiction). It is appropriate here to examine into the nature and character of the complaint in this action, and the grounds upon which it is sought to make the respective defendants liable. The defendant Ogden is charged with a fraud in having made sale, by himself or his partners, of the plaintiff's lands, at a price far below their actual value, and when they knew that they were selling in an advancing market; that the firm, including Ogden, was interested in the purchase by Smith and Hathaway, their clerks, and that the sale was made to them to defraud the plaintiff; and the plaintiff claims to recover of Ogden the highest price irtiich the land has attained, by reason of his fraudulent disposition of it. The plaint- iff's ground of claim against Smith is, that he stood in such rela- 30 4G6 Cases on Agency. [Book IV tion of confidence to the plaintiff that, in making the purchase, the law judges that he holds the subject-matter of it as the plaint- iff's trustee, and that the plaintiff can call him to account as such. This the plaintiff can do, if such relation of confidence subsists, by requiring a reconveyance of the property, if that be practicable with an account and payment of the rents and profits accruing during the time it was held by the trustee, or if that is not prac- ticable, by calling on the trustee to account and pay over to hia cestui que trust all that he has realized or ought by due diligence to have realized from the trust estate. In the present case, the plaint- iff has elected to regard Smith as his trustee; and his complaint as to him, and the decree of the special term proceeds on this bsais. The plaintiff, therefore, elects to affirm the sale made to Smith. He can- not, uno flatu, affirm it as to him, and disaffirm it as to the defend- ant Ogden. It is difficult to see how, under the provisions of section 167 of the code, these causes of action may be united in the same complaint. Although it may be said that both causes of action arise out of the same transaction, towit, the sale of the plaintiff's lands to the defendant Smith, yet the cause of action against Ogden is for an injury to the plaintiff's property, while that against Smith is a claim against him as a trustee by operation of law. The causes of action joined in this complaint do not affect both of the parties defendant. Ogden is not affected by, or in any way responsible for, Smith's acts as the plaintiff's trustee, and the com- plaint does not profess to make him liable therefor. So Smith is not sought to be made responsible for the fraudulent acts of Ogden. On the plaintiff's own showing, he has separate and distinct causes of action against each of the defendants and which cannot be joined under the code. The issues are separate; the relief prayed against each is distinct and different, and the proofs relied on to maintain each issue are of an entirely dissimilar character. We have looked into the testimony in the case to ascertain if the charge of fraud against the defendant Ogden is sustained by the testimony. As to any personal fraud, it is clear he was not guilty of any, for he was absent in Europe during all the time the negotiations of his firm with Smith, for the sale of the plaintiff's lands were carried on, and did not return until about the time the complaint in this action was verified. The plaintiff entirely failed to show any fraud on the part of the firm or the defondant Ogden, Chap. II] Gaedneb vs. Ogden. 4G7 of such a character as would make them responsible in damages for the sale of the lands to Smith. The testimony fully sustains the position that, at the time of the sale, the price paid, or agreed to be paid, was fair and adequate, and that the purchase-money was adequately secured, and it fails to show that Ogden's firm, or any member of it, had any interest in the purchase. The affirmance of the sale by the plaintiff is a com- plete answer to the claim for damages against the firm for fraud in making the sale. In the case of Massie vs. Watts, 6 Cranch, (U. S.) 148, one Anderson, who made the survey which, it was alleged. Massie had located in his own name instead of that of his principal, was made a party defendant, charging him with fraud in making the survey. On the hearing, the complaint was dismissed, with costs, as to Anderson, and a decree made against Massie, which was affirmed by the supreme court on appeal. A proper disposition of this cause, as to the defendant Ogden, would have been to have dismissed the complaint as to him. The supreme court, at general term, having reversed the judgment of the special term and granted a new trial, and the plaintiff hav- ing appealed therefrom, and stipulated that, if it should be affirmed, judgment absolute might be rendered against him, it is now proper to affirm that order as to the defendant Ogden, and render judgment absolute in his favor, by dismissing the complaint as to him, with costs. It only remains now to consider the cause of action against the defendant Smith. It proceeds upon the ground that Smith stood in such relation of confidence to the plaintiff that the purchase made by him was made as the plaintiff's trustee, and that he can derive no benefit therefrom. This leads to an examination of the main and important question in the case. It is to be observed in the commencement that Ogden, Jones & Co. were the conceded agents of the plaintiff; as such, they owed a duty to him to manage and dispose of his property to the best advantage. It is admitted by the answer that Hathaway and the defendant Smith were clerks of the firm during the years 1852, 1853, and up to July 12, 1854. As such they of course had access to the correspondence of the firm, were well acquainted with the plaintiff's urgency to sell, his motives for so doing, and all the facts and circumstances connected with the property known to the plaintiff's agents; and as the clerks of the firm, they owed the same duty to the plaintiff. This view is much 468 Cases on Agency. [ Book IV strengthened by the circnmstance that all the correspondence with the plaintiff relating to the sale was carried on by Hathaway in the name of the firm; though, in the important letter of October 26, 1853, his name does not appear as the writer. It was written, apparently, by the firm, and signed in their name. A circumstance is disclosed in the proof, w r hich tends strongly to the inference that Hathaway was either interested in this pur- chase from the beginning or intended so to be. I am strongly impressed with the conviction that he was originally a party in interest. It appears that the plaintiff and his sister, Mrs. Hall, were the owners jointly of block No. 1, Carpenter's addition, in Chicago, and of lots 4 and 5 in block 17; that the firm of Ogden, Jones & Co. had charge of this property, and in the spring of 1852, they made partition thereof between Mrs. Hall and the plaint- iff, valuing each share at five thousand five hundred and sixty dol- lars. Hathaway, in the letter of January 13, 1854, informs the plaintiff that he had become the owner of Mrs. Hall's lots; and this circumstance presents a motive on his part to become the owner of, or interested in, the share of the lots owned by the plaintiff. In addition to this, he became equally bound with Smith for the payment of the purchase money, and this, coupled with the conceded fact that he is now interested with him, leads to the inevitable conclusion that he was so originally, or, at least, intended to be. If Ogden, Jones & Co. had become the purchasers, instead of their clerks Smith and Hathaw r ay, what would have been the plaintiff's rights in the premises? The rule is clearly laid down by that learned and eminent writer, Lord St. Leonards, in his work on vendors and purchasers (see Sugden on Vendors, 13th ed. 566); he says: " It may be laid down as a general proposition that trustees, who have accepted the trust (unless they are nominally Buch, as trustees to preserve contingent remainders ), agents, com- missioners of bankrupts, assignees of bankrupts, or their partners in business, solicitors to the commission, auctioneers, creditors who have been consul ted as to the mode of sale, counsel, or any person who being employed or concerned in the affairs of another, have acquired a knowledge of his property, are incapable of purchasing such property themselves, except under the restriction which will shortly be mentioned. For, if persons having a confidential char- acter were permitted to avail themselves of any knowledge acquired in that capacity, they might be induced to conceal their information, Chap. II ] Gabditeb vs. Ogden. 469 and not to exercise it for the benefit of the persons relying on their integrity. The characters are inconsistent. Emptor emit quam miuimo potest, venditor vendit quam maximo potest." In Fox vs. Mackreth, 2 Bro. C. C. 400, it was held by the master of the rolls (afterwards Lord Kenyon), and Lord Chancellor TncitLOW, that a trustee for the sale of estates for the payment of debts, who purchased them himself by taking undue advantage of the confidence reposed in him by the plaintiff, and who resold the Bame premises at a greatly advanced price, should be regarded as a trustee, as to the sums produced by such second sale, for the original owner. This decree was affirmed in the House of Lords in March, 1791. Mackreth vs. Fox, 4 Brown P. C. 258. Soon after this, Mackreth the delinquent trustee, smarting under the just principles of law laid down by the courts, sought to avenge himself for the wrong which he imagined had been done to him, by challenging Sir John Scott, afterwards Lord Eldon, one of the leading counsel for Fox, the plaintiff. No notice was taken of this challenge by Sir John Scott: Twiss's Life of Lord Eldon, Vol. 1, p. 218. And this case has ever remained as a leading authority, and one of peculiar interest. In Hall vs. Koyes, 3 Bro. C. C. 483, a bill was filed by a widow of a cestui que trust, ten years after the sale of trust property by three trustees to one, and the purchaser was held a trustee for the widow. And it is a fact to be noted that the price given by the trustee was more than could have been got from anyone else. In Crowe vs. Ballard, 3 Bro. C. C. 117, the lord chancellor Bays: " Ballard undertakes to sell a legacy, and pretends he took great pains so to do; then he buys it himself. This is alone sufficient to set aside the transaction. It is impossible, at any rate, that the person employed to sell can be permitted to buy." In Whichcote vs. Laivrence, 3 Ves. 740, the lord chancellor says, *'the real proposition, which is very plain in point of equity, and a principle of clear reasoning, is that he who undertakes to act for another in any matter, shall not in the same matter act for himself. Therefore, a trustee to sell shall not gain any advantage by being himself the person to buy/' This principle was acted on by Lord King, in Keech vs. San- ford, Sel. Cas. Ch. 61, October 31, 1726. He there said: " It might seem hard that the trustee is the only person of all man- kind who might not have the lease; but it is very proper that 470 Cases on Agency. [Book IV the rule precluding him from purchasing should be strictly pur- sued, and not in the least relaxed." In Wltelpdale vs. Cookson, 1 Ves. sen. 8, Lord Chancellor Hard- wick would not allow a purchase by a trustee to stand, although another person, being the highest bidder, bought it for him at a public sale. He said that he knew the dangerous consequences of permitting it; and it was not enough for the trustee to say you can- not prove any fraud, as it is in his power to conceal it. The whole doctrine is very fully reviewed by Lord Eldon, chancellor, in Ex parte James, 8 Ves. 337. It were useless to cite all the authorities in the books on this point. A few additional ones, as being of peculiar significance and importance, will be referred to. Notice particularly should be taken of the case of York Buildings Association vs. Mackenzie. It first appeared in 8 Brown P. C. by Torn in Appendix 42; but has since been reported in 3 Paton, (4, Sec. App. Cas.) 378. Chancellor Kent, in Davoue vs. Fanning, 2 Johns. Ch. 252, says of it that it is a case too important to be omitted. He says that it is a complete vindication of the doctrine he applied in that case, and that considering the eminent character of the counsel who were concerned in that case, and who had since filled the highest judicial stations, and the ability and learning which they displayed in the discussion, it is, perhaps, one of the most interesting on a mere technical rule of law, that is to be met with in the annals of our jurisprudence. He added that the reasons of the House of Lords, for setting aside the sale, are not given, and that we are left to infer them from the arguments upon which the appeal was founded. They have now appeared in the report in 3 Paton. It is stated by the reporter, in a note (1 Macq. 481), that the argument of this case lasted sixteen days, at two sessions of parlia- ment (1794 and 1795). Judgment was given on the seventeenth. Lord Loughborough was, indeed, chancellor then; but the tra- dition is that Lord Thurlow, (who has recently delivered the opinion in Fox vs. Mackreth, 2 Bro. C. C. 400), took the chief part in the hearing and deliberation. A person present at the time the judgment was pronounced, says, in a note to the reporter: " I have a very strong recollection of the very impressive speech of Lord Thurlow on the appeal of York Buildings Co. vs. Mackenzie. I was present. Lord Loughborough, the chancellor, spoke after Lord Thurlow." The appellants were an insolvent company, and Chap. II] 3ABDNEB vs. Ogden. 471 their estate was sold by the order of the court of session, at a public judicial sale, to satisfy creditors. The course of such sales is to set up the property at a value fixed upon by the court, which is called the upset price, and which is fixed on information obtained and communicated to the court by the common agent of the court, who has the management of all the outdoor business of the cause. The respondent in the case was the common agent, and he purchased for himself at the upset price, no person appearing to bid more, and the sale was confirmed by the court; and in the course of eleven years' possession he had expended large sums for buildings and improvements. There was no question as to the fairness or integrity of the purchase. The object of the appellants was to set aside the sale, on the ground that the purchaser was the common agent in behalf of all parties to procure information and attend the sale, and stood in the nature of a trustee, and therefore disabled to purchase. On the part of the appellants, it was contended that the sale in question was ipso jure, void and null, because the respondent, from his office of common agent, was under a disability and incapacity which precluded him from .being a purchaser. " The office of common agent, in a ranking and sale, infers a natural dis- ability, which, ex vi termini, imports the highest legal disability, because a law which flows from nature, being founded on the reason and nature of the thing, is paramount to all positive law; that it is of no moment what the particular name or description, whether of character or office, situation or position, is, on which the disability attaches. " " Tutor, ait Paulas, rem pupilli emere non potest; idemque porrigendum est ad similia, id est, ad curatores, procuratores, et qui negotia aliena geruntj " Lib. 3 sec. 7 ff. De Contrac. Emp., etc. The reason of this law is implied in the nature of the cases to which it is extended. Its energy does not consist in a distinction of mere words that a tutor cannot be both seller and buyer, neither does it rest on another applicable enough adage, " Nemo potest in rem suam auctor esse." This sententia of the Roman juris-consult is, that the tutor can- not buy his pupil's estate because he has a trust and charge for his pupil, and therefore it is that the law is extended ad similia, and to all, qui negotia aliena gerunt. By this principle, as the sound and substantial reason of the law, is to be interpreted that other text of the Pandects which says: " Item ipse tutor, et emptoris et venditoris officio fungi non potest." Lib. 5 sec. 7 ff. De Auct. and 472 Cases on Agency. [Book IV Cone. Tut. and Cur. These views were not controverted by the counsel for the respondent; but they insisted that the sale could be maintained on other grounds. The opinions in the house of lords were given by Lords Thuelow and Loughborough. The former said that all the gentlemen admit that it was the duty of the agent to carry on the sale to the utmost advantage for the benefit of the creditors and those interested in the residue; and taking it to be so, one side said, that being your situation, it is utterly impossible for you to perform that duty in such a manner as to derive an advantage to yourselves. He said this seems to be a principle so exceedingly plain that it is, in its own nature, indisputable; for there can be no confidence placed unless men will do the duty they owe to their constituents, or be considered to be faithfully executing it. In these views the Chancellor concurred, and the sale was set aside. Lord Eldon and Sir W. Geant designate this as the great case, and frequently refer to it; and Lord St. Leonards, in his work on Vendors and Pur- chasers, vol. 3, p. 240, calls it likewise the great case, and frequently refers to it. In Jeffrey vs. Aiken, 4 Sess. Cas., 1st ser., 729, decided in Scotland in June, 1826, the lord ordinary observed, it is impossible to hold that the seller can also be the buyer of the subject, after the judgment of the house of lords in the case of York Buildings Company vs. Mackenzie. In Hughes vs. Watson (not reported), decided also in Scotland, January 20, 1846, the same rule as laid down in Mackenzie's case was reiterated and adhered to. Lord Jeff ey said: "The principle involved in this case is a very familiar and general one in our laws. No person can be actor in rem suam. The stringency of the maxim has been ruled and held settled by the house of lords in the case of Mackenzie. * * * It is now presumptio juris et de jure, that where a person stands in these inconsistent relations of both buyer and seller, there are dangers, and it is not relevant to say that it is impossible there could be any in the particular case. I should be sorry to think that any doubt was thrown on this rigorous principle, which has been established both here and in the other end of the island." The whole subject is elaborately reviewed in the case of the Aber- deen R. 11. Co. vs. Illaikie Brothers, 1 Macq. 461, decided in the house of lords, July 20, 1854. Lord Ceanworth, in his opinion, says: "An agent has duties Chap. II ] Gardneb vs. Ogden. 473 to discharge of a fiduciary character toward hia principal; and it is a rule of universal application that no one having such duties to discharge shall be allowed to enter into engagements in which he has, or can have, a personal interest conflicting, or which possibly may conflict, with the interests of those whom he is bound to pro- tect. So strictly is this principle adhered to that no question is allowed to be raised as to the fairness or unfairness of a contract so entered into. It obviously is, or may be, impossible to demonstrate how far in any particular case the terms of such a contract have been the best for the cestui que trust which it was possible to obtain. It may sometimes happen that the terms on which a trustee has dealt, or attempted to deal, with the estate or interests of those for whom he is a trustee, have been as good as could have been obtained from any other person; they may even, at the time, have been better. But still, so inflexible is the rule, that no inquiry on that subject is permitted. The English authorities on this subject are numerous and uniform." In these views Lord Brougham concurred, p. 483. To the same point may be cited Lewis vs. Hillman, 3 H. L. Cas. 607, 629, 630. In In re Bloyes' Trust, 1 Macn. & G. 488, at p. 495, the rule is declared clearly and emphatically. The same line of decision in this state has been uniform, and the cases are numerous where it has been recognized, affirmed, and rigorously applied. It would appear to have been first enunciated in the supreme court in Bergen vs. Bennett, 1 Cai. Cas. 19, 2 Am. Dec. 281, per Kent, J. It was distinctly recognized in that case as a sound and established rule. See pp. 19, 20. It received the unequivocal indorsement of the Court of Errors in Munro vs. Allaire, 2 Cai. Cas. 183, 2 Am. Dec. 330. Benson, J., in delivering the opinion of the court, says: "It is a principle that a trustee can never be a purchaser; and I assume it as not requiring proof that this principle must be admitted, not only as established by adjudication, but also as founded in indispensable necessity, to prevent that great inlet of fraud and those dangerous consequences which would ensue if trustees might themselves become purchasers, or if they were not in every respect kept within compass. Although it may, however, seem hard that the trustees should be the only persons of all mankind who may not purchase, yet, for the very obvious consequences, it is proper that the rule should be strictly pursued, and not in the least relaxed. *' 474 Cases on Agency. [Book IV Chancellor Kent, in Davoue vs. Fanning, 2 Johns. Ch. 252, says that he cannot but notice the precision and accuracy with which the rule and the reason of it are here stated. The next case in which this rule is affirmed is that of Jackson vs. Van Dalfsen, 5 Johns. 43, in the supreme court. The whole sub- ject received a most elaborate and searching examination by Chan- cellor Kent, Davoue vs. Fanning, 2 Johns. Ch. 252. The authori- ties are fully and carefully reviewed, and the powers of his great mind and his varied learning were brought to bear upon this dis- cussion. It is the great case in our courts on this subject, and it will bear a favorable comparison with any other examination of this question. It settled the rule for this state, and has been recog- nized and adopted as authority by many of the courts of the sister states. In harmony with these views are the cases of De Caters vs. LeBay de Chaumont, 3 Paige, 178; Slade vs. Van Vechten, 11 Id. 26; Poillon vs. Martin, 1 Sandf. Ch. 569; Jewett vs. Miller, 10 N. Y. 402, 61 Am. Dec. 751; Van Epps vs. Van Epps, 9 Paige, 237; Torrey vs. Bank of Orleans, 9 Id. 649, 8. c. 7 Hill, 260; Hawley vs. Cramer, 4 Cow. 717; Dobson vs. Bacey, 8 N. Y. 216; Moore vs. Moore, 5 Id. 256. Thi3 subject was very elaborately discussed in the case of Michoudvs. Girod,4:Row. (U.S.) 503. The very able opinion of Mr. Justice Wayne leaves nothing new to be said. It contains a reference to and review of the cases and text writers bearing upon the question. Interesting cases on this question may also be found in Beeson vs. Bccson, 9 Pa. St. 284; 11 ill vs. Frazier, 22 Id. 320; Bosenberger's Appeal, 26 Id. 67; and Garrard vs. Pittsburg <& C. B. B. Co., 29 Id. 154. It is undeniable, from these authorities, that if the purchase in this case had been made by the firm of Ogden, Jones & Co., it could not be sustained. Does the same principle apply to the purchase made by Smith, their clerk? It is not perceived upon what sub- stantial ground a distinction can be drawn. "Whatever duty his principals owed to the plaintiff, he equally owed the same. The rule, as we have seen, as laid down by Sugden, and which the authorities sustain, is that the disability extends to all persons who, being employed or concerned in the affairs of another, acquire a knowledge of his property. Now, it is undeniable, that Hathaway and Smith were employed or concerned in the affairs of the plairt- Chap. II ] Gard n ee vs. Ogden. 475 iff relating to these lands, and acquired knowledge concerning them. The defendant Smith was the clerk, or assistant, of his principals. He was their agent, and employed in and about their business. Whatever disabilities they labored under equally attached to him. It would work an entire abrogation of the rule to hold the princi- pal subject to the operation of this rule, and exempt his clerks and agents from its effect. It would be opening the door to its evasion, so that it would lose all of its vitality and virtue. The courts have not so dealt with the application of this rule. It has been held that the partners in business of an assignee in bankruptcy are equally disqualified from purchasing as the assignee himself: Ex parte Barnett, 7 Jur. 116. It has been held to disqualify the solici- tor to a commission in bankruptcy from becoming a purchaser at a sale of the bankrupt's effects: Owen vs. Foulkes, 6 Ves. 630, note I; Ex parte James, 8 Id. 337; Ex parte Lindwood and Ex parte Churchill, before Lord Kosslyn, cited 8 Id. 343; Ex parte Bennett, 10 Id. 381. The precise point now under consideration arose before Vice Chancellor Sakdford, in Poillon vs. Martin, 1 Sandf. Ch. 569, where he held that the clerk of an attorney was as much prohibited from purchasing from a client as the attorney himself; that the principle of the rule extended as well to him as to the attorney himself. I think this is the spirit of all the authorities, and that the honesty and fairness of transactions between principals and their agents demand a firm adherence to these rules, and to bring within their operation not only the agent himself, but those in his imme- diate employ, and who are engaged in the transaction of his business, which is necessarily the business of the agent's principal. It cannot be disguised that this sale was negotiated by one clerk with another clerk of the plaintiffs agents. All the mischiefs which the rules adverted to were designated to prevent are appar- ent in this case. Assuming that it has been shown that the purchase made by Smith is obnoxious to the objections which have been urged, it follows that the plaintiff is entitled to a re-conveyance of his lands. But it appears that Smith, by his own act, in selling a portion of the lands, is incapable of doing that equity which the law com- mands, it follows that the plaintiff is entitled to the proceeds of such sales. The decree, or judgment, of the special term was, 476 Cases on Agency. [Book IV therefore, correct, in requiring him to reconvey to the plaintiff all such portions of the lands as remain unsold, and to account to him and pay over the proceeds of all those parts which have been sold. We see no objection which Smith can properly make to that part of the decree which gives to him the election to pay to the plaintiff the ascertained value of the plaintiff's lands in lien of such recon- veyance and accounting. The order at the General Term, granting a new trial, so far as it relates to the defendant Smith, is reversed, and the judgment of the Special Term, as to him, affirmed with costs. And the order at the General Term, granting a new trial as to the defendant Ogden, i3 affirmed; and in pursuance of the plaintiff's stipulation, judgment absolute is rendered against him in favor of the defend- ant Ogden, by the dismissal of the complaint against him, with costs. All the judges concurred. Ordered accordingly. Note. — See, also, Dutton vs. Willner, 52 N. Y. 812 ; Dodd vs. WaJceman, 26 N. J. Eq. 484 ; Lafferty vs. Jelley, 22 Ind. 471 ; Ringo vs. Binns, 10 Pet. (U. S.) 269. The rule which forbids an agent from dealing with himself on his principal's account, cannot be defeated by usage. Robinson vs. Mol- lett, L. R. 7 H. L. 802 ; Butcher vs. Krauth, 14 Bush. (Ky.) 713. (133 Massachusetts, 415.) GREENFIELD SAVINGS BANK vs. SIMONS. {Supreme Judicial Court of Massachusetts, November, 1882.) Action to recover damages for breach of duty as agent. The opinion states the facts. A. L. Soule and A. De Wolf, for defendant. W. S. JJ. Hopkins and J. A. Aiken, for the plaintiff. W. Alien, J. The defendant was authorized and instructed by the plain till bank to sell, for its benefit, its rights in the new stock in a national bank, and undertook the duty. In making the sale, he acted as the agent for the plaintiff to sell the specified property, and not as trustee. The facts that he was the treasurer of tho plaintiff, and that, as one of the trustees and a member of the ii nance committee, he took part in authorizing himself as treasurer Chap. II] Savings Bank vs. Simons. 477 to sell the rights, do not tend to show that, in making the sale, he acted as a trustee or a member of the committee, and not as agent. In exercising his functions as agent, it was the duty of the defend- ant, and his promise was implied to use reasonable fidelity, diligence and skill to sell to the best advantage of his principal. His authority was to sell for not less than a certain price, and his duty was to sell for as high a price as could be obtained by the exercise of reasonable diligence and skill. In executing this duty, he immediately upon receiving authority, sold the rights to himself and other members of the committee which had authorized the sale, and who were all also directors in the national bank, at the minimum price authorized, without offering the stock to others, or making any attempt to find purchasers at a higher price. The report finds that the rights sold for thirty dollars a right, had a cash value of forty-five dollars each, and would have realized that value in cash if properly exposed for sale. The court properly ruled that such acts, without proof of express fraud, were fraudu- lent in law, and that the plaintiff had a right to recover damages for the loss caused by them. It appeared that the record of the doings of the finance committee authorizing the sale was read and approved at a meeting of the trustees, and that the amount received for a sale of the rights was entered on the plaintiff's cash-book by the defendant, and the defendant contends that the judge erred in not ruling, as matter of law, upon this evi- dence, that the plaintiff had affirmed and ratified the transaction. But we think that the refusal so to rule was clearly right. The vote was the authority under which the defendant acted, and it does not appear that the attention of the trustees was called to the entry upon the cash-book, or that any action was taken in regard to it. The rule of damages laid down by the judge, that it was the dif- ference between the sum for which the rights were sold and their cash value at the time of the sale, was correct. The plaintiff was not obliged to return the money, or to repurchase the rights, but may recover the actual damages occasioned to it by the want of fidelity and diligence of the defendant. But this does not include dividends paid on the shares since the sale, and there was error in including them in the damages assessed. It appears upon the report that the plaintiff is entitled to recover $1,050, and interest thereon from the time of the sale, January 26, 1880. If it 478 Cases on Agency. [ Book IV remits so much of the damages as exceeds that amount, the entry will be judgment affirmed; otherwise, verdict set aside and a new trial ordered as to damages only. Ordered accordingly. (104 Indiana, 562.) ROCHESTER vs. LEVERING. (Supreme Court of Indiana, November, 1885. J In this case there was a complaint by John Levering against Mrs. Madeline Rochester, and a cross-complaint by her against Levering seeking to compel him to account for the profits made by him upon the sale of lands which he claimed to have purchased from her, but which sale she repudiated. Judgment below against her, and she appealed. S. P. Boird, J. E. McDonald, J. M. Butler, and A. L, Mason, for appellant. J. R. Coffroth, T. A. Stuart, F. H. Levering, and F. B. Everett, for appellee. Mitchell, J. (After stating the facts.) That an agent to sell property, can not, either directly or indirectly, become the pur- chaser from himself, and that such sale is voidable absolutely at the election of the principal or beneficiary, without regard to its fairness, are propositions inflexibly established. The facts found do not make this a case of that description. While they disclose a relation of the closest and most confidential character between principal and agent, so far as the general man- agement of the financial and business affairs of the principal were concerned, they also show that the agent had no power to sell, and that he did not, in fact, make the sale. The agency with respect to the particular tract of land is stated in the following language: " That said Madeline was desirous of selling this tract, as well as her other unimproved land, and requested said plaintiff to find a purchaser therefor, which he tried to do; * * * that while acting as the confidential agent of said Madeline, and her agent to sell said fifteen acre tract, plaintiff proposed to buy it himself/' Fairly interpreted, this means that while in the relation of general confidential business agent to the appellant, Mr. Levering Chap. II ] Rochester vs. Levering. 479 was requested to find a purchaser for the land who would pay a fixed price, and while so acting as agent to sell he proposed to pur- chase the land from his principal and negotiated with her the purchase which is now the subject of controversy. The case is one arising out of a transaction between a confidential agent and his principal, who purposely and intentionally dealt with each other concerning a subject matter involved in the agency. The result of the negotiations between the two was, that the principal con- sciously and knowingly transferred to her confidential agent the land in controversy at a stipulated price. While a transaction of the character disclosed is not necessarily voidable at the election of the principal, a court of equity, upon grounds of public policy, will, nevertheless, subject it to the sever- est scrutiny. Its purpose will be to see that the agent, by reason of the confidence reposed in him by the principal, secures to him- self no advantage from the contract. "When the transaction is seasonably challenged, a presumption of its invalidity arises, and the agent then assumes the burden of making it affirmatively appear that he dealt fairly, and in the richest of faith imparted to his principal all the information concerning the property possessed by him. The confidential relation and the transaction having been shown, the onus is upon the agent to show that the bargain was fair and equitable, that he gave all the advice within his knowledge pertaining to the subject of the sale and the value of the property, and that there was no suppression or concealment which might have influenced the conduct of the principal. McCor- mick vs. Matin, 5 Blackf. 509, 522; Cook vs. Berlin, etc. Co. 43 Wis. 433; Porter vs. Woodruff, 36 N. J. Eq. 174; Young vs. Hughes, 32 N. J. Eq. 372; Farnam vs. Brooks, 9 Pick. (Mass.) 212; Moore vs. Mandlebaum, 8 Mich. 433. As applicable to cases of the character under consideration, the rule is succinctly stated by a learned author in the following lan- guage: "Passing to dealings connected with the principal's inter- vention, in any contract of purchase or sale with the principal, or other transaction by which the agent obtains a benefit, a presump- tion arises against its validity which the agent must overcome; although this presumption is undoubtedly not so weighty and 6trong as in the case of a trustee. The mere fact that a reasonable consideration is paid and that no undue advantage is taken, is not of itself sufficient. Any unfairness, any underhanded dealing, any use of knowledge not communicated to the principal, any lack of 480 Cases on Agency. [Book IV the perfect good faith which equity requires, renders the transac- tion voidable, so that it will be set aside at the option of the prin- cipal. If, on the other hand, the agent imparted all his own knowledge concerning the matter, and advised his principal with candor and disinterestedness as though he himself were a stranger to the bargain, and paid a fair price, and the principal on his side acted with full knowledge of the subject matter of the transaction and of the person with whom he was dealing, and gave full and free consent — if all these are affirmatively proved, the presumption is overcome, and the transaction is valid. " 2 Pomeroy, Equity Jurisprudence, sec. 959. Subject to the burdens thus imposed, as was stated in Fisher's Appeal, 34 Penn. St. 29, " It never has been supposed that a principal might not sell to his agent, or the client to his attorney; and that their titles, thus acquired, would not be good in the absence of fraud on their part." * * * Affirmed. (80 Missoubi, 27, 66 Am. Eep. 408.) LEACH vs. HANNIBAL & ST. JOSEPH RAILROAD COMPANY. ( Supreme Court of Missouri, April, 1885. J Action to recover notary's fees. The opinion states the case. The plaintiff had judgment below. 0. W. Euslcy, for appellant. H. B. Leach, in person. Ray, J. The respondent was for a number of years prior to 1878 in the appellant's employ as agent to settle claims for stock killed or injured on the railroad, and as assistant for Mr. Carr, who was the general attorney of appellant, and for his services in these behalfs, received a regular salary. During the time of said employment respondent was appointed and qualified as a notary public, and as such took the acknowledgement of numerous deeds, by defendant, through its land commissioner, and also certified to affidavits of appeals, and also to answers in garnishment made by the appellant, when directed to do so by Mr. Carr. Plaintiff was dis- charged from said employment by defendant in 1878, and thereafter brought this suit to recover of defendant for said services so ren- Chap. II] Leach vs. Railkoad Co. 481 dered as said notary, during his said employment. The plaintiff's claims therefor were appropriately declared on and set out in his petition. There is no conflict, as we gather from the record, as to the actual rendition of said services, or that the rates charged were not such as are authorized by law therefor. Defendant's answer, so far as we need consider the same, set up said employment of respondent by appellant in the capacities afore- said, and that the rendition of said notarial service sued for was in due course of said employment, and included in his said com- pensation, which was duly paid and received. Defendant's answer further set up, by way of counter-claim, that during his employ- ment as its agent, and as an assistant attorney at law, one R. M. Johnson began an action against the appellant, before a justice of the peace, to recover $400 for damages for killing a horse by defendant's cars, and alleged it was respondent's duty to settle said claim and suit, if a legal demand, and if not, to use proper care, ability and diligence in the defence thereof; that respondent attended the trial thereof before the justice of the peace, and was there offered, and refused a settlement thereof for the sum of $160. Upon a trial thereof judgment was rendered for plaintiff therein, and said cause was appealed to the circuit court of Marion county, where on account of this plaintiff's negligence, judgment was rendered by default against this appellant for the sum of $400, whereby appellant claims to have been damaged in said sum, and asks judgment therefor. The reply of plaintiff, so far as we deem the same material, denied that by the terms of his agreement he agreed to serve defendant as an attorney at law, but claims and avers he agreed to give such assistance as he could in his capacity as stock agent, on the trial of causes for injury to stock, and that he was not in defendant's employ in any other capacity. It admits respondent's refusal to settle the Johnson claim, and his defense thereof as stock agent before the justice, but denies that it was his duty to manage said cause, or attend the same in the circuit court. The trial resulted in a verdict for plaintiff on his said account in the sum of $053.50, and for defendant for one cent on his counter-claim. Judgment was entered in plaintiff's favor for said sum, and defendant appealed therefrom to this court. The defendant upon the trial offered in evidence the monthly pay-rolls of the company for each month of the years 1873, 1874, 31 482 Cases on Agency. [Book IV 1875, 1876, and 1877, precisely like the one herein set out for the month of February, 1877, except that the amount of the monthly salary raised from $120 to $150 per month, for the purpose of show- ing payment of all services during the time covered by them, and to show that the plaintiff was acting, during that time as assistant attorney. The court admitted the pay-rolls from April to October, 1877, inclusive, for the purpose only of showing the capacity in which the plaintiff was employed, and refused to admit those from April to October, 1877, for any other purpose, and refused to admit those for the balance of the year 1877, or for any of the other years, for any purpose whatever. In the monthly pay-roll for February, 1877, admit those for plaintiff's name stands opposite the number thirty-five, and he is designated as stock agent and assistant attorney at $135, for the month, and his name written on the thirty-fifth line of said pay-roll, and under the following receipt: " I acknowledge to have received from the Hannibal & St. Joseph railroad company the amount opposite my name in the following list, in full for all demands for work done during regular and irregular working hours, in the service of said Hannibal & St. Joseph railroad company up to and including the date of this pay- roll." This evidence was excluded by the court, as was also the follow- ing question directed to the plaintiff: "Q. Was the business of taking affidavits and acknowledgments performed during the regu- lar business hours during the time you were employed by the defendant?" This action of the court was, we think, erroneous. Whether these notarial services were distinct from and independent of, and not embraced in the plaintiff's contract of service, was, we think, a question of fact to be determined under proper instruc- tions, from a consideration of all competent evidence that might be offered thereon by the parties. The pay-rolls or receipts thus offered were prima facie evidence of payment as therein expressed for all services rendered the defendant during regular and irregular hours, and they were competent and receivable for that purpose, as well as to show in what capacity Leach acted, and the relation he bore to the company. Prima facie respondent sold and hired to defendant his entire time for this salary, fixed and agreed upon between them, and the rendition of service by respondent as notary in and about the defendant's business during the said time, did not make defendant liable for the statutory fees therefor, Chap. II J Leach vs. Kailroad Co. 483 without some agreement or understanding or line of conduct between the parties, showing they were not to be included. Plaintiff's earnings during the time of such employment would belong to the employer. Stansbury vs. United States, 1 Ct. of CI. 123; Wood Mast, and Serv. 198; 2 Whart. Ev. § 13G5, and note. As bearing further upon this question, the inquiry made of plaintiff as to whether the affidavits and acknowledgements were taken during the regular business hours might, we think, have been properly allowed. As the case must go back for re-trial, we may add that we see no prejudice to the defendant in the court's ruling upon the counter-claim in the then state of evidence. Although the Johnson claim may have constituted a legal liability against defendant, plaintiff's duty to settle the same was not an absolute one. He was not bound to give a sound opinion on that question, and in rejecting the offer plaintiff probably relied upon the statement of defendant's witness, who upon the trial may have been contradicted and disbelieved. We can see nothing upon which to base an action of negligence for a failure to settle said claim. As there was no evidence showing defendant's pecuniary damage or loss by the defendant in the Circuit Court, the instruc- tion for nominal damages was, we think, correct. For these reasons the judgment of the Court of Common Pleas is reversed, and the cause remanded for further proceedings in conformity hereto. All concur. Judgment reversed and cause remanded. Note. — The rule that the master is entitled to the servant's earnings, does not apply to mere gratuities to the servant. JEtna Ins. Co. vs. Church 21 Ohio St. 492. See, also, Geiger vs. Harris, 19 Mich. 209. In an action for services, it is no defense that the services were rendered while the claimant was an employe of a third person in another line of business, and that they were rendered both during and out of the business hours of such third person. Wallace vs. De Young, 98 111. 638, 88 Am. Rep. 108. 484 Oases on Agency. [Book IV II. TO OBEY INSTRUCTIONS. 1 (104 Massachusetts, 152, 6 Am. Rep. 207.) WHITNEY vs. MERCHANTS' UNION EXPRESS COM- PANY. (Supreme Judicial Court of Massachusetts, March, 1870.) Action to recover for the loss of a draft entrusted to defendant for collection. The draft was drawn npon Plummer & Co., and plaintiffs' instructions to defendant were to return the draft at once if not paid. Instead of doing so, defendant waited to give Plummer & Co. time to correspond with plaintiff about it. Other facts appear in the opinion. G. 0. Shattuck, for plaintiff. J. 0. Abbott and 0. Stevens, for defendant. Colt, J. Under the instructions given to the defendants, at the time they received this draft for collection, it was their duty to collect it, or to return it at once to the plaintiff if not paid. It was duly presented by the defendant's messenger for payment on the 14th of October, and payment refused. Instead of returning the draft at once, they retained possession of it in order to enable the drawees to obtain, by correspondence, some explanation from the plaintiffs as to the amount for which it was drawn. Satisfac- tory explanations were received in due course of mail, and Plummer & Co., the drawees, were ready on the morning of the ICth of the same mouth to pay the full amount. But the draft was not again presented, and on the 19th they failed, and have since been unable to pay. It is the first duty of an agent, whose authority is limited, to adhere faithfully to his instructions, in all cases to which they can be properly applied. If be exceeds or violates or neglects them, he is responsible for all losses which are the natural consequence of his act. And we are of opinion that there is evidence of neglect in this case, upon which the jury would have been warranted in find- ing a verdict for the plaintiffs. The defendants would clearly have avoided all liability by return- 1 Soe, also, Hazard vs. Spears, ante, p. 182. Chap. II ] Whitney vs. Express Co. 485 ing the draft at once, upon the refusal to pay. It is urged, that the defendants had done all they were bound to do, when they had presented the draft and caused the plaintiff to be notified of its non- payment; that the notice which was immediately communicated by the letter of Plummer & Company, asking explanation, was equiv- alent to a return of the draft; that this notice was given by the pro- curement or assent of the defendants, as early as they would be required to give it, if they had themselves done it instead of intrust- ing it to Plummer & Company; and that, after receipt of it, it was the duty of the plaintiffs to give new instructions, if they desired the draft presented for payment a second time. There would be force in these considerations, if the letter of Plummer & Company was only a simple notice of non-payment, with no suggestion of further action in regard to it. It expresses and implies much more. The reason for the refusal to pay is stated, and the plaintiffs are told that the defendants will hold the draft until they, Plummer & Company, hear from them. Plainly, if the defendants avail themselves of the letter as a performance of their obligation to give notice, they must abide by the whole of its contents. They make Plummer & Company their agents in writ- ing it, and authorize the plaintiffs to rely on the assurance which it substantially contains, that upon the receipt by Plummer & Company of their explanation the draft would be paid or returned, or notice of its non-payment given. There is no suggestion in it that the defendants were awaiting further instructions from the plaintiffs, or needed or expected them. It clearly implies that the defendants had only suspended, at the suggestion of Plummer & Company, and for their accom- modation, the further performance of the duty they had under- taken, until an answer and explanation could be returned to Plum- mer & Company. The plaintiffs had no new instructions to give, nor had the defendants any right to expect them. They trusted to others, instead of corresponding themselves with the plaintiffs, who, in this matter, are in no respect chargeable with neglect. The loss is wholly due to the neglect of the defendants, and must be borne by them. According to the agreement of the parties, the entry must be judgment for the plaintiffs. 486 Cases on Agency. [Book IV (68 New York, 522, 23 Am Rep. 184.) LAVERTY vs. SNETHEN. (New York Court of Appeals, February, 1877.) Action to recover damages for the alleged conversion by defend- ant of a promissory note belonging to plaintiff. The note was made by one Holly, payable to plaintiff's order, who indorsed it and delivered it to defendant to procure a discount thereon for plaintiff. The jury returned a verdict for the plaintiff and the judgment entered thereon was affirmed by the general term of the Court of Common Pleas of New York. Defendant appealed. Jas. C. Carter, for appellant. Samuel Hand and Patterson & Major, for respondent. Church, C. J. The defendant received a promissory note from the plaintiff, made by a third person and indorsed by the plaintiff, and gave a receipt therefor, stating that it was received for nego- tiation, and the note to be returned the next day, or the avails thereof. The plaintiff testified in substance that he told the defendant not to let the note go out of his reach without receiving the money. The defendant, after negotiating with one Foote about buying the note, delivered the note to him under the promise that he would get it discounted and return the money to defendant, and he took away the note for that purpose. Foote did procure the note to be discounted, but appropriated the avails to his own use. The court charged that if the jury believed the evidence of the plaintiff in respect to instructing the defendant not to part with the possession of the note, the act of defendant in delivering the note, and allowing Foote to take it away, was a conversion in law, and the plaintiff was entitled to recover. The exception has been criticised as applying to two propositions, one of which was unob- jectionable, and therefore not available. Although not so precise as is desirable, I think that the excep- i ion was intended to apply to the proposition above stated, and was sufficient. The question as to when an agent is liable in trover for con- version is sometimes difficult. The more usual liability of an Chap. II ] Laverty vs. Snethen. ±87 agent to the principal is an action of assumpsit or what was formerly termed an action on the case for neglect or misconduct, but there are cases when trover is the proper remedy. Conversion is denned to be an unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner's rights. A constructive conversion takes place when a person does such acts in reference to the goods of another as amount in law to appropriation of the property to him- self. Every unauthorized taking of personal property, and all intermeddling with it, beyond the extent of the authority con- ferred, in case a limited authority has been given, with intent so to apply and dispose of it as to alter its condition or interfere with the owner's dominion, is a conversion. Bouv. Law Diet., title Conversion. Savage, Ch. J., in Spencer vs. Blackman, 9 Wend. 167, defines it concisely as follows: "A conversion seems to consist in any tortuous act by which the defendant deprives the plaintiff of his goods." In this case the plaintiff placed the note in the hands of the defendant for a special purpose not only, but with restricted authority (as we must assume from the verdict of the jury), not to part with the possession of the note without receiving the money. The delivery to Foote was unauthorized and wrongful, because contrary to the express directions of the owner. The plaintiff was entitled to the absolute dominion over this property as owner. He had the right to part with so much of that dominion as he pleased. He did part with so much of it as would justify the defendant in delivering it for the money in hand, but not otherwise. The act of permitting the note to go out of his possession and beyond his reach was an act which he had no legal right to do. It was an unlawful interference with the plaintiff's property which resulted in loss, and that interference and disposition constituted, within the general principles referred to, a conversion and the authorities I think sustain this conclusion, by a decided weight of adjudication. A leading case is Syeds vs. Bay, 4 T. R. 260, where it was held that trover would lie against the master of a vessel who had landed goods of the plaintiff contrary to the plaintiff's orders, though the plaintiff might have had them by sending for them and paying the wharfage. Butler, J., said: " If one man who is intrusted with the goods of another put them into the hands of a third person, con- trary to orders, it is a conversion." This case has been repeatedly 4S8 Cases on Agency. [Book IV cited by the courts of this State as good law, and has never to my knowledge been disapproved, although it has been distinguished from another class of cases upon which the defendant relies, and which will be hereafter noticed. In Spencer is. Blackmail, 9 Wend. 167, a watch was delivered to the defendant to have its value appraised by a watchmaker. He put it into the possession of the watchmaker, when it was levied upon by virtue of an execution note against the owner, and it was held to be a conversion. Savage, C. J., said: " The watch was intrusted to him for a special purpose, to ascertain its value. He had no orders or leave to deliver it to Johnson, the watchmaker, nor any other person." So, when one hires a horse to go an agreed distance and goes beyond that distance, he is liable in trover for a conversion. Wlieelock vs. Wheelwright, 5 Mass. 104. So, when a factor in Buffalo was directed to sell wheat at a specified price on a particu- lar day, or ship it to New York, and did not sell or ship it that day, but sold it the next day at the price named, held that in legal effect it was a conversion. Scott vs. Rogers, 31 N. Y. 676. See, also, Addison on Torts, 310 and cases there cited. The cases most strongly relied upon by the learned counsel for the appellant are Dufresne vs. Hutchinson, 3 Taunt. 117, and Sarjeant vs. Blunt, 16 Johns. 74, holding that a broker or agent is not liable in trover for selling property at a price below instruc- tions. The distinction in the two classes of cases, I apprehend, is that in the latter the broker or agent did nothing with the property but what he was authorized to do. He had a right to sell and deliver the property. He disobeyed instructions as to price only, and was liable for misconduct, but not for conversion of the property, a distinction which, in a practical sense, may seem technical, but it is founded probably upon the distinction between an unauthor- ized interference with the property itself and the avails or terms of 6ale. At all events, the distinction is fully recognized and settled by authority. In the last case, Spencer, J., distinguished it from Syeds vs. Hay, supra. He said: "In the case of Syeds vs. I J ay, 4 T. R. 260, the captain disobeyed his orders in delivering the goods. He had no right to touch them for the purpose of delivering them on that wharf." The defendant had a right to sell the note, and if he had sold it at a less price than that stipulated, he would not have been liable in this action, but he had no right to deliver the note to Foote to Chap. II ] Laverty vb. Snethen. 489 take away, any more than he had to pay his own deht with it. Morally there might be a difference, bnt in law both acts would be a conversion, each consisting in exercising an unauthorized dominion over the plaintiff's property. Palmer vs. Jarmain, 2 M. & W. 282, is plainly distinguishable. There, the agent was author- ized to get the note discounted, which he did and appropriated the avails. Parke, B., said: " The defendant did nothing with the bill which he was not authorized to do." So, in Cairnes vs. Bleecher, 12 Johns. 300, where an agent was authorized to deliver goods on receiving sufficient security, and delivered the goods on inadequate security, it was held that trover would not lie, for the reason that the question of the sufficiency of the security was a matter of judgment. In McMorris vs. Simpson, 21 Wend. 610, Bronson, J., lays down the general rule that the action of trover " may be maintained when the agent has wrongfully converted the property of his prin- cipal to his own use, and the fact of conversion may be made by showing either a demand and refusal, or that the agent has without necessity sold or otherwise disposed of the property con- trary to his instructions. When an agent wrongfully refuses to surrender the goods of his principal, or wholly departs from his authority in disposing of them, he makes the property his own and may be treated as a tortfeasor." The result of the authorities is that if the agent parts with the property, in a way or for a purpose not authorized, he is liable for a conversion, but if he parts with it in accordance with his authority, although at less price, or if he misapplies the avails, or takes inade- quate for sufficient security, he is not liable for a conversion of the property, but only in an action on the case for mis- conduct. It follows that there was no error in the charge. The question of good faith is not involved. A wrongful intent is not an essential element of the conversion. It is sufficient if the owner has been deprived of his property by the act of another assuming an unauthorized dominion and control over it. 31 N. Y. 490. It is also insisted that the parol evidence of instructions not to part with the note was incompetent to vary the terms of the contract contained in the receipt. This evidence was not objected to not only, but the point was not taken in any manner. The attention of the court was not called to it, and the court made no decision in respect to it. Under these circumstances it must be deemed to have been waived., and is not 490 Cases on Agency. [Book IV available upon appeal. But if an exception had "been taken I am in- clined to the opinion that the testimony was competent. It is not claimed that it varies that part of the receipt which contains an agreement to return the note or the money the next day, but that it varies the clause stating that the note was received for negotia- tion. This expresses the purpose of receiving the note, and if deemed a contract, can it be said that a parol mandate not to part with possession of the note before sale and receipt of money is inconsistent with it? There is no rule of law which gives an agent the right thus to part with a promissory note under the mere authority to negotiate. The instructions were consistent with the purpose expressed, although if they had not been given, a wider field of inquiry might have been opened. A promissory note passes from hand to hand, and a lona fide holder is protected in his title, and it might well be claimed that an authority to sell would not ordinarily justify a delivery to a third person without a 6ale. Without definitely passing upon this question, we think that the question should have been in some form presented at the trial. In a moral sense the defendant may have acted in good faith, and hence the judgment may operate harshly upon him, but the fact found by the jury renders him liable in this action. The judgment must be affirmed. All concur. Judgment affirmed. (4 Louisiana, 26, 23 Am. Deo. 470.) PASSANO vs. ACOSTA. (Supreme Court of Louisiana, May, 18SS.) Action for damages for disobedience of instructions as to collec- tion of a note. The facts appear in the opinion. Cannon, for the appellant. Seghers, for the appellee. By Court, Pouter, J. The petition states that the plaintiff placed in the hands of the defendant a note for collection, executed by one Francis Gaggino, and that the defendant, though often requested, has refused to return the note, or pay its amount. Chap. II] Passano vs. Acosta. 491 The answer admits the agency, hut affirms that the defendant has handed over to the plaintiff a note of the said Gaggino, payable to the defendant, not yet due, and which note the defendant had received in payment of that mentioned in the petition, in pursu- ance of the power Tested in him by the plaintiff. There was judg- ment in the court of the first instance for the plaintiff, and the defendant appealed. The cause turns principally on the question whether the plaintiff conferred power on the defendant to novate the note, or, if he did not, whether he had ratified the act of his agent. The written power produced does not confer the authority which the defendant contends he had, and the parol evidence fails to establish it. The plaintiff has not relied alone on the want of power which results from the failure of the defendant to show it; he has proved his directions were not complied with, the authority to novate being accompanied with the condition of the maker giving security. The note here was taken in favor of the defendant, and has not been endorsed by him. There is not sufficient evidence to authorize us to say the plaint- iff ratified the act of his agent. The latter was charged with the care and management of a store in which the former was a partner, and this note was found among the books which the defendant left when his agency terminated. It is proved the plaintiff com- plained of the act of the defendant and that he told him he could not lose the whole amount of the note. The defense which is presented by the defendant, of the man- date being gratuitous, and of his act being, under all the circum- stances, a sound exercise of discretion, cannot avail him; for, under the evidence, discretion was not conferred on him to the extent now claimed. He was directed not to renew the note unless the maker gave security. It is therefore ordered, adjudged,, and decreed, that the judgment of the district court be affirmed, with costs. 492 Cases on Agency. [Book IV (26 South Carolina, 611.) NIXON vs. BOGIN. (Supreme Court of South Carolina, April, 1SS7J Plaintiff drew drafts, with bills of lading attached, on one Pool, and sent them for collection to defendant, who was neither an attorney at law nor a collecting agent. The drafts called for the amounts stated " with exchange, on New York and collection charges." Defendant surrendered the drafts to Pool on receiving from him drafts on New York and Charleston for the amounts thereof, New York exchange in full not being obtainable. Defend- ant forwarded these drafts to plaintiff and made no charge. One of the Charleston drafts was not paid, and this action was to recover the amount thereof from the defendant. The verdict was for defendant, and plaintiff appealed. Moises & Lee, for appellant. Blanding & Blanding, contra. McGowan, J. Held (The opinion in full not being reported in the official reports) 1. If one not in business as a collecting agent, or holding himself out as such, is requested by a friend to collect a particular debt for him, and he, being willing to oblige, under- takes to do so without compensation, he is certainly not liable for loss without proof of his negligence. 2. If exchange on New York, as required by the draft, could not be had, defendant did not render himself personally liable if he did the best he could for the drawers. 3. Under the circumstances, plaintiffs could not exact from defendant more than an honest effort to save them according to his capacity. Affirmed. Note— See also WUliama vs. Higgins, 30 Md. 404. Chap. II j Page vs. Wells. 493 III. KOT TO BB NEGLIGENT. 1 (37 Michigan, 415.) PAGE vs. WELLS. ( 'Supreme Court of Michigan, October, 1877. ) The defendant, Page, was engaged in the business of looking up desirable parcels of public lands, on which timber was standing, and of furnishing information of such parcels to persons desiring to locate such lauds, upon their paying him for the information. On one occasion when he was going into the woods for this purpose, the plaintiff, Wells, said to him that if he would look him up some good pine lands, he would pay him for it. Page agreed to do this, and afterwards furnished to Wells the descriptions of certain par- cels which he said were good pine lands, and Wells bought the lands relying upon this representation. The lands proved not to be as good as represented, and Wells brought this action against Page to recover damages, based upon the theory that Page had impliedly warranted his descriptions to be correct. He recovered in the court below, and Page brings error. Mitchel & Pratt, for plaintiff in error. A. B. Morse, for defendant in error. Cooley, C. J. (After stating the facts.) The plaintiff regards the transaction as in the nature of a sale of a chattel, and insists that it is to be governed by the rules regarding the sale of person- alty. The argument in substance is that defendant had a prop- erty in his superior information respecting the lands and his skill in judging of their value; that he embodied these in the descrip- tions which he sold, and that he might and did warrant the truth of these — in which their value consisted — as he might warrant the soundness of a horse or the validity of a title. This we think is a fair statement of the plaintiff's position, though it is stated in our own language and with brevity. Had it appeared that the defendant was possessed of this infor- mation, and had made up his descriptions previous to the bargain between these parties, and that under such circumstances he 1 See also Leach vs. Hannibal & St. Joseph B. R, Co., ante, p. 480-. 494 Cases on Agency. [ Book IV assumed to Bell his special information, the case would be so far different from the present that possibly different principles might apply. It might then be argued with some force that the case resembled the sale of a valuable secret, and that the rnles governing the sales of personalty were applicable. But this was no snch case. Here the arrangement was for the future acqusition by the defendant of information for the plaintiff's benefit, and for the report of this to the plaintiff. It is impossible, as we think, to treat it as anything but an employment. It was no more a sale of descriptions than is it a sale of opinions when a lawyer is employed to examine a case and report his views, or a physician to diagnose a case of disease. In one sense there is a sale in all such cases, but the law treats it as an employment and the rendering of services in pursuance thereof. Nor in any such case can there be any implied warranty of the absolute truth of the description given. Whoever bargains to render services for another undertakes for good faith and integrity, but he does not agree that he will commit no errors. For negli- gence, bad faith or dishonesty he would be liable to his employer; but if he is guilty of neither of these, the master or employer must submit to such incidental losses as may occur in the course of the employment because these are incident to all avocations, and no one, by any implication of law, ever undertakes to protect another against them. A positive affirmation of the quality of lands as of one's personal knowledge when he has no knowledge on the subject, whereby his employer is misled and injured, should certainly render the person making it liable, either on the ground of bad faith or of negligence; but it could not be treated as a war- ranty of the quality of the information sold. (Omitting a consideration of the measure of damages.) Judgment reversed. Chap. II ] Johnson vs. Martin. 495 (11 Louisiana Annual, 27, 66 Am. Deo. 193.) JOHNSON vs. MARTIN. (Supreme Court of Louisiana, February, 1856.) Action to hold defendant responsible for money sent by mail addressed to him, by plaintiff who was defendant's principal. The money was stolen by a former employe of defendant whom he had discharged for dishonesty. Plaintiff contended that defendant was negligent in not anticipating this, and in not directing the post- master not to deliver letters to such former employe. Judgment below for defendant. Bonford, for appellant. H. & J. A. Gaither, for defendant. Lea, J. (After holding that the money had not yet been delivered to defendant.) The next question to be determined is whether the defendant has been guilty of neglect. An agent may properly be held responsible for a neglect to provide against the risks or perils to which property intrusted to his care may, in the ordinary course of business, be exposed, but he cannot be held liable for not anticipating a danger altogether out of the ordi- nary course of business or of natural events. The plaintiff under- took to send a certain sum of money to the defendant; until it is received, the latter cannot be held accountable for it. At the time the robbery took place it waa no more under the defendant's control than that of the plaintiff; and though we are not pre- pared to say that, under the peculiar circumstances of this case, as disclosed by the evidence, the plaintiff himself was guilty of neg- lect, yet nothing in the record justifies the assumption that the defendant was bound to protect the plaintiff against acts of fraud or violence which might be perpetrated upon the postoffice by one who was not in his employ or under his control. We think the the plaintiff is not entitled to claim from the defendant a reim- bursement of the money of which he has been robbed by a third person, the act by which the loss was occasioned not being one which, under the circumstances, the defendant could reasonably have anticipated. Affirmed. 496 Oases on Agency. [Book IV IV. TO ACCOUNT FOR MONEY AND PEOPEBTY. (25 Arkansas, 462.) JETT vs. HEMPSTEAD. (Supreme Court of Arkansas, June, 1S69.) Action to recover money collected by an attorney or agent. Judgment for plaintiff below. Gallagher & Newton, for appellant. Fay Hempstead and Garland & Nash, for appellee. Wilshire, J. (After stating the facts.) This court have here- tofore held that an action cannot be sustained against an attorney at law, and the same rule would apply to an agent for money col- lected by him for his clients, until after a special demand has been made by the client, or some one duly authorized by him him to make the demand, and a refusal to pay over or remit, after instructions. Cummins vs. McLain, 2 Ark. 412; Sevier vs. Eolli- day, Id. 512; Palmer vs. Ashley, 3 Ark. 75; Taylor vs. Spears, 6 Ark. 381, 44 Am. Dec. 519, and 8 Ark. 434; Warner vs. Bridges, 6 Ark. 385. This doctrine seems to be universally held by all the courts of this country. But it must be borne in mind that it is in cases where the attorney has faithfully performed his duty, by giving his client timely notice of his action, etc. It is the duty of an attorney or agent, who has collected money for or on account of his client or principal, to give notice within a reasonable time of the fact. Story on Agency, sec. 208. When the principal has received such notice, he is bound to make demand of it within a reasonable time, and if he omits to do so, he puts the statute in motion, and when he suffers the time which it limits to expire, without bringing snit, is concluded by his laches. But where an attorney or agent has collected money, and neg- lects to advise his client or principal of the fact, although his client or principal might maintain suit against him with- out demand, on the principle of his bad faith, the statute of limitations will not commence to run until the client or princi- pal has notice by some means that his attorney or agent has col- lected the money, unless the attorney or agent shows affirmatively, Chap. II] Jett vs. Hempstead. 497 by satisfactory evidence, that his client or principal could, by the exercise of ordinary diligence, have known that the money had been collected, and was in the hands of the attorney or agent. And this, we think, is so, because the attorney or agent, by con- cealing the fact of collection, commits a fraud upon his client or principal, and in this view of the case we are supported by the case of Riddle vs. Murphy, 7 S. & R. (Pa.) 235. In the case of McDonald vs. Potter, 8 Barr, (Pa.) 189, the court said: " The principle ruled in the case of the Ilarrisburg Batik vs. Forster, 8 Watts. 16, applies here. As in that case, an attorney stands in a fiduciary character, and, before he can be permitted to avail himself of the defense, he must prove that he performed his duty, and his omission to do so amounts to such concealment of the state of the business as in contemplation of law is such a fraud as to deprive him of the protection of the statute, and makes it necessary to prove payment of the debt as in other cases." The same prin- ciple is held in Jennings vs. McConnd, 17 111., 150. * * * Reversed. (46 Wisconsin, 481, 32 Am. Rep. 731.) KIEWERT vs. RINDSKOPF. (Supreme Court of Wisconsin, January, 1S79.J Plamtrff's brother was under indictment. Defendant informed plaintiff that for $3,000, one Wight, an attorney, would bring such influence to bear upon the government officers as to secure a miti- gation of the penalty. Plaintiff gave the amount to defendant to be paid to Wight for the purpose stated. Defendant paid Wight only $1,000 and kept the balance himself. This action was to recover the $2,000 judgment below for defendant. Jenkins, Elliott & Winkler, and D. S. Weggiov appellant. Cottrell, Gary & Hanson, for respondent. Orton", J. (After disposing of two other points). III. If it is found from the evidence that the agreement was, thai Wight should render such services so claimed to be improper and ngainst public policy, for the sum of three thousand dollars, 32 498 Cases on Agency. [Book IV and the defendant obtained the same from the plaintiff for the purpose of such payment, but actually paid Wight only one thou- sand dollars, and converted the other two thousand dollars to his own use, even then the plaintiff may recover the money so mis- applied and converted, and the defendant cannot defend on the ground that the contract for such services was illegal or against public policy. In respect to such a transaction, the defendant was the agent of the plaintiff, and received the money of the plaintiff with specific directions as to its application and payment as such, and cannot be allowed to say, in defense of an action to recover the moneys so misapplied and converted, in respect to the con- tract in pursuance of which, or on account of which, he received it, contra bonos mores, to exculpate himself from his admitted fraud and breach of trust. The maxim, In pari delicto melior est coriditio possidentis, has application only as between the immediate parties to an illegal contract, and does not govern where the action is brought by one of such parties to recover money received by a third party in respect of his illegal contract. Broom's Legal Maxims, §§ 567-8; Tenant vs. Elliott, 1 B. & P. 3; Farmer vs. Russell, Id. 296; Bousficld vs. Wilson, 16 M. & W. 185. Within this principle it has been held that when moneys of the principal are in the hands of an agent, as the proceeds of property sold, with directions of the prin- cipal to pay it out for an illegal purpose, and the agent pays out for such purpose only part of such moneys, and converts the balance to his own use, the principal may recover of the agent such unex- pended balance (Bone vs. Eckless, 19 L. J. Exch. 438); and that money bet upon an election, and deposited with a stakeholder, who, after the event of the election is known, has notice not to pay it over to the winner, may be recovered back by the loser. Hast clow vs. Jackson, 8 B. & C. 221; McAllister vs. Hoffman, 16 S. & R. 147, 16 Am. Dec. 556. " While the law will not enforce an illegal con- tract, yet if a servant or agent of another has, in the prosecution of an illegal enterprise for his master, received money or other prop- erty belonging to his master, he is bound to turn it over to him, and cannot shield himself from liability therefor upon the ground of the illegality of the original transaction." Wood on Master and Servant, § 302; Anderson vs. Moncrieff, 3 Desauss. 126; Brooks vs. Martin, 2 Wall. 79; Gilliam, Ex'r vs. Brown, 43 Miss. 641. While the money remains in the hands of the agent, notwith- Chap. II ] Kiewert vs. Ein dskopp. 499 standing such agent may have received it for the purpose of using it or paying it out in pursuance of an illegal contract between hia principal and a third person, and has been directed to so use or pay it, there appears to be no reason for making an exception to the law governing the relation between principal and agent, for such a case, which would prevent the principal from countermand- ing such directions, and revoking the authority of the agent, and recovering the money. The principle recognized by the above authorities has been sanctioned by the court in Dourille vs. Merrick, 25 Wis. 688, and need not be further considered, except to affirm it in this case. IV. As to the two thousand dollars never paid out in pursu- ance of an agreement with Wright, however illegal that agreement may have been, and to the extent of such non-payment, the con- tract remains in fieri and executory, and to that extent may be rescinded, and the money so remaining in the hands of the defend- ant may be recovered. The law will not lend its aid to enforce an illegal contract while it remains executory, or disturb it after it is fully executed (2 Chitty on Cont. 971; Miller vs. Larson, 19 Wis. 463;; but it will in all cases favor its rescission and abandonment before its execution. 2 Pars, on Cont., § 476. " If an illegal contract be executory, and if the plaintiff dissent from or disavow the contract before its completion, he may, on disaffirmance, recover back money while in transitu to the other contracting party, there being in the case a locus poenientiae, and the delictum being incomplete." Edgar vs. Fotoler, 3 East, 225; Vischer vs. Yates, 11 Johns. 30; 2 Chitty on Cont. 918. * * * Reversed. V. TO GIVE NOTICE TO PRINCIPAL. (4 Watts & Sergeant, 305.) DEVALL vs. BUEBRIDGE. (Supreme Court of Pennsylvania, September, lSIfi.) Action on the case for negligence. Defendant as agent was operating a steamboat owned by plaintiff and others, and during 500 Cases on Agency. [ Book IV the time she was seized by creditors and sold at a gross sacrifice. Defendant did not apprise plaintiff of this seizure. Judgment below for defendant, under direction of the court. Deford, for plaintiff in error. Waugh, contra. Gibson, 0. J. (After stating the facts.) It is an agent's imperative duty to give his principal timely notice of every fact or circumstance which may make it necessary for him to take meas- ures for his security (Paley,38; Beawes, 39); and had notice been given in this instance, it is not to be credited that the owners, or the plaintiff singly, would have suffered a boat which cost $8,000 to be sacrificed for less than the twentieth part of the sum. The case is too glaring to admit of doubt. But even if there had been a doubt, it ought to have been submitted to the jury, with a direction to find for the defendant only on being convinced that notice would have been unavailing. It was not his business to judge for others, and by omitting to apprise the plaintiff of the crisis, he took on himself all but the unavoidable losses which were incident to it. Nor is his neglect of his agency to be excused because it had become troublesome. He had voluntarily accepted it, if he had not solicited it, and if, to use his own phrase, he did not want to be bothered with it, his course was to settle his accounts and resign it — not to abandon it. Such is the rule of the common law, and, for breaking it, the defendant is chargeable with a dereliction of duty. * * * Reversed. Note — Agent must give principal timely notice of all facts coming to his knowledge which it is essential that the principal should know in order to protect or preserve his interests: Arrott vs. Brown, 6 Whart. (Pa.) 9; Harvey vs. Turner, 4 Rawle, (Pa.) 223; Callander vs. Odriclt*, 5 Bing. N. C. 58. Chap. Ill ] Kroeger vs. Pitcairn . 601 CHAPTER III. DUTIES AND LIABILITIES OF AGENT TO THIRD PERSONS. IN CONTRACT. (101 Pennsylvania State, 311, 47 Am. Rep. 718.) KROEGER vs. PITCAIRN. (Supreme Court of Pennsylvania. November, 1882.) Pitcairn was a fire insurance agent and had written a policy for Kroeger. Kroeger kept petroleum on his premises which was forbidden by the terms of the policy, unless written consent was indorsed thereon. Kroeger called Pitcairn's attention to this clause and was assured by the latter that no written indorsement was required where the amount kept was so small as that which Kroeger carried in stock. Kroeger therefore accepted the policy without the indorsement. A fire destroyed his stock and in an action against the insurance company, Kroeger was defeated because he had kept this petroleleum without the written consent. He brought this action against Pitcairn to recover damages for the misrepresentation. Judgment for defendant below. Dalzell and Hampton, for plaintiff in error. Schoyer and McGill, for defendant in error. Sterrett, J. The subject of complaint, in both specifications of error, is the entry of judgment for defendant non obstante veredicto. It is contended that upon the facts established by the verdict, judgment should have been entered thereon in favor of plaintiff. The jury were instructed to return a verdict for the amount claimed by him, if they were satisfied the allegations of fact contained in the point presented by him were true. In view of this, the finding in his favor necessarily implies a verification of the several matters specified in plaintiff's point, and hence it must 502 Cases on Agency. [Book IV now be regarded as containing a truthful recital of the circum- stances connected with the delivery of the policy and payment of the premium. The transaction, as therein detailed, clearly amounted to a mutual understanding or agreement between the parties that the stock of merchandise mentioned in the policy should include one barrel of carbon oil; in other words, that the plaintiff should have the privilege of keeping that quantity of oil in connection with and as a part of the stock insured, without thereby invalidating his policy. It is impossible to regard the transaction in any other light. The jury found that plaintiff "took the policy upon the faith " of the representations made by defendant. These repre- sentations were not merely expressions of opinion as to the meaning of the policy. On the contrary, the defendant acting as its agent and assuming authority to speak for the insurance company, asserted without any qualification that when carbon oil was kept as plaintiff was in the habit of keeping it — a single barrel at a time — it was unnecessary to mention the fact in the policy, or otherwise obtain the consent of the company; that no notice is ever taken of it unless " it is kept in large quantity — say several hundred barrels. In that case, when it is wholesale, it should be mentioned; but as long as it is kept, not more than a barrel in the store at a time, it is considered as general merchandise and is not taken notice of in any other way." Such was the language employed by defend- ant, evidently for the purpose of dispelling any doubt that existed in the mind of the plaintiff and inducing him to accept the policy and pay the premium; and to that end at least it was successful. "What was said and done by defendant, in the course of a trans- action, amounted to more than a positive assurance that the accepted meaning of the policy was as represented by him. In effect, if not in substance, his declarations were tantamount to a proposition, on behalf of the company he assumed to represent, that if the insurance was effected it should be with the understand- ing that a barrel of carbon oil was included in and formed part of the insured stock of merchandise, without being specially men- tioned in the policy. The plaintiff doubtless so regarded his declarations, and relying thereon, as the jury has found, accepted the policy on the terms proposed, and thus concluded, as he believed, a valid contract of insurance, authorizing him to keep in stock, as he had theretofore done, a small quantity of carbon oil. It was not until after the Chap. Ill ] Keoegeb vs. Pitcaien. 503 property was destroyed that he was undeceived. He then discov- ered, that in consequence of defendant having exceeded his author- ity, he was without remedy against the company. lias he any remedy against the defendant, by whose unauthorized act he waa placed in this false position? We think he has. If the president or any one duly authorized to represent the company had acted as defendant did, there could be no doubt as to its liability. Why should not the defendant be personally responsible, in like manner, for the consequences, if he, assuming to act for the company, over- stepped the boundary of his authority and thereby misled the plaintiff to his injury, whether intentionally or not. The only difference is that in the latter the authority is self- assumed, while in the former it is actual, but that cannot be urged as a sufficient reason why plaintiff, who is blameless in both cases, should bear the loss in one and not in the other. As a general rule, " whenever a party undertakes to do any act as the agent of another, if he does not possess any authority from the principal therefor, or if he exceeds the authority delegated to him, he will be personally liable to the person with whom he is dealing for, or on account of his principal. " Story on Agency, 264. The same principle is recog- nized in Evans on Agency, 301; Whart. on Agency, 524; 2 Smith's Lead. Cases, 380, note; 1 Pars. Cont. 67, and in numerous adjudi- cated cases, among which are Hampton vs. SpecJeenagel, 9 S. & R. 212, 222; 11 Am. Dec. 704; Layng vs. Stewart, 1 W. & S. 222, 226; McConn vs. Lady, 10 W. N. C. 493; Jefts vs. York, 10 Cush. 392; Baltzen vs. JSicolay, 53 N. Y. 467. In the latter case, it is said, the reason why an agent is liable in damages to the person with whom he contracts when he exceeds his authority, is that the party dealing with him is deprived of any remedy upon the contract against the principal. The con- tract, though in form that of the principal, is not his in fact, and it is but just that the loss occasioned by there being no valid con- tract with him should be borne by the agent who contracted for him without authority. In Layng vs. Stewart, supra, Mr. Justice Huston says: "It is not worth while to be learned on very plain matters. The cases cited show that if an agent goes beyond his authority and employs a person, his principal is not bound, and in such case the agent is bound." The plaintiff in error, in McCon vs. Lady, supra, made a con- tract, believing he had authority to do so, and not intending to bind himself personally. The jury found he had no authority to make 604 Oases on Agency. [Book IV the contract as agent, and this court,in affirming the judgment, said: " It was a question of fact submitted to the jury whether the plaint- iff in error had authority from the school board to make the con- tract as their agent. They found he had not. He was personally liable whether he made the contract in his own name or in the name of his alleged principal. It is a mistake to suppose that the only remedy was an action against him for the wrong. The party can elect to treat the agent as a principal in the contract/* The cases in which agents have been adjudged liable personally have sometimes been classified as follows, viz.: 1, Where the agent makes a false representation of his authority with intent to deceive. 2, Where, with the knowledge of his want of authority, but without intending any fraud, he assumes to act as though he were fully authorized; and 3, Where he undertakes to act bona fide, believing he has authority, but in fact has none, as in the case of an agent acting under a forged power of attorney. As to cases fairly brought within either of the first two classes there can- not be any doubt as to the personal liability of the self-constituted agent, and his liability may be enforced either by an action on the case for deceit, or by electing to treat him as principal. While the liability of agents, in cases belonging to the third class, has some- times been doubted, the weight of authority appears to be that they are also liable. In Story on Agency, the learned author, recognizing the undoubted liability of those belonging to the first two classes, says: " Another case may be put which may seem to admit of some doubt, and that is where the party undertakes to act as an agent for the principal, bona fide, believing he has due authority, and therefore acts under an innocent mistake. In this last case, however, the agent is held by law to be equally as responsible, as he is in the two former cases, although he is guilty of no intentional fraud or moral turpitude. This whole doctrine proceeds upon a plain principle of justice, for every person so acting for another, by a natural if not a necessary implication, holds himself out as having competent authority to do the act, and he thereby draws the other party into a reciprocal engagement. If he has no such authority and acts bona fide, still he does a wrong to the other party; and if that wrong produces injury to the latter, owing to his confidence in the truth of an express or implied assertion of authority by the agent, it is perfectly just that he who makes such assertion should be per- sonally responsible for the consequences, rather than that the injury Chap. Ill] Keoegee vs. Pitcaieh. 605 should be borne by the other party who has been misled by it." Story on Agency, 264. This principle is sustained by the authori- ties there cited, among which is Smout vs. llbery, 10 Mees. & Wels. 1, 9. Without pursuing the subject further, we are of the opinion that upon the facts established by the verdict, judgment should have been entered for the plaintiff, on the question of law. Judgment reversed, and judgment is now entered in favor of the plaintiff for $3,027.20, the amount found by the jury, with interest from January 20, 1882, the date of the verdict. Judgment reversed. *o' Note. — See, also, Farmers' Co-operative Trust Co. vs. Floyd, 47 Ohio St 525, 12 L. R. A. 346, 21 Am. St. Rep. 846, and notes. (100 New York, 140.) SIMMONS vs. MORE. (New York Court of Appeals, October, 1885.) Action to recover damages for alleged breach on the part of defendants of an implied warranty of authority to execute a con- tract of purchase made by them ostensibly as agents for and on behalf of principals named. The opinion states the facts. Plaintiff had judgment below. Adolph L. Sanger, for appellants. W. C. Beecher, for respondents. Daxfoeth, J. The trial court refused to non-suit the plaintiffs, and so held that the case stated and proved by them was prima facie sufficient to make the defendants liable. That conclusion has been sustained by the General Term and we think properly. The evidence showed that the plaintiffs were coffee dealers in the city of New York, and the defendants brokers in the same place. The latter were in correspondence with other brokers (Turnley & Co. ) of the city of Galveston, Texas, and prior to the 6th of March, 1882, received from them orders to buy a certain quantity of coffee for the firm of Marx & Kempner, and a certain other quantity for Moore, Stratton & Co. of Galveston. This was done, and bought and sold notes describing the con- 506 Cases on Agency. [Book IV tracts as between the plaintiffs and these firms respectively were signed by the defendants in their firm name as brokers. It was apparent, therefore, upon the face of the paper that they were contracting on behalf of others and could not be personally liable as purchasers, {Flee! vs. Murton, L. R. 7 Q. B. 126), but from such an instrument a contract is to be implied that they had authority to make it on behalf of the persons named {Fairlie vs. Fenton, L. R. 5 Ex. 769), and on this the plaintiffs relied. They caused the coffee to be procured, and at once taken to the dock for shipment, as directed, to the Galveston merchants, but on arrival at that place it was refused by them on the ground that the delivery in point of time was not in conformity with the orders. It then appeared that the orders actually given by them to Turnley & Co. required in each instance a shipment on the 6th of March. This, however, was not communicated to the plaintiffs, nor made a part of the contract, nor was it in fact known to the defendants. They obeyed the order as it was received from their correspondents, but they executed it in the name of the principals and so assumed the risk of its correctness. First. The plaintiffs have no cause of action against the princi- pals, for the order they executed was not their order. Hence it was given by the defendants in excess of authority, and there seems no reason why they should not make good all damages which the plaintiffs sustained in consequence of their belief that the author- ity assumed did in fact exist. (B«ltzen vs. Nicolay, 53 N. Y. 467). Second. The contract was admitted by the pleadings, and was, moreover, sufficient in form to satisfy the statute of frauds. The defendants are held liable, because they had no authority to make it, and hence, though sufficient in form, it cannot be enforced against the apparent principal. Third. The damages recovered were only those directly caused by the assertion of the defendants that they had authority. The amount was warranted by the evidence, and the question was sub- mitted to the jury with proper instructions. Whether their verdict was excessive is not the proper subject for inquiry. The order denying a new trial was not appealed from, and the only questions properly before us relate to the correctness of the judgment. In that we find no error and think it should be affirmed. All concur. Judgment affirmed. Chap. Ill] Patterson vs. Lippincott. 607 (47 New Jersey Law, 457, 54 Am. Rep. 178.) PATTERSON vs. LIPPINCOTT. ('Supreme Court of New Jersey, November, 18S5.J Action of debt upon the contract stated in the opinion. Judg- ment below for defendant. J. J. Crandall, for plaintiff. Slape & Stephany, for defendant. Scudder, J. An action of debt was brought in the court for the trial of small causes by Jacob M. Patterson against Barclay Lippincott, to recover the balance, $75, claimed under a contract in writing for the sale of the exclusive right to use, manufacture and sell the plaintiff's patent " air-heating attachment" in Atlantic county, New Jersey. The writing was signed "Geo. P. Lippincott, per Barclay Lippincott," on the part of the purchaser. The state of demand avers that by virtue of this agreement the plaintiff did in due form convey said patent right to said George P. Lippin- cott, that said George and Barclay, on request have refused to pay said balance, and that, since payment became du'„ the plaintiff has found out and charges that said George is under the age of twenty- one years. He further avers that he never had any contract or negotiations with George, and that Barclay's warranty of authority to act for his minor son is broken, whereby an action has accrued to the plaintiff against the defendant. The averment that the plaintiff never had any contract or negotiations with George is not sustained by the proof, for the tes- timony of Joseph N. Risley, the agent who made the sale, which is the only evidence on this point that appears in the case, is that the defendant told him he was going out of business and intended to transfer it to George; requested him to see George; he did so, talked with him; he looked at the patent; was satisfied with it, and talked with his father about buying it. The deed for the patent right in Atlantic county was drawn to George P. Lippincott. It is proved by the admission of the defendant Barclay Lippincott that at the time of such sale and transfer his son George was a minor. This admission is competent testimony in this suit against him. A verdict of a jury was given for the plaintiff against the defendant in the court for the trial of small causes; and on the 508 Oases ou Agency. [Book IV trial of the appeal in the Court of Common Pleas there was a judgment of non-suit against the plaintiff. The reason for the non-suit does not appear on the record, but the counsel have argued the cause before us on the case presented by the pleadings and proofs, the contention being here, as it was below, that the plaintiff could not aver and show the infancy of George P. Lippin- cott, and bring this action against Barclay Lippincott, as principal in the contract, in contradiction of its express terms. On the face of the written agreement George P. Lippincott is the principal, and Barclay Lippincott the agent. The suit on the contract should therefore be against the principal named, and not against the agent, unless there be some legal cause shown to change the responsibility. The cause assigned by the plaintiff is the infancy of George at the time the agreement was made in his name by his father. The authority on which he bases his right of action is Bay vs. Cook, 2 Zab. (N. J.) 343, which follows and quotes Mott vs. Hicks, 1 Cow. (N. Y.) 536, 13 Am. Dec. 550, to the effect that if a person undertakes to contract as agent for an individual or corporation, and contracts in a manner which is not legally bind- ing upon his principal, he is personally responsible, and the agent, when sued on such contract, can exonerate himself from the person;! responsibility only by showing his authority to bind those for whom he has undertaken to act. Bay vs. Cook was an action against an overseer who had employed a physician to attend a sick pauper, without an order for relief under the provisions of the act concerning the poor. As his parol contract with the physician was entirely without authority to bind the township, it was said that he had only bound himself to pay for the services rendered at his request. Later cases have held that an agent is not directly liable on an instrument he executes, without authority, in another's name; that the remedy in such case is not on the contract, but that he may be sued either for breach of warranty or for deceit, according to the facts of the case. Jenkins vs. Hutchinson, 13 Q. B. 744; Leicisvs. Nicholson, 18 Q. B. 503; Baltzen vs. Nicolay, 53 N. Y. 4G7; White vs. Madison, 26 N. Y. 117, and many other cases col- lected on the notes in Wharton on Agency, §§ 524, 532, and notes to Thompson vs. Davenport, 9 B. & C. 78, in 2 Smith's Lead. Cas. 358 (Am. edj. Andeews, J., in Baltzen vs. Nicolay, supra, says: " The ground and form of the agent's liability in such a case has been the subject of discussion, and there are conflicting decisions Ohap. Ill ] Patterson ys. Lippixcott. 609 upon the point; but the later and better-considered opinion seems to be, that his liability, when the contract is made in the name of principal, rests upon an implied warranty of his authority to make it, and that the remedy is by an action for its breach." Although the state of demand in the present case is uniformly drawn, there is in the last sentence a charge that the defendant's warranty of authority in pretending to act for said minor is broken, whereby an action has accrued. This alleged breach of an implied warranty is founded on the assumption that the son could not con- fer any authority during his minority to his father to act for him in the purchase of this patent right. There are two answers to this position. The act of an infant in making such a contract as this, which may be for his benefit in transacting business, either directly or through the agency of another, is voidable only, and not absolutely void, and therefore there is no breach of the implied warranty unless there be proof showing that the act of the agent was entirely without the infant's knowledge or consent. The mere fact of the infancy of the principal will not constitute such breach. It was argued in Whitney vs. Dutch, 14 Mass. 457, 7 Am. Dec. 829, that a promissory note signed by Dutch for his partner Green, who was a minor, was void as to Green, because he was not capable of communicating authority to Dutch to contract for him, and that being void, it was not the subject of a subsequent ratification. But the court held that it was voidable only, and having been ratified by the minor after he came of age, it was good against him. See Tyler. Inf. Ch. Ill, §§ 14, 18. Another answer is that the defense of infancy to this contract with the plaintiff can only be set up by the infant himself or those who legally represent him. Infancy ia a personal privilege of which no one can take advantage but himself. Voorhees vs. Wait, 3 Green (N. J.) 343; Tyler Inf. ch. IV, § 19; Bingham, Inf., 49. In this case the plaintiff seeks to disaffirm the infant's contract with him, in his own behalf, and sue a third party on the contract, whose authority to bind him the infant has not denied. The privilege of affirming or disaffirming the contract belongs to the infant alone, and the plaintiff cannot exercise it for him. The mere refusal to pay, charged in the demand and proved, is not a denial of the defendant's authority to bind the infant, for it may 510 Cases on Agency. [Book IV be based on the failure of consideration, the invalidity of the patent, fraudulent representations, or other causes. The judgment of nonsuit entered in the court of common pleas will be affirmed. (64 Iowa, 220, 52 Am. Rep. 436.) LEWIS vs. TILTON. (Supreme Court of Iowa, June, 1SS4..J Action to recover upon a lease. Defendants demurred. Judg- ment for defendants. Plaintiff appeals. Williams, Jaques & Adler, for appellant. Chambers & McElroy, for appellees. Seeyers, J. * * * The more serious question is whether the defendants are individually liable under the lease, which on its face shows that it was entered into between the plaintiff, as party of the first part, and the Ottumwa Temperance Eeform Club, party of the second part, and is signed by the plaintiff, and by the defendants as follows: ' R. L. TlLTON. "Executive committee of the Ottumwa J S. B. Thrall. Temperance Reform Club. David Eaton. k Joseph Sloan." It is insisted that the lease shows that the credit was extended to the club, and that the contract was made with it; that the principal was named, and therefore the defendants cannot be made individually liable. This line of argument possibly would be con- clusive if there was a principal. But there is none. The club is a myth. It has no legal existence, and never had. It cannot sue or be sued. The defendants contracted in the name of a supposed principal; that is, they claim there was a principal for whom they were acting, but it now appears that there was no principal known to the law. But under the allegations of the amended petition, it should be assumed, we think, that there was as a matter of fact a body of men associated together for a benevolent purpose, who had assumed Chap. Ill] Lewis vs. Tilton. 511 the name above stated for the avowed purpose, by their united efforts of suppressing intemperance. There is however some doubt in our minds whether it can be said that the plaintiff extended credit to an organization that had no legal existence. As the law does not recognize such an organization, we are at a loss to know how or why it can be said as a matter of law that the plaintiff con- tracted with, and extended credit to a mere myth. In legal parlance, the organization can not be named. It has no habitation or place of abode. It is also insisted that a fund was provided for the payment of debts, and hence it must be presumed that the plaintiff contracted in reliance upon such fund, and therefore the defendants cannot be made individually liable. What the fact may be we are not advised, but certainly this does not appear on the face of the peti- tion and we have looked into the lease, and there is no provision in it from which such an inference can be drawn. It is also insisted that there is no known legal principle or rule under which the defendants can be made liable. It is said that they are not parties. This is true; that is to say, these defendants could not bind any other member of the organization as a partner in a joint enter- prise, or a contract as to which he had no knowledge and to which he did not assent. But we think " those who engage in the enter- prise (that is, became members of the organization) are liable for the debts they contracted, and all are included in such liability who assented to the undertaking or subsequently ratified it." It was also held in Ash vs. Guie, 97 Penn. St. 493, 39 Am. Rep. 818 {ante, p. 45 ); Fredendall vs. Taylor, 26 Wis. 286, and this rule is supported to some extent by what was said by this court in Keller vs. Tracy, 11 Iowa, 530, and Drake vs. Board of Trustees, 11 Iowa, 54. But it is said these defendants did not contract. They cer- tainly represented that they had a principal for whom they had authority to contract. They, for or on behalf of that alleged principal, contracted that such principal would do and perform certain things. As we have said, there is no principal, and it seems to us that the defendants should be held liable, and that it is immaterial whether they be so held because they held themselves out as agents for a principal that had no existence, or on the ground that they must, under the contract, be regarded as princi- pals, for the simple reason that there is no other principal in existence. We think the demurrer should have been overruled. Judgment reversed. 512 Cases on Agency. [Book IV (60 Barbour, 566.) HERRICK vs. GALLAGHER. (Supreme Court of New York, November, 1871.) Herrick was an expressman and received from another carrier a 0. 0. D. package for Hinterniyer, which purported to be a prize drawn by the latter in a lottery. There was due upon it $26,25. Hintermyer borrowed the money of Gallagher to get the package, which, when opened, proved to contain a few sticks of wood and some old papers. Hintermyre and Gallagher went at once to Herrick's house and persuaded his housekeeper to return to them the identical money paid by them. Herrick sued Gallagher to recover the money. Judgment below for plaintiff. D. O'Brien, for appellant. J. B. Emmes, for respondent. Talcott, J. (After stating the facts.) No doctrine in the law of agency is better established than that which is laid down in Story on Agency (§ 300), as follows: "If a party who has paid money to an agent for the use of his principal becomes entitled to recall it, he may, upon notice to the agent, recall it, provided the agent has not paid it over to his principal, and also provided that no change has taken place in the situation of the agent since the payment to him and before such notice." And as is said by the court in Hearsay vs. Pruyn (7 John. 179): "An action maybe maintained against an agent who has received money to which the principal had no right, if the agent has had notice not to pay it over." This principle has been repeatedly applied in cases where the money has been paid to the agent by mistake; afortioriis it appli- cable where it has been procured by the fraud of either the agent or the principal. (See Cox v*. Prentice, 3 M. & Sel. 345; La Farge vs. Kneeland, 7 Cowen, 456: Moiuatt vs. McLelan, 1 "Wend. 173. The rule laid down in all the cases is, that in order to protect the agent, he must have paid over the money to his principal, or in some way have changed his situation since the payment of the money to himself, upon the faith of such payment. In this case it is not pretended that the plaintiff had paid over the money to tho consignors or the express company, either before or after the pay- Chap. Ill] Herkick vs. Gallagher. 513 ment to him. In answer to a question on that subject, he says that he had, at the time when he took the box, the amount in the hands of the express company. The case is similar in principle to that of Bulhr vs. Harrison, (Cowp. 505). There, a claim was made by parties in New York, through their agent in London, upon the underwriters, for the alleged loss of a vessel. The underwriters, supposing the loss to be fair, as did the agent, paid over to the agent the amount of the policy. Afterward discovering the loss to be foul, they gave notice to the agent, and sued him to recover back the money. The agent had credited the money in account with his principals, as against a larger sum in which they stood indebted to him, but had given no new credit, and accepted no new bills. It was held, Lord Mansfield delivering the opinion of the court, that the plaintiffs were entitled to recover. Here, the money was obtained by a palpable fraud, of which the express company and the plaintiff, though the innocent instruments, were nevertheless the instruments and agents, through whom the fraud was perpetrated. There is no doubt but the plaintiff or the express company, whichever had received the money, would have been liable to the defendant in an action to recover it, on being notified of the fraud, and a demand that the money be refunded; and no doubt the identi- cal money, if it were traced, as it was in this case, could have been replevied. The defendant, Hintermyer's agent, having regained possession of the money, is under no obligation, legal or moral, to restore it to the plaintiff; neither is the plaintiff liable to the consignors or the express company. The charges for freight follow the principal sum. Hintermyer was under no obligation to pay the freight, and the freight money was an incident of, and obtained by, the same fraud as the larger sum. The plaintiff and the express company have been imposed upon by the consignors, and must look to them for redress. The judgment of the county court, and of the justice, should be reverse!. Judgment reversed. Note. — See, also, Larkin vs. Hapgood, 56 Vt. 597; Smith vs. Binder, 75 I1L492. 33 51-1 Cases on Agency. [Book IV II. IN TORT. (34 Louisiana Annual 1123, 44 Am. Eep. 456.) DELANEY vs. KOCHEREATL {Supreme Court of Louisiana, November, 1882.) Action of damages, for negligence producing death. The death was caused by the falling of a gallery upon a building belonging to a foreign owner, and in charge of the defendants as his agents. The defendants had judgment below. Jos. P. Horn or and F. W. Baker, for appellant. C. E. Schmidt, for appellee. Bermudez, C. J. This is an action to hold agents liable to third parties for injury sustained in consequence of an alleged dereliction of duty, or non-feasance on their part. * * * The contention is, that as the injuries received caused intense suffering, and as they were occasioned by the falling of the gallery, which was in very bad condition, to the knowledge of the defend- ants, who, as the agents of the owner, were bound to keep it in good order, and who without justification neglected to do so, their firm and each member thereof are responsible in solido for the damages claimed. The theory on which the suit rests is, that agents are liable to to third parties injured, for their non-feasance. In support of that doctrine, both the common and the civil law are invoked. At common law an agent is personally responsible to third parties for doing something which he ought not to have done, but not for not doing something which he ought to have done, the agent in the latter case, being liable to his principal only. For non-feasance or mere neglect in the performance of a duty, the responsibility there- for must arise from some express or implied obligation between particular parties standing in privity of law or contract with each other. No man is bound to answer for such violation of duty or obligation except to those to whom he had become directly bound or amenable for his conduct. Everyone, whether he is principal or agent, is responsible directlj Chap. Ill ] Delaney vs. Kochereau. 515 to persons injured by his own negligence, in fulfilling obligations resting upon him in his individual character and which the law imposes upon him, independent of contract. No man increases or diminishes his obligations to strangers by becoming an agent. If in the course of his agency, he comes in contact with the person or property of a stranger, he is liable for any injury he may do to either by his negligence, in respect to duties imposed by law upon him in common with all other men. An agent is not responsible to third persons for any negligence in the performance of duties devolving upon him purely from his agency, since he cannot, as agent, be subject to any obligationi toward third persons other than those of his principal. Those duties are not imposed upon him by law. He has agreed with no one except his principal to perform them. In failing to do so, he wrongs no one but his principal, who alone can hold him responsi- ble. The whole doctrine on that subject culminates in the proposi- tion that wherever the agent's negligence, consisting in his own wrong doing, therefore in an act, directly injures a stranger, then such stranger can recover from the agent damages for the injury. Story Agency, 308, 309; Story Bailm. 165; Shearm. & Redf. Neg. Ill, 112, ed. 1874; Evans' Agency, notes by Ewell, 437, 438; Whart. Neg. 535, 78, 83, 780. It is an error to suppose that the principle of the civil law, on the liability of agents to third persons, is different from those of the common law. It is certainly not broader. While, treating of " negligence in discharge of duties not based on contract," which had not previously been considered, Wharton, beginning the third book of his remarkable work on Negligence, says: " The Roman law in this respect rests on the principle that the necessity of society requires that all citizens should be educated to exercise care and consideration in dealing with the persons and property of others. Whoever directly injures another's person or property by the neglect of such care, is in culpa and is bound to make good the injury caused by his neglect. The general responsi- bility is recognized by the Aquilian law, enacted about three cen- turies before Christ, which is the basis of Roman jurisprudence in this relation. Culpa of this class consists mainly in commission, in faciendo. Thus an omission by a stranger to perform an act of charity is not culpa; it is culpa, however, to inadvertently place 516 Cases on - Agency. [Book 17 obstacles on a road over which another falls and is hurt, to kindle a fire by which another's property may be burned, to dig a trench which causes another's wall to fall." He subsequently states that the following are cases in which no responsibility can possibly attach: " When a man does everything in his power to avoid doing the mischief, or when it is of a character utterly out of the range of expectation, the liability ceases and the event is to be regarded as a casualty. "If the injury is due to the fault of the party injured, the liability of the party injuring is extinguished. " Quod quis ex sua culpa damnum sentit, non intelligitur sen- tfr*."— Pomponius. Whart. Neg. 780. 300. The allusion made by certain writers to the Roman law, which gives a remedy in all cases of special damages, must necessarily be understood as referring to instances in which the wrong or damage is done, or inflicted by an actual wrong-doing or commission of the injuring party. The article of the French Code, 1992, from which article 3003 of our E. C. C. derives, which is to the effect that the agent is responsible not only for unfaithfulness in his management, but also for his fault and mistake, contemplates an accountability to the principal only, and this by reason of the assumption of responsi- bility by the acceptance of the mandate. How indeed can an agent be responsible to a third person for the management of the affairs of his principal, or for a mistake committed in the administration of his property? The responsibility for fault is likewise in favor of the "mandant" alone. The Napoleon Code, article 1165, contains the formal provision that agreements have effect only on the contracting parties; they do not prejudice third parties, nor can they avail them, except in the case mentioned in article 1121. This last article refers to stipu- lations in favor of autrui, which become obligatory when accepted. The code of 1808 contained a corresponding article, but that of 1825 did not; neither does the revised code of 1870. It must not be concluded, however, that the omission to incorporate the pro- vision in the subsequent legislation must be considered as a repudiation of the doctrine. The distinguished compilers and framers of the code of 1825 account for the omission to reproduce because the provisions were already embodied in other articles, and might be deemed to be Chap. Ill ] Delaney vs. Rochekeeau. 517 exceptions to the undoubted rule that contracts can only avail or prejudice the parties thereto, J'rojct du Code de 1825, 264. Quod inter alios actum est, aliis ncque nocet, neque prodest. § L. 20, De instit. Act. See, also, Pothier on Oblig. Nos. 85, 87; Domat L. 1, t. 16, § 3, No. 8; L. 2, t. 8; Troplong Mand., No. 510; Duranton 10, No. 541; Toullier 6, 341; Toullier 7, 252, 306; Demolomle 25, No. 38; Laurent 10, No. 377; Larombiere, 1, 640. That such is the case was formerly recognized by the court of Cassation of France, in the case of Thomassin, decided in July, 1869, and reported in part 1 of Dalloz, J. G., for that year. The syllabus in the case is in the following words: " Le manda- taire n'est responsable des fautes qu'il commet dans V execution du mandat, qu' envers le mandant" See, also, J. G. Vo. Obi. nos. 878 et seq., and Vo. Mandat, No. 213. The case of Beaugillot vs. Callemer, 33 Sirey, 322, far from expounding a doctrine antagonistical to that prevailing, as was seen, at common law, and which we consider as well settled like- wise under the civil law, is folly confirmatory of the same. It was the case of an agent condemned to pay damages for obstructing, by means of beams, a water-course partly closed up by masonry, and thus causing an overflow, in consequence of which a hay crop was damaged. The plea of respondeat superior, did not avail. The court well held that the commission of the act constituted a quasi offense, in justification of which the mandate could not be set up. This anterior view of the case relieves the court from the neces- sity of passing upon the other questions presented, relative to fault, trespass, contributory negligence, suffering and damages. Judgment affirmed with costs. Judgment affirmed. Note.— See, also, Baird vs. Shipman, 132 I1L 16, 22 Am. St. Rep. 504; Ellis vs. McNaughton, 76 Mich. 237; Campbell vs. Portland Sugar Co., 62 Me. 562, 16 Am. Rep. 503; Leuthold vs. Fairchild, 35 Minn. 111. 51S Oases on Agency. [Book IV (130 Massachusetts, 102, 39 Am. Rep. 437.) OSBORNE vs. MOKGAN. (Supreme Judicial Court of Massachusetts, January, 1881. J Action of damages for personal injury by negligence. The opin- ion states the case. The defendant had judgment below. O. F. Verry and H. L. Parker, for plaintiff. W. S. B. Hopkins and H. F. T. Blackmer, for defendants. Gray, 0. J. The declaration is in tort and the material allega- tions of fact, which are admitted by the demurrer, are that while the plaintiff was at work as a carpenter in the establishment of a man- ufacturing corporation, putting up by direction of the corporation certain partitions in a room in which the corporation was conducting the business of making wire, the defendants — one the superintend- ent, and the others, agents and servants of the corporation being employed in that business, negligently and without regard to the safety of persons rightfully in the room, placed a tackle-block and chains upon an iron rail suspended from the ceiling of the room and suffered them to remain there in such a manner and so unpro- tected from falling that by reason thereof they fell upon and iujured the plaintiff. Upon these facts the plaintiff was a fellow-servant of the defendants. Farwell vs. Boston & Worcester Railroad, 4 Mete. 49, 38 Am. Dec. 339; Albro vs. Agawam Canal, 6 Cush. 75; Gilman vs. Eastern Railroad, 10 Allen, 233, 87 Am. Dec. 635; and 13 Id. 433, 90 Am. Dec. 210; Holden vs. Fitchburg Railroad, 129 Mass. 268, 37 Am. Eep. 343; Morgan vs. Vale of Neath Railway, 5 B. & S. 570, 736 and L. R. 1 Q. B. 149. The ruling sustaining the demurrer was based upon the judgment of this court delivered by Mr. Justice Merrick in Albro vs. Jaquith, 4 Gray, 99, 64 Am. Dec. 56, in which it was held that a person employed in the mill of a manufacturing corporation who sustained injuries from the escape of inflammable gas, occasioned by the negligence and unskillfulness of the superintendent of the mill in the management of the apparatus and fixtures used for the purpose of generating, containing, conducting and burning the gas for the lighting of the mill, could not maintain an action against the superintendent. But upon consideration we are all of the opinion that that judgment is supported by no satisfactory reasons and must be overruled. Chap. Ill] Osborne vs. Morgan. 519 The principal reason assigned was that no misfeasance or positive act of wrong was charged, and that for non-feasance, which was merely negligence in the performance of a duty arising from some express or implied contract with his principal or employer, an agent or servant was responsible to him only and not to any third person. It is often said in the books that an agent is responsible to third persons for misfeasance only and not for nonfeasance. And it is doubtless true that if an agent never does anything toward carrying out his contract with his principal, but wholly omits or neglects to do so, the principal is the only person who can maintain any action against him for the nonfeasance. But if the agent once actually undertakes and enters upon the execution of a particular work it is his duty to use reasonable care in the manner of executing it, so as not to cause any injury to third persons which may be the natural consequence of his acts; and he cannot, by abandoning its execution midway and leaving things in a danger- ous condition, exempt himself from liability to any person who suffers injury by reason of his having so left them without proper safeguards. This is not nonfeasance, or doing nothing, but it is misfeasance, doing improperly. Ulpian in Dig. 9, 2, 27, 9; Par- sons vs. Winchell, 5 Cush. 592, 52 Am. Dec. 745; Bell vs. Josselyn, 3 Gray, 309, 63 Am. Dec. 741; Noiuell vs. Wright, 3 Allen, 166, 80 Am. Dec. 62; Horner vs. Lawrence, 8 Vroom, 46. Negligence and unskilfnllness in the management of inflam- mable gas, by reason of which it escapes and causes injury, can no more be considered as mere nonfeasance within the meaning of the rule relied on, than negligence in the control of fire as in the case in the Pandects; or of water as in Bell vs. Josselyn', or of a drawbridge as in Nowell vs. Wright) or of domestic animals as in Parsons vs. Winchell, and in the case in New Jersey. In the case at bar, the negligent hanging and keeping by the defendants of the block and chains in such a place and manner as to be in danger of falling upon persons underneath, was a misfeasance or improper dealing with instruments in the defend- ants' actual use or control, for which they are responsible to any person lawfully in the room and injured by the fall and who is not prevented by his relation to the defendants from maintaining the action. Both the ground of action and the measure of damages of the plaintiff are different from those of the master. The master's right of action against the defendants would be founded upon his contract 520 Cases on Agency. [Book IV ■with them, and his damages would be for the injury to his property, and could not include the injury to the person of this plaintiff, because the master could not be made liable to him for such an injury resulting from the fault of fellow servants, unless the master had himself been - guilty of negligence in selecting or employing them. The plaintiff's action is not founded on any contract but is an action of tort for injuries which, according to the common experience of mankind, were a natural consequence of the defend- ants' negligence. The fact that a wrongful act is a breach of a contract between the wrong-doer and one person does not exempt him from the responsibility for it as a tort to a third person injured thereby. Hawkesicorth vs. Thompson, 98 Mass. 77; Norton vs. Secall, 106 Id. 143, 8 Am. Rep. 298; May vs. Western Union Telegraph, 112 Mass. 90; Grinnell vs. Western Union Telegraph, 113 Id. 299, 305, 18 Am. Rep. 485; Ames vs. Union Railway, 117 Mass. 541, 19 Am. Rep. 426; Mulchey vs. Methodist Religious Society, 125 Mass. 487; Rapson vs. Cubitt, 9 M. & W. 710; George vs. Skivington, L. R., 5 Exch. 1; Parry vs. Smith, 4 C. P. D. 325; Foulkes vs. Metropolitan Railway, 4 Id. 267 and 5 Id. 157. This case docs not require us to consider whether a contractor or a servant who has completed a vehicle, engine or fixture, and has delivered it to his employer, can be held responsible for an injury afterward suffered by a third person from a defect in its original construc- tion. See Winterbottom vs. Wright, 10 M. & W. 109; Collis vs. Selden, L. R., 3 0. P. 495; Albany vs. Cunliff, 2 Comst. 165; Thomas vs. Winchester, 6 N. Y. 397, 408, 57 Am. Dec. 455; Coughtry vs. Gkbe Woolen Co., 56 N. Y. 124, 127, 15 Am. Rep. 389. It was further suggested in Albro vs. Jequith, that many of the considerations of justice and policy, which led to the adoption of the rule that a master is not responsible to one of his servants for the injurious consequences of negligence of the others, were equally applicable to actions brought for like causes by one servant against another. The only such considerations specified were that the Bervant, in either case, is presumed to understand and appreciate the ordinary risk and peril incident to the service, and to predicate his compensation in some measure upon the extent of the hazard he assumes, and that " the knowledge that no legal redress ia afforded for damages occasioned by the inattention or unfaithful- ness of other laborers engaged in the same common work will Chap. Ill] Osborne vs. Morgan. 521 naturally induce each one to be not only a strict observer of the conduct of others, but to be more prudent and careful himself, and thus by increased vigilance to promote the welfare and safety of all." The cases cited in support of these suggestions were Farwell vs. Boston & Worcester Railroad, 4 Mete. 49, and King vs. Boston & Worcester Railroad, 9 Cush. 112, each of which was an action by a servant against the master; and it is hard to see the force of the sug estions as applied to an action by one servant against another servant. Even the master is not exempt from liability to his servants for his own negligence; and the servants make no contract with and receive no compensation from each other. It may well be doubted whether a knowledge on the part of the servants that they were in no event to be responsible in damages to one another, would tend to make each more careful and prudent himself. And the mention by Chief Justice Shaw, in Farwell vs. Boston & Worcester Railroad, of the opportunity of servants, when employed together, to observe the conduct of each other, and to give notice to their common employer of any misconduct, incapa- city or neglect of duty, was accompanied by a cautious withholding of all opinion upon the question whether the plaintiff had a remedy against the person actually in default, and was followed by the statement (upon which the decision of that case turned, and which has been affirmed in subsequent cases, some of which have been cited at the beginning of this opinion), that the rule exempting the master from liability to one servant for the fault of a fellow servant did not depend upon the existence of any such opportunity, but extended to cases in which the two servants were employed in different departments of duty, and at a distance from each other. 4 Mete. 59-61. So far as we are informed there is nothing in any other reported case, in England or in this country, which countenances the defend- ants position, except in Southcole vs. Stanley, 1 II. & N. 247; s. c, 25 L. J. (N. S.) Ex. 339; decided in the Court of Exchequer in 1856, in which the action was against the master, and Chief Baron Pollock and Barons Alderson and BEAMWELL severally delivered oral opinions at the close of the argument. According to one report, Chief Baron Pollock uttered this dictum: "Neither can one servant maintain an action against another for negligence while engaged in their common employment." 1 11. & N. 250. But the 522 Oases on Agency. [Book IV other report contains no snch dictum, and represents Baron Alderson as remarking that he was " not prepared to say that the person actually causing the negligence " (evidently meaning " caus- ing the injury" or " guilty of the negligence ") "whether the master or servant would not he liable/' 25 L. J. (N. S.) Ex. 340. The responsibility of one servant for an injury caused by his own negligence to a fellow-servant was admitted in two considered judgments of the same court, the one delivered by Baron Alder- son four months before the decision in Southcote vs. Stanley, and the other by Baron Bramwell eight months afterward. Wiggett vs. Fox, 11 Exch. 832, 839; Degg vs. Midland Railway, 1 H. & N. 773, 781. It has since been clearly asserted by Barons Pollock and Huddleston. Swainson vs. Northeastern Railway, 3 Exch. D. 341, 343; and it has been affirmed by direct adjudication in Scotland, in Indiana and in Minnesota. Wright vs. Roxburgh, 2 Ct. of Sess. Oas. (3d series) 748; Hinds vs. Harlou, 58 Ind. 121; Hinds vs. Ove/ acker, 66 Id. 547, 32 Am. Eep. 114; Griffiths vs. Wolfram, 22 Minn. 185. Exceptions sustained. Note.— See, also, Hare vs, Molntire, 82 Me. 240, 17 Am. St. Rep. 476. Chap. IV] BitADFOED VS. KlMBEELY. 623 CHAPTER IV. THE DUTIES AND LIABILITIES OF THE PRINCIPAL TO THE AGENT. I. agent's eight to compensation. (3 Johnson's Chanceet, 431, 1 Am. Lead. Cab. 866.) BRADFORD vs. KIMBERLY. (New York Court of Chancery, September, 1818.) Bill for accounting, etc. The opinion sufficiently states the facts. Wells, for plaintiff. Boyd, for defendants. The Chancellor. It appears in proof that the owners of the cargo of the Edwardo, in January, 1814, appointed the defendants their agents to receive and sell the cargo, and distribute the proceeds. The defendants were at the same time part owners; but this special agency was altogether distinct from their ordinary powers as part owners, and they were to be considered, for this purpose, as agents for the company, and in that character they were entitled to their commissions or compensation, in the same manner as any other persons, being strangers in interest, would have been entitled under such an agency. In the case of joint partners, the general rule is, that one is not entitled to charge against another a compensation for his more valuable or unequal services bestowed on the common concern, without any special agreement, for it is deemed a case of voluntary management. This is the doctrine in the cases on this point. Thornton vs. i roctor, 1 Anstruther, 94; Burden vs. Burde , 1 Ves. & B. 170; Franklin vs. Robinson, 1 Johns. Ch. 157. But where the several owners meet, and con- stitute one of the concern an agent, to do the whole business, a 524 Cases on Agency. [Book IV compensation is, necessarily and equitably, implied in such special agreement, and they are to be considered as dealing with a stranger. The defendants are, consequently, to be viewed as commission merchants to receive and sell the return cargo, and they are entitled to the rights belonging to that character. If this conclusion be correct there is then no doubt that the claim on the part of the defendant must be admitted. It is well settled, that a factor may retain the goods or the proceeds of them, not only for the charges incident to that particular cargo, but for the balance of his general account; and this allowance is made out not only while the goods remain in specie, but after they are con- verted into money. This was the doctrine declared in Kruger vs. Wilcox, Ambler, 252, and afterwards, by Lord Mansfield, in Godin vs. The London Assurance Co., 1 Burrows, 494, and by Mr. J. Buller, in Lickbarrow vs. Mason, 6 East, 23, in notis. And it is further settled, that this lien applies not only for the amount of the money actually disbursed for the necessary use of the prop- erty in hand, and for acceptances actually paid, but for the amount of outstanding acceptances not then due. The factor may retain the goods, or the money into which they have been converted, until he is indemnified against the liability to which he has subjected him- self. Hammonds vs. Barclay, 2 East, 227; Drinkwater vs. Good- win, Cowp. 251. This is very equitable doctrine, especially when the acceptances and responsibilities were assumed, or necessarily presumed to have been assumed, upon the credit of the property in his possession. * * * Bill dismissed, with costs. Note. — An agent has a particular lien for his commissions, expenditures, advances and services in and about the property or thing entrusted to his agency. McKenzie vs. Nevius, 22 Me. 138, 38 Am. Dec. 291; Mclntyre vs. Carver, 2 "Watts & Serg. (Perm.) 392, 37 Am. Dec. 519; Grinnell vs. Cook, 8 Hill (N. Y.) 485, 38 Am. Dec. 663; Farrington vs. Meek, 30 Mo. 581, 77 Am. Dec. 627; Mathias vs. Sellers, 86 Penn. St. 486, 27 Am. Rep. 723. An agent employed to obtain a loan upon a commission has a hen for the same upon the loan which he secures. Vinton vs. Baldwin, 95 Ind. 433. "An agent may have a lien on the property or funds of his principal for moneys advanced or liabilities incurred in his behalf; and if moneys have been advanced or liabilities incurred upon the faith of the solvency of the prin- cipal, and he becomes insolvent while the proceeds and fruit of such advances or liabilities are in the possession of the agent, or within his reach, and before they have come to the actual possession of the principal, within every prineiple of equity the agent has a lien upon the same for his protec- tion and indemnity." Mutter vs. Pondir, 55 N. Y. 825. Chap. IV] Wallace vs. Flotd. 625 (29 Pennsylvania State, 184, 72 Am. Deo. 620.) WALLACE vs. FLOYD. (Supreme Court of Pennsylvania, 1S57.J Floyd sued Wallace for services as clerk, seeking to recover on a quantum meruit. Wallace alleged that the services were rendered under a special contract fixing the rate. Bigham and Watson, for plaintiff in error. Penny and Sterrett, for defendant in error. Armstrong, J. (After stating the facts and disposing of a question of practice). I know of no standard of value that could be more satisfactory than that which the parties fix for themselves, and where there is a special contract, fixing the terms and conditions on which one party shall serve another, in the absence of proof rescinding or altering it, it is conclusive. If a tenant holds over without notice to quit, or a new contract, the terms and conditions of his old lease will govern. So if a man agrees to serve another for a month or year, at a stipulated sum per month or year, and silently contin- ues longer in the service, it will be on the old terms. If there was a special contract existing, it was the duty of Floyd to give notice to his employer if he wished to alter or enlarge its terms; and it would then have been incumbent on Wallace to accede to the demand or terminate the service. The court said, in answer to the defendant's offer: " The inquiry is as to the value of plaintiff's services, and not as to the contract price; and, so far as the evidence may tend to show their value, it is admitted." From this the jury might very readily suppose that the " contract price " was excluded, and that it was only the other evidence in the cause from which they could fix the value. If no contract was proved, this might be correct. But if there was a special agree- ment, as is alleged, not changed or rescinded, it would control; and it was error to mingle it with other evidence to enhance the value. Judgment reversed, and venire de novo awarded. 526 Cases on Agency. [Book IV (68 New Hampshiee, 392.) WILSON vs. DAME. Assumpsit. The opinion states the facta. Page, for the plaintiff. Hodgdon and Hatch, for the defendant. Bingham, J. The facts reported by the referee establish (1) that the defendant, city marshal of Portsmouth, desired to arrest Walters; (2) that the plaintiff rendered necessary and valuable services in accomplishing it, as the defendant's servant or agent, expecting to be paid for them; (3) that the defendant, knowing these facts, accepted the services, intending to pay for them, and afterwards, on receiving the reward, promised the warden that he would do so. If a person acts as an agent, without authority, and the princi- pal, after full knowledge of the transaction, ratifies it, it will be his act, the same as if he had originally given the authority; and the agent will be entitled to the same rights and remedies, and to the same compensations, as if he had acted within the scope of an acknowledged original authority. Story on Agency, § 244. If the case does not show an original employment of the plaint- iff, or a request to assist in the arrest and return of the convict, it clearly shows that the defendant accepted and ratified whatever the plaintiff did, and that the defendant is liable to pay a reason- able compensation for the same. Hatch vs. Taylor, 10 N. H. 538, {ante, p. 345); Low vs. Railroad, 45 N. H. 370; s. c. 46 N. H. 284. Judgment on the report (61 New York, 362, 19 Am. Rep. 285.) HOWAED vs. DALY. (New York Court of Appeals, January, 1875. J Action for the breach of an alleged contract of employment. Plaintiff alleged that on the 20th of April, 1870, she contracted with defendant to serve him as an actress at his theater in New York for the season commencing on or about September 15, 1870, Chap. IV] Howard vs. Daly. 527 and terminating on or about July 1, 1871, at ten dollars a week. That at the proper time she appeared and offered to enter upon such service, but was prevented by defendant. The answer was a general denial. The referee found the facts substantially as alleged by the plaintiff, and that plaintiff was entitled to judgment for $410. The other facts are sufficiently stated in the opinion. Richard M. Henry, for appellant. Spencer L. Hillier, for respondent. Dwight, C. It is insisted by the defendant that the complaint in this cause should have been dismissed, on the ground that the plaintiff made and maintained no proper tender of service. The finding of the referee that the plaintiff offered and tendered performance of her part of the contract, but that the defendant repudiated the contract, and thereby prevented the plaintiff from performing her part of it, is said to be unsustained by the evidence, and to be erroneous. As this is substantially the whole question raised by the defend- ant on this appeal, it will be the most convenient way to discuss it, to consider the effect of the acts of the defendant denying the existence of the contract. The fact that there was a valid contract has been found by the referee. The evidence showed that a pro- posal, in writing, was made by Mr. Daly to the plaintiff for an engagement of her services for the year 18G9. The plaintiff tes- tifies that she signed an acceptance on Saturday, April 13, 1870, and placed it in the letter box of the defendant, at the theater. The defendant admits that this letter box was sometimes used as a place for deposit of the duplicates of contracts made between him and the actors. It is true that he testified that he never received the papers which the plaintiff asserts that she deposited in the box. This, however, is immaterial. The minds of the parties met when the plaintiff complied with the usual, or even occasional practice, and left the acceptance in a place of deposit recognized as such by the defendant. This doctrine is analogous to that which has been adopted in the case of communication* by letter or by telegraph. Vassar vs. Camp, 11 N. Y. 441; Trevor vs. Wood, 36 Id. 307, 93 Am. Dec. 511. The principle governing these cases is, that there is a concurrence of the minds of the parties upon a distinct proposi- tion, manifested by an overt act. White vs. Codies, 46 N. Y. 467. The deposit in the box, under the circumstances of the present case is such an act. 528 Cases on Agency. [Book IV The case may also be rested upon the fact there was evidence to lead to a presumption that the document reached the defendant, as it was placed in a receptacle considered by him to be a suitable one for the deposit of documents of this class. In the ordinary course of business it would reach the defendant, as he would be supposed to have competent attendants in charge to transact his business. His denial that he received it simply raises a case of conflict of evidence, on which the referee has passed in the plaint- iff's favor. In Dana vs. Eemble, 19 Pick. (Mass.) 112, it appeared that it was the usage of a hotel to deposit all letters left at the bar in an urn kept for that purpose, whence they were sent, almost every fifteen minutes throughout the day, to the rooms of the different guests to whom they were directed. It was held that there was a presumption that a letter addressed to one of the guests left at the bar was received by him. The same point was ruled, in substance, in Hetherington vs. Kemp, 4 Camp. 192, where a letter was placed on a table where letters were usually placed to go to the post-office. The court held that this would be sufficient if it were proved that they were usually carried to the post-office. Though no strict usage was established in the case at bar, there was enough proved to show that, in the ordinary course of business, the letter addressed to him by the plaintiff was likely to reach him. The evidence bearing upon the referee's finding that the defend- ant repudiated the contract thus formed, is substantially as follows: At the end of August or at the beginning of September, 1870, the plaintiff saw the defendant's posters in the street, with a list of his company. Not seeing her name, she wrote to the defendant for an explanation, but received no answer. She then went to the theater, where she met the defendant and asked him why he had not answered her letter, to which inquiry he replied that he had answered it; that it was lying in the box office of the theater for her and had not been sent to her because he expected she would call for it. The defendant then handed her the letter, which bore date August 31st, and which stated that he was not aware of mak- ing any engagement with the plaintiff for the present season, and that he certainly had no contract with her. After she had read this letter, she said to the defendant that she had his paper of engagement. lie seemed quite surprised, and said that he had not got hers, knew nothing about it, and had not engaged her. On her cross-examination, the plaintiff testified that the conversation just detailed occurred the day after the theater opened. Chap. IV] Howard vs. Daly. 529 The defendant gives a version of the interview not materially different. He says that some time after the issue of the prelim- inary poster, stating the annonncement of the season of 1870-71, the plaintiff called on him and wished to know why her name was not on the poster, and he replied because she was not a member of the company. She then stated that she had signed a contract, and he then called her attention to a notice which he had issued requir- ing an acceptance by a particular day, and stated that he had not received hers. The treasurer of the defendant (Mr. Appleton), who heard the conversation, says that the plaintiff, having asked why her name was not on the poster, the defendant answered, it was because she had not complied with the notice put up in his green-room; and, there not being any contract, he could not announce her as one of the company. This testimony shows that the defendant unequivocally refused to recognize the contract. After the plaintiff's statement, he positively declined to receive her as one of the company. The evidence is not perfectly distinct on the point whether the plaint- iff's duties had commenced at the time when the defendant's denial of the contract was made. This may, perhaps, be inferred from a statement made by her on cross-examination, that the con- versation occurred the day after the theater was opened. As the matter, however, remains in some doubt, the subject will be exam- ined from both points of view. 1. I shall first consider the question on the supposition that the plaintiff's period of service had already arrived, and that, on her application for permission to fulfill her contract, the defend- ant repudiated his obligations. No precise form of words was necessary on his part to reject her services; the obligation of the contract being created, a denial of its existence was equivalent to a refusal to allow her to enter upon the services. The defendant's intent is plain. He might reject her services indirectly as well as directly. The sole inquiry is, whether he has done an act inconsistent with the supposition that the service continues. In the case of Short vs. Stone, 8 Ad. & Ell. (N. S.), 358, it was held that if a man promised to marry a woman on a future day, and before that time married another, he had broken the contract with the first woman. This was on the ground that the act done was inconsistent with the contract rela- tions of the parties. See, also, Lovelock vs. Frankly n, 8 Ad. & 34 530 Cases ok Agency. [Book IV Ell. (N. S.), 371. I think, accordingly, that the refusal of the defendant to recognize the contract was equivalent to a refusal to continue the plaintiff in his employment. The next point is, whether the plaintiff was bound, notwith- standing the defendant's act, to keep herself in readiness to per- form the contract at all times, or in any form to tender her ser- vices. This inquiry involves the correct theory of the nature of the action. Does the plaintiff sue for wages on the hypothesis of a constructive service, or for damages? This question, as far as it appears, has never been fully discussed in the appellate courts of this State; and, on account of both its novelty and importance, will be considered at length. It is very plain, that if a servant has actually performed the ser- vice which he has agreed to render under the contract, he has a right to recover wages. That would have been true in the case at bar if the defendant had received her services for the stipulated period. Had he not paid her according to the agreement, her action would have been for the fixed wages. If, on the other hand, she is wrongfully discharged, and the relation of master and servant is broken off as far as he is concerned, it is clear that she cannot recover for wages in the same sense as if she had actually rendered the service. In an early nisi prius case the fiction of a " construc- tive " service was resorted to, and a servant discharged without cause was allowed to recover wages. Gandell vs. Pontigny, 4 Campb. 375, see, also, Collins vs. Price, 4 Bing. 132. This view has been discarded in later decisions, and has been disapproved by text writers. Arcliard vs llornor, 3 Carr. & Payne, 349; Smith vs. Hay ward, 7 Ad. & Ell. 544; Aspdin vs. Austin, 5 Ad. & Ell. (N. S.) 671; Fewings vs. Tisdal, 1 Exch. 295; Elderton vs. Emmens, 6 Com. Bench, 178; Goodman vs. Pocock, 15 Ad. & Ell. (N. S.) 582; Mr. Smith's notes to Cutter vs. Powell, 2 Smith's Leading Cases, 20; C. M. Smith on the law of master and servant, p. 95, note g; Whitaker vs. Sandifer, 1 Duvall (Ky.), 261; Chambcrlin vs. McCallister, 6 Dana, 352; Clark vs. Marsiglia, 1 Den. 317, 43 Am. Dec. 670; Durkee vs. Molt, 8 Barb. 423; Moody vs. Leverich, 4 Daly, 401. These cases and authorities hold, in substance, that if a servant be wrongfully discharged, he has no action for wages, except for past services rendered, and for sums of money that have become due. As far as any other claim on the contract is concerned, he Chap. IV ] Howard vs. Daly. 531 must sue for the injury he has sustained by his discharge, in not being allowed to serve and earn the wages agreed upon. Smith on Master and Servant, 96, note w; Elderton vs. Amnions, 6 Com. Bench, 187; Beckham vs. Drake, 2 Ho. Lords Cases, 606. A servant wrongfully discharged has but two remedies growing out of the wrongful act: (1) He may treat the contract of hiring as continu- ing, though broken by the master, and may recover damages for the breach. (2) He may rescind the contract; in which case he could sue on a quantum meruit, for services actually rendered. These remedies are independent of and additional to his right to sue for wages, for sums actually earned and due by the terms of the contract. This last amount he recovers because he has completed, either in full or in a specified part, the stipulations between the parties. The first two remedies pointed out are appropriate to a wrongful discharge. To apply these principles to the case at bar, the plaintiff must have been ready and willing to continue in the defendant's service at the time of the latter's refusal to receive her into his employ- ment. 2 Wms. Saund. 352, et seq., note to Peelers vs. Opie. It is not necessary, however, that she should go through the barren form of offering to render the service. Wallis vs. Warren, 4 Exch. 361; Levy vs. Lord Herbert, 7 Taunt. 314; Carpenter vs. Holcomb, 105 Mass. 284, and cases cited in opinion by Colt, J. Her readiness, like any other fact, may be shown by all the circum- stances. It sufficiently appeared by the contract of the parties. After the defendant had declined to give her employment, there was no further duty on the plaintiff's part to be in readiness to perform. If that readiness existed when the time to enter into service commenced, and the defendant committed a default on his part, the contract was broken and she had a complete cause of action, Tender of performance is not necessary when there is a willingness and ability to perform, and actual performance has been prevented or expressly waived by the parties to whom per- formance is due. Franchot vs. Leach, 5 Cow. 506; Cort vs. Ambergate and R. R. Co., 17 A. & E. (N. S.) 127. This rule is recognized in Nelson vs. Plimpton Fireproof E. Co., 55 N. Y. 480, 484. Her future conduct could not affect her right to sue, though it might bear on the question of damages. She was not obliged to remain in New York, or in any form to tender her services after they had been once definitely rejected. If this theory of the plaintiff's case is correct, her only further 532 Cases on Agency. [Book IV duty was to use reasonable care in entering into other employment of the same kind and thus reduce the damages. This obligation is of a general nature, and not peculiarly applicable to contracts of service. The cases on this point are: Emmons vs. Elder ton, 4 H. L. Cas. 646; Costigan vs. Mohawk & H. R. R. To., 2 Den. 609, 43 Am. Dec. 758; Dillon vs. Anderson, 43 N. Y. 231. Hamilton vs. McPherson, 28 Id. 76, 84 Am. Dec. 330. The uncontradicted testimony was, that this duty was dis- charged by the plaintiff. She made effort to procure employ- ment, but failed. While it would be unquestionably hei duty to accept, if offered, another eligible theatrical engage- ment, it could scarcely be expected that she should spend much time in actively seeking for employment. Having made some effort and having failed, I think she was justified, under the known usage in that business of forming companies of actors at certain seasons of the year, and the slight prospect of success in making an engagement after the 15th of September, in awaiting the close of the theatrical season. How far a person who is wrongfully discharged from employment is bound to seek it, is not, perhaps, fully settled. Chamberlain vs. Morgan, 68 Penn. St. 168; King vs. Steiren, 44 Id. 99. In the first of these cases it is said that it is the duty of a dismissed servant not to remain idle, and that the defendant may show, in mitigation of damages, that the plaintiff might have procured employment. This seems to be a reasonable rule. Prima facie, the plaintiff is damaged to the extent of the amount stipulated to be paid. The burden of proof is on the defendant to show either that the plaintiff has found employment elsewhere, or that other similar employment has been offered and declined, or, at least, that such employment might have been found. I do not think that the plaintiff is bound to show affirmatively, as a part of her case, that such employment was sought for and could not be found. 2 Greenl. on Ev. § 261a; Costigan vs. M. & H. R. R. Co., 2 Den. 609, 43 Am. Dec. 758. No such evidence having been offered by the defendant, the plaintiff should recover the whole amount of her stipulated com- pensation as the damages attributable to the defendant's breach of contract. This, as has been seen, is the true measure of damages. Clossman vs. Locoste, 28 E. L. and Eq. 140; Goodman vs. Pocock, 15 Ad. & El. 576; Smith vs. Thomson, 8 C. B. 444; Smith on Master and Servant, 98. Some of the cases which may appear to conflict with this opinion, Chap. IV ] Howard vs. Daly. 533 or which are at variance with it, will now be briefly reviewed, lay- lor vs. Bradley, 39 N. Y. 129, 100 Am Dec. 415, is not opposed. The only point decided in that case was, that if there be an agree- ment to let a farm for three years on specified terms, the plaintiff stipulating to occupy and work the farm, and to divide the proceeds with the defendant, the owner, and the latter breaks off the agree- ment, without cause, at the commencement of the letting, the plaintiff may recover immediately as damages, the valne of the con- tract. This proposition is entirely consistent with the views main- t ined in the present case, though they are dicta in the case not easily reconcilable with the result reached by the conrt. Pp. 141, 142. Folk vs. Daly, 4 Daly, 411, is supposed by the defendant to support his views. This is a clear mistake. The conrt expressly approves Moody vs. Lever ich in the same volume. (P. 416.) This case is most distinct and emphatic in the plaintiff's favor. Polk vs. Paly simply argues the question as one of wages. The plaintiff in that case tendered his services before the time for his employment arrived, and was discharged. (It will appear hereafter that in a case where a servant is discharged from his contract before the time of service arrives, he has an election to wait until the contract day arrives and then tender his services, or to sue at once for damages.) He then left the city of New York and remained absent nntil the whole period had expired, making no efforts to obtain employment. The court held that if the action were for wages, he must hold himself in readiness to render the service. Thi3 is correct. No opinion was expressed upon the point as to what the rule would have been in an action for damages. As far as any authorities are opposed to the theory maintained in the present case, they will appear to rest on the nisi prius case of Gandell vs. Pontigny, already noticed. Thus in Thompson vs. Wood, 1 Hilt. 96, there is a dictum of Ixgraham, J., that a servant wrongfully discharged has his election to sue for wages as they become due from time to time, or for damages. This remark that he could sue for wages evidently proceeds on the discarded doctrine of " constructive service." In Huntington vs. The Ogdensburgh R. R. Co., 33 How. Pr. 416, there are some remarks of a similar nature by Potter, J., though there is an apparent confusion between a claim for wages, in case the contract is carried out, and for damages, in case it is broken off. The opinion of James, J., as reported in this case in 7 American Law Eegister (N. S.) 143, •Mopears to be distinct in its adoption of the doctrine of construe- 534 Cases on Agency. [Book Iv tive service. It relies on a case in Alabama ( Fowler vs. Armour, 24 Ala. 194), which distinctly holds that doctrine, and on the dictum of Ingraham, J., in Thompson vs. Wood, supra. There are two or three other cases in the southern and western states that have followed G an dell vs. Fontigny: Armfield vs. Aash, 31 Miss. 361; Gordon vs. Brewster, 7 Wis. 355; Booge vs. Pacific R. R. Co., 33 Mo. 212, 82 Am. Dec. 160. This doctrine is, however, so opposed to principle, so clearly hostile to the great mass of the authorities, and so wholly irrecon- cilable to that great and beneficent rule of law, that a person discharged from service must not remain idle, but must accept employment elsewhere if offered, that we cannot accept it. If a person discharged from service may recover wages, or treat the contract as still subsisting, then he must remain idle in order to be always ready to perform the service. How absurd it would be that one rule of law should call upon him to accept another employment, while another rule required him to remain idle in order to recover full wages. The doctrine of " constructive ser- vice" is not only at war with principle, but with the rules of political economy, as it encourages idleness and gives compensation to men who fold their arms and decline service, equal to those who perform with willing hands their stipulated amount of labor. Though the master has committed a wrong, the servant is not for one moment released from the rule that he should labor; and no rule can be sound which gives him full wages while living in voluntary idleness. For these reasons, if the plaintiff was discharged after the time of service commenced, she had an immediate cause of action for damages, which were prima facie a sum equal to the stipulated amount, unless the defendant should give evidence in mitigation of damages. * * * [The learned commissioner then considered the rule to be fol- lowed in case the defendant's denial of the contract preceded the time for entering into the service, expressing the opinion that the plaintiff would then have an immediate right of action.— This is omitted, as it was not concurred in.] The whole result of the discussion may now be summed up. If the defendant in the case at bar repudiated his contract with the plaintiff after the time of performance had arrived, the plaintiff had an action for damages. Her interview with the defendant sufficiently showed her readiness to perform. Her action was for damages for not being permitted to work, and not for wages; and Chap. IV] Howard vs. Daly. 635 the defendant might show affirmatively, and by way of mitigation of damages, that Bhe had opportunities to make a theatrical engagement elsewhere, which she did not accept. Without such proof she was entitled to recover the full amount of the compensa- tion stipulated in the contract. On the other hand, if the defendant rejected the services of the plaintiff lefore the time for performance arrived, she had an election either to consider his act as a breach of an implied con- tract with her to take her into his service, and bring an immediate action; or to wait till the appointed day arrived, and then be in readiness to render her services. Her election will be evidenced by her acts. Having made no tender of her services at the appointed day, the presumption is that she considered the act of repudiation by the defendant as final, and now brings her action for damages. Her complaint in the action and the evidence taken at the trial are sufficient to estabhsh such a claim. Her damages are, as in the other hypothesis, prima facie the entire amount of her compensation, unless proof was offered in mitigation of dam- ages, which was not done. In either aspect of the case the verdict and judgment were right. My brethren concur with me upon the first ground discussed in this opinion, without expressing their views upon the correctness of the rule laid down in Hochster vs. Be La Tour and kindred cases. The judgment of the court below must be affirmed. All concur. Judgment affirmed. (84 Alabama, 508, 5 Am. St. Rep. 387.) LIDDELL vs. CHIDESTER. ( Supreme Court of Alabama, December, 18S7.J Action to recover for services rendered. Plaintiff recovered below. Arlington & Graham, for the appellant. Troy, Tompkins & London, contra. Stone, C. J. The most important inquiry in this case, alike of law and of fact, was whether Chidester was employed by Liddell to 536 Cases on Agency. [Book IV perforin a year's service for one thousand dollars, to be paid in gross, or to be paid in monthly installments. If the former, then the recovery and enforcement of the judgment for a part of the demand in June, 1886, is a complete defense and bar to this action, and nothing should be recovered. This, under the well-known principle that a plaintiff cannot split up a single cause of action into two or more suits; and if he does so, and recovers a part of his demand, this is a waiver of, and a bar to the residue of his claim, be it much or little. Oliver vs. Holt, 11 Ala. 574, 66 Am. Dec. 228; O'Neal vs. Brown, 21 Ala. 482; S. & N. R. R. Co. vs. Eenlein, 56 Id. 368; Wharton vs. King, 69 Id. 365. If, on the other hand, the wages were due and demandable at the end of each month, then the recovery of one installment, unreversed, is a complete answer to and preclusion of all defense to the merits which were or could be pleaded to such second suit. Rakes vs. Pope, 7 Ala. 161; 3 Brickell's Digest, p. 580, sec. 75 et seq.; Wharton on Civil Evidence, sec. 758; Gardner vs. Buckbee, 3 Cow. 120; 15 Am. Dec. 256. The contract in this case was by telegraphic correspondence. Lid- dell's offer was: " If one thousand dollars a year is an inducement, come immediately. Answer." Chidester's acceptance was: "Will accept one thousand dollars a year." These communications, unexplained, show a single contract for a year, the wages to be one thousand dollars in gross. There was testimony that up to the time of Chidester's discharge his wages were paid to him monthly; but the testimony on this subject was somewhat in conflict. Partridge vs. Forsyth, 29 Ala. 200; Com. Fire Ins. Co. vs. Capital City Ins. Co., 81 Id. 320, 60 Am. Rep. 162. * * * It is settled in this state, by many decisions, that when Chides- ter was discharged he had the option of one of three remedies, if the discharge was wrongful. 1. He could have elected to treat the contract as rescinded, and sue on a quantum meruit for any labor he may have performed. 2. He could have sued at once for an entire breach of the contract by the defendant, in which event he would have been entitled to recover all damages he suffered up to the trial, not exceeding the entire wages he could have earned under the contract; or 3. He could have waited until his wages would mature under the terms of the contract, and sue and recover as upon performance on his part. Each of these alternative rights, as we have seen, was dependent on his fixing on Liddell the fault Ohap. IV] LlDDELL VS. ClIIDESTEB. 637 of his discharge. Slrauss vs. Meertief, 64 Ala. 299; 38 Am. Rep. 8; Davis vs. Ayers, 9 Ala. 292; Ramey vs. Ilolcombe, 21 Id. 567; Fowler vs. Armour, 24 Id. 194; Holloiuay vs. Talbot, 70 Id. 389; Wilkinson vs. Black, 80 Id. 329; 3 Wait's Actions and Defenses, 606. And when wages are payable in installments, suits may be brought on the several installments as they mature; Davis vs. Preston, 6 Ala. 83. * • * Affirmed. (82 Geokgia 392, 5 L. R. A. 405.) GRIGGS vs. SWIFT. ( Supreme Court of Georgia, July, 18S9.J The firm of George P. Swift & Son hired Griggs for one year from Sept. 1, 1886, at $50 per month and board. The son died in November, and on January 1 following the surviving member dis- charged Griggs without cause. He brought this action against the survivor to recover wages and expenses for board from Jan. 1 to July 1, when he found other employment. Judgment below for defendant. T. W. Grimes and Peabody, Brannon & Hatcher, for plaintiff in error. McNeill & Levy, for defendant in error. Bleckley, C. J. (After stating the facts.) From the very nature of a contract for the rendition of personal services to a partnership in its current business, where nothing is expressed to the contrary, both parties should be regarded as having by impli- cation intended a condition dependent on the one hand, upon the life of the employe, and on the other, upon the life of the partner- ship, provided the death in either case was not voluntary. To this effect is the text of Wood on Master and Servant, § 163: "Where a servant is employed by a firm, a dissolution of the firm dissolves the contract, so that the servant is absolved therefrom; but if the dissolution results from the act of the parties, they are liable to the servant for his loss therefrom; but if the dissolution results from the death of a member of the firm, the dissolution resulting by operation of law and not from the act of the parties, 538 Cases on Agency. [Book IV no action for damages will lie. * * * So if a firm consists of two or more persons and one or more of them dies, but the iirm is not thereby dissolved, the contract still subsists, because one or more of his partners is still in the firm and this is so even though other persons are taken into the firm. The test is whether the firm is dissolved. So long as it exists, the contract is in force, but when it is dissolved, the contract is dissolved with it, and the question as to whether damages can be recovered therefor will depend upon the question whether the dissolution resulted from the act of God, the operation of law, or the act of the parties." Mr. Wood's reference is to two Scotch cases which we have not seen, but the rule he deduces from them is so reasonable that we feel warranted in accepting it as law. See also Tanker rs. Shepherd, 6 H. & N. 575. As to the death of a person not a partner, but a sole employer, [the rule is the same.] See Yerrington vs. Greene, 7 R. I. 589, 84 Am. Dec. 578; Wood, Mas. & Ser. §§ 95, 158. The case of Fereira vs. Say res, 5 Watts & S. iPa.) 210, 40 Am. Dec. 496, is apparently in conflict with the text of Wood as above quoted, but we are satisfied to abide by the rule laid down in Wood, though it be at the expense of differing with the learned court of Pennsylvania by whom the last named case was decided. The contract upon which the plaintiff's suit was founded having become impossible of performance by reason of death, he had no right to recover upon the same against the surviving partner for services never actually rendered, and there was no error in granting a non-suit. Of course the claim for board was on the same footing as that for wages. Affirmed. Note. Compare with Hughes vs. Oi'oss, 166 Mass. 61; 55 Am. St. Rep. 878, (37 Ohio State, 396, 41 Am. Rep. 528.) BELL vs. McCONNELL. (Supreme Court of Ohio, January, 1SS1.J Action for the recovery of commissions as a broker. The opin- ion states the facts. R. B. Murray, for plaintiff in error. George F. Arrel, for defendant in error. MoIlvaine, J. This case presents the single question: Can a real estate broker, who assumes to aid both contracting parties in Chap. IV ] Bell vs. McConnell. 5; 9 making an exchange of real estate, recover compensation for hk services from either, upon an express promise to pay in a case where each principal had full knowledge of and assented to the double employment? It has been decided {Rvpp vs. Sampson, 16 Gray, 398, 77 Am. Dec. 416; and Siegel vs. Gould, 7 Lans. 177), and is not doubted that such broker may recover from both or either where his employment was merely to bring the parties together; and it is equally clear, both upon principle and authority, that in case of such double employ- ment he can recover from neither, where his employment by either is concealed from or not assented to by the other. Several reasons may be given for this rule. In law as in morals, it may be stated that as a principle no servant can serve two masters, for either he will hate the one and love the other or else he will hold to the one and despise the other. Luke, 16:13. Unless the principal contracts for less, the agent is bound to serve him with all his skill, judgment and discretion. The agent cannot divide this duty and give part to another. Therefore by engaging with the second he forfeits his right to compensation from the one who first employed him. By the second engagement, the agent, if he does not in fact disable himself from rendering to the first employer the full quantum of service contracted for, at least tempts himself not to do so. And for the same reason he cannot recover from the second employer who is ignorant of the first engagement. And if the second employer has knowledge of the first engagement, then both he and the agent are guilty of the wrong committed against the first employer, and the law will not enforce an executory con- tract entered into in fraud of the right of the first employer. It is no answer to say that the second employer having knowledge of the first employment should be held liable on his promise, because he could not be defrauded in the transaction. The contract itself is void as against public policy and good morals and both parties thereto being in pari delicto, the law will leave them as it finds them. Ex dolo malo non oritur actio. The non-liability of the second employer having knowledge of the first employment has been maintained in the following cases: Farnsworth vs. Hemmer, 1 Allen, 494, 79 Am. Dec. 756; Walker vs. Osgood, 98 Mass. 348, 93 Am. Dec. 168; Smith vs. Toicnsend, 109 Id. 500; Rice vs. Wood, 113 Id. 133, 8. c. 18 Am. Eep. 459, ante, p. 12; Bollman vs. Loomis, 41 Conn. 581; Everhart vs. iSearle, 71 Penn. St. 256; Morrison vs. Thompson, 540 Cases on Agency. [Book IV L. R., 9 Q. B. 480. But in each of these cases it is strongly inti- mated, if not distinctly announced, that a recovery may be had by such agent when he acted with the knowledge and consent of both principals. In Lynch vs. Fallon, 11 R. I. 311; s. c, 23 Am. Rep. 458, the same general doctrine is held and it is said that a broker, acting at once for both vendor and purchaser, assumes a double agency disapproved of by the law, and which if exercised without the full knowledge and free consent of both parties is not to be tolerated. The same in Meyer vs. Hanchett, 43 Wis. 246, wherein the question whether such double agency is consistent with public policy, though exercised with the consent of both parties, is left undecided, but it is decided that mere knowledge of such double agency without actual consent on the part of the principals will not entitle the agent to commissions. The validity of such contracts of double agency where all the principals were fully advised and consented to the double employ- ment, was more directly before the courts and affirmed in the following cases: Rome vs. Stevens, 35 N. Y. Super. Ct. 189, 53 N. Y. 621; Alexander vs. N. W. C. University, 57 Ind. 466; Joslin vs. Cowee, 56 N. Y. 626; Adams Mining Co. vs. Senter, 26 Mich. 73; Fitzsimmons vs. Southwestern Ex. Co., 40 Ga. 330, s. c. 2 Am. Rep. 577; Rolling Stock Co. vs. Railroad, 34 Ohio St. 450; Pugsley vs. Murray, 4 E. D. Smith, 245. See also note by Bennett to Lynch vs. Fallon, 16 Am. L. Reg. 333. Raisin vs. Clark, 41 Md. 158, 20 Am. Rep. 66, holds the contrary doctrine, if knowledge and consent on the part of the first employer is to be regarded as fully proved. Other cases bearing more or less directly on the point might be cited; but enough are given to show a want of harmony in the decisions; yet we think the decided current of authority is in favor of the validity of such contracts where the consent of both principals to such double agency is clearly proved. We admit that all such transactions should be regarded with suspicion; but where full knowledge and consent of all parties interested are clearly shown we know of no public policy, or prin- ciple of sound morality which can be said to be violated. It seems to us rather that public policy requires that contracts fairly entered into by parties competent to contract should be enforced where no public law has been violated and no corrupt purpose or end ia sought to be accomplished. True, such agent may not be able to serve each of his principals with all his skill and energy. He may not be able to obtain for his vendor principal the highest price which Chap. IV] Bell vs. McConnell. 541 could be obtained, or for the purchaser the lowest price for which it could be purchased. But he can render to each a service entirely free from falsehood and fraud; a fair and valuable service in which his best judgment and his soundest discretion are fully and freely exercised. And in such case, such service ia all that either of his principals contracted for. Undoubtedly if two persons desire to negotiate an exchange or a bargain and sale of property, they may agree to delegate to a third person the power to fix the terms, and no suspicion of a violated public policy would arise. It may be said that such third person is an arbitrator chosen to settle differ- ences between his employers, an agency or office greatly favored in the law. And so it is. But what is the distinction between that employment, and the one in the present case, which should cause the law to favor the former and abhor the latter? I can see none. True, in the case put, the contracting parties deal directly with each other, and in the case at bar their minds meet through the medium of a third person in whose judgment and discretion they mutually repose confidence. His judgment and discretion are in- voked by each to aid in fixing the terms of a contract between them. And after the terms are thus adjusted through the aid of their mutual agent and ratified by the parties, in the free exercise of their own volitions, to hold that the relation between such agent and either of his principals is in violation of a sound public policy supposed to rest on some moral abstraction would be a refinement in legal ethics too subtle for my comprehension. Of course to relieve such double agent from suspicion that incon- sistent duties have been assumed, which prima facie will be pre- sumed, it is necessary that it should appear that knowledge of every circumstance connected with his employment by either, should be communicated to the other in so far as the same would naturally affect this action; but when that is done and free assent is given by each principal to the double relation of the agent, the right of such agent to compensation cannot be denied on any just principle of morals or of law. Judgment of District Court affirmed. Longwokth, J., dissented. 542 Cases on Agency. [Book IV II. agent's right to reimbursement and indemnity. (5 Binney, 441, 1 Am. Lead. Cas. 856.) D'ARCY vs. LYLE. (Supreme Court of Pennsylvania, March, 1813. J Plaintiff as agent of defendant had been employed to recover goods of defendant from Suckley & Co. at Cape Francois, San Domingo. He secured the goods by judicial proceedings and accounted to defendant. Afterwards the matter was reopened, and plaintiff was given the alternative of paying a large sum because of his having obtained these goods or engage in personal combat to the death with the claimant Richardson. He therefore confessed judgment for $3,000, which it was claimed was the value of the goods, and the sum he afterwards paid. The action was for reim- bursement from defendant. Verdict for plaintiff and defendant moved for a new trial. Tod and Raiule, for the motion. Hare and Tilghman, contra. Tilghman, C. J. This is one of those extraordinary cases aris- ing out of the extraordinary situation into which the world has been thrown by the French revolution. If the confession of judgment by the plaintiff had been voluntary, it would have lain on him to show that the $3,000 were justly due from the defendant to Richardson, or the persons for whom he acted, or they had a lien on the goods of the defendant to that amount. But the confession of judgment was beyond all doubt extorted from the plaintiff by duress, and he did not yield to fears of which a man of reasonable firmness need be ashamed. The material fact on which this case turns is, whether the transactions between the plaintiff and Richardson, were on any private account of the plaintiff, or solely on account of the defendant. That was submitted to the jury, and we must now take for granted that the proceedings at the Cape against the plaintiff, were in consequence of his having received possession of the defendant's goods from Suckley & Co. I take the law to be aa laid down by Heineccius, Tu nil mil's Ileineccius, c. 13, p. 2G9, 270, and by Erskine in his Institutes, 2 Erskine's Inst. 534, Chap. IV] D'Arcy vs. Ltle. 643 that damages incurred by the agent in the course of the manage- ment, of the principal's affairs, or in consequence of such manage- ment, are to be borne by the principal. It is objected that at the time when judgment was rendered against the plaintiff, he was no longer an agent, having long before made up his accounts, and transmitted the balance to the defendant. But this objection has no weight, if the judgment was but the consummation of the proceedings which were com- menced during the agency. As such I view them, and I make no doubt that they were so considered by the jury. It is objected again, that no man is safe if he is to be responsible to an unknown amount, for any sums which his agent may consent to pay, in con- sequence of threats of unprincipled tyrants in foreign countries. Extreme cases may be supposed, which it will be time enough to decide when they occur. I beg it be understood, that I give no opinion on a case where an agent should consent to pay a sum far exceeding the amount of the property in his hands. This is not the present case, for the property of the defendant, in the hands of the plaintiff in 1804, was estimated at $3,000. The cases cited by the defendant show, that if the agent on a journey on business of his principal, is robbed of his own money, the principal is not answerable. I agree to it, because the carrying of his own money was not necessarily connected with the business of his principal. So if he receives a wound, the principal is not bound to pay the expenses of his cure, because it is a personal risk which the agent takes upon himself. One of the defendant's cases was, that where the agent's horse was taken lame the principal was not answer- able. That I think would depend upon the agreement of the parties. If A undertakes for a certain sum, to carry a letter for B to a certain place, A must find his own horse and B is not answer- able for any injury which may befall the horse in the course of the journey. But if B is to find the horse, he is responsible for the damage. In the case before us, the plaintiff has suffered damage without his own fault, on account of his agency, and the jury have indemnified him to an amount, very little if at all exceeding the property in his hands, with interest and costs. I am of opinion that the verdict should not be set aside. Yeates, J., concurred; Brackeneidge, J., dissented. Note. — Damages incurred by the agent without his fault in the honest discharge of the principal's business must be borne by the principal Mait- land vs. Martin (1878) S6 Perm. St. 120. It is the right of an agent to be 544 Oases on Agency. [Book IV re-imbursed all his advances, expenses and disbursements made in the course of his agency on account of or for the benefit of his principal. Evffner vs. Hewitt (1871), 7 W. Va. 585. In Bibb vs. Allen, 149 U. S. 481, it is said: " It is a well-established principle, which pervades the whole law of principal and agent, that the principal is bound to indemnify the agent against the consequences of all acts done by him in the execution of his agency, or in pursuance of the authority conferred upon him, when the actions or transactions are not illegal. Speaking generally, the agent has the right to be reimbursed for all his advances, expenses and disbursements incnrred in the course of the agency, made on account of or for the benefit of his principal, when such advances, expenses and disbursements are reason- able, and have been properly incurred and paid without misconduct on the part of the agent. If, in obeying the instructions or orders of the principal, the agent does acts which he does not know at the time to be illegal, the principal is bound to indemnify him, not only for expenses incurred, but also for damages which he may be compelled to pay to third parties. The exception to this rule is where the transaction for which the agent is employed is illegal or contrary to good morals and public policy. Addison on Contracts, § 636; Story on Agency, §§ 339, 340, and cases cited in notes. Thus in Beach vs. Branch, 57 Ga. 362, where an agent had sold cotton for account of another, and was obliged to refund the purchase money to the purchaser on account of false packing by the principal, he was allowed to recover the amount so paid from the principal. It is another general proposition, in respect to the relation between prin- cipal and agent, that a request to undertake an agency or employment, the proper execution of which does or may involve the loss or expenditure of money on the part of the agent, operates as an implied request on the part of the principal, not only to incur such expenditure, but also as a promise to repay it. So that the employment of a broker to sell property for future delivery implies not only an undertaking to indemnify the broker in respect to the execution of his agency, but likewise implies a promise on the part of the principal to repay or reimburse him for such losses or expenditures as may become necessary, or may result from the performance of his agency. Bay ley vs. Wilkins, 7 C. B. 886; Smith vs. Undo, 5 C. B. N. S., 587." Chap. V] Paterson vs. Gandasequx 545 CHAPTER V. THE DUTIES AND LIABILITIES OF THE PRINCIPAL TO THIED PERSONS. I. LIABILITY OF PRINCIPAL IN" CONTRACT. 1. Undisclosed Principals. ( 15 East, 62, 2 Smith's Lead. Cas. 342.) PATERSON vs GANDASEQUI. (English Court of King's Bench, Hilary Term, 1812.) Defendant was a Spanish merchant, who, being in London, employed Larrazabal & Co., merchants there, to buy goods for him for a commission. Larrazabal & Co. requested plaintiffs, who were dealers, to send samples to the counting house of the former, and they did so. Defendant was present and the samples were handed over to him. He selected samples of such goods as he wanted, obtained terms and prices and went away. He afterwards instructed L. & Co. to buy large quantities for him and they sent written orders to plaintiffs for the goods, signed by themselves. Plaintiff sold the goods on the credit of Larrazabal & Co., made the invoices to them and charged to them the goods. Larrazabal & Co. charged defendant with the amount on their books. Before the term of credit had expired, Larrazabal & Co. became insolvent, and plaintiffs sought to hold defendant liable. On the trial, Lord Ellenborough, C. J., directed a non-suit on the ground that plaintiff had dealt solely with Larrazabal & Co. A rule to show cause why a new trial should not be granted was then obtained. The Attorney General, Marry att and Littlcdale, contra. Garroio, Park and Richardsoii, for the new trial. Lord Ellenborough, C. J. The court have not the least 35 546 Oases on Agency. [Book IV doubt that if it distinctly appeared that the defendant was the person for whose use and on whose account the goods were bought, and that the plaintiffs knew that fact at the time of the sale, there would not be the least pretence for charging the defendant in this action. But the doubt is, whether that does sufficiently appear by the evidence. It appears that the defendant was present at the counting house of Larrazabal, where one of the plaintiffs had come by appointment, and in his presence inspected and selected such of the articles as he required; and the goods were afterwards ordered by Larrazabal & Co., credit given to them, and the invoices made out in their name and sent to them. The question is, whether all this was done with a knowledge of the defendant being the principal? The law has been settled by a variety of cases that an unknown principal, when discovered, is liable on the contracts which his agent made for him; but that must be taken with some qualification, and a party may preclude himself from recovering over against the principal, by knowingly making the agent his debtor. It certainly appeared to me at the trial that the plaintiffs knew of the defendant being the principal, and had elected to take Larrazabal & Co. as their debtors, or I should not have non-suited the plaintiffs; but as there may perhaps be a doubt upon the evidence, whether the plaintiffs had a perfect knowledge of that fact, it may be as well to have it considered. Bayley, J. There may be a particular course of dealing with respect to trade in favor of a foreign principal, that he shall not be liable in cases where a home principal would be liable; that would be a question for the jury. I have generally understood that the seller may look to the principal where he discovers him, unless he has abandoned his right to resort to him. I agree that where the seller knows the principal at the time, and yet elects to give credit to the agent, he must be taken to have abandoned such right, and cannot, therefore, afterwards charge the principal. I think it should be reconsidered in this case whether the plaintiffs did so. Grose, J. and Le Blanc, J., to the same effect. New trial granted. Note. — See following casea. Chap. V] Addison vs. Geandasequx 547 (4 Taunton, 573, 2 Smith's Lead. Gas. 346.) ADDISON vs. GANDASEQUI. (English Court of Common Pleas, Trinity Term, 1812.) This case, which is usually cited with the preceding was sub- stantially like it, except that defendant was more active in agree- ing upon prices and credit. Lord Mansfield, C. J., left it to the jury to say whether plaintiff sold the goods to Larrazable & Co. or to defendant; whether this were the common case of a merchant here buying for his correspondent abroad, on which he charged a commission, or whether it was the case of a factor buying goods for his principal; and the jury found for the defendant. A motion for a new trial was denied, Lord Mansfield, C. J., who delivered the opinion saying: " We, who are called on to set aside this ver- dict, must, in order thereto, say on this evidence, that Larrazable only was not to be the debtor, but that the defendant also, * * was to be liable; but we can find no evidence to warrant us in that conclusion." Note. — See following cases. ( 9 Barnwall and Creswell, 78, 2 Smith's Lead. Gab, 851.) THOMPSON vs. DAVENPORT. (English Court of King's Bench, Hilary Term, 1829.) Thompson, who lived in Dumfries, Scotland, directed his Liver- pool agent, McCune, to buy certain goods for him. McCune bought them of Davenport & Co., informing the latter that he was buying the goods for a principal but not stating who the principal was. Davenport & Co. charged the goods to McCune, who was then in good credit, and the latter charged them to Thompson who did not know of whom McCune bought them. Before the time for payment arrived McCune became insolvent, and this action was brought to charge Thompson as his principal. The court below (the recorder) instructed the jury that if plaintiffs knew, at the time of the sale, that defendant was the principal, the verdict 548 Cases on Agency. [Book IV should be for defendant, bnt if they did not then know who the principal was, so as to have the opportunity to elect between the principal and the agent, then they should find for the plaintiffs. Verdict for the plaintiffs, and defendant alleged error. Joy, for plaintiffs in error. Patteson, contra. Lord Tenterden, 0. J. I am of opinion that the direction given by the learned recorder in this case was right, and that the verdict was also right. I take it to be a general rule, that if a per- son sells goods (supposing at the time of the contract he is dealing with a principal), but afterwards discovers that the person with whom he has been dealing is not the principal in the transaction, but agent for a third person, though he may, in the meantime, have debited the agent with it, he may afterwards recover the amount from the real principal; subject, however, to this qualification, that the state of the account between the principiil and the agent is not altered to the prejudice of the principal.' On the other hand, if at the time of the sale, the seller knows, not only that the person who is nominally dealing with him is not principal, but agent, and also knows who the principal really is, and, notwithstanding all that knowledge, chooses to make the agent his debtor, dealing with him and him alone, then, according to the cases of Addison vs. Ganda- sequi, 4 Taunt. 574, (ante, p. 547) and Paterson vs. Gandasequi, 15 East. 62 (ante, p. 545), the seller cannot afterwards, on the failure of the agent, turn round and charge the principal, having once made his election at the time when he had the power of choos- ing between the one and the other. The present is a middle case. At the time of the dealing for the goods, the plaintiffs were in- formed that McKune, who came to them to buy the goods, was dealing for another; that is, that he was an agent, but they were not informed who the principal was. They had not, therefore, at that time, the means of making their election. It is true, that they might, perhaps, have obtained those means if they had made further inquiry, but they made no further inquiry. Not knowing who the principal really was, they had not the power, at that instant, of making their election. That being so, it seems to me that this middle case falls, in substance and effect, within the first proposition which I have mentioned, the case of a person not known 1 This statement of the rule has since been disapproved. See Irvine v&. Watson, post, p. 550. Chap. V] Thompson vs. Davenpobt. 549 to be an agent; and not within the second, where the buyer is not merely known to be an agent, but the name of his principal is also known. * * * Bayley, J. * * * Where a purchase is made by an agent, the agent does not, of necessity, so contract as to make himself per- sonally liable; but he may do so. If he does make himself personally liable, it does not follow that the principal many not be liable also, subject to this qualification, that the principal shall not be prejudiced by being made personally liable, if the justice of the case is that he should not be personally liable. If the principal has paid the agent, or if the state of accounts between the agent and the principal would make it unjust that the seller should call on the principal,' the fact of payment, or such a state of accounts, would be an answer to the action brought by the seller where he had looked to the responsibility of the agent. But the seller, who knows who the principal is, and instead of debiting that principal, debits the agents, is considered, according to the authorities which have been referred to, as consenting to look to the agent only, and is thereby precluded from looking to the principal. But there are cases which establish this position, that although he debits the agent who has contracted in such a way as to make himself personally liable, yet, unless the seller does something to exonerate the prin- cipal, and to say that he will look to the agent only, he is at liberty to look to the principal when that principal is discovered. In the present case the seller knew that there was a principal, but there is no authority to show that mere knowledge that there is a principal destroys the right of the seller to look to that princi- pal as soon as he knows who that principal is, provided he did not know who he was at the time when the purchase was originally made. It is said that the seller ought to have asked the name of the principal, and charged him with the price of the goods. By omitting to do so, he might have lost his right to claim payment from the principal, had the latter paid the agent, or had the state of accounts between the principal and agent been such as to make it unjust that the former should be called upon to make the pay- ment. But in a case circumstanced as this case is, where it does not appear but that the man who has the goods has not paid for them, what is the justice of the case? That he should pay for them to the seller or to the insolvent agent, or to the estate of the Insolvent agent, who has made no payment in respect to these 1 See as to this, Irvine vs. Watson, post, p. 550. 550 Cases on Agency. [Book IV goods? The justice of the case is, as it seems to me, all on one side, namely, that the seller shall be paid, and that the buyer (the principal) shall be the person to pay him, provided he has not paid anybody else. Now, upon the evidence it appears that the defendant had the goods, and has not paid for them, either to McKune or the present plaintiffs or to anybody else. He will be liable to pay for them, either to the plaintiffs or to McKune's estate. The justice of the case, as it seems to me, is that he should pay the plaintiffs, who were the sellers, and not any other persons. I am therefore of opinion that the direction of the recorder was right. Littledale, J., to the same effect. Judgment affirmed. Note. — "While the result of this case has been approved, much that appears in the opinions of Lord Tenterden and Bayley, J., has been dis- approved. See Irvine vs. Watson, post, p. 550. As to what constitutes an election to look to the agent only, see Beymer vs. Bonsall, post, p. 554. The principal case was quoted from and followed in Merrill vs. Kenyon, (1880) 48 Conn. 814, 40 Am. Rep. 174, where it was held that if one sells goods to another, who informs him that he is buying as agent for a third, but does not disclose his principal's name, and the seller does not require the name nor know who the principal is, but takes the agent's note for the price, he may still elect to hold the principal. (Law Reports, 5 Queen's Bench Division 414, 29 Moak's Eng. Rep. 371.) IRVINE vs. WATSON. ( English Court of Appeal, June, 18S0.J Action to recover of defendants the price of oil bought for them from plaintiffs by defendants' broker. Plaintiffs had judgment below. Defendants appealed. Opinion states the facta. Gully, Q. C.y and Compton, for defendants. W. R. Kennedy {Sir Farrer Herschell, S. O., with him), for plaintiffs. Bramwell, L. J. I am of opinion that the judgment must be affirmed. The facts of the case are shortly these: The plaintiffs sold certain casks of oil, and on the face of the contract of sale Oonuing appeared as the purchaser. But the plaintiffs knew that Chap. V ] Ievinb vs. Watson. 651 he was only an agent buying for principals, for he told them so at the time of the sale, therefore they knew that they had a right against somebody besides Conning. On the other hand, the defendants knew that somebody or other had a remedy against them, for they had authorized Conning, who was an ordinary broker, to pledge their credit, and the invoice specified the goods to have been bought " per John Conning." Then, that being so, the defendants paid the broker, and the question is whether such payment discharged them from their liability to the plaintiffs. I think it is impossible to say that it discharged them, unless they were misled by some conduct of the plaintiffs into the belief that the broker had already settled with the plaintiffs, and made such payment in consequence of such belief. But it is contended that the plaintiffs here did mislead the defendants into such belief, by parting with the possession of the oil to Conning without getting the money. The terms of the contract were " cash on or before delivery," and it is said that the defendants had a right to sup- pose that the sellers would not deliver unless they received payment of the price at the time of delivery. I do not think, however, that that is a correct view of the case. The plaintiffs had a per- fect right to part with the oil to the broker without insisting strictly upon their right to prepayment, and there is, in my opin- ion, nothing in the facts of the case to justify the defendants in believing that they would so insist. No doubt if there was an invariable custom in the trade to insist on prepayment where the terms of the contract entitled the seller to it, that might alter the matter; and in such case non-insistence on prepayment might dis- charge the buyer if he paid the broker on the faith of the seller already having been paid. But that is not the case here; the evi- dence before Bo wen, J., shows that there is no invariable custom to that effect. Apart from all authorities, then, I am of opinion that the defendants' contention is wrong, and upon looking at the author- ities I do not think that any of them are in direct conflict with that opinion. It is true that in Thompson vs. Davenport, 9 B. & C. 78 {ante, p. 547) both Lord Tenterden and Bayley, J., suggest in the widest terms that a seller is not entitled to sue the undisclosed principal on discovering him, if in the meantime the state of account between the principal and the agent has been altered to the prejudice of the principal. But it is impossible to construe the dicta of those learned judges 652 Cases on Agency. [Book IV in that case literally; it would operate most unjustly to the vendor if we did. I think the judges who uttered them did not intend a strictly literal interpretation to be put on their words. But whether they did or not, the opinion of Parke, B., in Heald vs. Kenworthy, 10 Ex. 739, 24 Lu J. (Ex.) 76, seems to me preferable; it is this, that, " If the conduct of the seller would make it unjust for him to call upon the buyer for the money, as for example, where the principal is induced by the conduct of the seller to pay his agent the money on the faith that the agent and seller have come to a settlement on the matter, or if any representation to that effect is made by the seller either by words or conduct, the seller cannot afterwards throw off the mask and sue the principal." That is in my judgment a much more accurate statement of the law. But then the defendants rely on the case of Armstrong vs. Stohes, L. R. 7 Q. B. 598. Now that is a very remarkable case; it seems to have turned in some measure upon the peculiar character filled by Messrs. Ryder as commission merchants. The court seemed to have thought it would be unreasonable to hold that Messrs. Ryder had not authority to receive the money. I think upon the facts of that case that the agents would have been entitled to maintain an action for the money against the defendant, for as commission merchants they were not mere agents of the buyer. Moreover the present is a case, which Blackburn, J., there expressly declines to decide. He expressly draws a distinction between a case in which, as in Armstrong vs. Stokes, supra, the seller at the time of the sale supposes the agent to be himself a principal, and gives credit to him alone, and one in which, as here, he knows that the person with whom he is dealing has a principal behind, though he does not know who that principal is. It is to my mind certainly difficult to understand that distinc- tion, or to see how the mere fact of the vendor knowing or not knowing that the agent has a principal behind can affect the lia- bility of that principal. I should certainly have thought that his liability would depend upon what he himself knew, that is to say whether he knew that the vendor had a claim against him and would look to him for payment in the agent's default. But it is sufficient here that the defendants did know that the sellers had a claim against them, unless the broker had already paid for the goods. In this view of the case it is unnecessary to consider the further question raised by Mr. Kennedy, as to whether a payment on a Chap. V] Ibvine vs. Watsoh. 653 general running account, as distinguished from a payment specifi- cally appropriated to the particular purchase, would be sufficient to bring the case within Lord Tentekden's qualification of the general rule. Baggallay and Brett, L. JJ., delivered concurring opinions. Appeal dismissed. Note — In the United States, the courts have, as a rule, followed the dicta of the English case of Thompson vs. Davenport, now repudiated in Eng- land as shown in the principal case. See Fradley vs. Hyland, (1888) 37 Fed. Rep. 49, 2 L. R. A. 749; Laing vs. Butler, 37 Hun, (N. Y.) 144; Thomas vs. Atkinson, 88 Ind. 248; Clealand vs. Walker, 11 Ala. 1058; McCidlough ve. Thompson, 45 N. Y. Super. 449. See the cases reviewed in 23 Am. L. Rev. 565. In Fradley V8. Hyland, the principal case was apparently overlooked. (116 New Yoek, 625.) KAYTON vs. BARNETT. CNevo York Court of Appeals, December, 1889. J Plaintiffs sold goods to one Bishop for $4,500. He paid $3,000 on delivery and gave three notes for the balance. He died insolvent not having paid any of the notes. Afterward, plaintiffs tendered these notes to defendants and sued them to recover the 81,500 on the ground that Bishop was really acting as agent for defendants in making the purchase. Defendants denied the agency. Judg- ment for defendants below. W. J. Curtis, for appellants. A. R. Dyett, for respondents. Follett, 0. J. When goods are sold on credit to a person whom the vendor believes to be the purchaser, and he afterwards discovers that the person credited bought as agent for another, the vendor has a cause of action against the principal for + ,he purchase price. The defendants concede the existence of this general rule, but assert that it is not applicable to this case, because, while Bishop and the plaintiffs were negotiating, they stated they would not sell the property to the defendants, and Bishop assured them that he was buying for himself and not for them. It appears by evidence, which is wholly uncontradicted, that the defendants directed every step taken by Bishop in his negotiations 554 Cases on Agency. [Book IV with the plaintiffs; that the property was purchased for and delivered to the defendants, who have ever since retained it; that they paid the $3,000 towards the purchase price, and agreed with Bishop, after the notes had been delivered, to hold him harmless from them. Notwithstanding the assertion of the plaintiffs that they would not sell to the defendants, they, through the circum- vention of Bishop and the defendants, did sell the property to the defendants, who have had the benefit of it, and have never paid the remainder of the purchase price pursuant to their agreement. Bishop was the defendants' agent. Bishop's mind was, in this transaction, the defendants' mind, and so the minds of the parties met, and the defendants having, through their own and their agent's deception, acquired the plaintiffs' property by purchase, cannot successfully assert that they are not liable for the remainder of the purchase price because they, through their agent, succeeded in inducing the defendants to do that which they did not intend to do, and, perhaps, would not have done had the defendants not dealt disingenuously. The judgment should be reversed and a new trial ordered. Judgment reversed. (79 Pennsylvania State, 298.) BEYMER vs. BONSALL. (Supreme Court of Pennsylvania, October, 1875. J This was an action of assumpsit commenced June 2, 1871, by Sterling Bonsall against Simon Beymer. The plaintiff declared that on the 17th of November, 1870, in consideration of $1,000, paid by the plaintiff to Isaac Wagner and Richard Leech, brokers and agents of the defendant, he promised to deliver to the plaintiff, at or near Pittsburg, 5,000 barrels of petroleum, at any time from January 1 to June 30, 1871, upon ten days' notice to Wagner & Leech from the plaintiff, at 10£ cents per gallon on delivery; that the plaintiff, on the 12th day of June, 1871, ordered Wagner & Leech to deliver 5,000 barrels of petroleum, but Wagner & Leech refused to do so. The defendant pleaded: 1. That the plaintiff at September term, 1871, of the court of Chap. V] Beymer vs. Bonsall. 555 common pleas of Allegheny county, impleaded Wagner & Leech on the same cause of action as that upon which the present suit was founded, and did thereby elect to acquit and discharge the defendant of the same. 2. That in the same cause he recovered judgment against Wagner & Leech for $5,651.25, on the same promises and undertakings. The plaintiff demurred to the plea, and assigned aa cause of demurrer: 1. That it did not appear that because of a judgment recovered as was averred in the plea, the plaintiff has not also a cause of action against the defendant. 2. That the plaintiff did not acquit the principal by a recovery of a judgment against the agent. The court did not decide upon the demurrer, but permitted the case to go to the jury. The court instructed the jury to find for the plaintiff, the facts being undisputed, subject to the opinion of the court on the question, whether under the demurrer to the defendant's pleas the judgment should be for the defendant. The jury found a verdict for the plaintiff for $6,300. The court afterwards entered judgment for the plaintiff on the reserved question. The defendant took a writ of error and assigned for error the entering judgment for the plaintiff. G. Shir as, Jr., for plaintiff in error. When the party dealing with an agent, and with knowledge of the agency, elects to make the agent his debtor he cannot after- wards have recourse to the principal. J. Kent's Com. 633; Pater' son vs. Gandassequi, 15 East. 62; Addison vs. Gandassequi, 4 Taunton, 574; Thompson vs. Davenport, 9 B. & C. 78. Where a creditor proceeds against a factor and obtains an award of arbitration against him, it is an election to treat the factor as his debtor, and he cannot enforce the claim against the principal. Though not actual, it is legal satisfaction for the debt. Merrick's Estate, 5 W. & S. 17; Emery vs. Fowler, 39 Maine, 226; Camp- bell vs. Phelps, 1 Pick. 62; King vs. McLean, 15 N. H. 9. T. J. Keenan (with whom was D. W. tellers) for defendant in error. Per Curiam. Undoubtedly an agent who makes a contract in his own name without disclosing his agency is liable to the other 656 Cases on Agency. [Book IV party. The latter acts upon his credit and is not bonnd to yield up his rights to hold the former personally, merely because he dis- closes a principal who is also liable. The principal is liable because the contract was for his benefit, and the agent is benefited by his being presumedly' the creditor, for there can be but one satisfac- tion. But it does not follow that the agent can afterwards discharge himself by putting the creditor to his election. Being already liable by his contract, he can be discharged only by satis- faction of it, by himself or another. So the principal has no right to compel the creditor to elect his action, or to discharge either himself or his agent, but can defend his agent only by making satisfaction for him. We think no error was committed by the court below, except in the form of the reservation. Judgment should have been given directly on the demurrer itself and not by way of reserved point upon it. This, however, is not a substantial error, and the judgment may be treated as entered upon the demurrer. Judgment affirmed. Note.— Taking the agent's note is not an election to look to him only, Merrill vs. Kenyon, 48 Conn. 314, 40 Am. Rep. 174; Pope vs. Meadow etc. Co., 20 Fed. Rep. 35; Keller vs. Singleton, 69 Ga. 703; nor is the fact that the goods were charged to the agent; Raymond vs. Crown, etc. Mills, 2 Mete. (Mass.) 319; French vs. Price, 24 Pick. (Mass.) 13; Guest vs. Opera House Co., 74 Iowa, 457; or sent the bill to the agent; Henderson vs. May- hew, 2 Gill (Md.) 393, 41 Am. Dec. 434; or filed a claim against his estate, Curtis vs. Williamson, L. R. 10 Q. B. 57; or began action against him, Cobb vs. Knapp. 71 N. Y. 348, 27 Am. Rep. 51. Compare with Cleveland vs, Pearl, post, 55G; Kayton vs. Burnett, ante. 553. (63 Vermont, 127, 25 Am. St. Rep. 748,) CLEVELAND vs. PEARL. {Supreme Court of Vermont, October, 1890. ) Pearl entered into a contract with Cleveland, on June 16, 1888, to buy Cleveland's wool. It was to be delivered to Pearl's agent, Hoyt, to whom Pearl was to supply the money to pay for it, which he did, before the wool was delivered, telling Iloyt to pay for it in cash. June 22, Cleveland delivered the wool to Hoyt, but the Chap. V] Cleveland ts. Pearl. 557 latter instead of paying in cash, paid partly in cash and gave his own check for the balance which was dishonored. Cleveland kept the check nntil June 26, when he indorsed and delivered it to a third person in payment of a debt. June 26, Pearl settled with Hoyt paying him a balance greater than the amount of the check. July 9, Pearl learned for the first time that the wool had not been paid for in cash. This action was to hold Pearl liable for the amount unpaid. Judgment for plaintiff below and defend- ant appealed. L. H. Thompson, for the appellants. O. A. Prouty, for the plaintiff. Powell, J. It not having been found how it was in fact, this was in law a sale for cash on delivery. And it is manifest that the parties so understood it, for the defendants put Hoyt in funds where- with to pay on delivery, and the plaintiff called for payment in money when he delivered. And when he found that he could not get cash in full according to his right, he had an option not to deliver at all. But he chose to deliver notwithstanding, and to take Hoyt's check, payable to himself, for the unpaid balance, in the giving of which Hoyt was not defendant's agent, for he was acting outside the scope of his authority, which was to pay cash down, and the plaintiff ought to have known it. But if he did not, the law will treat him just as though he did, for he who deals with an agent having only a special and limited authority, is bound, a( his peril, to know the extent of his authority. White vs. Lang don, 30 Vt. 599; Sprague vs. Train, 34 Vt. 150. By taking the check in the circumstances disclosed, — agreeing for his own convenience for delay in presenting it, and subsequently parting with it in payment of his debt, the defendants having been prejudiced, if liable here, by paying their debt to Hoyt in the mean- time, when, had they known how it was, they could have paid the plaintiff and saved themselves, — the plaintiff must be deemed to have made the check his own, and to have accepted the credit and responsibility of Hoyt instead of that of the defendants, and to have discharged the latter. In other words, Hoyt's check paid the debt as between these parties. The plaintiff stands no better than he would had he taken the check in preference to the money, or had given a receipt acknowl- edging payment, when he would certainly have discharged the defendants; for so are all the authorities. 558 Cases on Agency. [Book IV The case is not like those in which the plaintiff had no option, and conld do better than to take a bill or note, and no injury resulted to the defendant in consequence of taking it. In such case the check is a conditional and not an absolute payment. Rob- inson vs. Read, 9 Barn. & C. 449, is of that class. But here was no antecedent debt, and the plaintiff had the staff in his own hands, and might have kept the wool; but he chose to deliver it, and to take Hoyt's check for it, without authority from the defendants, or notice to them, and he has no standing to claim that the check was only conditional payment. Judgment reversed and cause remanded. II. DISCLOSED PRINCIPALS. (134 Massachusetts, 169, 45 Am. Rep. 314.) BYINGTON vs. SIMPSON. ("Supreme Judicial Court of Massachusetts, January, 188S.J Suit on contract. The opinion states the case. The plaintiffs had judgment below. J. H. Benton, Jr., for defendant. S. L. Vowers and 0. W. Sanderson, for plaintiffs. Holmes, J. This is a suit to recover a balance due under a building contract. The contract was in writing and purported on its face to be made by the plaintiffs with J. B. Simpson. It pro- vided that the work should be done under the direction of J. B. Simpson, agent, and was signed "J. B. Simpson, agent." J. B. Simpson was in fact contracting as agent for the defendant, his wife, and this was known to the plaintiffs at the time the contract was made. The defendant contends that she was not bound by this contract under the foregoing circumstances. The fact that the contract purports to be under seal, although not sealed, has not been relied on as affecting the case, which especially in view of the inartificial nature of the instrument, it ought not to do; but the argument ia Chap. V] Byington vs. Simpson. 559 that inasmuch as the plaintiffs knew of the existence of a principal before the contract was made, and then were contented to accept a written agreement which on its face bound the agent, they must be taken to have dealt with, and to have given credit to, the agent alone; just as upon a subsequent discovery of the undisclosed prin- cipal, they might have determined their right to charge him by a sufficient election to rely upon the credit of the agent. We are of opinion that plaintiffs' knowledge does not make their case any weaker than it would have been without it. Whatever the original merits of the rule that a party not mentioned in a simple contract in writing may be charged as a principal upon oral evi- dence, even where the writing gives no indication of an intent to bind any other person than the signor, we cannot reopen it, for it is as well settled as any part of the law of agency. Huntington vs. Knox, 7 Cush. (Mass.) 371, 374 (post, p. 587); Eastern Railroad vs. Benedict, 5 Gray, (Mass.) 561, 66 Am. Dec. 384; Lerned vs. Johns, 9 Allen, 419; Hunter vs. Giddings, 97 Mass. 41; Exchange Bank vs. Rice, 107 Id. 37, 41, 9 Am. Kep. 1; National Ins. Co. vs. Allen,116 Mass. 398; Higgins vs. Senior, 8 M. & W. 834 (ante, p.456). And it is evident that words which are sufficient on their face, by established law, to bind a principal, if one exists, cannot be deprived of their force by the circumstance that the other party relied upon their sufficiency for that purpose. Yet that is what the defendant's argument comes to. For the same parol evidence that shows the plaintiffs' knowledge of the agency may warrant the inference that the plaintiffs meant to have the benefit of it and to bind the principal. The only reasons which have been offered for the admissibility of oral evidence to charge the alleged principal confirm this con- clusion. That suggested in Higgins vs. Senior, ubi suj ra, is the same which is usually given for the liability of a master for his servant's torts, that the act of the agent is the act of the principal (see 1 Bl. Com. 432; Laugher vs. Pointer, 5 B. & C. 547, 553; Williams vs. Jones, 3 H. & C. 602, 609); the meaning of which, in its latter application at least, is, as was stated long ago, that master and servant are " feigned to be all one person." West's Symboleography, part I, sec. 3, " Of the Fact of Man." The most plausible explanation which has been attempted pursues the same thought more clearly. It is said that the principal is liable " because he is taken to have adopted the name of the (agent) as his own for the purpose of (the) contract." 2 Smith Lead. Cas. 8th 560 Oases on Agency. [Book IV ed. 408, note to Thompson vs. Davenport; Trueman vs. Loder, 11 Ad. & El. 589, 595; s. c, 3 P. &. Dav. 267, 271. If tliis is to be accepted, there is obviously the strongest ground for saying that the principal has adopted the agent's name for the purposes of a given contract when it is shown that both parties have acted on that footing. The most that could fairly be argued in any case would be, that under some circumstances, proof that the other party knew of the agency, and yet accepted a writing which did not refer to it, and which in its natural sense bound the agent alone, might tend to show that the contract was not made with any one but the party whose name was signed; that the agent did not sign as agent, and was not understood to do so, but was himself the principal. But these are questions of fact, and as a matter of fact it is obvious, and it is found, that the defendant was the principal, and that the contract was made with her. The objection that two persons cannot be bound by the same signature to a contract, if sound, would be equally fatal when the principal was not known. There is a double obligation, although there can be but one satisfaction. Our decision is in accordance with a thoroughly discussed English case which went to the exchequer chamber, and with the statement of the law by Mr. Justice Stoey there cited. Calder vs. Dolell, L. It. 6 C. P. 486. Story, Agency, sec. 160a. Judgment for the plaintiffs affirmed. (Ill New York, 604, 7 Am. St. Rep. 769.) CONSTANT vs. UNIVERSITY OF ROCHESTER. (New York Court of Appeals, January, 1889. J Action to foreclose a mortgage made by Elizabeth Mehan and husband. The defendant, the University of Rochester, claimed title to the mortgaged premises, under the foreclosure of a second mortgage made to it by the same mortgagors, and alleged that it had no notice of plaintiff's mortgage. Judgment at special term for plaintiff was affirmed at the general term. Martin W. Cooke, for the appellant. Chap. V ] Constant vs. University. 661 John E. Parsons, for the respondents. Peckham, J. In taking the mortgage of January, 1884, we think the university occupied the position of a mortgagee for a valuable consideration. It surrendered a prior mortgage, with the accrued interest thereon, and took the mortgage in question. If the university be not chargeable with notice of the prior mortgage to Constant, which was unrecorded, then its own mortgage is the prior lien as between the two. The first important question arising is, did Deane, who acted in the transaction as the attorney and agent for the university at the time of the execution of the mortgage to the university, have knowledge of the existence of the prior mort- gage to Constant, executed in February, 1883, and which he then took as agent for Constant? In other words, is there any proof that, he, in January, 1884, had that fact present in his mind and recollection, so that it can be said from the evidence that he then had knowledge of its existence as an unpaid, outstanding obligation? The transaction out of which the mortgage to the university arose occurred eleven months subsequent to the transaction out of which the mortgage in suit arose; and the former mortgage was neither a part of the same transaction as the latter, nor had it the least connection therewith. Under the law as decided by the older cases in England, such fact would have been an absolute defense to the claim that there was any constructive notice to the defendant arising out of notice to its agent, because such notice was in another and entirely separate transaction. In Warrick vs. War- rick, 3 Atk. 291, 294, decided by the Lord Chancellor Hardwicke in 1745, that able judge assumed it as unquestioned law that notice to the agent, in order to bind his principal by constructive notice, should be in the same transaction. He said, "This rule, ought to be adhered to; otherwise it would make purchasers' and mortgagees' title depend altogether on the memory of their counsellors and agents, and oblige them to apply to persons of less eminence as counsel, as not being so likely to have notice of former transact- ions." Cases were continually arising subsequent to that case, wherein the principle was assumed as the law of England, although the cases did not in their facts absolutely call for a decis- ion on that point.. But in Mountford vs. Scott, 1 Turn. & K. 274, upon an appeal from a decision of the vice-chancellor, Lord Chancellor Eldon 36 562 Oases on Agency. [Book IV said that the vice-chancellor proceeded upon the notion that notice to a man in one transaction is not to be taken as notice to him in another transaction. The lord chancellor continued: "In that view of the case, it might fall to be considered whether one transaction might not follow so close upon the other as to render it impossible to give a man credit for having forgotten it." He further said that he would be unwilling to go so far as to say that if an attorney has notice of a transaction in the morning, he shall be held, in a court of equity, to have forgotten it in the evening; that it must in all cases depend upon the circumstances. In Ilargreaves vs. Eothwell, 1 Keen, 154, Lord Langdale, master of the rolls, held that where one transaction is closely followed by and connected with another, or where it is clear that a previous transaction was present to the mind of the solicitor when engaged in another transaction, there is no ground for a dis- tinction by which the rule that notice to the solicitor is notice to the client should be restricted to the same transaction. In Nixon vs. Hamilton, 2 Dru. & Walsh, 364, decided in 1838, Lord Chancellor Plunket adverted to the rule as to the necessity of notice in the same transaction, and stated, if it were notice acquired in the same transaction, necessarily the principal was to be charged with the knowledge of the agent; but if it were notice received by him in another transaction, then such notice was not to affect the principal, unless he actually had the knowledge at the time of the second transaction. See, also, the case of Dresser vs. Norwood, 17 Com. B., N. S. 446, decided in the court of exchequer chamber. This modification of the old English rule is recognized in the comparatively late case of The Distilled Spirits, 11 Wall. 356. Mr. Justice Bradley, in delivering the opinion of the Supreme Court of the United States, stated that the doctrine in England seemed to be established that, if the agent at the time of effecting a pur- chase has knowledge of any prior lien, trust, or fraud affecting tho property, no matter when he acquired such knowledge, his prin- cipal is affected thereby. If he acquire the knowledge when he effects the purchase, no question can arise as to his having it at that time. If he acquired it previous to the purchase, the pre- sumption that he still retains it, and has it present to his mind, will depend upon facts and other circumstances. Clear and satis- factory proof that it was so present seems to be the only restriction Chap. V ] Constant vs. University. 563 required by the English rule as now understood. And the learned justice states that the rule, as finally settled by the English court, is, in his judgment, the true one, and is deduced from the best considerations of the reasons on which it is founded. In this opinion the whole court concurred. Story, in his work on agency, section 140, says: " But unless notice of the fact come to the agent while he is concerned for the principal, and in the course of the very transaction, or so near before it that the agent must be presumed to recollect it. it is not notice thereof to the principal. For otherwise the agent might have forgotten it, and then the principal would be affected by his want of memory at the time of undertaking of the agency. Notice, therefore, to the agent before the agency is begun, or after it has terminated, will not ordinarily affect the principal." In Bank of the United States vs. Davis, 2 Hill, (N. Y.) 451, it was held that the principal is deemed to have notice of whatever is com- municated to his agent while acting as such in a transaction to which the communication relates. And it was held in that case that notice to a bank director or knowledge obtained by him while not engaged officially in the business of the bank would be inoperative as notice to the bank. In Holden vs. New York and Erie Bank, 72 N. Y. 286, the rule was explained, and it was therein held that where an agency was in its nature continuous and made up of a long series of transac- tions of the same general character, the knowledge acquired by the agent in one or more of the transactions is to be charged as the knowledge of the principal, and will affect the principal in any other transaction in which the agent as such is engaged, and in which the knowledge is material. In that case it will be seen upon reading the very able opinion of Folger, C. J., that there was no question as to the knowledge of the agent of the various facts, and the only question raised was whether it should be imputed to his various principals in the transactions. In Cragie vs. Hadley, 99 N. Y. 131, the doctrine that the knowl- edge of the agent should come to him in the identical transaction was alluded to, and it was held that it was not necessary in aU cases that the notice should be thus given, and that notice to an agent of a bank intrusted with the management of its business was notice to the corporation in transactions conducted by such agent, acting for the corporation in the scope of his authority, whether the knowledge of the agent was acquired in the course of a particular 564 Cases on Agency. [Book IV dealing or on some prior occasion. See, also, Welsh vs. German American Bank, 73 N. Y. 434; Atlantic State Bank, etc., vs. Saver y, 82 Id. 291. From all these various cases it will seem that the farthest that has been gone in the way of holding a principal chargeable with the knowledge of facts communicated to his agent, where the notice was not received or the knowledge obtained in the very trans- action in question, has been to hold the principal chargeable upon clear proof that the knowledge which the agent once had, and which he had obtained in another transaction, at another time and for another principal, was present to his mind at the very time of the transaction in question. Upon a careful review of the testimony in this case, we have been unable to find any such proof. It is true, the learned trial judge finds, that, contemporaneously with the execution of the mortgage to the university, Deane caused to be made a statement, upon the basis that the amount was to be loaned to the mortgagors, and that, out of the money coming to them as a consideration for the mortgage to the university, the amount of the bond and mortgage to the plaintiff's decedent, with interest, was to be paid, and that mort- gage was to be satisfied. And he further found that the university, through Deane, had notice of the mortgage of the plaintiff's deced- ent in connection with and as a part of any proposed transaction by which there was to be loaned to the mortgagor the amount of the bond and mortgage to the university. What is meant by the word '• contemporaneously," as used in this finding, is, perhaps, not absolutely clear. If it meant that the statement mentioned was procured to be made by Deane as a part of and coincident with the execution of the mortgage to the university, it is not, as we think, based upon any evidence. There is no proof whatever in this case that Deane procured this statement to be made by any body, and Deane himself says that a statement of this nature would, by the course of practice in his office, have come to him (made by some one in his office) the day after the loan was closed. He does not pretend to recollect this particular statement, nor is there any evidence that he procured it to be made. His testimony shows that he had no special recollection of the things which took place upon the occasion of the execution of the bond and mortgage to the university further than appeared by his books and other memoranda then made by others; and he does not pretend to say that this particular statement was presented to him, Chap. V] Constant vs. University. 665 or that he had the least knowledge of its existence, or of the facts therein stated, nntil the day after the closing of the transaction, and the execution of the mortgage to the university. This is every particle of evidence that there is upon which a find- ing could be based, such as the learned judge made of knowledge or notice on the part of Deane of the existence of the Constant mort- gage at the time of the transaction with the university, and the execution of the mortgage to it. The other facts in the case uncontradicted are that, for some years prior to January, 1884, Deane and the plaintiffs' decedent were acting together, and that the plaintiffs' decedent was, weekly and even almost daily, in the habit of investing large amounts of money upon mortgages of this nature, and that the dealings of plaintiffs' decedent in these various building mortgages, through Deane's office, had amounted, at the time of the mortgage to the university, in the aggregate, to three millions of dollars, if not more; that the mortgages were of all sizes, from six up to forty thousand dollars. It also appears that this very mortgage in suit was found after the execution of the university mortgage in a pigeon-hole in which satisfied mortgages were kept, and was found by the assignee of Deane after the assignment was made. There was no proof in the case showing that Deane made any pretense of remembering, at the time of the execution of the mort- gage to the university, that eleven months before he had taken a mortgage on the same property for the plaintiffs' decedent which was not recorded. Taking into consideration the enormous amount of business done by Deane for Constant of this same general nature, and the length of time that elapsed since the taking of the Constant mortgage by him, and the fact that it was never taken from the office of the mortgagee, and that it remained there and was found in a pigeon-hole appropriated to satisfied mortgages, and that on the very statement in question upon which the learned judge evidently based his finding it is alluded to as satisfied, all these facts would tend to show very strongly that Deane had no recollec- tion whatever of the existence of the Constant mortgage as an existing lien at the time he took the mortgage to the university. But the burden is upon the plaintiff to prove, clearly and beyond question, that he did, and it is not upon the defendant to show that he did not, have such recollection. And we think that there is a total lack of evidence in the case which would sustain the find- ing that Deane had the least recollection on the subject at the 566 Cases on Agency. [Book IV time of the execution of the university mortgage. Under such circumstances, we think it impossible to impute notice to the university, or knowledge in regard to a fact which is not proved to have been possessed by its agent. If such knowledge did not exist in Deane at the time of his taking the mortgage to the uni- versity, then the latter is a bona fide mortgagee for value, and its mortgage should be regarded as a prior lien to that of the unre- corded mortgage of Constant, which is prior in point of date. The plaintiffs are bound to show by clear and satisfactory evidence that when this mortgage to the university was taken by Deane, he then had knowledge, and the fact was then present to his mind, not only that he had taken a mortgage to Constant eleven months prior thereto on the same premises, which had not been recorded, but that such mortgage was an existing and valid lien upon the premises, which had not been in any manner satisfied. If he recollected that there had been such a mortgage, but honestly believed that it was or had been satisfied, then, although mistaken upon that point, the university could not be charged with knowl- edge of the existence of such mortgage. Quite a strong reason for not imputing knowledge to the agent, in this case, unless upon evidence clear and satisfactory, is, that if he had such knowledge, and thus knowingly took an utterly worthless security for his principal, he acted in the most improper and dishonest manner, and wilfully caused a loss to his principal of substantially the whole amount of the money represented by the mortgage which he took as a second lien. While this consideration is not controlling, if the evidence justified the assumption, it is yet of considerable weight, and adds to the propriety of the rule requir- ing clear proof of such knowledge at the very time of taking the mortgage to the university. One other question has been argued before us which has been the subject of a good deal of thought. It is this: Assuming that Deane had knowledge of the existence of the Constant mortgage at the time of the execution of the mortgage to the university, is his knowledge to be imputed to the university, considering the position Deane occupied to both mortgagees? While acting as the agent of Constant in taking the mortgage in question as security for the funds which he was investing for him, it was the duty of Deane to see that the moneys were safely and securely invested. The value of the property was between eleven thousand and twelve thousand dollars; and it was obviously the Chap. V ] Constant vs. Univoisity. 667 duty of Deane to see to it that the mortgage which he took upon such property as a security for a loan of six thousand dollars for Con- stant should be a first lien thereon. Whitney vs. Martine, 88 N. Y. 535. In order to become such first lien, it was the duty of Deane to see to it that the Constant mortgage was first recorded. In January, 1884, when acting as agent for the university to invest its moneys, he owed the same duty to the university that he did to Constant, and it was his business to see to it that the security which he took was a safe and secure one. Neither mortgage was safe or secure if it were a subsequent lien to the other upon this property. This duty he continued to owe to Constant at the time he took the mortgage to the university. At the time of the execution of the latter mortgage, therefore, he owed conflicting duties to Constant, and to the university the duty in each case being to make the mortgage to each principal a first lien on the property. Owing these conflicting duties to two different principals, in two separate transactions, can it be prop- erly said that any knowledge coming to him in the course of either transaction should be imputed to his principal? Can any agent occupying such a position bind either principal by constructive notice? It has been stated that in such a case, where an agent thus owes conflicting duties, the security which is taken or the act which is performed by the agent may be repudiated by his principal when he becomes aware of the position occupied by such agent. Story on Agency, sec. 210. The reason for this rule is, that the principal has the right to the best efforts of his agent in the transaction of the business con- nected with his agency; and where the agent owes conflicting duties, he cannot give that which the principal has a right to demand, and which he has impliedly contracted to give. Ought the university to be charged with notice of the existence of this prior mortgage when it was the duty of its agent to procure for it a first lien, while, at the same time, in his capacity as agent for Constant, it was equally his duty to give to him the prior lien? Which principal should he serve? There have been cases where, in the sale and purchase of the same real estate, both parties have employed the same agent, and it has been held, under such cir- cumstances, that the knowledge of the agent was to be imputed to both of his principals. If, with a full knowledge of the facts that his own agent was the agent of another, each principal retained him in his employment, 608 Cases on Agency. [Book IV we can see that there would be propriety in so holding; for each then, notes the position which the agent has with regard to the other, and each takes the risk of having imputed to him whatever knowledge the agent may have on the subject. See Le Neve vs. Le Neve, 1 Amb. 436, Hardwicke, chancellor, decided in 1747; Toulmin vs. Steer e, 3 Mer. 209, decided in 1817, by Sir Walter Grant, master of the rolls. The case of Nixon vs. Hamilton, already referred to, decided by Lord Plunket, lord chancellor in the Irish court of chancery, in 1838 (2 Dru. & Walsh, 364), is a case in many respects somewhat like the one at bar, so far as this principle is concerned, if it be assumed that Deane really had the knowledge of the prior mortgage as an existing lien. It will be observed, however, upon examination of it, that the question whether the knowledge of the common agent in two different transactions, with two different principals, was notice to the second principal, was not raised with reference to this particular ground. The whole discussion was upon the subject of imputing the knowledge of the agent to the second mortgagee, of the existence of the prior mortgage, which knowledge was not obtained in the last transaction. Whether such knowledge should or should not be imputed to the second mortgagee, because of the conflicting duties owed by the common agent, was not raised. The only defense set up was, that the information did not come to the agent of the second mortgagee, in the course of transacting the business of the second mortgagee, and the question was simply whether such knowledge could be imputed to the second mortgagee because of the knowl- edge acquired by his agent at another time, in another transaction, with another principal. The court held that where it appeared, as in this case it did appear, fully and plainly that the matter was fresh in the recollection, and fully within the knowledge of the agent, and under such circumstances that it was a gross fraud on the part of the agent, in the first place in keeping a prior mortgage off the record, and in the second place, in not communicating the knowl- edge which he had to his principal, the second mortgagee, that in such case the second mortgagee was charged with the knowledge of his agent. Whether the same result would have been reached if the other ground had been argued, we cannot, of course, assume to decide. I have found no case precisely in point where the subject has been discussed and decided either way. I have very grave doubts as to the propriety of holding in the case of an agent, situated as I have Chap. V] Constant vs. University. 569 stated, that his principal in the second mortgage shonld be charged with the knowledge which such agent acquired in another trans- action at a different time while in the employment of a different principal, and where his duties to such principal still existed and conflicted with his duty to his second principal. We do not deem it, however, necessary to decide the question in this case. For the reasons already given, the judgment should be reversed, and a new trial ordered, with costs to abide the event. Note. — See following case. (139 Massachusetts, 332, 52 Am. Rep. 710.) INNERARITY vs. MERCHANTS' NATIONAL BANK. ("Supreme Judicial Court of Massachusetts, May, 18S5.J Plaintiffs shipped a cargo to one Burgess for sale on their account. The bill of lading consigned the goods to the order of Burgess. Burgess fraudulently pledged the bill of lading to defendant bank to secure a loan to himself. Burgess was one of the directors of the bank and met with them at the time they approved this loan. E. D. Sohier and F. L. Hayes, for plaintiff. 8. Bartlett, and L. 8. Dalney, for defendant. Devens, J. (After stating the facts.) This transfer by Burgess & Sons of the sugar was a fraud upon the plaintiffs; but it is not contended that it in any way failed to convey a full title in pledge to the defendant bank, unless under the circumstances the bank is to be charged with the knowledge of Burgess. The plaintiffs requested the presiding judge to rule that if Burgess was present as a director when said loan was acted upon by the board of directors, his knowledge of the plaintiffs' title to the sugar, and that the firm of Burgess & Sons had no right to pledge it, was the knowl- edge of the defendant bank. This ruling was refused by the presid- ing judge, who found for the defendant. AVhile the knowledge of an agent is ordinarily to be imputed to the principal it would appear now to be well established that there is an exception to the construction or imputation of notice from the agent to the principal in case of such conduct by the agent as 570 Cases on Agency. [Book IV raises a clear presumption that he would not communicate the fact in controversy, as where the communication of such a fact would necessarily prevent the consummation of a fraudulent scheme which the agent was engaged in perpetrating. Kennedy vs. Green, 3 Myl. & K. 699- Cave vs. Cave, 15 Ch. D. 639; In re European Bank, L. R. 5 Ch. 358; In re Marseilles Extension Railway, L. R. 7 Ch. 161; Atlantic National Bank vs. Harris, 118 Mass. 147; Boring vs. Brodie, 134 Mass. 453. One of the most recent cases on this point is Dillaway vs. Butler, 135 Mass. 479. A, to whom B was indebted, advised C to lend money to B on the security of a mortgage of personal property, and acted as C's agent in completing the transaction. With the money thus obtained, B paid A the debt he owed him. Both A and B acted in fraud of the General Statutes, chap. 118, sees. 89, 91; but C. had no knowledge of the fraud. It was held that the knowledge of A was not in law imputable to C, although A had acted for C in the negotiation. But the question in the case at bar is not so much what are the responsibilities of a principal for an agent, as whether Burgess can be considered in any proper sense as an agent for the defendant bank in the transaction of the loan, even if directors are ordinarily to be treated as such. The plaintiffs seek to impute to the cor- poration knowledge of a fraud, because in a contract made avow- edly not for it, but for himself, and necessarily acting adversely to its interests, a director was aware that he was committing a fraud. This in effect is to say that there can be no transaction between a bank and one of its directors in which, so far as the transfer of property is concerned, the bank can be protected, if there is fraud on the part of the director, and that the bank can never discount paper on which one of its directors is a party, and retain the position of an innocent indorsee for value under the law merchant. A bank or other corporation can act only through agents, and it is generally true, that if a director who has knowledge of the fraud or illegality of the transaction acts for the bank, as in dis- counting a note, his act is that of the bank, and it is affected by his knowledge. National Security Bank vs. Cusliman, 121 Mass. 490. But this principle can have no application where the director of the bank is the party himself contracting with it. In such case the position he assumes conflicts entirely with the idea that here pre- sents the interests of the bank. To hold otherwise might sanction Chap. V] Innebarity vs. Nat'l Bank. 571 gross frauds, by imputing to the bank a knowledge those properly representing it could not have possessed. Whether Burgess acted or not at the meeting of the directors in the matter of the loan, he could not lawfully have done so as the representative of the bank. His individual interest was distinctly antagonistic; and the question before the board related to its approval of a provisional transaction between himself and the president of the bank, in which he was the proposed borrower and the bank was to be the lender. A director offering a note of which he is the owner for discount, or proposing for a loan of money on collateral security alleged to be his own property, stands as a stranger to it. That a joint stock bank, says, in substance, Sir W. M. James, should have imputed to it the knowledge which the director has of his own private affairs, is a most unreasonable proposition. In re Marseilles Extension Railway, L. It. 7 Ch. 170. The relation which a director, who is himself acting for another in a negotiation with a bank, occupies toward it was considered in Washington Bank vs. Lewis, 22 Pick, 24, where it was argued, that although he was not the agent of the bank yet his knowledge of facts showing the note to be invalid was that of the bank, " Whatever a director or other agent of a bank/' Bay the court, " may do within the scope of his authority would bind the bank so as to make them responsible to the person dealt with. But in the present case Thompson was the party applying for the discount, and was not acting as director nor could he with any propriety so act. He was the party with whom the bank con- tracted in discounting the note, and to whom the money was paid." The proposition that a director of a corporation acting avowedly for himself, or on behalf of another with whom he is interested in any transaction, cannot be treated as the agent of the corporation therein, is well sustained by authority. Slratton vs. Allen, 1 C. E. Green, 229; Barnes vs. Trenton Gas Light Co., 12 C. E. Green, 33; Bightstown Bank vs. Christopher, 40 N. J. L. 435; Winchester vs. Baltimore & Susquehanna Railroad, 4 Md. 231; Wicker sham vs. Chicago Zinc Co., 18 Kans. 41, 26 Am. Rep. 784; Seneca County Bank vs. Neass, 5 Denio, 329, 337; Third National Bank vs. Harrison, 10 Fed. Eep. 243; Stevenson vs. Bay City, 26 Mich. 44; In re Marseilles Extension Railway, uli supra; In re European Bank, ubi supra. In some of these cases weight appears to be given to the fact that the director was not actually present at the meeting when the transaction was concluded, but this cannot be of importance. If it were shown that Burgess urged the loan upon 572 Cases on Agency. [Book IV the board of directors, and actually voted in favor of it, Ms associates not seeing fit to intervene or object to this conduct, he would still have acted on his own behalf, and of those whose inter- ests and efforts were of necessity adverse to those of the corpora- tion. To assume that under such circumstances the facts he knew were communicated to the directors, and that he had laid before them the fraud he was committing in wrongfully pledging property, would be a presumption too violent for belief, and would do great injustice to the remaining directors and the interests they represented. While the current of authority is in favor of the conclusion we have reached, two cases are much relied on by the plaintiffs which were not overlooked in the opinions delivered in several of the cases cited above, and which have not there commanded approval. These are United States Bank vs. Davis, 2 Hill, 451, and Union Bank vs. Campbell, 4 Humph. 394. In each of these cases it was held that the knowledge of a director of what was held to invalidate a contract was to be imputed to the bank. In neither of these cases was the director whose knowledge was imputed to the bank the adverse contracting party, which would perhaps distinguish them sufficiently from the case at bar. But in each of them the director acted for the person contracting with the bank, and thus secured to himself important advantage; and we are not prepared to assent to the proposition that a director thus acting is competent to affect with his knowledge of fraud the bank whose director he is. His interests and conduct are adverse to it, and his position forbids that he should be treated as its representative. Exceptions overruled. ( 119 United States, 99.) VICKSBURG & MERIDIAN RAILROAD vs. O'BRIEN. (Supreme Court of the United States, November, 18S6.J Action to recover damages for personal injury. Verdict for plaintiff. tloadly, Johnson & Colston, and Wm. Nugent, for plaintiff in error. Titos. C. Catchings, for defendant in error. Chap. V ] Vicksbukg & Meridian R. R. vs. O'Brien. 573 Harlan, J. (After disposing of a preliminary question.) At the trial below, plaintiffs introduced one Roach, as a witness, who, during his examination, was asked whether he did not, shortly after the accident, have a conversation with the engineer having charge of defendant's train at the time of the accident, about the rate of speed at which the train was moving at the time. To that question the defendant objected, but its objection was overruled, and the witness permitted to answer. The witness had previously stated that, on examination of the track after the accident, he found a cross-tie or cross-ties under the broken rail in a decaved condition. His answer to the above question was: " Between ten and thirty minutes after the accident occurred, I had such a con- versation with Morgan Herbert, the engineer having charge of the locomotive attached to the train at the time of the accident, and he told me that the train was moving at the rate of eighteen miles an hour." The defendant renewed its objection to this testimony by a motion to exclude it from the jury. This motion was denied, and the exception taken. As bearing upon the point here raised, it may be stated that, under the evidence, it became material — apart from the issue as to the condition of the track — to inquire whether, at the time of the accident (which occurred at a place on the line where the rails in the track were, according to some of the proof, materially defective), the train was being run at a speed exceeding fifteen miles an hour. In this view, the declaration of the engi- neer may have had a decisive influence upon the result of the trial. There can be no dispute as to the general rules governing the admissibility of the declarations of an agent to affect the principal. The acts of an agent, within the scope of the authority delegated to him, are deemed the acts of the principal. Whatever he does in the lawful exercise of that authority is imputable to the princi- pal, and may be proven without calling the agent as a witness. So, in consequence of the relation between him and the principal, his statement or declaration is, under some circumstances, regarded as of the nature of original evidence, "being," says Phillips, "the ultimate fact to be proved, and not an admission of some other fact." 1 Phil. Ev. 381. " But it must be remembered,*' says Grecnleaf, " that the admis- sion of the agent cannot always be assimilated to the admission of tho principal. The party's own admission, whenever made, may be given in evidence against him; but the admission or declaration 574 Cases on Agency. [Book IV of his agent binds him only when it is made during the continuance of the agency in regard to a transaction then depending, et dum fervet opus. It is because it is a verbal act and part of the res gestae that it is admissible at all; and, therefore, it is not necessary to call the agent to prove it; but wherever what he did is admissible in evidence, there it is competent to prove what he said about the act white he was doing it." 1 Greenleaf, § 113. This court had occasion in Packet Co. vs. ( lough, 20 Wall. 540, to consider this question. Referring to the rule as stated by Mr. Justice Story in his treatise on Agency, § 134, that, " Where the acts of the agent will bind the principal, there his representations, declara- tions, and admissions respecting the subject-matter will also bind him, if made at the same time, and constituting part of the res gesta," the court, speaking by Mr. Justice Story, said: "A close attention to this rule, which is of universal acceptance, will solve almost every difficulty. But an act done by an agent cannot be varied, qualified, or explained, either by his declarations, which amount to no more than a mere narrative of a past occurrence, or by an isolated conversation held, or an isolated act done, at a later period. The reason is, that the agent to do the act is not author- ized to narrate what he had done, or how he had done it, and his declaration is no part of the res gestae." We are of opinion that the declaration of the engineer Herbert, to the witness Koach, was not competent against the defendant for the purpose of proving the rate of speed at which the train was moving at the time of the accident. It is true that, in view of the engineer's experience and position, his statements under oath, as a witness, in respect to that matter, if credited, would have influence with the jury. Although the speed of the train was in some degree, subject to his control, still his authority in that respect did not carry with it authority to make declarations or admissions at a subsequent time, as to the manner in which, on any particular trip, or at any designated point in his route, he had performed his duty. His declaration, after the accident had become a complete fact, and when he was not performing the duties of engineer, that the train, at the moment the plaintiff was injured, was being run at the rate of eighteen miles an hour, was not explanatory of anything in which he was then engaged. It did not accompany the act from which the injuries in question arose. It was, in its essence, the mere narration of a past occurrence, not a part of the res gestae, simply an assertion or representation, in the Chap. V ] Vicksburq & Meridian B. R. vs. O'Brien. 575 course of conversation, as to a matter not then pending, and in respect to which his authority as engineer had fully been exerted. It is not to be deemed part of the res gestae, simply because of the brief period intervening between the accident and the making of the declaration. The fact remains that the occurrence had ended when the declaration in question was made, and the engineer was not in the act of doing anything that could possibly affect it. If his declara- tion had been made the next day after the accident, it would scarcely be claimed that it was admissible evidence against the company. And yet the circumstance that it was made between ten and thirty minutes — an appreciable period of time — after the accident, cannot, upon principle, make this case an exception to the general rule. If the contrary view shall be maintained, it would follow that the declarations of the engineer, if favorable to the company, would have been admissible in its behalf as part of the res gestce, without calling him as a witness — a proposition that will find no support in the law of evidence. The cases have gone far enough in the admission of the subsequent declarations of agents as evidence against their principals. These views are fully sustained by adjudications in the highest courts of the states. Luby vs. Hudson River Railroad, 17 N. Y. 131; Pennsylvania Railroad vs. Brooks, 57 Penn. St. 339, 343; 98 Am. Dec. 229; Dietrich vs. Baltimore, etc., Railroad, 58 Md. 347, 355; Lane vs. Bryant, 9 Gray, 245, s. c, 69 Am. Dec. 282; Chicago, Burlington, etc. Railroad vs. Riddle, 60111. 534; Virginia & Tennes- see Railroad vs. Sayers, 26 Gratt. 328, 351; Chi. & N. W. Railroad vs.Fillmore,57 111.265; Mich.Central Railroad vs. Coleman, 28 Mich. 440, 446; Mobile & Montgomery Railroad vs. Ashcraft, 48 Ala. 15, 30; Bellefontaine Railway vs. Hunter, 33 Ind. 335, 354, 5 Am. Rep. 201; Adams vs. Hannibal & S. J. Railroad, 74 Mo. 553, 556, 41 Am. Rep. 333; Kan. & Pacific Railroad vs. Pointer, 9 Kan. 620, 630; Roberts vs. Burks, Litt. (Ky.) Select Cas. 411, s. c, 12 Am. Dec. 325; Hawker vs. Baltimore & Ohio Railroad, 15 "West Va. 628, 636, 36 Am. Rep. 825. See, also, 1 Taylor, Ev., 7th Eng. ed., § 602. We deem it unnecessary to notice other exceptions taken to the action of the court below. This case was decided at the last term of this court, and Mr. Justice Woods concurred in the order of reversal upon the grounds herein stated. 576 Cases on Agency. [Book IV For the errors indicated the judgment is reversed and the canse remanded for a new trial, and for further proceedings consistent with this opinion. Field, Miller, and Blatchfoed, J. J., and Waite, C. J., dissented, saying: The modern doctrine has relaxed the ancient rule that declarations, to be admissible as part of the res gestm, must be strictly contemporaneous with the main transaction. It now allows evidence of them when they appear to have been made under the immediate influence of the principal transaction, and are so connected with it as to characterize or explain it. Note. — In People vs. Vernon, 35 Cal. 49, 95 Am. Dec. 50, it is said: '* Declarations to be a part of the res gestce are not required to be precisely concurrent in point of time with the principal fact; if they spring out of the principal transaction, if they tend to explain it, are voluntary and spontaneous, and are made at a time so near it as to preclude the idea of deliberate design, then they are to be regarded as contemporaneous and are admissible." To same effect is Eeyser vs. Chicago & Q. T. By. Co. t 66 Mich. 890, citing many other cases. II. LIABILITY OF PRINCIPAL IN TORT. (106 New York, 195, 60 Am. Rep. 440.) BANK OF BAT AVI A vs. NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY. (New York Court of Appeal, June, 18S7.J Action of damages for wrongful issue of bill of lading. The opinion states the facts. The plaintiff had judgment below. E. G. Sprague, for appellant. H. E. Sickels, for respondent. Finch, J. It is a settled doctrine in the law of agency in this state that where the principal has clothed his agent with power to do an act upon the existence of some extrinsic fact, necessarily and peculiarly within the knowledge of the agent, and of the existence of which the act of executing the power is itself a representation, a third person dealing with such agent in entire good faith, pursuant Chap. V ] Bank of Batavia vs. Railroad Co. 577 to the apparent power, may rely upon the representation, and the principal is estopped from denying its truth to his prejudice. North River Bank vs. Aymar, 3 Hill, 202; Qrisiuold vs. Haven, 25 N. Y. 595, 601, 82 Am. Dec. 380; N. Y. & N. II. R. Co. vs. Schuyler, 34 N. Y. 30; Armour vs. M. C. R. Co. 65 N. Y. 11, 22 Am. Eep. 603. A discussion of this doctrine is no longer needed or permissible in this court, since it has survived an inquiry of the most exhaust- ive character, and an assault remarkable for its persistence and vigor. If there be any exception to the rule -within our jurisdic- tion, it arises in the case of municipal corporations, whose struc- ture and functions are sometimes claimed to justify a more restricted liability. The application of this rule to the case at bar has determined it in favor of the plaintiffs, and we approve of that conclusion. One "Weiss was the local freight agent of the defendant corpora- tion at Batavia, whose duty and authority it was to receive and for- ward freight over the defendant's road, giving a bill of lading therefor, specifying the terms of shipment, but having no right to issue such bills except upon the actual receipt of the property for transportation. Lie issued bills of lading for sixty-five barrels of beans to one Williams, describing them as received to be forwarded to one Comstock, as consignee, but adding with reference to the packages that their contents were unknown. Williams drew a draft on the consignee, and procured the money upon it of the plaintiff by transferring the bills of lading to secure its ultimate payment. It turned out that no barrels of beans were shipped by Williams, or delivered to the defendant, and the bills of lading were the product of a conspiracy between him and Weiss to defraud the plaintiff or such others as could be induced to advance their money upon the faith of the false bills. It is proper to consider only that part of the learned and very able argument of the appellant's counsel which questions the appli- cation of the doctrine above stated to the facts presented. So much of it as rests upon the ground that no privity existed between the defendant and the bank may be dismissed with the observation that no privity is needed to make the estoppol available other than that which flows from the wrongful act and the consequent injury. N. Y. & N. H. R. Co. vs. Schuyler, supra. While bills of lading are not negotiable in the sense applicable 37 578 Cases on Agency. [Book IV to commercial paper, they are very commonly transferred as security for loans and discounts, and carry with them the owner- ship, either general or special, of the property which they describe. It is the natural and necessary expectation of the carrier issuiug them that they will pass freely from one to another and advances be made upon their faith, and the carrier has no right to believe, and never does believe, that their office and effect is limited to the person to whom they are first and directly issued. On the contrary, he is bound by law to recognize the validity of transfers and to deliver the property only upon the production and cancellation of the bill of lading. If he desires to limit his responsibility to a delivery to the named consignee alone, he must stamp his bills as "non -negotiable;" and where he does not do that he must be understood to intend a possible transfer of the bills and to affect the action of such trans- ferees. In such a case the facts go far beyond the instances cited, in which an estoppel has been denied because the representations were not made to the party injured. Mayeiiborg vs. Haynes, 50 N. Y. 675; Maguire vs. Seldon, 103 N. Y. 642. Those were cases in which the representations made were not intended and could not be expected to influence the persons who relied upon them, and their knowledge of them was described as purely accidental and not anticipated. Here they were of a totally different character. The bills were made for the precise purpose, so far as the agent and Williams were concerned, of deceiving the bank by their representations, and every bill issued not stamped was issued with the expectation of the principal that it would be transferred and used in the ordinary channels of busi- ness, and be relied upon as evidence of ownership or security for advances. Those thus trusting to it and affected by it are not accidentally injured, but have done what they who issued the bill had every reason to expect. Considerations of this character pro- vide the basis of an equitable estoppel, without reference to nego- tiability or directness of representation. It is obvious also upon the case as presented, that the fact or con- dition essential to the authority of the agent to issue the bills of lading was one unknown to the bank and peculiarly within the knowledge of the agent and his principal. If the rule compelled the transferee to incur the peril of the existence or absence of the essential fact, it would practically end the large volume of business Chap. V] Bank of Batavia vs. Railroad Co. 579 founded upon transfers of bills of lading. Of whom shall the lender inquire and how ascertain the fact? Naturally he would go to the freight agent, who had already falsely declared in writing that the property had been received. Is he any more authorized to make the verbal representation than the written one? Must the lender get permission to go to the freighthouse or examine the books? If the property is grain, it may not be easy to identify, and the books, if disclosed, are the work of the same freight agent. It seems very clear that the vital fact of the shipment is one peculiarly within the knowledge of the carrier and his agent, and quite certain to be un- known to the transferee of the bill of lading, except as he relies upon the representation of the freight agent. The recitals in the bill that the contents of the packages were unknown would have left the defendant free from responsibility for a variance in the actual contents from those described in the bill, but is no defense where nothing is shipped and the bill is wholly false. The carrier cannot defend one wrong by presuming that if it had not occurred another might have taken its place. The presumption is the other way; that if an actual shipment had been made, the property really delivered would have corresponded with the description in the bills. The facts of the case bring it therefore within the rule of estop- pel as it is established in this court and justify the decision made. The judgment should be affirmed, with costs. All concur. Judgment affirmed. Note. — Compare with following case. ( 130 United States, 416.) FRIEDLANDER vs. TEXAS AND PACIFIC RAILWAY COMPANY. (Supreme Court of the United States, April, 18S9.J Action by Friedlander & Co. against the railway company to recover for the non-delivery of certain cotton named in an alleged bill of lading issued by an agent of defendant, one E. D. Easton, 580 Cases on Agency. [Book IV and of which plaintiffs were the assignees. The opinion states the facts. Judgment for defendant in the court below. A. G. Safford, for plaintiffs in error. Winslow F. Fierce and John F. Dillon, for defendant in error. Mr. Chief Justice Fuller delivered tl e opinion of the court. The agreed statement of facts sets forth " that, in point of fact, said bill of lading of November 6, 1883, was executed by said E. D. Easton, fraudulently and by collusion with said Lahnstein and with- out receiving any cotton for transportation, such as is represented in said bill of lading, and without the expectation on the part of the said Easton of receiving any such cotton; " and it is further said that Easton and Lahnstein had fraudulently combined in another case, whereby Easton signed and delivered to Lahnstein a similar bill of lading for cotton "which had not been received, and which the said Easton had no expectation of receiving;" and also, "that except that the cotton was not received nor expected to be received by said agent when said bill of lading was by him executed as aforesaid, the transaction was, from first to last, customary." In view of this language, the words "for transportation, such as is represented in said bill of lading," cannot be held to operate as a limitation. The inference to be drawn from this statement is that no cotton whatever was delivered for transportation to the agent at Sherman station. The question arises then, whether the agent of a railroad com- pany at one of its stations can bind the company by the execution of a bill of lading for goods not actually placed in his possession, and its delivery to a person fraudulently pretending in collusion with such agent that he had shipped such goods, in favor of a party without notice, with whom, in furtherance of the fraud, the pretended shipper negotiates a draft, with the false bill of lading attached. Bills of exchange and promissory notes are representa- tives of money, circulating in the commercial world as such, and it is essential, to enable them to perform their peculiar functions, that he who purchases them should not be bound to look beyond the instrument, and that his right to enforce them should not be defeated by anything short of bad faith on his part. But bills of lading answer a different purpose and perform different functions. They are regarded as so much cotton, grain, iron, or other arti- cles of merchandise, in that they are symbols of ownership of the goods they cover. And as no sale of goods lost or stolen, Chap. V ] Feiedlandee vs. Railway Co. 581 though to a Una fide purchaser for value, can divest the ownership of the person who lost them or from whom they were stolen, so the sale of the symbol or mere representative of the goods can have no such effect, although it sometimes happens that the true owner, by negligence, has so put it into the power of another to occupy his position ostensibly, as to estop him from asserting his right as against a purchaser, who had been misled to his hurt by reason of such negligence. Shaw vs. Railroad Co. 101 U. S. 557, 563; Pollard vs. Vinton, 105 U. S. 7, 8; Gurney vs. Behrend, 3 El. & Bl. 622, 633, 634. It is true that while not negotiable as commercial paper is, bills of lading are commonly used as security for loans and advances; but it is only as evidence of ownership, special or general, of the property mentioned in them, and of the right to receive such property at the place of delivery. Such being the character of a bill of lading, can a recovery be had against a common carrier for goods never actually in its posession for transportation, because one of its agents having authority to sign bills of lading, by collusion with another person, issues the document in the absence of any goods at all? It has been frequently held by this court that the master of a vessel has no authority to sign a bill of lading for goods not actu- ally put on board the vessel, and, if he does so, his act does not bind the owner of the ship even in favor of an innocent purchaser. The Freeman vs. Buckingham, 18 How. 182, 191; The Lady Frank- lin, 8 Wall. 325; Pollard vs. Vinton, 105 TJ. S. 7. And this agrees with the rule laid down by the English courts. Licklarrow vs. Mason, 2 T. R. 77; Grant vs. Norway, 10 C. B. 665; Cox vs. Bruce, 18 Q. B. D. 147. " The receipt of the goods/' said Mr. Justice Miller, in Pollar d vs. Vinton, supra, "lies at the foundation of the contract to carry and deliver. If no goods are actually received, there can be no valid contract to carry or to deliver.-" "And the doctrine is applicable to transportation contracts made in that form by railway companies and other carriers by land, as well as carriers by sea/' as was said by Mr. Justice Matthews in Iron Mountain Railway vs. Knight, 122 U. S. 79, 87, he adding also: " If Potter (the agent) had never delivered to the plaintiff in error any cotton at all to make good the 525 bales called for by the bills of lading, it is clear that the plaintiff in error would not be liable for the deficiency. This is well established by the cases of The Schooner Freeman vs. Buckingham, 18 How. 1S2, and Pollard ts. Vinton, 105 U. S. 7." 5S2 Cases on Agency. [Book IV It is a familiar principle of law that where one of two innocent parties must suffer by the fraud of another, the loss should fall upon him who enabled such third person to commit the fraud; but nothing that the railroad company did or omitted to do can be properly said to have enabled Lahnstein to impose upon Fried- lander & Co. The company not only did not authorize Easton to sign fictitious bills of lading, but it did not assume authority itself to issue such documents except upon the delivery of the merchandise. Easton was not the company's agent in the transaction, for there was nothing upon which the agency could act. Eailroad companies are not dealers in bills of exchange, nor in bills of lading; they are carriers only, and held to rigid responsibility as such. Easton, disregarding the object for which he was employed, and not intend- ing by his act to execute it, but wholly for a purpose of his own and of Lahnstein, became particeps criminis with the latter in the commission of the fraud upon Friedlander & Co., and it would be going too far to hold the company, under such circumstances, estopped from denying that it had clothed this agent with appar- ent authority to do an act so utterly outside the scope of his employment and of its own business. The defendant cannot be held on contract as a common carrier, in the absence of goods, shipment and shipper; nor is the action maintainable on the ground of tort. " The general rule," said "vVilles, J., in Barwck vs. English Joint Stock Bank, L. E. 2 Ex. 259, 2G5, "is that the master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master's benefit, though no express command or privity of the master be proved." See, also, Limpus vs. London General Omnibus Co., 1 H. & C. 526. The fraud was in respect to a mat- ter within the scope of Easton's employment or outside of it. It was not within it, for bills of lading could only be issued for merchandise delivered; and being without it, the company, which derived and could derive no benefit from the unauthorized and fraudulent act, cannot be made responsible. British Mutual Banking Co. vs. Charnwood Forest Railway Co., 18 Q. B. D. 714. The law can punish roguery, but cannot always protect a pur- chaser from loss, and so fraud perpetrated through the device of a false bill of lading, may work injury to an innocent party, which cannot be redressed by a change of victim. Under the Texas statutes the trip or voyage commences from the Chap. V ] Fbiedlander vs. Railway Co. 583 time of the signing of the bill of lading issued upon the delivery of the goods, and thereunder the carrier cannot avoid his liability as such, even though the goods are not actually on their passage at the time of a loss, but these provisions do not affect the result here. We cannot distinguish the case in hand from those heretofore decided by this court, and in consonance with the conclusions therein announced this judgment must be affirmed. Note. — Following Bank of Batavia vs. Railroad Co. are Brooke vs. Rail- road Co., 108 Penn. 529; Sioux City R. R. Co. vs. First National Bank, 10 Neb. 556; Savings Bank vs. Railroad Co., 20 Kans. 519. Following the Friedlander case, see, also, National Bank of Commerce V8. Chicago, B. das. Bank, 52 N. Y. 1. Conceding that Wilson & Bro. used the specific proceeds for their own purposes, and their identity was lost, yet when they made up the amounts so used, and deposited them in the trust account, the amounts so deposited were impressed with the trust in favor of the principals, and become substituted for the original proceeds and subject to the same equities. The objection that the deposit account represented not only the proceeds of the plaintiffs' goods, but also the proceeds of the goods of other persons, and that the other parties interested are not before the court, and must be brought in in order to have a complete determination of the controversy, is not well taken. The objection for defect of parties was not taken in the answer, and moreover, it does not appear that there are any unsettled 598 Cases ok Agency. [Book IV accounts of Wilson & Bro., with any other person or persons for whom they were agents. The check operated as a setting apart of so much of the deposit account to satisfy the plaintiff's claim. It does not appear that the plaintiffs are not equitably entitled to this amount out of the fund, or that there is any conflict of interest between them and any other person or persons for whom Wilson & Bro. acted as consignees. The presumption, in the absence of any contrary indication, is that the fund was adequate to protect all interests, and that Wilson & Bro. appropriated to the plaintiffs only their just share. We are of the opinion that the judgment was properly directed, and it should therefore be affirmed. All concur. Judgment affirmed. ( 150 Massachusetts, 461.) CITY OF BOSTON vs. SIMMONS AND WILSON. (Supreme Judicial Court of Massachusetts, January, 1890.) Action of tort. The opinion states the facts. The defendant Wilson demurred to the declaration. 8. J. Thomas, A. Buss and D. A. Dorr, for Wilson. A. J. Bailey, for the plaintiff. Devens, J. (After disposing of another question.) The decla- ration to which the defendants have demurred, and the allegations which we must take for the purpose of this hearing, to be true, omitting the expletives by which they have been characterized, are that Simmons was a member of the water board of the city of Bos- ton, which board was empowered and authorized to purchase for the city, land for the purpose of constructing a reservoir; that he knew and had a share in determining the action of the board in making such purchase, and further, that Wilson had knowledge of the position, knowledge, and authority of Simmons; that together, taking advantage of this, and intending to defraud the plaintiff, it was agreed corruptly between them, that Simmons should inform Wilson of the doings of the board in the selection of the land, and of the piece which they should consider suitable for a site for said reservoir; and that they further agreed that Wilson should become Chap. VII] City of Boston vs. Simmons and Wilson. 599 the purchaser of this lot, that it should afterwards be purchased by the board at an advanced price, and that the profits should be divided between themselves. The declaration further avers that, in pursuance of this agree- ment, Simmons did impart to Wilson that the board had consid- ered a particular lot suitable for a reservoir; that it was then bought by Wilson; that thereafter the board, influenced by Sim- mons, did purchase this land for the city at an advanced price from Wilson, and that Wilson and Simmons divided the profits of the transaction. If this whole transaction, as described by the declaration, had been conducted by Simmons alone, without aid from or interven- tion of Wilson— if knowing the determination of the board that the lot in question was suitable for the purpose, he had himself purchased it, and then, availing himself of his influence with the board, had induced it to purchase the lot from him at an advanced price— he certainly would have been liable to the city for the injury occasioned by this abuse of his trust. He was one of the officials of the city, acting on its behalf, bound to act in good faith, to make a proper selection of the lot for a reservoir, and to purchase it at the most reasonable price. Walker vs. Osgood, 98 Mass. 348, 93 Am. Dec. 168; Cutter vs. Demrnon, 111 Mass. 471; Rice vs. Wood, 113 Mass. 133, 135, 18 Am. Rep. 459, {ante p. 12). To purchase himself the lot of land which he knew the board of which he was a member had considered suitable, with a view to compel it to pay an advanced price therefor, and thereafter to avail himself of his influence with the board to have this advanced price actually paid, and thus to obtain a profit, would be a violation of the duty he owed to the city and a wrong done to the city for which it should be entitled to a remedy. The fact that he acted according to the averments of the declaration in connection with another party, presumably that his relation to the purchase might not appear and his influence be thus destroyed, does not disminish his own responsibility; while the other, who participated in the scheme, and who has knowingly aided and abetted in the transac- tion, and shared its profits in pursuance of their agreement so to do, becomes a wrongdoer with him. Adams vs. Paige, 7 Pick. 542, 550; Emery vs. Ha/>good, 7 Gray, 55, 58, 66 Am. Dec. 450; United Mates vs. State Bank, 96 U. S. 30, 35. It is said on behalf of Wilson that nothing had been done towards the purchase of the lot when Simmons imparted to him the 600 Cases on Agency. [Book IV information; that the allegation that the board had considered the lot in question as suitable for the reservoir, is not an allegation that anything was actually done towards its purchase; that Wilson might elsewhere have obtained information that the members of the board were talking of huying the lot; that this conversation gave them no right in it; that the owner could still properly sell to whom he pleased; and that Wilson had the same right to purchase that any- one has who buys an estate in anticipation of future uses which will make it more valuable. While it is true that one may avail himself of his own judgment, or of information properly obtained, to purchase land in anticipa- tions of its rise in value, it is quite a different question whether one who knows another to be acting for a principal who desires to purchase a piece of land may, on receiving information of this from the agent, purchase the land himself upon an arrangement with the agent that he will use his efforts to induce the principal to complete the purchase at an advanced price, and then divide the profits with him. The abuse of trust of which the agent is guilty with his knowl- edge and co-operation is a wrong for which both are liable, as the injury to the principal is the result of their combined action. Where an agent purchased property for his principal, and falsely represented that he had paid for it a larger sum than he had actu- ally paid, it was held that he would be liable for such overplus. There is no reason why one who has intentionally co-operated with him, and has enabled him to commit the fraud, should not be equally liable. McMillan vs. Arthur, 98 N. Y. 167. The owner or cestui que trust may pursue the trust funds into whosoever hands they may have passed, so long as they can be traced and knowledge of their character can be brought home to the possessor. Not less should the principal, who had been wronged by the mis- conduct of his own agent, be allowed to pursue, not merely him, but those who have actively co-operated in his breach of duty, and accepted their share of the profits of the transaction. It is not important that the board, when, as it is alleged, Simmons informed Wilson that it had determined that the lot was a suitable one for the reservoir, does not appear to have then finally decided to take it, or that Simmons alone could not have compelled them to take it. He had no right to confide to another the result of the deliberations of the board so far as they had progressed. If he did so, and if, with full knowledge on the part of both, the two Chap. VII ] City of Boston vs. Simmons and Wilson. 601 entered into an agreement that Wilson should then purchase and hold the land for an advanced price, to be divided between them if the operation should prove successful, while Simmons should use his influence with the board, of which he was a member, to have it purchased at the advanced price, an agreement was made to commit a fraud upon the city. If the allegations made shall be proved, and if the fraud shall have been consummated by means of the information imparted by Simmons, the purchase made by Wilson, and the influence of Simmons with the board which were all parts of the same plan, the defendants are alike liable for the injury which the city has sustained. Demurrer overruled. Note.— See, also, Miller vs. Louisville, etc., R. R. Co., 83 Ala. 274, 3 Am. St. Rep. 722; United States Rolling Stock Co. vs. Atlantic, etc., R. R. Co., 34 Ohio St. 450, 32 Am. Rep. 380; Hegenmyer vs. Marks, 37 Minn. 6, 5 Am. St. Rep. 80S; note to Potter's Appeal, 7 Am. St. Rep. 280. (Law Reports, 1891, 1 Q. B. Div. 168.) MAYOK, ETC., OF SALFORD vs. LEVER. (English Court of Appeal, November, 1890.) Plaintiffs were the proprietors of the gas works in their borough and purchased large quantities of coal. One Hunter was manager of the gas works, and it was his duty to examine tenders for coal and report to the plaintiff. Defendant was a coal merchant and submitted tenders for coal. In order to induce Hunter to recom- mend the acceptance of his tenders, he secretly agreed to pay Hunter a commission of one shilling per ton. To this Hunter assented, and it was agreed between them that the tenders should be raised one shilling per ton, and that when defendant received his pay from plaintiffs he would pay Hunter his commission. Hunter advised the acceptance of defendant's tender, and defend- ant furnished coal until the amount of the commission amounted to £2,3^9, of which Hunter had received about £1,500. Hunter made like agreements with other parties until the amount of overcharges (including the above) which plaintiffs had paid exceeded £10,000. 602 Cases on Agency. [Book IV Plaintiffs brought actions against Hunter to recover the amount of these commissions or bribes, when, at Hunter's request, an agree- ment between himself and plaintiffs (not under seal) was entered into by which Hunter deposited £10,000 to secure plaintiffs against loss, the action against him was stayed and plaintiffs were to attempt to recover from the defendant and others who had secured the money, the amount recovered to apply to reduce Hunter's liability and when paid in full, he was to be discharged. This action was thereupon begun and a judgment was rendered for plaint- iffs for £2329. Defendant appealed. Lawson Walton, Q. C, for the defendants. The learned judge misdirected the jury in not telling them that the release given by the person wronged to one of two joint tort- feasor's operates as a release of the other also, and that acceptance of satisfaction from the one amounts to a receipt of satisfaction from the other, and is an answer to an action against him by the person wronged; Co. Litt. 232a. Brinsmead vs. Harrison, Law Rep. 7 C. P. 547; Bird vs. Randall, 3 Burr. 1345; Cocke vs. Jen- nor, Hob. 66; Buckland vs. Johnson, 15 C. B. 145. The corporation agreed to maintain their own cause of action against Lever and the other contractors, and to give Hunter the benefit of it, The proceeds of the litigation were to go to him. The effect of the agreement with Hunter was, to diminish the amount of damages which the corporation could recover from Lever. Henn Collins, Q. C. and C. Gould, for the plaintiffs. The plaintiffs were entitled to recover from Hunter, their agent, the bribes which he had received from Lever, and they had also a separate and independent right of action against Lever, or against him jointly with Hunter, to recover from Lever the excess of the price which they had paid to him above the price which he would have demanded, but for his agreement with Hunter to pay him the 1 s per ton. A bribe received by an agent belongs ipso facto to his principal; an action by the principal for money had and received to his use will lie in respect of it. But the principal can also sue the briber Lever, for the 1 sper ton excess of price which they have paid him, and he cannot set off against their claims the bribe which he has paid Hunter. This right of the principal against the agent is independ- ent of his affirming or disaffirming the contract with the third party. Chap. VII] Mayor, Etc., of Salford vs. Lever. 603 Parker vs. McKenna, Law Rep. 10 Ch. 96, 118; Emma Silver Mining Co. vs. Grant, 11 Ch. D. 918, 937; Bagnall vs. Carlton, 6 Ch. D. 371. If the plaintiffs had brought their action against Lever before making any claim against Hunter, it would be no defense for Lever to say, " I bribed your agent." That would not amount to a plea of payment. [Lord Esher, M. R. If they received the money from Lever, could they go on and recover it again from Hunter?] They could recover the same amount from him, but it would not be the same money. [Lindley, L. J., referred to Lister & Co. vs. Stubbs, 45 Ch. D. 1.] It must be immaterial whether the principal sues his agent or the third party first, the fraud gives him a right to recover some- thing more than mere damages. If the plaintiffs had sued Hunter first, their right to sue Lever would have remained unaffected. Then the question arises, How does the agreement with Hunter affect their rights? It is submitted that it does not affect them at all. The law as to the effect of a release of one of two joint tort- feasors has no application. The rights of action arising out of the fraud are several and inde- pendent. If the fraud of the agent had damaged the principal to a greater extent than the amount of the bribe, the principal could sue him for damages, as well as for the amount of the bribe. If the agreement is ultra vires, it cannot be a defense to the action. But the plaintiffs do not desire to take either this objection or the objection that the agreement was not under seal. If the agree- ment is binding, it does not amount to either a release of Hunter or an accord and satisfaction; unless it amounts to one or other of these, it cannot be a defense to the action. A covenant not to sue one of two joint debtors does not operate as a release of the other. Button vs. Byre, 6 Taunt. 289. A fortiori, a covenant not to sue one for a specified time, cannot so operate. In this agreement there is not any express covenant not to sue Hunter. There is, at the most, an implied covenant not to sue him for a specified time. The assistance of Hunter was necessary to enable the plaintiffs to discover the fraudulent contractors, and the agree- ment amounts only to this, that if Hunter would, by depositing securities, guarantee that the plaintiffs should recover £10,000, they would for a specified time sue only the contractors. At the end of that time it would be open to them to sue him upon his guarantee. The contract is with one tort-feasor that the plaintiffs 604 Cases on Agency. [Book IV will (if they can) recover the money from the other, and as consid- eration for this, he gives them security to the amount of £10,000. Such an agreement is no defense to an action against the other tort- feasor. Lawson Walton", Q. C, in reply: Lever was not the servant of the plaintiffs. He was really paying Hunter a part of his own profits. The. action against him is for damages, which would not be liquidated until the verdict of the jury. A plaintiff who claims damages is bound to prove that he has suffered some loss. If he has been reimbursed in any way he has suffered no loss. To the extent of what Hunter has paid them, the plaintiffs have been compensated for their loss, and cannot recover damages against Lever. Cur. adv. vult. Nov. 1. Lord Esher, M. R. The corporation of Salford have brought this action against the defendant, who is a coal merchant, and it is an action founded on fraud. What is the fraud which the defendant had committed? He had coals to sell, and he was obliged to make a bargain with the corporation through their agent, a man who, no doubt, would be known in Salford as having the power to make contracts for the corporation, and who, conse- quently, would be looked to by traders. The defendant knew that this man was the agent of the corporation, and that his duty was to buy coals for them at the price at which the defendant or some other trader was willing to sell them. The defendant was at liberty to sell the coals at any price he could get for them, not necessarily at the market price, but at the best price which he could obtain. He was bound, however, to act honestly. He offered this man Hunter to sell him coal at a price which would give him such a profit as he desired. But then Hunter tempted him by saying: " You want to sell your coals at a price which will give you a profit. I have the power of buying coals from you or from anybody else, and I will not buy them from you at the price at which yon are willing to sell them, unless you will help me to cheat the corporation out of another shilling a ton. You are to have your price; but you are to add to it in the bills which you send to the corporation another shilling per ton, making the real price apparently a shilling per ton more; but that shilling is to be mine — you are to give it to me." They call this a commission, a term very well known, at all events in the north of England, and commissions sometimes cover a multi- Chap. VII] Mayor, Etc., of Salford vs. Leveb. 005 tnde of sins. In the present case it was meant to cover a fraud. The fraud was this, that the defendant allowed and assisted the agent of the corporation to put down a false figure as the price of the coals in order to cheat the corporation out of a shilling a ton which was to be paid to their own agent; and the way in which it was done was this: The defendant sent in a bill to the corporation for the whole price thus increased. He got the advanced price into his hands, and as he got it by fraud, he is bound to pay it back unless something has happened to oust the right of the corporation. The damage to the corporation is clearly the one shilling per ton, out of which they have been cheated, neither more nor less. The form of the action, on which some stress has been laid in the argu- ment, is immaterial. Unless something has happened to oust the right of the corporation, they are entitled to sue the defendant for the 1 s. a ton in one form of action" or another, although he has parted with the money, and has handed it over to his confederate Hunter, because it was once in his hands, and he is liable for the fraud to which he was thus a party. But the defendant says that something has happened which pre- vents the corporation from enforcing this right, and the first ground which was taken was this: that this money which came into hi3 hands passed into the hands of Hunter, the agent of the corpora- tion, and they have recovered it, or part of it, from Hunter, and therefore cannot recover it from the defendant. This defense was advanced independently of, and without reference to, the agree- ment between the corporation and Hunter. On what ground have the corporation recovered the money from Hunter? Hunter, their agent, had received money from the defendant, for the per- formance of a duty which he was bound to perform without any such payment. Nothing in law could be more fraudulent, danger- ous, or disgraceful, and therefore the law has struck at such con- duct in this way. It says that if an agent takes a bribe from a third person, whether he calls it a commission or by any other name, for the performance of a duty which he is bound to perform for his principal, he must give up to his principal whatever he has, by reason of the fraud, received beyond his due. It is a separate and distinct fraud of the agent. He might have received the money without any fraud of the person who was dealing with him. Suppose that person thought that the agent was entitled to a commission, he would not be fraudulent, but the agent would be, and it is because of his separate 006 Cases on Agency. [Book IV and distinct frand that the law says he mnst give np the money to hig principal. It signifies not what it may be called — whether dam- ages or money had and received — the f onndation of the claim of the principal is, that there is a separate and distinct fraud by his agent npon him, and therefore he is entitled to recover from the agent the snm which he has received. But does this prevent the principal from suing the third person also, if he has been fraudulent, because of his fraud? It has been settled that, if the principal brings an action against the third person first, he cannot set up the defence that the action cannot be maintained against him because the thing was done through the agent, and the principal was entitled to sue the agent. What dif- ference can it make that the principal sues the third party secondly instead of first? The agent has been guilty of two distinct and in- dependent frauds — the one in" his character of agent, the other by reason of his conspiracy with the third person with whom he has been dealing. Whether the action by the principal against the third person was the first or the second must be wholly immaterial. The third person was bound to pay back the extra price which he had received, and he could not absolve himself or diminish the damages by reason of the principal having recovered from the agent the bribe which he had received. But then the defendant says — and this is his second ground — that, even if this be so, the corporation have entered into an agree- ment with their agent Hunter which prevents them from suing the defendant in respect to the combined fraud of Hunter and him- self. There is a well settled rule that, if there are two joint tort- feasors, and the third person to whom the wrong has been done releases one of the two, he cannot afterward sue the other. That is a well known rule. Whether the rule goes further, and extends to an accord and satisfaction with one tort-feasor, it ia immaterial now to consider. Let us see what has been done. It is said that the corporation have entered into an agreement with Hunter. Though the corporation will not take the objection that the agreement is not under seal, I am not sure that the court ought not to take it, seeing that the defendant has been guilty of a fraud. Tbero is in fact no agreement at all which is binding on the corporation, because the alleged agreement does not bear their seal. First, then, there is no agreement; and, secondly, even supposing there is an agreement such as the defendant alleges, namely, Chap. VII ] Mayoe, Etc., of Salford vs. Levee. 607 that the corporation undertook to bring action in the first instance against the third parties, at his request and at his expense, to recover the extra price which they had received, that would not, as far as I can see, be a compromise of a doubtful claim. It was an absolute agreement entered into by the officers of the corporation, and, if it were binding on the corporation, they bound themselves to bring the actions at the request of Hunter, and thus lost their independence as to whether these actions should proceed or not. If the actions failed, the corporation would be primarily liable for the costs to the persons against whom they were brought. It was true they were to get the costs from Hunter; but they would be primarily liable. They had given up their independence, and had bound themselves to bring the actions whether they were likely to be successful or not. They had bound the ratepayers to pay the costs in the first instance, if the actions failed, and to take the chance of Hunter paying them, and, supposing Hunter's securities proved insufficient, the ratepayers would lose these costs. Under these circumstances, speaking for myself alone, I am of opinion that the agreement was wholly ultra vires the corporation. They had no mandate from the ratepayers to agree to it. But, suppose that difficulty to be got over, what was the effect of the agreement? Was it a release of Hunter in respect to the combined fraud? Certainly it was not a release, it did not purport to be that; moreover, it was not under seal, and it cannot therefore be dealt with as a release. And, when the terms of the agree- ment are looked at, it was clearly not a release of Hunter. It is perfectly true, as Mr. Henn Collins has pointed out, that the agree- ment merely suspended the action of the corporation against Hunter, and left it open to them to sue him afterwards, should circumstances arise in which they might think it right to do so. It was, in fact, nothing more than a postponement of their right of action, and that of itself cannot prevent them from suing Lever. Therefore, upon almost every ground upon which the case can be looked at, there is no defense to this action, and the defendant is liable. I know the result of it all may be this — that the corpora- tion will recover their money from the defendant, and from other traders in a similar position against whom they may proceed, and that Hunter will have the benefit of it. Certainly the corporation cannot legally return to Hunter the money which they may thus recover. It belongs to the ratepayers, and the corporation have no possible right to pay it over to Hunter. G08 Cases on Agency. [Book IV But the result will be the same. These coal dealers, who were tempted by Hunter and persuaded by him to pay to him the bribes, will be the sufferers. They may be ruined; and Hunter, when he comes out of prison, may find the securities, which ;;re the result of his plunder and his gross frauds, untouched, and he may retain the whole of the money which' he has received in this way. I am sorry for it, but such in my opinion, is the law. It follows, therefore, that the defendant has no defense, and the judgment of the Divisional Court must remain, and the appeal must be dismissed. Lindley and Lopes, L. JJ., concurred in the dismissal. Note. — Compare with Atlee vs. Fink, ante, p. 14 ; Smith vs. Sorby, 3 Q. B. Div. 552; Harrington vs. Dock Co., Id. 453; Panama Co. vs. India Rub- ber Co., L. R. 10 cii. ap. 515. (55 Vermont, 570, 45 Am. Rep. 639.) ST. JOHNSBTTRY AND LAKE CHAMPLAIN RAILROAD CO. vs. HUNT. ('Supreme Court of Vermont, October, 1S8S.J Action by the railroad company to recover damages against defendant for maliciously causing the arrest of its engineer, Col- lins, while running his train, with intent to injure the company. Judgment for defendant below, upon demurrer to the declaration. Belchn & Me, for plaintiff. P. K. Gleed, for defendant. Veazey, J. (After holding that the declaration stated a case of injury to the plaintiff.) It is further contended in behalf of the defendant that Collins being the injured party has his action for the injury done, and that the defendant ought not to be sub- jected to two actions for the same act. It is admitted under the demurrer that this plaintiff was injured by the act of the defendant, which we hold was wrongful. It is no answer to a claim for this injury to say that this act also injured another party. Each party suffering directly from a wrongful act is entitled to a remedy against the wrong-doer. A single act of trespass destroy- ing one man's arm and another man's leg would create a right of Chap. VII ] Railroad Co. vs. Hunt. 609 action in each separately. Further suggestion is made that the declaration contains no averment that the suit against Collins has terminated in his favor, and that the same rule should apply here as though this were his suit for malicious prosecution. This sug- gestion is made upon the assumption that the declaration shows a privity between Collins and the railroad company in respect to the subject-matter of the suit against Collins. Treating the assump- tion as correctly made, how does the case stand? The declaration states in substance that the suit against Collins was utterly ground- less and hopeless. The demurrer admits this. The rule that the plaintiff in an action purely for malicious prosecution should allege, and prove that the original proceeding has terminated in his favor, rests on the ground that the court will not tolerate inconsistent judgments upon the same question between substantially the same parties. But there is a class of actions for malicious prosecution where it has been held that an admission that the alleged malicious suit could not be maintained obviated the necessity of proving it had terminated. Wills vs. Noyes, 12 Pick. 326; Page vs. Cushing, 38 Me. 527. In the latter case it was held that the admission may be by plea or by parol. The court there say: "The bare possibility of inconsistent verdicts should not exempt or relieve a party from responsibility for admitted wrong." This declaration does not state what became of the other suit. The demurrer admits it was malicious, false and hopeless. Any presumption of probable cause, or that Hunt was in the pursuit of a legal right against Collins, is overcome by the admission. The technical averment which this declaration lacks is supplied by averments admitted to be true, showing that the result must follow or must have occurred which the omitted averment would have alleged had occured. But if this answer to the above suggestion is unsound, upon what ground would this plaintiff be estopped by a judgment against the defendant in the former suit, so far as anything is disclosed in this declaration? It was not a party thereto, nor was it vouched in to defend. It neither assumed, nor had the opportunity to control the defense. It was not in a situation to prevent a judgment against the defendant therein by collusion, by default, by ignorance, or by concession or compromise. Judgments are conclusive only upon parties and those claiming under them. This rule, upon the ground that a principal and 39 610 Oases on Agency. [Book IV servant are substantially one in interest, might well be expanded so as to admit it in a suit against a servant when the same question has been decided and judgment rendered for the defendant in a suit against the master for the alleged trespass of the servant for which the master is responsible, as illustrated in the case of Emery vs. Fowler, 39 Me. 326, 63 Am. Dec. 627; but such is not this case. The general rule is that the master is responsible for the acts of the servant, but there are several exceptions. Dunlap's Paley, Agency, 298. There may also be wrongs committed by the servant for which the master only is responsible. 2 Hill. Torts, 554. The relative status of this plaintiff and its engineer as to the wrong charged upon the latter cannot be certainly determined from this declaration, but treating it as a trespass for which this plaintiff was responsible, then they could have been sued together or sepa- rately, and they could have defended each independently of the other. Judgment unsatisfied against either separately would be no bar to another suit against the other. This point was settled early in this state in the case of Sander- son vs. Caldwell, 2 Aik. 195, where the authorities are cited and fully discussed by Judge Prentiss. In the later case of Andrus vs. Howard, 36 Vt. 248, 84 Am. Dec. 680, the further question, somewhat controverted elsewhere, was here settled that the master is liable in trespass for an act of his servant, which is a trespass, though it occur through the neglect or unskillfulness of the servant. As joint trespassers, independent of the relation of master and servant, it is plain the former judgment for the plaintiff, if there was one, would not conclude this plaintiff. With this relation existing, if the judgment was there for the defendant, it is equally plain that it would not have concluded the plaintiff therein from another action against this plaintiff, if the former action failed, on the ground that the wrong which the former plaintiff suffered, though committed by the servant, was one for which this plaintiff only, if anybody, was liable. " No person can bind another by any adjudication, who was not himself exposed to the peril of being bound in like manner, had the judgment resulted the other way." Freeman on Judgments, § 154; or, as expressed by Spencer, J., in lasers. Reeve, 14 Johns. 83: "No person can derive benefit from a verdict who would not have been prejudiced by it, had it gone contrary." " If, therefore, a state of facts might be disclosed which would preclude the application of the maxim, res inter alios Chap. VII] Railroad Co. vs. Hunt. 611 acta, etc., which is doubtful, this declaration fails to disclose them. The reason of the maxim as expressed by Wharton, 184, is, that it would be unjust to bind a person by proceedings taken behind his back, to which he was, in fact, no party, and to which he had not an opportunity of making a defense, and from which he could not appeal. Nason vs. Blaisdell, 15 Vt. 171. We think no privity is disclosed in this declaration between the railroad com- pany and its engineer, in respect to the point involved in the other action. It is further insisted that the action cannot be main- tained because the damages are inconsequential and too remote. We think the injury and damages were direct. They were not only such as could reasonably have been contemplated at the time, which is one of the tests laid down in Sedgwick on Damages, vol. 1, marg. p. 66-7, but they were the damages actually contemplated. In Berry vs. Flitner, 118 Mass. 13], the court say: "A wrong- doer is liable not only for those injuries which are caused directly and immediately by his act, but also for such consequential injuries as, according to the common experience of men, are likely to result from his act." Sedgwick, 88, says the disposition of courts is to include in the injurious consequences, flowing from the illegal act, those that are " very remote." No extreme view is required here. It cannot be said that the stoppage and delay of the plaintiff's train was a remote result of the defendant's act. It was the probable, if not necessary, result. And it was in fact the direct, proximate, immediate and contemplated result. Familiar cases, often cited as showing what damages are not too remote to be included in the recovery are, McAfee vs. Cr afford, 14 How. 447; Gunter vs. Astor, 4 J. B. Moore, 12 (16 Eng. Com. Law, 357); Gribb vs. Swan, 13 Johns. (N. Y.) 381; Vanderberg vs. Traux, 4 Denio (N. Y.) 464, 47 Am. Dec. 268; Burroius vs. Coke and Gas Co., L. R. 5 Ex. 67; Scott vs. Kenton, 81 111. 96; Tarleton vs. McGawley, Peake, 205. In the latter case it was held by Lord Kenyon, at Nisi Prius, that an action lay for firing on negroes on the coast of Africa, and thereby deterring them from trading with the plaintiff, so that the plaintiff lost their trade. There the trespass was directly against the negroes, but the wrong intended and the injury actually done was to the plaintiff. The defendant cites the case of Ashley vs. Harrison, Peake, 194, where the proprietors of a theater brought an action against the defendant for having written a libel upon one of the plaintiff's singers, by which he was deterred from appearing, whereby 612 Oases on Agency. [Book IV his profits were lost. Lord Kenton held that the damages were too remote, but this was on the ground that the damages arose from the vain fears or caprice of the actress. She could have sung but would not. Her fears or caprice intervened between the wrongful act and the alleged result. To make the case parallel to this she should have been driven from the stage while performing her part, by unlawful interference of the defendant, for the purpose of injury to the plaintiff. See Hughes vs. McDonough, 14 Vroom, 459, s. c, 39 Am. Rep. 603. The pro forma decision of the county court is overruled, and the first count is adjudged sufficient, and the cause is remanded with leave to the defendant to replead, upon the usual terms. Reversed and remanded. Note.— See this oase when before the court again; 60 Vt. 588, 6 Am. St. Rep. 188. Chap. I] MATTEli OF Mosness. 613 BOOK V. PARTICULAR CLASSES OF AGENTS. CHAPTER I OF ATTORNEYS AT LAW. I. OP THE OFFICE. (39 Wisconsin, 509, 20 Am. Rep. 55.) MATTER OF MOSNESS. (Supreme Court of Wisconsin, January, 1876.) Motion for the admission of Ole Mosness to the bar of this court, as an attorney and counselor thereof. It appeared from his peti- tion that he was a resident of the state of Illinois. Ryan, C. J. It is, we believe, the general practice of courts of record in the several states, to permit gentlemen of the bar in other states to appear as counsel on the trial or argument of causes. Such has been the uniform practice of this court. And, under all ordinary circumstances, it will always be a pleasure to us to permit members of the bar of other states to argue causes here, whenever they may appear here to do so. No license to practice here is necessary or proper for that purpose; the usual and proper practice being to grant leave ex gratia for the occasion. But general license to practice here as attorney and counselor 614 Oases on Agency. [Book V rests upon quite different considerations. The bar is no unimport- ant part of the court, and its members are officers of the court. Tltomas vs. Steele, 22 Wis. 207; Cothren vs. Connaugldon, 24 Id. 134; see Bacon's Abr., Attorney, H; 1 Tidd's Prac. 60; 3 Black. 25; 1 Kent, 306; Ex parte Garland, 4 Wall. (U. S.) 333. And if officers of the court, certainly, in some sense, officers of the State for which the court acts. Re Wood, Hopk. (N. Y.) 6. This is not really denied in 20 Johns. (N. Y.) 492, decided in the same year. And if it were, we have no doubt that the chancellor was correct; and that attorneys and counselors of a court, though not properly public officers, are quasi officers of the State whose justice is admim istered by the court. The state may have extra-territorial officers, as commissioners to take acknowledgments, etc. But these are exceptions; and the general business of the state, within the state, executive, legisla- tive and judicial, must be performed by citizens or denizens of the state; and the officers charged with it must be residents of the state. State is. Smith, 14 Wis. 497; State vs. Murray, 28 Wis. 96, 9 Am. Rep. 489. So the courts may have extra-territorial officers, for extra-terri- torial functions, as commissioners to take depositions, etc. But for all functions within the jurisdiction of the courts, their officers must be residents of the state. This is essential to the nature of the functions themselves, and to the proper control of courts over their officers. The office of attorney and counselor of the courts is one of great official trust and responsibility in the administration of justice; one liable to great abuse; and has always been exercised, in all courts proceeding according to the course of the common law, subject to strict oversight and summary power of the court. It would be an anomaly, dangerous to the safe administration of justice, that the office should be filled by persons residing beyond the jurisdiction of the court, and practically not subject to its authority. We take it, that members of the bar of this state lose their right to practice here by removing from the state. After they become nonresidents, they can appear in courts of this state ex gratia only. Our courts cannot have a non resident bar. This all appears to us to be so very plain, that it is difficult to believe that ch. 50 of 1855 was intended to do more than to author- ize the appearance here, as counsel in the trial and argument of Chap. I] Matter of Mosness. 615 causes, of gentlemen of the bar of other States. If intended to do that it was probably unnecessary; if intended to do more, it was clearly without the power of the Legislature. For the reason only that the gentleman whose admission is moved is not a resident of the State, the motion must be denied. II PRESUMPTION OP AUTHORITY. (30 Kansas, 106, 46 Am. Rep. 86.) REYNOLDS vs. FLEMING. (Supreme Court of Kansas, January, 18S3.) Motion to set aside a judgment alleged to have been rendered without jurisdiction. The opinion states the facts. Judgment below for plaintiff. Keller & Osterlwld, for plaintiff in error. Broderick & Rafter and Hayden & Hayden, for defendant in error. Horton, C. J. The evidence introduced upon the hearing of the motion of Robert M. Reynolds to set aside and vacate the judgment rendered against him on the 12th of June, 1882, material for our consideration, is in brief, that John S. Hopkins, an attorney at law, in a conversation with Case Broderick, one of the attorneys of W. J. Fleming about the time the action of Fleming against Reynolds was commenced, said to Broderick, to save the expense of publication he thought that Robert M. Reynolds would enter an appearance; that Hopkins filed an answer in the case for W. M. C. Reynolds, and on December 17, 1880, filed another answer and signed himself as attorney for R. M. Reynolds; that he filed the answer for W. M. C. Reynolds, because the latter requested him to attend to the matter for him; that W. M. C. Reynolds told him to stop proceedings against his brother, but at the same time said he was not the agent for his brother and had no authority to contract for him; that after he filed the answer to which he attached his name as attorney for It. M. Reynolds he sent a copy of it to R. M. Reynolds at Wash- 616 Cases on Agency. [Book V ington, D. C, but Reynolds never returned this copy; instead thereof he sent Hopkins a letter, in which he informed him he had not authorized his brother to act for him, and that he refused to have anything to do in the matter; that after Hopkins received this letter from -Robert M. Reynolds, which was shortly after send- ing him a copy of the answer, and before the trial, he told Brod- erick he had nothing further to do with the case, and would not appear further for Robert M. Reynolds. Hopkins also testified that he said to Broderick before the trial, " He had better proceed to get service by publication." Broderick testified that " Hopkins told him the reason he had nothing further to do with the case was on account of fees, and he did not recollect that Hopkins said to him anything about publication subsequent to the filing of the answer." W. M. C. Reynolds testified that he advised his brother, Robert M. Reynolds, of the commencement of the suit, soon after it was begun. Robert M. Reynolds testified that he owned the real estate decreed to be sold to satisfy the judgment rendered on said June 12th and that he resided at "Washington, D. O.J had lived there for four years, but was in Kansas some time in 1879; that he never employed W. M. C. Reynolds, his brother, to act as agent in getting legal advice or counsel, or to employ an attorney in the action of W. J. Fleming against himself; that he never filed an answer in the case, or authorized anyone to make answer for him; that he utterly refused to make answer to the proceedings, and that the answer filed by Hopkins was done so without his authority or knowledge or consent; that when he received a letter from Hopkins inclosing a paper to be signed as an answer in the case, he promptly replied by saying he utterly refused to become a party to the proceedings, and refused to sign or return the paper; that he then notified Hopkins he could not recognize him as his attorney in the case, and since that time he has never written to* him or spoken to him about the matter; that Hopkins has not presented his bill for alleged legal services, and that he had noi paid him in any way whatever; that he was never notified by Hop- kins that he had filed any paper in the proceeding as his agent or attorney, and at no time did Hopkins apprise him of his appear- ing for him, and that he did not understand an answer was filed iD the case until appraised of it by Keller & Osterhold, attorneys at law, subsequent to the rendition of the judgment; that the first notice he had of the judgment against himself was the notice in a Chap. I] Reynolds vs. Fleming. 617 newspaper sent him by some person unknown, that the land was to be sold by the sheriff of Jackson county; that subsequently he received a copy of a like notice from his brother. The evidence of llobert M. Reynolds was introduced by deposi- tion, and the statements therein contained, that the voluntary appearance by Hopkins in the action for said Reynolds was unauthor- ized, and that he had no knowledge of the filing of the answer in his behalf prior to the rendition of the judgment, were uncontra- dicted. Applying the law, as we understand it, to the facts established upon the hearing of the motion, the court below should have sus- tained the motion and vacated the judgment. In this state it is held that a judgment rendered without jurisdiction is void; that a personal judgment rendered without notice to the defendant is rendered without jurisdiction, and is consequently void; that a judgment void for want of notice may be set aside, on a motion made therefor by the defendant; and that this may be done in cases where it requires extrinsic evidence to show the judgment was rendered without notice and without jurisdiction. Civil Code, sec. 575; Butcher vs. Bank, 2 Kans. 70, 83 Am. Dec. 446; K. P. R. Co. vs. Streeter, 8 Id. 133; Foreman vs. Carter, 9 Id. 674; Hanson vs. Wolcott, 19 Id. 207; Mastin vs. Gray, Id. 458, s. c. 27 Am. Rep. 149. The authority of an attorney to appear for the party whom he professes to represent, is presumed until the contrary is shown; and it devolves upon the party impeaching the authority to show by positive proof that it is invalid. In some of the states, and in many of the early decisions, it is held that the appearance of an attorney for a defendant, even without authority, is deemed sufficient to give the court jurisdiction over his person; and upon 6uch appearance the court will proceed to judgment, and leave the defendant to his remedy against the attorney, unless the attorney is insolvent, or, appears under suspicious circumstances, or through the procurement of the plaintiff. But the better authorities uphold the doctrine that any judgment rendered without jurisdic- tion, when assailed directly may be impeached, and that in doing bo, anything contained in the record purporting to give or prove jurisdiction, as the appearance of an attorney, may be contradicted by any evidence, extrinsic as well as intrinsic, and may be shown to be untrue and false. Mastin vs. Gray, supra. In this case the appearance of an attorney was impeached by a 618 Cases on Agency. [Book V motion in the conrt rendering the judgment, and the motion is in the nature of a direct proceeding attacking it. If the attorney Hopkins appeared for E. M. Eeynolds without his knowledge or authority, express or implied, he ought not to be bound by the act, if never ratified, and promptly disavowed. As Eobert M. Eeynolda was never served by summons or by publication, the court had no jurisdiction of his person, unless jurisdiction was given by the appearance of the attorney; and if the appearance of the attorney was unauthorized, the judgment obtained thereon, within the latter decision, is void. Dillon, J., speaking for the court in Harshey vs. Blackmarr, 20 Iowa, 161, 89 Am. Dec. 520, said: " Certain it is, however, that the party is entitled to relief when an unjust judg- ment, though a domestic one, has been rendered against him by fraud or collusion, or by the appearance of an unauthorized attor- ney, if the party seeks the relief by appeal or motion promptly, and has been guilty of no laches." In Shelton vs. Tiffin, 47 U. S. 163, 6 How. 163, it was decided: " Where a citizen of Virginia sued in the circuit court of Louisiana two persons jointly, one of whom was a citizen of Louisiana and the other of Missouri, and an attorney appeared for both defend- ants, the citizen of Missouri was at liberty to show that the appear- ance for him was unauthorized. If he showed this, he was not bound by the proceedings of the court, whose judgment, as to him, was a nullity." In Critclifield vs. Porter, 3 Ohio, 518, it was held, " That when an attorney appears for a party in a suit in court without authority, the party is not concluded by his acts, but may be relieved against them." And in the opinion supporting this declaration of law, it was said by Sherman, J.: " The mischief that might follow from holding that the acts of the unauthorized attorney are conclusive upon the person for whom he appears, would induce the court to hesitate long before it would establish such a rule. It would in some degree subject the property of every individual in the com- munity to the mistakes or malice of a particular class of men." See for authorities of like tenor Lawrence vs. Jarvis, 32 111. 304; Arnott vs. Webb, 1 Dill. 362; Price vs. Ward, 1 Dutch. 225; Penny- wit vs. Foote, 27 Ohio St. 600, s. c. 22 Am. Eep. 340; Dobbin vs. JJupree, 39 Ga. 394; Wiley vs. Pratt, 23 Ind. 628. See, also, Wetherby vs. Wetherby, 20 Wis. 526; Ferguson vs. Crawford, 70 N. Y. 253, s. c. 26 Am. Eep. 589; Clark vs. Little, 41 Iowa, 497; Mast in vs. Gray, sup Chap. I] Reynolds vs. Fleming. 619 (Minor matter omitted). The ruling and judgment of the district court, will be reversed, and the cause remanded. Judgment reversed and cause remanded. III. IMPLIED AUTHORITY OP ATTORNEY. (115 Massachusetts, 36, 15 Am. Rep. 72.) MOTTLTON vs. BOWKER. ("Supreme Judicial Court of Massachusetts, March, 1S74.J It was agreed between the parties that the only legal question was whether an attorney of record can discharge an attachment without the knowledge or authority of his client, and in fraud of his rights, in such a way that a subsequent oona fide purchaser can get a good title. R. M. Morse, Jr., & A. E. Pillsbury, for demandants. 1 1 Note. — The following is an abstract of their brief: An attorney is not dominus litis. He has no power to give up the security of his client with- out payment or express authority. Terhune vs. Colton, 2 Stock. Ch. 21; Tankersley vs. Aiiderson, 4 Dessaus. 45. Nor to release sureties upon the claim of his client Savings Inst. vs. Chinn, 7 Bush (Ky.), 539; Givens vs. Briscoe, 3 J. J. Marsh. (Ky.) 529, 532; Union Bank vs. Goran, 10 Sm. & M. (Miss.) 333. Nor to discharge a lien created by levy of execution. Banks vs. Evans, 10 Sm. & M. 35, 48 Am. Dec. 734; Benedict vs. Smith, 10 Paige (N. Y.), 126. Nor to release a lien obtained by judgment, or to dis- charge any security resulting from his prosecution of the claim. And an honest belief that he is acting in his client's interest cannot supply the defect of authority to make such an arrangement. Wilson vs. Jennings, 8 Ohio St. 528. He may control the manner of conducting a cause, but cannot waive any substantial acquired right of his client. Howe vs. Lawrence, 2 Zab. (N. J.) 99. He may not release a third person for the purpose of making him a competent witness. Shores vs. Caswell, 13 Mete. (?.!ass.) 413; Succession of Weigle, 18 La. An. 49; Marshall vs. Nagel, 1 Bailey, (S. C.) 308. Nor discharge an indorser upon a note committed to him for collection without satisfaction or the express consent of his client. East liiver Bank vs. Ken- nedy, 9 Bosw. 543; Bowne vs. Hyde, 6 Barb. 392; Kellogg vs. Gilbert, 10 Johns. (N. Y.) 220, 6 Am. Dec. 335; Simonton vs. Barrett, 21 Wend. (N. 620 Cases on Agency. [Book V J. L. ThorndiJce, for tenant. Gray, C. J. An attorney at law has authority, by virtue of his employment as such, to do in behalf of his client all acts, in or out of court, necessary or incidental to the prosecution and manage- ment of the suit, and which affect the remedy only, and not the cause of action; and we can have no doubt that this includes the power to release an attachment,at least before judgment, which is all that this case requires us to consider. Lewis vs. Sumner, 13 Mete. 209; Shores vs. Caswell, Id. 413; Wieland vs. White, 109 Mass. 392; Jenney vs. Delesdemier, 20 Me. 183; Rice vs. Wilkins, 21 Id. 558; Y.) 362; York Bank vs. Appleton, 17 Me. 55; Varnum vs. Bellamy, 4 McLean, 87. Nor sell or assign a judgment of his client. Maxwell vs. Owen, 7 Coldw. (Tenn.) 630; Baldwin vs. Merrill, 8 Humph. (Tenn.) 132; Campbell's Appeal, 29 Penn. St. 401, 72 Am. Dec. 641; Rowland vs. State, 58 Id. 196. Nor discharge a judgment or execution except on payment in full. Per Coke, C. J., 1 Eol. R. 366; Beers vs. Hendrickson, 45 N. Y.665; Lewis vs. Woodruff, 15 How. Pr. 539, and cases cited; Wilson vs. Wadleigh. 86 Me. 496, and cases cited; Harrow vs. Farrotv, 7 B. Monr. (Ky.) 126, 45 Am. Dec. 60; Chambers vs. Miller, 7 Watts (Pa.), 63. Nor receive any other thing than lawful money in payment of his client's claim. Stack- house vs. O'Eara, 14 Penn. St. 88; Harper vs. Harvey, 4 W. Va. 539. following Smock vs. Dade, 5 Rand. (Va.) 639, 16 Am. Dec. 780; Jeter vs. Haviland, 24 Ga. 252; Miller vs. Edmonston, 8 Blackf. (lnd.) 291; Jones vs. Ransom, 3 lnd. 327; Trumbull vs. Nicholson, 27 111. 149, and cases cited; Lawson vs. Pettison, 7 Eng. (Ark.) 401; Kent vs. Ricards, 3 Md. Ch. 392; Walker vs. Scott, 8 Eng. (Ark.) 644; Bailey vs. Bagley, 19 La. An. 172; Wright vs. Daily, 26 Tex. 730; West vs. Ball, 12 Ala 340; Clark vs! Kings- land, 1 Sm. & M. (Miss.) 248. Nor indorse a note left with him for collec- tion. Child vs. Eureka Powder Works, 44 N. H. 354. Nor compromise a Buit. By the Master of the Rolls in Swinfen vs. Swinfen, 27 L. J. (Ch.) 35; affirmed by Lords Justices, 2 DeG. & J. 3S1. Marshall, C. J., in Holker vs. Parker, 7 Cranch. (U. S.) 436; Stokely vs. Robinson, 34 Penn St. 815; Huston vs. Mitchell, 14 S. & R. (Pa.) 307; Dodds vs. Dodds, 9 Penn. St. 315; Abbe vs. Rood, 6 McLean, 106; Derwort vs. Loomer, 21 Conn. 245; Kelley vs. Scott, 2 Sm. & M. 81. Nor employ associate counsel, save in the absence of his client. Briggs vs. Georgia, 10 Vt. 68. Nor waive the right of inquisition. Hodden vs. Clark, 2 Grant, (Pa.) 107. Nor accept service of summons. Masterson vs. Le Claire, 14 Minn. 163. Nor consent to a judgment against his client. People vs. Lanborn, 1 Scam. (111.) 123. Nor enter a retraxit. Lambert vs. Sanford,2 Blackf. (lnd.) 137, 18 Am. Dec. 149. Nor make an agreement for suspension of proceedings upon a judgment. Pendexter vs. Vernon, 9 Humph. (Tenn.) 84. Nor discharge a trustee. Quarles vs. Porter, 12 Mo. 76. Nor give an extension of time upon a debt due to his client. Lockhart vs. II yatt, 10 Ala. 231, 44 Am. Dec. 481. Nor transfer to another the property in a note committed to him for collection. Nor bind his client by an agreement to refund money overpaid. Ireland vs. Todd, 36 Me. 149. Chap. I] Moulton vs. Bowkeb. G21 Pierce vs. Strickland, 2 Story 292; Levi vs. Abbott, 4 Exch. 588. The act of the demandants* attorney was therefore within his professional authority, and bound his clients, and if it was fraudu- lent, their remedy must be sought against him, it being agreed that the other party was not cognizant of any fraud. Judgment on the verdict for the tenant. (87 Pennsylvania State, 243, 30 Am. Rep. 357.) KIRK'S APPEAL. (Supreme Court of Pennsylvania, May, 1878.) Appeal from decree of distribution of fund arising from sheriff's sale of real estate. The opinion states the case. H. M. Baldridge, for appellant. Samuel S. Blair, for appellee. Mercur, J. This contention arises on the distribution of a fund produced by a sheriff's sale of real estate. The rights of the claim- ants depend on the effect to be .given to a release executed by E. Hammond, of the lien of the judgment on which the appellants claim the money. The judgment was recovered by McNeal. In the assignment thereof, which he made to Hammond, he declared it was " to be held by Hammond as collateral security for the payment of the claim of Boggs & Kirk, for which claim I have this day given to the said Boggs & Kirk three promissory notes." This assignment was filed of record. The prothonotary entered on the docket the substance of the assignment, and added, " See paper filed." Hammond was an attorney at law. As attorney for Boggs & Kirk he took the notes of McNeal for a debt due them, and accepted the assignment. He therefore held it for their benefit. The assignment showed this fact. As between him and them he had no more right to release the lien of the judgment on lands bound thereby, than he had to give up the notes to the maker without payment. In conducting a suit, an attorney at law has large powers. After judgment recovered, he may execute a valid receipt on its payment. Yet he cannot sell and assign it without the ratification of his client 622 Cases on Agency. [ Book V Campbell's Appeal, 5 Casey (Pa.) 401. Nor can he accept land in satisfaction of a debt of his client. Huston vs. Mitchell, 14 S. & R. 307, 16 Am. Dec. 506; StacMouse et al. vs. O'Hara, 2 Harr. 88; Stockley vs. Robinson, 10 Casey, 315. His authority is limited to the discharge of that profesional action which lies at the foundation of the relation of counsel and client. He has large discretionary power as to the manner and time of pros- ecuting his client's claim to judgment. He may order and direct the sheriff in regard to the collection of the execution. These powers are given to him to protect the rights and advance the interests of his client. He has no right to release property bound by his client's judgment. This appears to have been conceded by the learned judge if the record had showed Ham- mond held the assignment as attorney for Boggs & Kirk. It is true the record did not distinctly show that fact; yet we think it showed enough to have put the appellee on inquiry, and if so, inquiry thereupon become a duty. The exercise of common prudence and ordinary diligence, which he was bound to use, would have disclosed to him that Hammond held the assignment as attorney or counsel for Boggs & Kirk. Lodge vs. Simonton, 2 P. & W. (Pa.) 439, 23 Am. Dec. 36; Cresson vs. Miller, 2 Watts, (Pa.) 272; Jaques vs. Weeks, 7 Id. 261; Walsh vs. Stille, 2 Pars. 17; Bill vs. Epley, 7 Casey, 331. The release itself can- not be found, but the record entry recites, " For value received, E. Hammond, Esq., releases from the lien of this judgment the real estate of Peter S. McCormick, but does not satisfy the judgment or any part thereof; see paper filed." Thus the record not only shows the assignment to be for the benefit of Boggs & Kirk, but also that Hammond executed the release without any payment on the judgment. A release, by one who held the legal title only, which proclaimed no payment on the judgment, and presumptively no consideration to the use party, should have put the appellee on inquiry. The language of the record gave sufficient notice of an implied breach of trust to make inquiry a duty. Failing to inquire, he must be affected by the facts which a due investigation would have disclosed. Those facts show Hammond was the attorney of Boggs & Kirk; that this release was a fraud on them; that it was made without their knowledge, and never ratified by them. The learned judge therefore erred in holding that the release, thus executed, discharged the lien. Decree reversed, and record remitted, with instructions to decree Chap. I ] Kirk's Appeal. 623 distribution conformably with this opinion. It is further ordered that the appellee pay the costs of this appeal. Judgment reversed. IV. LIABILITY OP ATTORNEY FOR MONEY COLLECTED.' (108 Indiana, 500, 58 Am. Rep. 61.) NALTNER vs. DOLAN. {Supreme Court of Indiana, November, 1886.J Facts are stated in the opinion. S. Claypool & W. A. Ketcham, for appellant. J. R. Courtney, for appellee. Mitchell, J. Naltner, on the 24th day of February, 1883, com- menced proceedings in attachment against Dolan, and on the same day caused a summons in garnishment to be served on the appellants herein. On the 7th day of March following, upon his intervening petition, Montague was admitted as a party to the proceeding. He filed a cross complaint, in which he alleged, in substance, that the fund in the hands of the appellants, being the subject of the attachment and garnishee proceeding, had been assigned to him by Dolan for a valuable consideration, before the proceedings were commenced. lie prayed judgment for the recovery of the money. The appellants, with the general denial, answered specially, admitting the possession of a fund which they averred had come to their hands as the attorneys of Dolan. They alleged that they had been notified by Montague of his claim after the proceedings in garnishment had been commenced, and averred their readiness to pay the money to whomsoever the court should adjudge entitled thereto. Other answers were filed, to which demurrers were sustained. The facts were found specially by the court, and are presented in •See Cummins vs. Heald, ante, p. 247; Exchange Nat. Bank vs. Third National Bank, ante, p. 239. 624 Cases on Agency. [Book V the following summary: Dolan, who at the time the suit was commenced lived in Illinois, owed Naltner $600 then due. The appellants, as attorneys, had in their hands for collection a claim in favor of Dolan, against the Indiana, Bloomington & Western Eailway Company, which Dolan, on the 13th day of September, 1882, transferred for value to Montague. On February 24, 1883, the day on which the attachment suit commenced, appellants received from the clerk of the "United States district court, for the district of Indiana, checks for something over $80,000 which was in payment of claims against the Indiana, Bloomington & Western Railway Company, which payment was made to them in behalf of Dolan and many others of their clients. Dolan's claim against the railway company was $600. Upon receiving the check they deposited it with the Indiana Banking Company, which was then in good standing, the deposit being to the credit of themselves in their firm name. The money thus received belonged to some hundreds of their clients, and the computation of interest, and the division to each of his share required several days' continuous work before distribution could be made. The appellants were lawyers, partners, actively engaged in practice. They had an account at the bank in question in which all money collected for, and belonging to their various clients was deposited and checked out in the firm name, but such moneys were not mingled with their own. Before they had time or opportunity to pay out the money in controversy, the appellants were garnished at the suit of Naltner. They received notice of the assignment to Montague, February 28, 1883, four days after the suit was commenced. Montague, within a few months after giving notice of his claim, and while the proceed- ings in garnishment were pending made demand on garnishee defendants for the money remaining in their hands which was derived from the Dolan claim. On the 9th day of August, 1883, the Indiana Banking Company, having until that time continued in good standing and credit, failed. A receiver was appointed for the bank August 13, 1883. The appellants brought the certificate of the receiver of the bank for the money in dispute into court, and offered to surrender it to the person entitled as the court should direct. The amount remaining in their hands in the manner above stated, was $445.69. Conclusions of law were stated favorable to a recovery by Mon- Ohap. I] Naltner vs. Dolan. 625 tague against the appellants of the amount thns remaining in their hands- Do the facts found warrant the conclusion of law stated? Money belonging to a client having been received by the attor- neys, in payment of a claim left with them for collection, the transmission of such money having been arrested by garnishee process before an opportunity for transmitting it occurred, the question is, having acted in the utmost good faith, and with- out any suggestion of fault or neglect, are the attorneys responsible for the continued solvency of the bank in which such funds were deposited in their own name, but not with their own funds, not- withstanding the bank was in good credit when the deposit was made? The receipt of money by an attorney, under the circumstances disclosed in this case, does not ij) so facto create the technical rela- tion of debtor and creditor between the attorney and client. It is because it does not that a suit cannot be maintained by the latter against the former without first making a demand. Money so collected belongs to the client. The attorney occupies toward it the relation of a trustee, so long as he chooses to treat and preserve the fund as a trust fund. The circumstances under which he will be liable for its loss are precisely those which govern in the case of any other trustee. While it is preserved in its trust character, if he exercises the same caution in respect to depositing it, if a deposit becomes necessary or proper, as a prudent man would in regard to his own money, and a loss happens, he will be excused. Xorwood vs. Harness, 98 Ind. 134, 49 Am. Rep. 739; State, exrel., vs. Greensdale, 106 Ind. 364, 55 Am. Eep. 753. The authorities, however, distinguish between cases in which the deposit was made in such a manner as to preserve its trust character on the books of the bank in which the fund was deposited, and those in which the owner of the fund might be put to the trouble of proving by extraneous evidence that the fund was not the individual money of his trustee. Whenever a trustee, unless properly authorized to do so, puts the fund in such shape as to invest himself with a legal title to it, the cestui que trust has his election, either to treat the fund according to the appearance of things, as the property of the trustee, and regard the latter as his debtor, or he may demand that the title be transferred to him. If a deposit is made in such a manner, as on the face of the books of 40 626 Cases on Agency. [Book V the bank in which the deposit is made, to authorize the trustee, his assignee, or legal representative, to claim it as the fund of the depositor, the cestui que trust has the option to do likewise. Merket vs. Smith, 33 Kans. 66; McAllister vs. Commonwealth, 30 Penn. St. 536; Morris vs. Wallace, 3 Penn. St. 319, 45 Am. Dec. 642; Jackson vs. Bank, etc., 10 Penn. St. 61; School District, etc., vs. First Nat'l Bank, 102 Mass. 174; Uiica Ins. Co. vs. Lynch, 11 Paige, 520; Bartlett vs. Hamilton, 46 Me. 435; 2 Pom. Eq. Jur. §§ 1067-1076; Perry Trusts, §§ 443, 444; Story Agency, § 208. In case it becomes the duty of an agent or trustee to deposit money belonging to his principal, he can escape the risk only by making the deposit in his principal's name, or by so distinguishing it on the books of the bank, as to indicate in some way that it is the principal's money. If he deposit in his own name, he will not, in case of loss, be permitted to throw such loss on his principal. Williams vs. Williams, 55 Wis. 300, 42 Am. Pep. 708; Norris vs. Hero, 22 La. An. 605; Mason vs. Whitthorne, 2 Oold.( Tenn.) 242; Jenkins vs. Walter, 8 G. & J. (Md.) 218, 29 Am. Dec. 539; Rob- inson vs. Ward, 2 C. & P. 60; Macdonnell vs. Harding, 7 Sim. 178; State vs. Greensdale, supra. In such a case the good faith or intention of the trustee is in no way involved. Having for his personal convenience, or from what- ever motive, deposited the money in his own name, thereby vesting himself with a legal title, it follows as a necessary consequence, when a loss occurs, he will not be permitted to say, as against his cestui que trust that the fact is not as he voluntarily made it appear. What the legal or equitable rights of the real owner of the fund would be in such a case, as against the bank or as against attach- ing creditors of the depositor, has been the subject of much dis- cussion, and of some diversity of opinion. Pennell vs. Deffell, 4 De G., M. & G. 372; Farmers' etc., Bank vs. King, 57 Penn. St. 202, 98 Am. Dec. 215, {ante, p. 590); School District, etc., vs. First Nat'l Bank, 102 Mass. 174; Jackson vs. Bank, supra; Bundy vs. Town of Monticello, 84 Ind. 119, 131, and cases cited; McLain vs. Wallace, 103 Ind. 562; McComas vs. Long, 85 Ind. 549; Ellkott vs. Barnes, 31 Kans. 170, 173; Morse Banks, 300-302. Whatever diversity of opinion may be found in respect to the rights of the bank, or other creditors of the depositor, the author- ities agree that a trustee who either invests or deposits trust money Chap. I] Naltner vs. Dolan. 627 in his own name, without in some way designating it as trust property, will be responsible for any loss that may occur to the fund while so invested or deposited. Gilbert vs. Welsch, 75 Ind. 557; 2 Lead. Cas. in Eq. 1805. Having put the owner of the fund to the hazard of losing it, or of maintaining its trust character by such proof aliunde as may be available to him, the trustee thereby gives the former the privilege of treating the latter as his debtor, or of supplying the proof, or accepting his admission of the facts, at his option. Applying the principles stated to the facts found, the con- clusion follows, that the appellants assumed the risk that the bank, in which the fund was deposited in their name, and from which it could only have been drawn by their check, would be able to respond with the money when their check for it should be pre- sented. The fact that none but money belonging to clients was deposited in the account in which the fund in question was placed does not alter the case. The controlling consideration is, that it was deposited to the credit of the firm, without anything to designate or preserve its trust character. They took and retained the legal title to the deposit in themselves. In the event of a controversy, the character of the fund would have depended wholly on extrane- ous proof. This being so, the owner had the right to elect to stand upon the title to the deposit, as he found it. Having so elected, there is no rule of law which authorizes any inquiry into the motives for so taking the title, short of an express or implied direction from the owner of the fund. The judgment is affirmed, with costs. Rehearing denied. Judgment affirmed. 628 Cases on Agency. [Bout V V. DEALINGS BETWEEN ATTOENET AND CLIENT. (98 New Yoke, 25, 50 Am. Rep. 632.) STOUT vs. SMITH. (New York Court of Appeals, January, 1885.) This was an action to recover damages on account of fraud arising out of various transactions in the exchanging or i*ale of farms between defendant and Alfred and Andrew Stout, the latter having since died. The opinion states the facts.. PlaintLtf had judgment below. David B. Hill, for appellant. Rufus King, for respondents. Miller, J. (After stating the facts.) "We think there was no sufficient evidence that the relationship of attorney and client existed between the defendant and the Stouts. Although the defendant was an attorney at law, his principal business was that of a banker, and he did not practice law to any great extent, only making collections for his bank, and occasionally for others. There is no positive evidence that he was employed by the Stouts, as their attorney in these transactions, or that he ever received any pay for his services as such attorney, or that he was ever employed by them in any litigation. On the contrary, it is proved by one of the Stouts himself, that he was the attorney against them in the foreclosure of a mortgage. The evidence, which it is claimed shows that this relationship existed, is within a narrow compass, as will be seen by a brief reference to the same. Alfred Stout, after stating that defendant had never been employed by him as an attorney up to the time of the transactions in question, testified that the defendant did all the writing between them and stated that it would not cost the Stouts anything, and that they need not carry the papers to anybody else to show them, because they were right; that he claimed to be a lawyer, which fact the witness knew, and said that he would not wrong them out of a cent. Lydia Stout, the widow of Andrew, deceased, who was present at the time mentioned by Chap. I] Stout vs. Smith. 629 Alfred, states that she heard no more about his being a lawyer than that he claimed that he was when he wanted to draw up the papers; that he was a lawyer and his writing should not cost him anything; that he was a lawyer and could do the business. This evidence, taken together, does not establish that the rela- tionship of attorney and client existed between the parties. The fact that the defendant was an attorney, and that he was willing to do all the writing without compensation, is not enough to show the existence of such a relationship. The papers which were drawn were in proper form, and no legal advice was required in regard to the same. No advice was offered or obtained, and the defendant never received a retainer or agreed to act as an attorney for the Stouts. It nowhere appears that he assumed the obligations of a pro- fessional man in these transactions, or that the Stouts regarded him as acting in that capacity. He was merely engaged as an individual in making a bargain for the sale or exchange of real estate, and evidently drew up the papers gratuitously, without assuming to act as attorney for the Stouts. The defendant, as an individual, had a perfect right to make a bargain with the Stouts as he did, and draw up the papers without charge, and he did not thereby necessarily place himself in the position of the attorney or adviser of those with whom the bargain was entered into. If he, in these transactions, gained any advantage, it did not arise from the relationship of attorney and client, but from the fact that he was dealing with persons of less capacity than himself to make a bargain or transact business. He may have been chargeable with deceit and fraud, and therefore liable if they were proved against him, but under the circumstances there seems to be no valid ground for the contention that he was liable for a violation of his duty in a professional capacity. As the case stood, there was not suf- ficient evidence to establish the fact that the relationship of attor- ney and client existed between the defendant and the Stouts, and that question was improperly submitted to the consideration of the jury. We are also of the opinion that the court erred in submitting the question of undue influence to the jury. As the relationship of attorney and client did not exist between defendant and the Stouts, it is difficult to see upon what ground it can be claimed that undue influence was exercised over them in the transactions between the parties. Undue influence is generally understood to 630 Cases on Agency. [Book V constitute the power which one party wrongfully exercises over another in attempting to control the judgment and influence the action of such other person for the benefit of himself. The evi- dence in this case does not show any such confidential relationship or intimacy between the parties as would authorize the conclusion that the defendant improperly influenced the Stouts in the transac- tions he had with them. Nor is it apparent from the position he occupied that the defendant possessed the power to induce the Stouts to act against their own interest, or that any such control was exercised by him. Alfred and Andrew were possessed of ordin- ary intelligence, could read and write, and had an opportunity to examine, or to have examined the papers which passed between them and the defendant, and there is no evidence in the case which tends to establish that in the various transactions between the parties they were induced by the defendant, by means of undue in- fluence, to act in opposition to what they supposed was for their own benefit. The fact that the defendant was engaged in a business from which it may be inferred that he was better qualified to make bar- gains and to obtain advantages by reason of his capacity, shrewdness and superior ability, does not of itself lead to the conclusion that any advantage was obtained by means of undue influence. He may have deceived and he may have defrauded the Stouts in his deal- ings with them, but it cannot, we think, be maintained that he did so through any improper influence employed for that purpose. A person of great intelligence, experience and adroitness in busi- ness affairs will naturally have an advantage over one more ignorant and less qualified to engage in such matters, and the superior mind must necessarily exercise more or less control over the inferior, but this is not undue influence. If a man deals dishonestly, and is charge- able with fraud and deceit in his transactions, he is liable to answer on that account. Such conduct, however, in the absence of any definite and established relation of confidence, does not furnish any valid legal ground for setting aside a contract in an action for the recovery of damages by reason of undue and improper influence exercised over the party with whom he has been dealing. The evidence given upon the trial mainly bore upon the question of fraud, and deceit practiced by the defendant upon the Stouts, and as the facts developed did not establish undue influence, they do not require an elaborate examination. It is sufficient to say that in view of the evidence, a case involving the principle of Chap. I ] Stout vs. Smith. 631 undue influence does not arise, nor was it proper to present any such question to the consideration of the jury. Several questions as to the admissibility of evidence were raised upon the trial, but inasmuch as a new trial must be granted for the reasons already stated, it is not necessary to consider them. The judgment should be reversed and a new trial granted, with costs to abide the event. Judgment reversed. All concur, Eugeb, 0. J., and Earl, J., on the first ground. VI. ATTORNEY'S COMPENSATION". (93 United States, 548.) STANTON vs. EMBREY. ( United States Supreme Court, October, 1876. J Action by Embrey, as administrator of one Atkinson, deceased, an attorney, to recover for services rendered by Atkinson in prose- cuting for defendants a claim against the government. Atkinson recovered a judgment but died before its payment. The services were rendered upon a contract for a contingent compensation, but the amount was not fixed. Judgment below for the plaintiff. T. J. Durant, for plaintiffs in error. Edward Lander, contra. Clifford, J. (After disposing of a question of practice.) Com- ing to the merits, the first objection of the plaintiffs in error is that the contract set up in the declaration is one for a contingent compensation. Such a defense, in some jurisdictions, would be a good one; but the settled rule of law in this court is the other way. Reported cases to that effect show that the proposition is one beyond legitimate controversy. Wylie vs. Coze, 15 How. (U. S.) 415; Wright vs. Tebbitts, 91 U. S. 252. Professional services were rendered by an attorney in the first case cited, in prosecuting a claim against the Republic of Mexico, under a contract that the attorney was to receive five per cent of 632 Cases on Agency. [Book V the amount recovered. Valuable services were rendered by the attorney during the lifetime of the claimant, but he died before the claim was allowed. Subsequently the efforts of the attorney were successful, and he demanded the fulfillment of the contract, which was refused by the administrator of the decedent. Payment being refused, the attorney brought suit; and this court held that the decease of the owner of the claim did not dissolve the contract, that the claim remained a lien upon the money when recovered, and that a court of equity would exercise jurisdiction to enforce the lien, if it appeared that equity could give him a more adequate remedy than he could obtain in a court of law. Courts of law also adopt the same rule of decision, as sufficiently appears from the second case cited, where the same rule of decision was applied and enforced without hesitation or qualification. Contracts for lobbying stand upon a very different footing, as was clearly shown by the chief justice in commenting upon a prior decision, in which the opinion was given by Justice Swayne. Trist vs. Child, 21 Wall. (U. S.) 450. Nothing need be added to what is exhibited in the case last men- tioned to point out the distinction between professional services of a legitimate character, and a contract for an employment to improperly influence public agents in the performance of their public duties. Tool Co. vs. Norris, 2 Wall. (U. S.) 53. Profes- sional services to prepare and advocate just claims for compensation, are as legitimate as services rendered in court in arguing a cause to convince a court or jury that the claim presented or the defense set up against a claim presented by the other party ought to be allowed or rejected. Parties in such cases require advocates; and the legal profession must have a right to accept such employment, and to receive compensation for their services; nor can courts of justice adjudge such contracts illegal, if they are free from any taint of fraud, misrepresentation, or unfairness. By the contract in question, the amount of compensation to be paid was not fixed; and in order to enable the jury to determine what the plaintiff was equitably entitled to recover, he called other attorneys, and proved what is ordinarily charged in such cases; and the defendan ts excepted to the ruling of the court, in refusing to charge the jury that they should disregard such testimony. Attorneys and solicitors are entitled to have allowed to them for their professional services, what they reasonably deserve to have for the same, having due reference to the nature of the service and Chap. I] Stanton vs. Embbey. 633 their own standing in the profession for learning, skill, and pro- ficiency; and, for the purpose of aiding the jury in determining that matter, it is proper to receive evidence as to the price usually charged and received for similar services by other persons of the same profession practicing in the same court. Vilas vs. Downer, 21 Vt. 419. * * * Affirmed. Note.— Compare with Vilas vs. Downer, 21 Vt. 419, Eggleston vs. Board- man, 37 Mich. 14; Bruce vs. Dickey, 116 111. 527. See, also, Mills vs. Mills, ante, p. 17; Elkhart County Lodge vs. Crary, ante, p. 18. VII. Attobney's Lien. ( 112 New Yoek, 157.) goodeich vs. Mcdonald. {New York Court of Appeals, January, 1889.) Plaintiff's intestate, who was an attorney, had been attorney for Mrs. Graves, a daughter of Mrs. McDonald, the defendant. He had prosecuted a case for her successfully in the United States Circuit Court, from which an appeal was taken to the United States Supreme Court. Pending the appeal, the attorney died, and another was employed to argue the case in the Supreme Court, where the judgment was affirmed. When the judgment was to be paid, plaintiff was notified, but he wrote that he was willing that Mrs. Graves should receive the money and he would look to her for the pay for intestate's services, and the money was paid to her. She failed to pay, and he obtained judgment against her. Plaint- iff then sought to reach a mortgage transferred to Mrs. McDonald by Mrs. Graves, on the ground that the mortgage was purchased with the proceeds of the judgment on which his intestate had had a lien. He succeeded in the court below. Matthew Hale, for appellant. 11. Y. HowUmd, for respondent. Eael, J. The judgment in the action brought by Mrs. Graves against Porter and others was perfected on the 26th day of June, 63-4 Cases on Agency. [Book V 1877, about two years before the amendment of section 66 of the Code of Civil Procedure enlarging the scope of that section, so that now an attorney who appears for a party has a lien upon his client's cause of action, which attaches " to a verdict, report, decision or judgment in his client's favor and the proceeds thereof, in whosoever's hands they may come." The section as amended was prospective only in its operation and can have no effect upon a judgment previously recovered; and so it was held by the trial judge. Therefore, in the examination of the case, it is not neces- sary to take further notice of the section; nor is it necessary to give any attention to the adjudication in the former action by the plaintiff against Mrs. Graves, as that action was commenced after the assignment of the bond and mortgage to Mrs. McDonald, and she was not a party thereto, and, therefore, not bound by the adjudication therein. Attorneys have two kinds of liens peculiar to them in their relations with their clients. One is a lien which an attorney has upon all the papers of his client in his possession, by virtue of which he may retain all such papers until his claim for services has been discharged. That in the books is called a retaining lien. An attorney also has a lien upon the fund, or judgment which he has recovered for his compensation as attorney in recovering the fund or judgment, and that is denominated a charging lien. Stokes on Liens of Attorneys, 5, 85; In re Wilson, 2 McCarty Civ. Pro. 151. It is the latter kind of lien with which we are concerned in this case. The practice of enforcing such liens is not very ancient. Baron Pauke in Barker vs. tit. Quintin, 12 Mees. & Wels. 441, stated that the doctrine of an attorney's lien on a judgment was first established in the case of Welsh vs. Hole, 1 Doug. 238, where Lord Mansfield said: " An attorney has a lien on the money recovered by his client for his bill of costs. If the money come to his hands he may retain to the amount of his bill. He may stop it in transitu if he can lay hold of it. If he apply to the court they will prevent its being paid over till his demand is satisfied. I am inclined to go still further, and to hold that, if the attorney gave notice to the defendant not to pay till his bill should be discharged, a payment by the defendant after such notice would be in his own wrong, and like paying a debt which has been assigned after notice. But I think we cannot go beyond these limits." That great jurist in Wilkins vs. Carmichael, 1 Doug. Chap. I] Goodrich vs. McDonald. G35 104, speaking of an attorney'-s lien also said: " It was established on general principles of justice, and that courts, both of law and equity, have now carried it so far that an attorney or solicitor may obtain an order to stop his client from receiving money recovered in a suit in which he had been employed for him until his bill is paid." The lien as thus established, is not strictly like any other lien known to the law, because it may exist although the attorney has not and cannot, in any proper sense, have possession of the judg- ment recovered. It is a peculiar lien, to be enforced by peculiar methods. It was a device invented by the courts for the protec- tion of attorneys against the knavery of their clients, by disabling clients from receiving the fruits of recoveries without paying for the valuable services by which the recoveries were obtained. The lien was never enforced like other liens. If the fund recovered was in possession or under the control of the court, it would not allow the client to obtain it until he had paid his attorney, and in administering the fund it would see that the attorney was pro- tected. If the thing recovered was in a judgment, and notice of the attorney's claim had been given, the court would not allow the judgment to be paid to the prejudice of the attorney. If paid after such notice in disregard of his rights, the court would, upon motion, set aside a discharge of the judgment and allow the attorney to enforce the judgment by its process so far as was need- ful for his protection. But after a very careful search we have been unable to find any case where an attorney has been permitted to enforce his lien upon a judgment for his services by an equitable action, or where he has been permitted to follow the proceeds of a judgment after payment of them to his client. His lien is upon the judgment, and the courts will enforce that through the control it has of the judgment and its own records, and by means of its own process which may be employed to enforce the judgment. But after the money recovered has been paid to his client he has no lien upon that, and much less a lien upon property purchased with that money and transferred to another. After such payment, unless he has pro- tected his lien by notice to the judgment-debtor, his lien is forever gone, and he must look to his client alone for his compensation. As said by Lord Ellenbokough in Wilson vs. Kymer, 1 Maule & Sel. 157, and repeated by Senutor Verplanck in McFarland vs. Wheeler, 26 Wend. 467, " in a case of a lien we should be anxious to tread cautiously and on sure grounds before we extend it beyond 636 Oases on Agency. [Book V the limits of decided cases." There are not only no decided cases which sanction the maintainance of this action, but the drift of all the authorities is against the plaintiff's contention. In Cooper vs. Jenkins, 33 Beavan, 431, the master of the rolls said: "I have always understood the law to be that a solicitor had an inherent equity to have his costs paid out of any fund recovered by his exertions; and that the court would not part with it until these costs had been paid, except by consent of the solicitor." In Mercer vs. Graves, 7 Q. B., L. E. 499, Lord Chief Justice Cock- burn said: "Although we talk of an attorney having a lien upon a judgment, it is in fact only a claim or right to ask for the inter- vention of the court for his protection, when, having obtained judgment for his client, he finds there is a probability of the client depriving him of his costs." In Barker vs. St. Quintin, supra, Baron Parke said: " The lien which an attorney is said to have on a judgment, which is, perhaps, an incorrect expression, is merely a claim to the equitable interference of the court to have that judgment held as a security for his debt." In Braden vs. Ward, 42 N. J. L. 518, it was held that the right of lien for an attorney's costs exists only where he has received money upon the judgment in the cause, or has arrested it in transitu, or where the defendant has paid the judgment after receiving notice of the attorney's claim. Reed, J., writing the opinion in that case, said: " There is no instance in the practice of the English courts where the right of lien for costs has been enforced, except where the attorney has possession of the money received upon the judgment, or has arrested it in transitu, or else the defendant has received notice of the claim of the plaintiff's attorney before settling the judgment." In Cowen vs. Boone, 48 Iowa. 350, it was held that an attorney's lien upon a judgment is waived by his procuring a transfer to his client of land attached in the suit in satisfaction of the judgment. There the client having received the transfer of the land conveyed it to a third person and took back a mortgage for the purchase money. She then assigned the mortgage, and the attorneys, being defendants in a suit to foreclose it, asserted their lien; and it was held that their lien was upon the judgment and did not follow the land when the title was perfected in the client. In Whittle vs. Newman, 34 Ga. 377, it was held that after the litigation was ended and the client had possessed himself of the entire fund recovered by the litigation, the court had no power to give relief to Chap. I] Goodeich vs. McDonald. G37 the attorney. In Horton vs. Champlin, 12 R. I. 550, 34 Am. Rep. 722, it was held that an attorney's lien originates in the control which the attorney has in his retainer over the judgment, and the process for its enforcement, thus enabling him to collect the judgment and reimburse himself out of the proceeds. These authorities are all in harmony with the cases which have been decided in this 6tate {St. Johns vs. Diefendorf, 12 Wend. 261; Marshall vs. Meech, 51 N. Y. 140, 10 Am. Rep. 572; In the Matter of Enapp, 85 Id. 284); and from them it appears to be clear that when by acquiescence of the attorney the money recov- ered has been paid to his client, or his client has received property in satisfaction of the judgment, he cannot enforce his lien against Buch money or property, but must look to his client alone for his compensation. Therefore, when this money, with the plaint- iff's consent, was paid to Mrs. Graves, without any agreement that his lien should be transferred to the fund thus paid, or should follow it any further, the lien was lost, and his only remedy then was against her. Before the judgment was paid, the court, upon his application, would have protected his lien by compelling pay- ment to him, or authorizing him to enforce the judgment for his own benefit, so far as it was necessary to secure his compensation. If the defendants had paid the judgment without notice of the attorney's lien, they would have been protected and the attorney could not have enforced his lien upon the moneys paid. If, however, they had paid after receiving notice of the lien, or in fraud of the rights of the plaintiff, the court would have can- celled any satisfaction of the judgment and allov.ed him to enforce it for his own benefit. Therefore, in no aspect of this case was the plaintiff in a position to enforce any lien upon this mortgage for the amount of compen- sation due for the legal services of his intestate. But we need not stop here. If the plaintiff could otherwise have had an enforcable lien against the funds in Mrs. Graves' hands, or against the mort- gage in the possession of Mrs. McDonald, the lien was lost by his consent that the money should be paid to Mrs. Graves. He not only consented that the money should be paid to her, but that he would look to her alone for the amount coming to him. This certainly was a distinct and emphatic waiver of any lien he had. lie did not reserve any lien upon the fund, or any right to proceed against it. We do not think that it is a reasonable construction of the letters written by him to Mr. Kernan and Mrs. Graves that he 638 Cases on Agency. [Book V intended the fund should he paid to her subject to his lien, or that he intended in any way to preserve his lien. After payment with his consent, his lien was effectually destroyed as the lien of a mechanic is who delivers to the general owner an article upon which he has performed labor without any agreement that his lien shall be preserved. The confidence of the plaintiff in the client appears to have been misplaced and abused. His claim is a very meritorious one, and we have been anxious to find some way to circumvent the efforts, apparently without justification, to defeat it. But we have been unable to find any, and reluctantly reach the conclusion that the judgment should be reversed and a new trial granted. All concur. Judgment reversed. (12 Fedehal Reporter, 235.) IN RE WILSON & GREIG, BANKRUPTS. (United States District Court, Southern District of New York, June, 1882.) Petition for payment of attorney's fees for which he claimed a lien. He had, as attorney, recovered two judgments for his clients against one Wilson which remained entirely uncollected. He after- wards recovered another judgment against Hine, Phillips and others. His clients having become bankrupts, their assignees employed other attorneys who, by supplementary proceedings, collected these judgments. Petitioner claimed a lien upon them and their proceeds and sought to have the assignee pay him for his services in the Hine-Phillips case out of the proceeds of the judg- ment against Wilson. S. B. Hamburger, for claimant. Blumenstiel & Ilirsch, for assignee. Brown, D. J. (After stating the facts.) After examination of the numerous authorities on this subject, English and American, I am satisfied that the claim of the petitioner cannot be sustained, and that an attorney has no general lien upon an uncollected judg- ment for services in other suits but only a particular lien for hig costs and compensation in that particular cause. Ohap. I] In ee Wilson & Greig. 63« An attorney's lien, as now generally recognized, is of two kinds. Mrst s a general lien resting wholly npon possession, which is a mere right to retain, until his whole bill is paid, all papers, deeds, vouchers, etc., in his possession upon which, or in connection with which, he has expended money or given his professional services. This "retaining lien " is a general one for whatever may be due to him; and, though a client may change his attorney at will, if the latter be without fault and willing to proceed in pending causes, none of the papers or vouchers can ordinarily be withdrawn from him except upon payment of his entire bill for professional services. In re Paschal, 10 Wall. 483, 493-6; In re Brown, 1 N. Y. Leg. Obs. 69; In re Broomhead, 5 Dowl. & L. 52; Blunden vs. Desart, 2 Dru. & Warr. 423; Ex parte Nesbitt, 2 Sch. & Lef. 279; Ex parte Sterling, 16 Ves. 258; Griffiths vs. Griffiths, 2 Hare, 592; Ex parte Pemberton, 18 Ves. 282; Lord vs. Wormleighton, 1 Jacob, 580; Bozon vs. Bolland, 4 Myl. & C. 354, 356; Ex parte Yalden, L. K. 4 Ch. Div. 129; Colmer vs. Ede, 40 Law J. (N. S.) Chanc. 185; Bough vs. Edivards, 1 Hurl. & N. 171; Cross, Lien, 216; Stokes, Attys' Liens, 28, 38; 2 Kent, *641. This lien, like other mere possessory liens, is, however, purely passive, being a bare right to hold possession till payment. The articles cannot be sold or parted with without loss of the lien, nor can any active proceedings be taken at law or in equity to procure payment of the debt out of the articles so held. Cross, Lien, 47, 48; Thames Iron Works vs. Patent Derrick Company, 1 Johns. & H. 93; The B. F. Woolsey, 4 Fed. Eep. 552, 558. The statute of this State, passed May 8, 1869 (Laws 1869, c. 738), which was designed to afford means of realizing payment upon such mere possessory liens, applies only to liens " upon any chattel property." Mere choses in action, such as the notes or demands placed in the petitioner's hands for collection, are not " chattel property " (2 Bl. *387; Ingalls vs. Lord, 1 Cow. 240; Ransom vs. Miner, 3 Sandf. 692), and therefore not within the statute. As this general lien of the attorney upon the notes and demands in suit depended wholly upon possession, and was a mere right of retention, incapable of any active proceedings to enforce payment, it could not be transferred, nor attach to the judgments obtained upon them or to any proceeds thereof, unless such proceeds came into the attorney's possession, which is not the fact in this case. The second kind of lien which an attorney has is that existing upon a judgment recovered by him, or moneys payable thereon, or 640 Oases on Agency. [Book V upon some fund in court. Tliis lien, so far as it extends, is not merely a passive lien, but entitles the attorney to take active steps to secure payment. It did not exist at common law. It is stated by Lord Mansfield to be not very ancient. 1 Doug. 104; Stokes, 3. It does not depend upon possession, but upon the favor of the court in protecting attorneys, as its own officers, by taking care, ex aequo et bono, that a " party should not run away with the fruits of the cause without satisfying the legal demands of the attorney by whose industry and expense those fruits were obtained." Bead vs. Dupper, 6 T. R. 361. As this equitable right rests solely upon the compensation due to the attorney for his ser- vices, and money expended in procuring the judgment or the fund secured, it is manifest that it cannot upon principle be extended beyond the services and expenses in the suit itself, or in any other proceedings by which the judgment or fund has been recovered, or in the same subject-matter. The distinction between an attorney's "retaining lien" upon papers in his possession, and his "charging lien" upon a judgment or other fund, is carefully pointed out by the lord chancellor in Bozon vs. Bolland, 4 Myl. & C. 354, 359. " The solicitor's claim upon the fund," he says, " has been called transferring the lien from the document to the fund recovered by its production. But there is no transfer; for the lien upon the deed remains as before, though perhaps of no value; and, whereas, the lien upon the deed could never have been activelyenforced, the lien upon the fund, if established, would give a title to payment out of it. The active lien upon the fund, if it exists at all, is newly created, and the passive lien upon the deed continues as before. If the doctrine contended for were to prevail, the lien of the solicitor upon the fund realized would in most cases extend to his general professional demand, and not be confined, as it always is, to the costs in the cause, for it must very generally happen that the plaintiff's solicitor has in his hands the documents necessary to establish his client's title to the money." In Lanii vs. Church, 4 Madd. 207, the vice-chancellor said that he " had not been able to find any case in which it had been held that a solicitor had any lien on the fund recovered in the cause, except for his costs incurred in such cause." Such is the well-established English practice. Stevens vs. Wes- ton, 3 B. & 0. 538; UodgJcinson vs. Kelly, 1 Hcgan, 388; Hall vs. Laver, 1 Hare, 571, 577; Berkins vs. Bradley, Id. 219, 231; Lucas vs. Beacock, 9 Beav. 177; Stokes, Attys.' Liens, 138. The same Chap. I] In be Wilson & Greiq. C41 principle has been repeatedly affirmed in this country where the English practice of recognizing a lien upon a judgment has been followed. In Phillipps vs. Stagg, 2 Edw. Ch. 108, the vice-chancellor says that " the attorney's lien is not to extend beyond the costs in this action. lie cannot claim the amount of other costs due to him in other suits at law." In Adams vs. Fox, 40 Barb. 442, 448, Morgan, J., says: "Tin's lien is totally different from the lien upon the papers. The lien on the judgment is confined to the costs of the particular suit, and the attorney can actively enforce it. The lien on the papers is merely a right to retain them, and applies to all his bills of costs." In St. John vs. Diefendorf, 12 Wend. 2C1, the precise question presented in this case was decided adversely to the attorney's lien. Having recovered a judgment, the plaintiff's attorneys there gave notice to the defendant to pay the damages, as well as the costs, to them, on the ground that they had a demand against their client for costs in other suits to an amount equal to the damages. The court say: " The question is whether the attorney has a lien upon his client's money before it comes into his hands to satisfy the demand he has against his client for costs in other suits. * * * An attorney has a lien upon his client's papers, but he has no lien upon anything which belongs to his client until it is in his posses- sion. The costs belong to the attorney. There can be no lien upon what belongs to another without possession." Pope vs. Armstrong, 3 Smedes & M. 214; Cage vs. Wilkinson, Id. 223; The Hektograph Co. vs. Fourl, 11 Fed. Eep. 844. The petitioner contends that by the law of this state, as estab- lished by the court of appeals in the case of the Bowling Green Savings Bank vs. Todd, 52 N. Y. 489, affirming 64 Barb. 14G, the lien of an attorney for his general balance, which exists upon all papers and vouchers in his possession, is extended equally to any judgments recovered or moneys collectable upon them. In that case a receiver of the plaintiff was appointed after a decree for the foreclosure of a mortgage had been obtained, but before the sale of the premises. The receiver employed Cullen & McGowan, the previous attorneys of the plaintiff, to proceed in the cause, and they afterwards caused the mortgaged premises to be sold and received tne proceeds, from which they claimed to deduct not only their bill in that action, but also a bill for professional services due 41 642 Cases on Agency. [Book V to them from the plaintiff in other matters preceding the appoint- ment of the receiver, and also a third bill due in McGowan individually for still prior services. At special term both the last named bills were disallowed. The general term, on appeal, allowed the prior bill of the firm, but disallowed the individual claim of McGowan; and this was affirmed by the court of appeals. The court last named say: " The attor- neys of the bank had a lien upon the papers in the foreclosure, not only for the costs and charges in that suit, but for any general balance in other professional business," referring to 3 T. R. 275; 8 East, 362. Neither of those cases, however, sustain the doctrine of a general lien upon a judgment beyond the costs in the par- ticular cause. In the court below, Ingraham, J., says (64 Barb. 135): "Most of the cases in which this lien [upon the judgment] is recognized are cases where the claim was for costs of that particular action in which the motion was made. But the rule is equally well settled as to any claim which the attorney has for his services, and attaches as well to the proceeds of a judgment as to the papers on which the judgment was founded.-" No authorities are cited for this last proposition, nor after much search have I been able to discover any in this country or in England. We have seen that, so far as respects a general lien upon a judgment, or fund in court, the authorities are all to the contrary. Where an attorney has collected money for his client, and no rights of third persons have intervened, through assignment, death, or bankruptcy, he might, doubtless, offset his own general bill. Patrick vs. Hazen, 10 Vt. 184. In the case of the Bowling Green Savings Bank, however, the appointment of a receiver before the collection of the moneys pre- vented any legal right of set off. The moneys were collected by the attorneys upon the employment of, and as the attorneys of, the receiver, as in the case of Schwartz vs. Schwartz, 21 Hun, 33, the monej's were collected upon the employment and as the attor- neys of the assignee. In neither of these cases does the distinction seem to be noted which has been so long established between a mere " retaining lien" upon the papers in the possession of an attorney, which is general but purely passive, and his "charging lien" upon a judgment or fund recovered, which is limited to services in the cause, but capable of being actively enforced. Chap. I] In be Wilson & Geeiq. 643 Numerous prior decisions of the court of appeals have declared, like the English cases, that an attorney's lien upon a judgment is based upon the equitable consideration that it is by the attorney's labor and skill that the judgment has been recovered; the judg- ment being within the control of the court, and the parties within its jurisdiction, the court will see that no injustice is done to its own officers. In Rooney vs. Second Avenue R. Co., 18 N. Y. 373; in Ely vs. Cooke, 28 N. Y. 373; in Dunkin vs. Vandenberg, 1 Paige, 620, and in many other cases, the attorney has upon this ground been regarded as an equitable assignee of the judgment to the extent of his demands in the cause. Prior to the adoption of the Code of Procedure the extent of this lien was limited to the taxable costs. The Code has made no other change than to extend the lien to any agreed or deserved compensation. Marshall vs. Meech, 51 N. Y. 140, 143; Haight vs. Bolcomb, 7 Abb. Pr. 210; AcJcerman vs. AcJc- erman, 14 Abb. Pr. 229. Harris, J., in the case of Rooney, above cited, says that the attorney is now " to be regarded as the equitable assignee of the judgment to the extent of his claim for services in the action." In the same case, Comstock, J., says: "The attorney is entitled to a lien, as against his client, because his labor and skill contributed to the judgment, " * * * and he " has an interest in the judgment either to the amount of those, or for some other amount which he is entitled to claim (by agreement or on the quantum meruit) as the measure of his compensation." In Marshall vs. Meech, 51 N. Y. 143, 10 Am. Rep. 572, the court say that the " attorney has a lien for his costs and compensation upon the judgment recovered by him. Such a lien existed before the Code, and is not affected by any provision of the Code. The lien exists, not only to the extent of the costs entered in the judgment, but for any sum which the client agreed his attorney should have as a compensation for his services. To the amount of such lieu the attorney is to be deemed an equitable assignee of the judgment." In Wright vs. Wright, 70 N. Y. 100, the court say: "The attorney had a lien for the amount of his costs and agreed compen- sation upon the judgment, and to that extent may be regarded as an equitable assignee of the judgment." See, also, Ward vs. Syme, 9 How. Pr. 16. Neither in the decisions nor in the principles announced in any prior cases do I find any warrant for holding that an attorney has 644 Oases on Agexcy. [Book V any lien upon an uncollected judgment beyond his compensation in the particular cause. In the case of Wolfe vs. Lewis, 19 How. (U. S.) 280, a case very closely analogous to that of the Bowling Green Sarings Ba?ik, the attorney had obtained a judgment of foreclosure, but the money due was paid into court without sale. Upon the attorney's claim of a general lien for other services, and an order for payment thereof out of the fund by the court below, the supreme court reversed the order and directed the fund to be paid to the complainants. In a recent case (In re Knapp, 85 N. Y. 284) Danforth, J., says: " The lien of the attorney upon a judgment recovered by him is upheld upon the theory that his services and skill proenred it," (71 N. Y. 443); thus reaffirming the only ground upon which this lien has ever been put, and which, while it explains the reason for the lien, also necessarily limits it to the services and charges in the same action. In the case last cited the same eminent justice adds: "No new rule was enunciated in Bowling Green Savi gs Bank vs. Todd, 52 N. Y. 489, where it was said that the lien of the attorney attaches to the money recovered or collected upon the judgment." As the prior rule was undoubtedly that the lien upon the judg- ment did not extend beyond the costs and compensation in the cause, or in the same subject-matter, and as no new rule was intended to be enunciated in the case of the Bowling Green Savings Bank, it must be understood that the court of appeals did not intend in that case to overrule so many express adjudications that where the moneys have not been reduced to the attorney's actual possession, his lien upon the judgment does not extend beyond the amount of compensation due to him in the particular cause, or in the same subject-matter. In re Paschal, 10 Wall. 496; The General Share T. Co. vs. Chapman, L. It. 1 C. P. Div. 771. In the present case the petitioner never came into possession f the moneys claimed; they were procured by the services of the other attorneys, by legal proceedings subsequent to the date of the petitioner's claim. These subsequent services were n< y to realize anything upon the judgment, and the subsequent attorneys have their own lien apon the judgment and its proceeds for their subsequent services in the cause; and, upon thed< ctrine contended for by the petitioner, they might have a conflicting lien for their own general balance, to the full amount collected, if their bill amounted to so much. Were the doctrine to be recognized that Chap. I ] In ee Wilson & Greig. 645 attorneys have a general lien for all their professional services upon each and every uncollected judgment which they might have obtained in behalf of a client, through an indefinite period, very great confusion and inconvenience would be the necessary result. The petitioner's general bill, in this case, exceeded each of the judg- ments against James Wilson. If one of them only had been col- lected by the subsequent attorneys, the prior equitable assignment to the petitioner, upon the doctrine contended for, would either have entitled him to the entire proceeds, to the exclusion of the subsequent attorneys who might have had greater equitable claims for their services in obtaining the money upon the judgment, or else would compel a further judicial hearing and determination, as between the former and subsequent attorneys, as to the apportion- ment of the proceeds between them. The bill of services which the petitioner now seeks to charge upon the two earlier judgments is, moreover, a bill for obtaining judgments against Hine and Phillips some four months afterwards. How much, if any, of this bill existed in January, 1879, when the judgments against W ilson were recovered, does not appear; and, by the rule that formerly existed, the attorney had no lien, except upon papers in his hands until judgment, or, at least, till a verdict. Sweet vs. Bartlett, 4 Sandf. 661; 3/cCabe vs. Fogg, 60 How. Pr. 488. This latter bill, as it now stands, could not, therefore, have been a lien upon the prior Wilson judgments when they were entered; and if not a lien then, how could it become so afterwards? Neither principle nor authority can sanction an increase in the amount of a lien upon an uncollected judgment through subsequent services in independent matters. Section 66 of the new Code of Procedure, 1879, which gives an attorney " a lien upon his client's cause of action " from its commencement, refers, I think, to his services and charges in the cause itself, and no more, and does not affect the questions here considered. The petitioner's claim to a lien upon the judgments against Wilson must therefore be disallowed. Upon the pending suits, transferred by the petitioner under the agreement, the assignee has collected $144.57. The petitioner had a lien upon these suits and on the papers therein for his general bill, which the agreement has preserved. Those papers were essential to the further prosecution of these suits, and to the recovery of the moneys afterwards collected therein. Upon the authorities above cited {In re Paschal, 10 Wall. 483; In re Broom- 646 Cases on Agency. [Book V head, 5 Dowl. & L. 52, etc., supra) the court would not have ordered those papers to be transferred by the petitioner except upon payment of his general bill, or some security analogous to that of the agreement made. Carver's Case, 7 Nott. & H. 499; Ihslap vs. Metcalfe, 3 Myl. & C. 183; Cane vs. Martin, 2 Beav. 584; The Heliograph Co. vs. Fourl, 11 Fed. Eep. 844. By that agreement this lien must be paid " out of the first moneys collected from those suits." I find a balance of $74.55 collected upon these suits not applied to the petitioner's benefit, and he is, therefore, entitled to that amount. The substitution of attorneys upon the Wilson executions, and the surrender of the notes upon which those judgments were founded, were not necessary, and were of no value in the subsequent collection of those judgments; they were not even clearly embraced in the terms of the agreement between the parties, and, as they were of no beneficial use, the surrender of them cannot now serve as a basis for any claim to a general lien upon the Wilson judgments which did not previously exist. In Eodgins vs. Kelly, 1 Hogan, 388, the court say: "The general lien exists as to the papers and deeds in his (the attorney's) hands, but cannot be extended to the funds in the cause if the plaintiff can obtain payment without his assistance or the use of those papers." The petitioner may have an order for the payment of $74.55, and his disbursments in this proceeding. Note. — In Massachusetts & Southern Construction Co. v. Toxmship of Gill's Creek, et al., 48 Fed. Rep. 145, Mr. Hart, the petitioner, asserted a claim of service of $5,000 for services in 6ix certain cases in the courts of South Carolina, and $1 ,000 for services to be rendered in a pending case in the United States court, and sought to subject to his lien certain bonds known as the Gill's Creek bonds which were involved in the latter case, and which had been assigned to one J. H. Albin who had also been of connsi ! in the cases. Said the court, Simon-ton, J: "There can be no doubt that from an early period courts have always Interfered in securing to attorneys the fruit of their labors, even as .-j_-.iiii.st their own clients. Ex parte Bush, 7 Yin. Abr. f the thing to bo . or ex< 1, and authority to sell or exchange or othem ose of it, for a compensation to be paid by tho owner, or derived from the difpo ition, are essentia] to his character." Chap. IV] Lehman vs. Peitcuett. G95 It follows that, if the cotton had heen stored in plaintiff's name in a warehouse with which defendants had no connection, the instructions to sell would have imposed no duty to obey until the warehouse receipts were delivered, so as to authorize them to demand and receive possession — constructive possession. It is not contended that the cotton was consigned to the defendants, or that it was in their possession; but it is insisted that they had posses- sion, and power to dispose and control it, by reason of their connection with the warehouse in which it was stored. The con- tention is rested on the following facts: The defendants were commission merchants doing business as partners under the firm name of Lehman, Durr & Co. The partners also owned individ- ually the Alabama warehouse, and carried on the warehouse business as partners under the firm name of " The Alabama Ware- house Company." The business and transactions of two partner- ships were kept separate and distinct, but daily reports of the cotton stored in the warehouse were made to Lehman, Durr & Co. The defendants were sued as partners composing the latter firm. In a suit against them as such partners, a recovery cannot be had, founded on a breach of duty and their liability as warehousemen. Each partnership has a distinctive personality, and, for all the purposes of suit, must be regarded the same as if the individual members were different persons. As at common law a bailee may safely restore the subject of bailment, or account for the proceeds thereof to the bailor, when not notified of an adverse right or claim by a stranger, it may be that the defendants having received instructions to sell from the bailor in one of their partner- ship capacities, and having possession and control of the cotton as bailees in the other, it would have been, independent of statute, their duty to obey the instructions. This question, however, we do not decide. The statutes intervene to qualify and restrict the common law right and duty of warehousemen. They provide that warehousemen, on receiving property for safe keeping, shall give a receipt therefor to the person from whom received. Such receipt is made transferable by indorsement, unless the words "not negotiable " are plainly written or stamped thereon; and, if these words are not plainly written or stamped on the receipt, the ware- houseman is prohibited to deliver the property except on the delivery and cancellation of the receipt, unless it has been lost or destroyed. Code 188G, §§ 1174-1178, Without the delivery and cancellation of the receipts, the Alabama Warehouse Company wa3 696 Cases ox Agency. [Book V without right or authority to deliver the cotton to the plaintiff, and equally to, or on the order of, Lehman, Durr & Co., as her agents and commission merchants. The cotton not being con- ed to Lehman, Durr & Co., and the receipts not having been I or delivered, they had no power to acquire possession, man- agement, disposal, or control of the cotton, and, if they had sold it, could not have safely delivered it to the vendee. Even if the warehouse business had been carried on by Lehman, Durr & Co., as a branch and part of their partnership business, and not by a different partnership and under a different name, they could not, as warehousemen, have rightly and safely delivered the cotton except on delivery and cancellation of the receipts. They might, at their option, have sold it, and incurred the risk of the receipts having been transferred, and of liability to the transferee; but the law does not devolve the duty to sell, in contravention of its pro- visions, until the receipts are delivered to them as commission merchants. To fasten on them a liability for a breach of their duty as commission merchants there must be something which is an equivalent of a consignment or delivery of the cotton for sale. The court also instructed the jury that the d< ints, if liable, were liable for the value of the cotton. The warehouse, with the cotton, was burned March 10, 18S6. It is undisputed that the lire was accidental, and was not caused by an] I ace of the defendants, or of the Alabama Warehouse Company. There are classes of cases in which it was ruled that the defendant was liable for the value of the property, though it may have been destroyed by some subsequent accident with which the act of the defendant had no legal connection. In such cases, so far as our examination has extended, the liability was rested on the character in which the defendant was acting, or some act done, by which responsibility for the value of the a incurred before its destruction; such as that he'was a common carrier, and an insurer against such . as in Ra d Co. vs. McUuirc, . 31 ' 5, or he had interfered with the property so as to constitute, his aei a conversion, i to authorize the plaintifl to elect to treat the property as the hint's, and claim payment therefor. If it be conceded ity <t(iuber, 1SS4.J Plaintiffs sued defendants on a note on open account. Defend- ants introduced evidence to show that they obtained a loan from plaintiffs and shipped them two lots of cotton; the first lot they instructed plaint;.'.'.^ to sample and put on the market, and pay the note with the proceeds; they wrote plaintiffs to hold second lot for ructions; both of these instructions were violated; the cot was sold when the price had depreciated, and the proceeds were Lited on the account. Defendants claimed that the note was paid, and also claimed a. recoupment for the difference between wlr.it I! ton brOl Qd What it would have brought if the OS had i d. Plaintiffs asserl had sold the first lot of cotton as d as they could, ami credited the pri on the account, admitted that they sold the second lot contrary to instruo- Ohap. IV] Hatches vs. Comee. 699 tions, but insisted that, having advanced money on the cotton, they had a right to sell, such being the custom in Savannah, where they lived. They also showed promises to pay made by defendants. The jury found for the plaintiffs. S. B. Hatcher, E. G. Simmons, W. A. Little, for plaintiffs in error. Denmark & Adams, J. M. Dupree, W. H. Fish, W. L. S. Gignilliat, for defendants. Blandfoed, J. Comer & Company brought their action against Hatcher & Baldwin upon a promissory note for $1,038.90, dated May 30, 1878, and due October the 15th thereafter; also upon an account for $70.83. The defendants pleaded payment of the note and recoupment as to the whole. Upon the trial of the case, defendants introduced a letter in evidence from themselves to the plaintiffs, dated 17th October, 1878, in which they stated that they had shipped to plaintiffs forty-five bales of cotton, and instructed plaintiffs to sample rani put the cotton on the market, and with the proceeds to pay their note. They also showed from plaintiffs' books that the cotton was sold and realized some thirteen hundred dollars, which was placed as a credit on the account of defendants, which account consisted of several items besides the note sued on. Defendants introduced evidence to show that if the cotton had been sold according to instructions contained in their letter, it would have realized eighteen hundred dollars, more than sufficient to have paid their note and the account. Plaintiffs in error insist here that, under these facts, the note is paid off, and the damage which they sustained by reason of the failure of the defendants in error to obey their instructions was more than sufficient to extinguish the account, and that this should be allowed them by way of recoupment. The defendants in error contend that, by the custom of mer- chants which obtains in Savanah, as they had advanced plaintiffs in error on the cotton, they were not bound to obey the instructions of the plaintiffs in error, but might hold this cotton and sell in their discretion. " Peculiar confidence being reposed in a factor, he may, in the absence of instructions, exercise his discretion, according to the general usages of the trade." Code, sec. 2111. "The primary obligation of an agent or factor, whose authority is limited by 700 Cases on Agency. [Book V instruction?, is to adhere faithfully to those instructions, for if he mi!: exceed his commission, or risk his principal's effects without authority, he renders himself responsible for the con- of his act; and if loss ensue, it furnishes no defense to he intended to benefit his principal." 12 Ga. 205. We take it that these principles thus enunciated are the law of this state, and whatever particular customs there may be prevailing in the city of Savanah, they must give way to the law. If the instructions were given by plaintiffs in error to the defendants, as . sted on by them, and in this the record sufficiently sustains them, then the court below should have instructed the jury as they prayed, so as to give them the benefit of the law thus laid down, and it was error to have refused the request on this point. Whatever damage the plaintiffs in error may have sustained by the failure of the defendants in error to sell the cotton as instructed, they had the right to recoup against the claim of defendants in error; and the court erred in refusing the requests of intifTs in error on this point. If it be true, as contended for by the plaintiffs in error, that they shipped to defendants in error forty-five bales of cotton, with jell the cotton and pay the note sued on,, and if defend- er did sell the cotton, and it brought enough money to off i he note, then this was an extinguishment of this debt, fondants in error could not recover upon it. The court ve so instructed the jury, and it was error to have refused ;ction. Code, sec. 2809. Pritchurd vs. Comer, 71 Ga. . i ; 5V hi., 450; 34 Id. 558; 27 Id. 47; 30 Id. 857; 45 Id. '1 be principles hero announced will we think, be sufficient to ia ca^u upon another trial. Judgment roversed. I Minnesota, 214, 1 Am. St. Rep. 063.) DAVIS vs. KOBE. (Supreme Court of Minnetota, Deceviber, 1SS8.J Q06 of account for disbursements, charges, t consigned by the defendant Chap. IV ] Davis vs. Kobb. 701 to the plaintiff at Duluth, and which had heen sold by the latter, some of it against the defendant's instructions. The plaintiff had a verdict, and the defendant appealed from an order refusing a new trial. Other facts are stated in the opinion. Bruchart and Reynolds, for the appellant. W. W. Billson, for the respondent. By court, Dickinson, J. A factor or commission merchant, to whom wheat is consigned for storage in an elevator, not a private warehouse, and for sale, may store it in a mass in a bin with other wheat of the same grade and quality, in the absence of instructions from the consignor to the contrary. It has become a matter of common knowledge that such is the customary manner of storing wheat in our general commercial elevators, and of this the courts should not affect ignorance, but should take judicial notice without proof. The fact that the wheat is of the grade known as " condemned " creates no exception to the rule. There was therefore no error in that part of the charge of the court refer- red to in the appellant's first assignment. The court did not err in instructing the jury that if the consignor shipped this grain to his factor at Duluth to be sold there, and the grade at Duluth was not as good as at the place of shipment, the consignor must bear the loss, in the absence of special instructions to his factor. This was only saying, in other words, that the factor, in executing his agency by selling in the Duluth market, would not be responsible to his principal in respect to the grades estab- lished at that place. The principal assumed the risk of that when he selected his market. The court properly instructed the jury that the factor was justi- fied in selling the wheat, notwithstanding the request of the prin- cipal to hold it longer. Ordinarily, the agent would be bound to obey the instructions of his principal as to the time of selling. But it was shown that the factor had made large advances to his princi- pal upon this wheat; that the grain was of doubtful sufficiency as security for what was due to the factor on account thereof; that the factor had repeatedly demanded repayment of his advances, or security for the same, as a condition of his continuing to hold the wheat, notifying his principal that he should sell if his demand was not complied with; and that, although reasonable notice had been given, the principal had neglected to reimburse or secure the a^ent. Under such circumstances, the factor had a right, acting Cases on Agency. [Book V in good faith, and with reasonable discretion, with regard both to the reimbursement of himself and the interest of his principal, to sell the property. Brown vs. McGran, 11 Pet. 479; Feild vs. Farrington, 10 Wall. 1-11; 1'arlcr vs. Brancher, 22 Pick. 40. From what has already been said it follows that the charge was correct, that if there were no special instructions as to a separate storage of the grain, and if it sold for a fair price, the verdict should be for plaintiff. In other words, the factor being justified in selling and having Bold for a fair price, the principal is not, because of such sale, entitled to recover against the factor. Order affirmed. III. LIABILITY TO ACCOUNT TO PRINCIPAL. (24 Wendell, 203.) COOLEY vs. BETTS. (Supreme Court of New York, May, 18Jfi.) Betts sued Cooley and Bangs in the common pleas, and declared on the common counts in assumpsit for goods sold, money had and received, etc. The declaration also contained a special count that in consideration that the plaintiff would deliver divers goods, wares and merchandise to the defendants, to be sold by them for him, they undertook to sell the same, and to render a true and just account of the sale and of the proceeds when they should bo reunto afterwards requested. The plaintiff then averred a delivery of tho goods to the defendant-:, a sale 1>\ . and a ■if st to account and pay over, and for breach alleged that the defendants bad not r< i I an account of the gooda or of the moneys arising from the Bale. Tl ere was a second BpeciaJ count, similar to the first. The defendants pleaded oon-assumpsit as to all but $28.98, and as to that a tender. The tender was admitted in the replication. On the trial in I I mmon PI • plaintiff proved that in March, L837, he ent a qnantity of hooks which cost $419.16, to defendants, to he sold at auction, aid that the defendants dur- ing the same month told the books, Upon this proof ho rested. Chap. IV] Cooley vs. Betts. 703 The action was commenced in October, 1837. The defendants moved for a non-suit on the grounds: 1. That no demand of an account or request for a settlement had been shown; and, 2. That there was no proof for the amount for which the goods sold. The motion was denied, and the defendants excepted. In the further progress of the trial, the defendants showed that the proceeds of the plaintiff's goods on the sale were $210.07. A verdict having passed against the defendants, they sued out a writ of error. Willis Ball, (Attorney General,) for the plaintiffs in error. R. Lockwood, for the defendants in error. By the court, Bronsok, J. In the absence of any express stipulation between the parties, the law will imply a promise by a factor, bailiff or other agent to render an account to his principal ; but it seems not to be fully settled whether the agent will be deemed in default after the lapse of what may be considered a reasonable time, or whether he must be plainly put in the wrong, by showing a demand before suit brought. So far as relates to the two special counts, it is not necessary to decide this question, for the plaintiff has not declared on a promise to account within a reasonable time, but on a promise to account on request; and a special request is alleged in stating the breach. The plaintiff has put his own construction upon the contract, and if we should think him mistaken, and that he might have recovered in another form of declaring, I do not see how we can help him out of the difficulty. In the language of Best, 0. J., in Elborn vs. Upjohn, 1 Carr. & Payne, 572, the plaintiff has tied himself down to a particular averment, which he is bound to prove. But as the declaration also contains the money counts, the ques- tion is presented in another form. In relation to those counts, I may remark that it does not appear whether the factors were to sell for cash or on credit, nor whether they have received the money. But if we assume that the sale was for cash, and that the money was paid, I still think the plaintiff cannot recover without showing a demand, or instructions to remit. The action is founded on a supposed breach of trust, which must be made out affirma- tively before the agent can be charged. In Buller's N. P. 148, it is said that where indebitatus assumpsit is brought for money received ad computandum, it is necessary to prove a misapplication, or breach of trust; for if a man receives money to a special purpose, it is not to be demanded of the party as 704 Cases on Agency. [Book V a duty till he have neglected it, or refused to apply it according to the trust. He cites roulter vs. Cornwall, 1 Salk. 9, where the money was received ad computandum, and on motion in arrest of judgment, the court said it must be intended, after verdict, that there was proof to the jury that the defendant refused to account, or had done somewhat else that rendered him an absolute debtor. In Ferris vs. Paris and others, 10 Johns. B. 285, the defendants were foreign factors, and had rendered an account of the goods which had been consigned to them for sale. It was held that an action against them for the proceeds of the goods would not lie, until they were shown to be in default, by proving a demand, or an im- proper disregard of instructions to remit the money. In Taylor vs. Bates, 5 Cowen, 376,' it was held that an action would not lie against an attorney for money collected for his client, until after a demand, or a request to remit. WoODWOBTH, J., said, the contrary doc- trine would be in opposition to the nature of the defendant's trust, as well as against justice and good faith. The same point was adjudged in Rathbun vs. Ingalls, 7 Wendell, 320, where the plaint- ill was non-suited, although several years had elapsed between the time of collecting the money and the bringing of the action. In Topham vs. Br add id, 1 Taunt. 572, the defendant was a foreign factor, see p. 104, and it was held that no action would lie for not rendering an account of the goods consigned to him for sale, until there had been a demand by the principal; and, consequently, that the statute of limitations did not commence running when the goods were 6old, but on a demand made. In Massachusetts, the rule seems to be that a request is not nec- essary in the case of a foreign factor, on account of the great inconvenience and embarrassment to trade which would follow, if the merchant was obliged to send abroad to make a demand; and, in general, the factor to whom goods have been consigned for sale, is liable to an action without Bhowing a re* if he neglect to ier an account within a reasonable time; but if he has rendered an account at the proper time, an action for the proceeds of the goods will not lie without a demand, unless it appears from the course of b Bthat the factor was to remit without instructions. Clark vs. Moody, IT Mass. II. l 15; Langley vs. Sturtevant, 7 Pick. 214; Dodge vs. Pt , 9 Id. I [ do not understand th oting with thi action for money had and red to the plan i withoutahow- Ing either a demand, or instrt] remit; or, that, according Chap. IV ] Cooley vs. Betts. 705 to the course of this business, it was the duty of the defendants to remit without instructions, neither of which facts were proved in this case. Whether the distinction taken in the Massachusetts cases in relation to foreign factors rests on a solid foundation, we need not now consider; for it does not appear in this case but that both parties reside in the same state. But I cannot forbear to remark that the inconvenience of sending abroad to make a demand cannot alter the nature of the factor's trust; and if other agents are not in default until after a request, I can see no principle which will sub- ject the foreign factor to an action without a demand. In Ferris vs. Paris, 10 Johns. R. 285, and in Topham vs. BraddicJc, 1 Taunt. 572, the defendants were foreign factors, and in both cases a demand by the principal was held to be necessary. I am not disposed to deny that there may be a sound distinction between an action for not accounting, and an action for not paying over the proceeds of the goods. It is the duty of an agent to render an account of his transactions to his principal within a rea- sonable time, and when it appears that he has neglected to do so, an action for not accounting may, perhaps, be maintained without a demand. But here there was no evidence to show that the defendants had not rendered an account. And besides, the action is for not paying over the proceeds of the goods — the special counts being laid out of the case — and in such an action it is necessary to show a demand, or instructions to remit. After a great lapse of time, and when nothing appears to the contrary, it may be presumed not only that there has been a demand by the principal, but that an account has been rendered and settled by the agent. Topham vs. BraddicJc, 1 Taunt. 572. But that doctrine obviously proves too much for the plaintiff's case. In the absence of any direct evidence on the subject, there is, at the least, as much reason for presuming that the defendants have faithfully discharged their trust as there is for presuming them guilty of a culpable neglect of duty; and if we presume a demand by the plaintiff, we must presume also an account and payment of the proceeds by the defendants. The defendants offered a set-off for other goods purchased by the plaintiff at the same auction, which was called a " trade's sale;" but the case is defective on this point, in not stating that any question was made and exception taken after the proof came out 45 706 Cases on Agency. [Book V that a part of those goods had been delivered. On another trial, it may be difficult for the plaintiff to distinguish the case from that of Mills vs. Runt, 17 Wendell, 333. But the judgment must be reversed on the other ground. Judgment reversed. o Note. — See Jett vs. Hempstead, ante, p. 495. (33 Maryland, 412, 3 Am. Rep. 190.) LEWIS BEOTHEBS & CO. vs. BREIIME. (Court of Appeals of Maryland, October, 1S70.J Defendant Brehme was the factor of plaintiffs rind sold goods for them to one Akers, and guaranteed the payment in gold or its equivalent. Akers paid Brehme and the latter deposited the money in bank, and two days later bought a gold draft on a New York bank, payable to his own order, for the amount and also an additional amount which he owed plaintiffs, and indorsed the draft to plaintiffs and sent it to them at Philadelphia. Plaintiff a received it the next day and at once sent it to New York for collection. Here it was dishonored, of which fact plaintiffs were notified, and they at once gave notice to Brehme. The drawing bank had failed. Brehme endeavored to obtain payment from it, and not succeeding was made a preferred creditor in an assignment subse- quently made by the bank. This action was brought to recover the amount from Brehme. Judgment for defendant and plaintiffs appealed. Win. F. Prick, for appellants. Wm. A. FUher and Charles Marshall, for appellees. Ai.vi'Y, J. It is conceded in this case that the defendant was the agent of the plaintiffs for the sale of goods, ami that, in addi- tion bo the commission allowed the defendant as ordinary agent, an additional commission was agreed to bo allowed, and wan actually allowed, for and in consideration of tho defendant's I ranty of pi i purchased of the plain! bj a certain Customer, Who Was, through the agency of the defend- Chap. IV] Lewis Bbothebs & Co. vs. Bbehme. 707 ant, induced to deal with the plaintiffs, merchants in Philadelphia, and such additional commission was to be paid whether the pur- chases were made by the particular customer directly of the plaintiffs, or through the defendant as their agent. The customer having purchased goods of the plaintiffs, and paid for them to the defendant, the agent, and the money having been lost in the manner disclosed in the evidence, and stated in the prayers of the respective parties, the question is, upon whom is that loss to fall? It is insisted on the part of the plaintiffs that the defendant, being an agent, acting under a del credere commission, is bound to pay, not conditionally, but absolutely, as if he were himself the vendee of the goods; and that, consequently, he did not discharge his liability by the purchase and transmission of the gold draft of the 27th of April, 18G6. And even if the liability of the defend- ant, by reason of the del credere commission, be not maintained to the extent contended for, still, the plaintiffs insist that as ordinary agent, whose duty it was to remit funds to his principal, the defendant having procured the draft payable to his own order, and indorsed it to the plaintiffs without excluding recourse, is under all the circumstances attending the transaction, liable as indorser, the drawer having failed, and the draft meeting with dishonor. On the other hand, the defendant contends that his relation to the plaintiffs was not that of a del credere agent or factor strictly speaking; but that if he be so regarded, the guaranty, in considera- tion of the commission, only extends to the payment of the money for the goods by the vendee, and not to its safe transmission to the vendor; and that, consequently, the guaranty was gratified and dis- charged when the money was paid by the purchaser to the defend- ant as the plaintiffs' agent. He also contends that he is not liable as indorser of the draft transmitted, because of the relation of principal and agent existing at the time between the plaintiffs and himself, in reference to which the draft was purchased, and that, acting for the convenience of the plaintiffs, he can only be held responsible for good faith and ordinary dilligence. These positions of the parties were sought to be maintained by them at the trial in the court below, and with that view they pro- pounded prayers for instruction to the jury; but the court reject- ing those of the plaintiffs, and granting those offered by the defendant, the plaintiffs have brought those rulings to this court for review, and whether they be correct or otherwise, according to our judgment, will appear in the sequel of this opinion. 7u8 Cases on Agency. [Book V We cannot resist the conclusion that the defendant was, at the time of the transaction involved in this controversy, strictly a del credere agent of the plaintiffs; although the nature and extent of the obligations imposed upon such an agent has been variously stated, and, in regard to it, down even to the present time, no little con- flict will be found to exist among judges and authors of the highest repute. On the one hand there are those who maintain that an agent del credere for the sale of goods makes himself absolutely and in the first instance liable to his principal for the price of the goods sold; while on the other hand it has been strongly maintained that such an agent only incurs a secondary responsibility, that of mere surety, whereby he can be required to pay only in the event of failure on the part of the principal debtor. And some of the authorities have gone to the extreme of maintaining that the undertaking of the agent, under a del credere commission, is a mcro guaranty of the debt of another, and, therefore, within the statute of frauds. Which of these positions is correct depends to a great extent upon the state of the authorities, the question never having been finally adjudicated in this State. Whenever an agent, in consideration of additional commission, such as was agreed to be allowed in this case, guaranties to his prin- cipal the payment of debts that become due through his agency, he is said to act under a del credere commission. What, then, is the nature and extent of this guaranty? In (J rove vs. Dubois, 1 T. R. 112, a case of a policy broker, Lord Mansfield answered this question in very plain and unqualified terms when he said, "It is an absolute engagement to the principal from the broker, and makes him liable in the first instance. There is no occasion for the principal to communicate with the underwriter, though the law allows the principal for his benefit, to resort to him as oollafc security. But the broker is liable at all events." In this Mr. Justice Bullbb concurred, and said that he had known many actions to have been brought against brokers with :i commissi in del credere, and that ho had never beard any inqi try made in such caeca, whether there had been a previous demand upon the an writer and a refusal; and he declared that snch wi I the prac- tice. Thus ihowi l to the opinions <>f these e judges, that the obi ' of such undertaking was primary and absolute in its character, and that tl asstand- iug in the relation to l i pi it pal of jm original d< btor. Chap. IV ] Lewis Brothers & Co. vs. Brehme. 709 Ten years after the case of Grove vs. Dubois, the case of Mackenzie vs. Scott, 6 Bro. P. C. 280, occurred in the house of lords, on an appeal from the court of sessions in Scotland. That case was very analogous in its circumstances to the one before us. There, a factor, under a commission del credere, sold goods and took accepted bills from the purchasers, which he indorsed to a banker at the place of sale, and received the banker's bill for the amount, payable to his, the factor's, own order, on a house in London. This banker's bill the factor indorsed and transmitted to his principal, who got the same accepted. The acceptors and drawer having failed before payment, it was held, according to the head note of the case, that the factor was answerable for the amount of the bill, being personally liable under his commission del credere, to satisfy his principal the price of the goods sold. It was insisted, in that case, as it has been in this, that the del credere obligation extended only to guaranteeing the payment of the price of the goods by the vendee, and that the remittance of the money by the factor was a transaction entirely different and distinct. But, if the uniform interpretation of that case be cor- rect (there being no reason assigned for the judgment given), the the argument in that respect did not avail; and, in view of the law as it has been announced in Grove vs. Dubois* it is not diffi- cult to perceive upon what ground that decision was based. And afterwards, in 1803, the same general proposition was again point- edly asserted as the law of England in the case of Houghton vs. Matthews, 3 Bos. & Pull. 489. By these decisions the law was regarded as settled in England, until about the year 1816; and all the text-writers, and authors of the elementary treatises upon the subject of commercial contracts before that time laid it down, as the unquestionable law, that an agent, acting under a commission del credere, was bound to his principal in the first instance and as an original debtor. The law will be found so stated by Livermore, in his work on Agency, 409, 410; Paley on Agency, 40; Comyn on Contracts, vol. 1, 253; and Chitty in his work on Common Law, vol. 3, 222. But it is said that the cases to which we have referred do not now announce the law as accepted in England, and we are referred to the case of Morris vs. Cleasby, 4 Maule & Selw. 506, decided in 1816, and the cases following on its authority, to show how the rule has been qualified if not entirely changed. It is true, in the case of Morris vs. Cleasby, Lord Ellenborough 710 Cases on Agency. [Book V did express a decided dissent from the principle announced in the preyi ions, both as to the nature and scope of the del credere obligation. He said that the guarantor, in consideration of the commission, is only to answer for the solvency of the vendee, and to pay the money if the vendee does not; and that, on the failure of the vendee, the agent is to stand in his place and make his default good, thus clearly placing the agent in the position of mere surety to the purchaser of the goods. And if such be the true nature and character of the contract, seeing that it is entirely collateral and secondary, it is difficult to perceive how it can escape the operation of the statute of frauds. Be that, however, as it may, the decision of Lord Ellenborough was sanctioned by the case of Peele vs. Korthcote, 7 Taunt. 478, and also impliedly sanc- tioned by the case of Gall vs. Cornier, 7 Taunt. 558, in the common pleas. And from the time of these last decisions until very recentlv, all the treatises on commercial contracts have stated the law in accordance with the opinion of Lord Ellenbokough, taking the doctrine of Lord Mansfield to have been overruled. It is so stated in Chitty on Contracts; Russell on the Law Relating to Factors and Brokers; Smith's Commercial Law, and in other works treating of the subject. Nor has there been uniformity of decision on the subject in the courts of this country, though we think the decided weight of authority is in support of the doctrine as announced in Grove vs. Dubois. In the case of Thompson vs. Perkins, 3 Mason C. C. 232, before Judge Stouy, in 1823, the principle of Grove vs. Dubois was repudiate d as being incorrect, and that of Morris vs. Cleasby sanctioned; though the facts of the case do not appear to have required a distinct ruling upon the particular question now presented. It was an action of assumpsit by the principal against the i >r del credere who had sold the goods of his principal and taken aegotiable notes, payable on time, in his own name, for the amount of sales; and afterward, and before the notes became due, the factor failed, and assigned the notes to his assignee for the benefit of his creditors, and the assignee afterward receiving the money dne on the notes, it was held that the principal was entitled to r the monej bo received from th suhj' ot to a deduction of the amount of the lien of the factor fur his commi and ol Upon such state of facts, it is clear the right to recover was equally the result of tl ! Lord .Manmii.i.d M that of Chan. IV] Lewis Brothers & Co. vs. Brehme. 711 Lord Ellenborough. All the cases concede it to be the right of the principal to forbid payment to the agent, and to maintain an action himself against the buyer to recover the price of the goods; or to pursue his goods, or the notes taken for them, into the hands of third parties, precisely as if no del credere contract existed. And though such right in the principal would seem to consist only with a collateral undertaking by the agent, yet, in the contract del credere, being sui generis, it is held in nowise to change the original and independent character of the agent's undertaking to his principal. In the case of Swan vs. Nesmith, 7 Pick. 220, 19 Am. Dec. 282 occuring a few years after the case in 3 Mason, the supreme court of Massachusetts decided that the legal effect of a commission del credere was to make the agent liable at all events for the proceeds of the sale, so that he might be charged in indebitatus assumpsit, as for goods sold to him. There the contract was admitted to be original and not collateral, and therefore not within the statute of frauds; and the necessary conclusion is, that the court intended fully to sanction the principal of Grove vs. Dubois, to which, and the case of Mackenzie vs. Scott, they refer for the definition of the nature of the commission del credere. And so in New York, the same principle is established, as will be seen by reference to Wolff vs. Eoppel, 5 Hill, 458, and same case on appeal, 2 Denio, 3G8, 43 Am. Dec. 75, and Sherwood vs. Stone, 14 N. Y. 267. The two last cases, being in the court of last resort, fully approve and adopt, so far as we can discover from the opinions delivered, the principle of the case of Grove vs. Dubois and Mackenzie vs. Scott. Judge Story, however, in his work on Agency, section 215, adopting his own view of the law as found in Thompson vs. Perkins, supported by Morris vs. Cleasby, and the cases in the common pleas, says, that the true engagement of the agent del credere is merely to pay the debt, if it is not punctually discharged by the buyer. That, in legal effect, he warrants or guarantees the debt; and thus he stands more in the character of a surety for the debt than as a debtor. And the principle is so stated in other American treatises. But, with all due deference to the high authority of Judge Story, we think the decided weight of authority is against his position. In England the question has been recently under discussion and re-examination, the result of which is quite at variance with the doctrine laid down in Morris vs. Cleasby. In Couturier vs. Das- 712 Cases ox Agency. [Book V tie, 8 Exch. 39, the action was brought by the principal against his factor who, on commission del credere, had sold a cargo of corn, and the purchaser refusing to comply with the contract on insuf- ficient grounds, and afterwards becoming bankrupt, the question was whether the factor was liable for the non-fulfillment of the contract, by reason of his del credere commission, there being no guarantee in writing; and the court held the factor liable, not regarding the undertaking as one simply to pay the debt of another, within the 4th section of the statute of frauds; and the decision in Wolff vs. Ecppcl, 5 Hill, 458, was referred to and adopted as containing sound law upon the subject. And in the more recent case of Wick-ham vs. R ickham, 2 Kay & John. 478, Sir Wm. Page Wood, then the vice-chancellor, and at present the lord chancellor of England, in referring to the case of Couturier vs. Hastie, as authority, said: " When I look at the whole of that case, and consider the rea- sons given by the judges in delivering their judgments, though given very cautiously and guardedly, I cannot but conclude that they considered that an agent entering into contract in the nature of a del credere agency, entered in effect into a new substantial ag ment with the person whose agency he undertook; that the agree- ment so entered into by him was not a simple guarantee, but a dis- tinct and positive undertaking on his part, on which he would become primarily liable. Otherwise, I cannot see how the learned judges could arrive at the conclusion that the undertaking was not within the statute of frauds. " Supposing this to be the correct conclusion deducible from the present state of the authorities, of which we have no doubt, the contract being distinct and positive, rendering the agent pri- marily liable, it necessarily follows that the agent stands in no such relation to his principal as that of mere surety for the price <»f the goods sold. His relation to his principal is that of debtor as well as agent; and being so, the legal consequences of the debtor relation must follow. Indeed, it was conceded in the case of Lever- ick vs. Meigs, 1 Cow. C45, where the liability of such an agent "iiiptei] to bo restricted, that if by the en; ent the une a debtor absolutely, aa if he were himself the pur- oha would bo bound for the remittance of the mom y, as well as for its j .; i _. the buyer. "This arise.- from the general principle, that the debtor is bound to make payment to his creditor, and consequently, if he remits a bill which turns out of Chap. IV ] Lewis Beothees & Co. vs. Beehme. 713 no avail, it is no payment. It does not discharge a precedent debt, unless it be so expressly agreed between the parties." (1 Salk. 124; 2 Johns. Cas. 441; Qlenn vs. Smith, 2 Gill & John*. 493, 20 Am. Dec. 452); or unless the creditor parts with the bill, or is guilty of laches, to the prejudice of the debtor, in not present- ing it for acceptance or payment in due time. Of course, the agent, acting under a commission del credere, where the goods have been sold on an authorized credit, cannot be required to account to his principal before the expiration of the credit given to the buyer. And if the money which comes into his hands be remitted under special instructions from the principal, then it will be at the risk of the latter, provided the instructions are observed with proper caution and diligence on the part of the agent. But, in this case, it is not pretended that there were any special instructions in regard to the manner of remitting the money received by the defendant. The remittance therefore was at his risk, as it would be of any other debtor remitting funds to die charge a debt due by him. Such being our view in regard to the liability of the defendant as an agent, acting under a commission del credere, we are of opinion that there was error committed by the court below in refus- ing to grant the first prayer of the plaintiffs, which was intended to present the case as within the principle of Grove vs. Dubois and Mackenzie vs. Scott, and particularly the latter, to which this case bears a strong analogy. But as it has been earnestly contended in argument that the con- tract del credere only extends to the payment of the price of the goods, and not to the remittance of the money to the principal, and the court below having so instructed the jury, let us examine the case briefly upon that supposition, in order to determine whether the defendant be not liable, as indorser of the gold draft trans- mitted to the plaintiff. The defendant, upon collecting the amount due from Akers, placed the money in his own account with his bankers, and pur- chased of them the gold draft, that was afterward dishonored, by a cheek on his account. This draft he caused to be made payable to his own order, without reference to his character as agent, and after indorsing it to the plaintiffs, or their order, it was trausmitted to them to pay, not only the price of the goods sold to Akers, but a balance due from the defendant himself. The draft proving worthless, and having been purchased without special directions, 714 Cases on Agency. [Bel: V what is the liability of the defendant by reason of his unqualified indorsement? Judge Story, in his work on Agency, section 157, states the rule as an unqualified one, that an agent, though known as such, who indorses a bill or note generally, makes himself personally responsible; " for, in such a case, although he is a known agent, the making, or accepting, or indorsing of an instrument, is treated as an admission that it is his personal act, not only in respect to third persons, but also in respect to his principal." And for this proposition, as stated, he cites many respectable authori- ties. So Chitty, in his work on Bills, on page 46, states the same general principle, and says: "If a person employed by the plaintiff to purchase bills for him, obtain them payable to himself and indorses them generally, he will be liable upon that indorsement, even to his own employer, although he had no guarantee commis- sion;" and the court in deciding one of the cases referred to, observed that the defendant might have specially indorsed the bill sa/>s recours, and not having thought fit to do so, he was personally liable. And for other authorities, supporting the same general proposition, see Smith on Mercantile Law, lC-i; Russell on Brokers and Factors, 2G3, 26±; Parsons on Notes and Bills, 102. Notwithstanding, however, the rule is thus generally and unqualifiedly stated, we think, on the more recent authorities, it is not to be applied, as between the principal and agent themselves, without some limitation. The indorsement, of course, if unquali- fied, is to be taken as importing prima facie liability on the part of the agent, lie should be allowed to show, however, as matter of defense, that it was not the intention that he should be personally charged by his indorsement, and if there be no intention to create personal liability, none will exist as between himself and his principal. Whether 6uch intention exists will, in all cases, depend upon the circumstances of the fan ion. But, as was said by Mr. Chief Justice Tilciiman, in Mills vs. O'Hara, 1 S. & It. 32, the circumstances should be char and strong, to take off the pre- sumption which arises from the indorsement. Seo tho case of Caxtri'juo vs. Balti:r vs. McQuire, '•■ GE' (See Nbootiablb Instruments.) how compares with laborer: R akefleld vs. largo, 4. OOOl> FAITH, (BeeFi vrr; Ftououby i.vl.vtionb.) agent buuud to act in: 1'age vs. Wells, 493. Index. 733 GOVERNMENT CONTRACTS, agreements to procure: Elkhart County Lodge vs. Crary, 18. GRATUITOUS AGENT, must obey instructions: Passano vs. Acosta, 490. must not be negligent: Nixon vs. Bogin, 492. HIRING HORSES, implied power of selling agent for: Huntley vs. Mathias, 408. HOLDING OUT, (See Implied Authority.) principal bound by authority be holds agent out as possessing: Bick~ ford vs. Menier, 93; Johnson vs. Hurley, 84; Breckenridge vs. Lewis, 103. HUSBAND, may appoint wife his agent: Cox vs. Hoffman, 89. may be agent of his wife: Weisbrod vs. By. Co., 81; McLaren vs. Hall, 77. liability for wife's acts: Cox vs. Hoffman, 79; Benjamin vs. Dockham, 71 ; Benjamin vs. Benjamin. 72. HUSBAND AND WIFE, See Husband; Wife; Married Woman. IMPLIED AUTHORITY, (See Apparent Authority.) from acts of principal: Craves vs. Horton, 82; Johnson vs Hurley, 84; Crane vs. Cruenewald, 87; Bickford vs. Menier, 93. of husband as wife's agent: McLaren vs. Hall, 77. of wife for husband: Benjamin vs. Dockham, 71; Benjamin vs. Benjamin, 72. of child for parent: Johnson vs. Stone, 78; Bennett vs. Gillette, 79. IMPLIED POWER, authority includes power to do all things necessary to make chief power effectual: Wheeler vs. McQuire, 362; Huntley vs. Mathias, 408. IMPUTING KNOWLEDGE, See Notice to Agent. INCIDENTAL POWERS, (See Implied Power.) pass with main power: Wheeler vs. McQuire, 362; Huntley vs. Mathias, 408. INDEMNITY, agent entitled to from principal: UArcy vs. Lyle, 542. INDORSEMENT, (See Endorse.) by agent when remitting to principal imposes what liability: Lewis vs. Brehme, 706. INFANCY, (See Infant.) incapacitates as principal: Trueblood vs. Trueblood, 29. but not as agent: Lyon vs. Kent, 37. defense of, cannot be set up by third person: Patterson vs. Lippincott, 507. INFANT, as principal: Trueblood vs. Trueblood, 29. 734 LtfDBX. Infant— Continued. as agent: Lyon vs. Kent. 87. ratification by: Trueblood vs. Trueblood, 29; Patterson vs. IAppincott, 507. liability of his principal: Patterson vs. Lippincott, 507. Liability of infant: id. ratification by: Id. ratification by: Trueblood vs. Trueblood, 29; Patterson vs. Lippincott, 607. INJUNCTION, against violation of contract to serve: Cort vs. Lassard, 318. INSANITY, terminates agency: Matthiessen vs. McMahon, 835. INSTALLMENTS, when wages may be recovered in: Liddell vs. Chidester, 535. INSTRUCTIONS (See Secret Limitations), effect of in limiting apparent authority: Butler vs. Maples, 340; Hatch vs. Taylor, 345; Bryant rs. Moore, 355. duty of agent to obey; Whitney vs. Express Co., 484; Hazard vs. Spears, 182; Lavcrty vs. Sncthen, 48G; Passano vs. Acosta, 490. agent liable for damages resulting from disobedience: Id. to agent, breach of how ratified: Bank of Owensboro vs. Western Bank, 206; Hazard vs. Spears, 182. when factor bound to follow: Phillips vs. Moir, 671; Talcott vs. Chew, 689; Lehman vs. Pritchett, 693; Hatcher vs. Comer, 698. INTEGRITY, (See Fidelity; Fiduciary Relations.) agent bound for: Page vs. Wells, 493. INTERPRETATION (See Construction). •« IRREVOCABLE AGENCY," may be revoked; Blackstone vs. Buttcrmore, 255. IRREVOCABILITY, of rati licat ion: Hyatt vs. Clark, 177; Jones vs. Atkinson, 192. JOINT AGENTS, when all must join in executing: Hawley vs. Keeler, 50; First Nat. Bk. vs. Mt. Tabor, 53; McNeil vs. Chamber of Commerce, 63; Deakin vs. i ■ rtoood, 68. JOINT l'OW ; does u orize separate execution: Gilbert vs. How, 830. JOINT PRINCIPALS, r from will not authorize binding one only: Gilbert vs. How, 880. liability <>f: A8h rs. Guie, 45; Daciavii vs. Jlulden, 47. JOINT TOET FEASORS, release of one, effect of: Mayor of Salford vs. Lever, 601. JUDGMENT, againnt agent, how far conclusive on principal: Railroad Co. vs. Hunt, I against agent, when bar to liability of principal: Beymer vs. Bonsall, 554. Index. 735 Judgment — Continued. setting aside for want of appearance: Reynolds vs. Fleming, 615. JURY, question of agency, when for: Lyon vs. Kent, 37; Savings Society vs. Savings Bank, 371. KNOWLEDGE, of material facts, essential to ratification: See Ratification. of legal effect not necessary: See Ratification. of agent, when imputable to principal: Hyatt vs. Clark, 177. See Notice to Agent. LABORER, how compares with agent: Wakefield vs. Fargo, 4. LACK OF AUTHORITY, (See Warranty of Authority.) agent liable to third person for: Kroeger vs. Pitcaim, 501; Simmons vs. More, 505; Patterson vs. Lippincott, 507; Peters vs. Farnsworth, 387. LAND, authority to Bell, how conferred: Lyon vs. Pollock, 378. joint power will not authorize sale of separate interests: Gilbert vs. How, 380. covenants of warranty may be inserted: LeRoy vs. Beard, 382; Peters vs. Farnsworth, 387. agent to sell can not trade for goods: Lumpkin vs. Wilson, 390. LAW, Authority created by: See Compulsory A.gency; Husband; Wife; Parent; Child. LEASE, unauthorized, ratified by accepting rent: Hyatt vs. Clark, 177. LEGISLATION, contracts to procure: Mills vs. Mills, 17. LIABILITY OF AGENT TO PRINCIPAL, for fidelity: See Fidelity; Damages. for negligence: See Negligence; Damages. to account: See Account; Trustee. to give notice: See Notice. to obey instructions: See Instructions; Conversion; Trover. LIABILITY OF AGENT TO THIRD PERSON, for acting without authority: See Warranty of Authority. for acting without a principal: See Warranty of Authority. to pay over money received: Herrick vs. Gallagher, 512. for torts: Delaney vs. Rochereau, 514; Osborne vs. Morgan, 518; Stephens vs. Elwall, 226. for negligence: See Negligence. for conversion: See Conversion. LIABILITY OF PRINCIPAL TO AGENT, for compensation: See Compensation of Agent. for lien: See Lien. 736 Index. Liability of Principal to Agent — Continued. for damages for breach of contract: See Damages; Wrongful DlS- chaege. for reimbursement: See Reimbursement. for indemnity: See Indemnity. LIABILITY OF PRINCIPAL TO THIRD PERSONS, undisclosed principal: See Undisclosed Principal. for sale to agent: See Sale to Agent. tor notice to agent: See Notice to Agent. for results of ratification: See Ratification. for agent's fraud: See Fraud. for agent's admissions: See Admissions; Evidence; Declarations. for agent's contracts: See Collection; Sale; Deed; Negotiable Instruments, etc. for implied powers of: See Implied Powers; Implied Authority; Incidental Towers. LIABILITY OF THIRD PERSON TO AGENT, agent's right to sue on contracts made by him: See Action. LIABILITY OF THIRD PERSON TO PRINCIPAL, to action by principal on contracts made by agent: See Action. to account for property received from agent: See Account; Trust Funds. for collusive dealing with agent: See Collusion; Damages. for injuries to agent causing damage to principal: See Malicious Akrest. LIEN, agent has for his compensation: Bradford vs. Kimberly, 523. of attorneys: See Attorneys. of auctioneers: See Auctioneers. of factors: See Factors. LOAN, neglect of agent in making, how ratified: Bank of Owensboro vs. Wes- tern Bank, 206. broker to procure, when entitled to his commissions: Vinton vs. Bald- win, 604. LODGE, liability of, for contracts of member: Ash vs. Chile, 45. liability of agent of: Lewis vs. Tilton, 510. MAJORITY, when majority of public agents may act: First National Bank vs. Mt. Tabor, 53; McNeil vs. Chamber of Commerce, 63. MALFEASANCE, liability of agent for: Delaney vs. Rochereau, 514; Osborne vs. Morgan, sia MALICIOUS ARREST, of ag< nt to injure principal: Railroad vs. Hunt, 608. MANAGER OF BUSINESS, implied authority to make negotiable paper: Iron Mine vs. Bank, 423. Ikdbx. 737 Manager of Business— Continued. or to sell the business: Vescelius vs. Martin, 422. authority of, how construed: Brockway vs. Mullin, 419. MANAGER OF HOTEL, has no implied authority to bind principal for horses furnished to guests: Brockway vs. Mullin, 419. MANAGING AGENT, can not take advantage of position to make gain for himself: Davis vs. Hamlin, 461. MARRIED WOMAN, when may appoint agents: Weisbrod vs. Railway Co., 81; Nash vs. Mitchell, 83. may act as agent: Cox vs. Hoffman, 89. may appoint her husband as her agent: McLaren vs. Hall, 77. ratification of his acts: McLaren vs. Hall, 77. estoppel of: Nash vs. Mitchell, 81; Drury vs. Foster, 120. M 4.RSHALLING, doctrine of, how applicable to auctioneer: Webb vs. Smith, 661. M ISTER, (See Master and Servant.) liability for servant's acts: Singer Mfg. Co. vs. Eahn, 8; Wilson vs. Owens, 9: Friedlander vs. By. Co., 579; Mayor vs. Lever, 601. not liable for negligence of fellow servant: Osborne vs. Morgan, 518. liability of to servant. Id. liability to servant for wrongful discharge: Howard vs. Daly, 526; Liddell vs. Chidester, 535. MASTER AND SERVANT, when relation of exists: Singer Mfg. Co. vs. Rahn, 8; WUson vs. Owens, 9. MECHANICAL ACTS, delegation of: Grady vs. Insurance Co., 238. MIDDLEMAN, broker as: Vinton vs. Baldwin, 664; Bell vs. McConneU, 533. when may recover from both parties: Rice vs. Wood, 12; Vinton vs. Baldwin, 664; Bell vs. McConneU, 532. MINISTERIAL ACTS, delegation of: Qrady vs. Insurance Co., 238. MISFEASANCE, liability of agent for: Delaney vs. Rochereau, 514; Osborne vs. Morgan, 518. MONEY, receipt of from agent, when not a ratification of means of procuring it: Thacher vs. Pray, 204. MONKS, may be agents: Lyon vs. Kent, 87. MORTGAGE, (See Deed.) authority to receive payment on, when impliod: Crane vs. Chuenewald, 87. 47 738 IlfDEX. Mortgage— Continued. authority to fill blanks in: Drury vs. Foster, 120. MUNICIPAL CORPORATIONS, ratification by: School District vs. Insurance Co., 104. delegation by: Birdsall vs. Clark, 231. MUTUALITY, necessity of, in ratification: Dodge vs. Hopkins, 215; McClintock vs. Oil Co., 219; Bolton vs. Lambert, 222. NEGLIGENCE, master's liability for servant's: Singer Mfg. Co. vs. Rahn, 8; Wilson vs. Owens, 9. of principal in discovering that agent is exceeding authority, when a ground of liability: Wheeler vs. McOuire, 362. liability of agent for, to third persons: Delaney va. Rochereau, 514; Osborne vs. Morgan, 518. agent must not be guilty of: Page vs. Wells, 493. not bound to anticipate unusual danger: Johnson vs. Martin, 493. agent not excused for, because agency had become troublesome: Devall vs. Burbridge, 499. of agent, principal's ratification of: Hazard vs. Spears, 182; Bank of Owensboro vs. Western Bank, 206. NEGOTIABLE INSTRUMENTS, power to execute not implied: Jackson vs. Bank, 415. powers to execute strictly construed: King vs. Sparks, 418. power to manage business does not warrant execution of: Iron Mine vs. Bank, 423. how to bo executed so as to bind principal: Hobson vs. Hassett, 442; Reeve vs. Bank, 446; Liebscher vs. Kraus, 448. parol evidence to explain: Liebscher vs. Kraus, 448. power to collect, does not warrant endorsing checks received in pay- ment: Jackson vs. Bank, 415. NONFEASANCE, liability of agent for: Delaney vs. Rochereau, 514; Osborne vs. Morgan^ 518. NOTES, (See Negotiable Instruments.) ratification of unauthorized signing of: Greenfield Bank vs. Crafts, 110; Henry vs. Heeb, 115. NOTICE, agent must give principal notice of material facta coming to agent's knowledge: Dewall vs. Burbridge, 499; Pinkham vs. Crocker, 676. NOTICE OF TERMINATION, of agency, must be given: Claflin vs. Lenheim, 294; Insurance Co. vs. McCain, 290; Wheeler vs. McCuire, 862. constructive notice of: Claflin vs. Lenheim, 294. when a question for jury or court: Claflin vs. Lenheim, 294. NOTICE TO AGENT, whon notice to principal: Hyatt vs. Clark, 177. Index. 739 Notice to Agent— Continued. to be notice to principal must be acquired when: Wheeler vs. McGuire, 862; Constant vs. University, 560. not notice to principal of agent acting adversely: Innerarity vs. National Bank, 569. knowledge acquired by agent in one transaction, when imputed to principal in another: Constant vs. University, 560. OFFICERS OF TOWNS, when liable on contracts made by them: Knight vs. Clark, 434; Brown vs. Bradlee, 454. OTHER EMPLOYMENT, agent wrongfully discharged must seek: Howard vs. Daly, 526. burden of proving that could be found: Howard vs. Daly, 526. OUTLAWS, may be agents: Lyon vs. Kent, 87. PARENT, implied authority of child as his agent: Johnson vs. Stone, 78; Bennett vs. Gillette, 79. PAROL EVIDENCE, to explain ambiguous notes: Liebscher vs. Kraus, 448. admissible to charge principal on contract made in agent's name: Bying- ton vs. Simpson, 558. to admit principal to benefit of contract: Huntington vs. Knox, 587. admissible to entitle principal to benefit of contract made by his agent: Huntington vs. Knox, 587. admissibility of, to discharge from liability on written contract: Hig- gins vs. Senior, 456. PARTNER, when entitled to compensation as agent for other partners: Bradford vs. Kimberly, 528. may appoint agents: Lucas vs. Bank of Darien, 27. PARTNERSHIP, as principal: Lucas vs. Bank of Darien, 27. as agent: Deakin vs. Underwood, 68. unincorporated societies are not: Ash vs. Ouie, 45. as agent, effect of dissolution of: Durkee vs. Ounn, 812. damages for terminating agency by dissolution of: Griggs vs. Swift, 537. ratification by: Forbes vs. Hagman, 122; Mclntyre vs. Park, 170. PAYMENT, to agent, when presumptively authorized: Crane vs. Gruenewald, 87. to agent after death of principal not good: Weber vs. Bridgman, 831. PERSONAL LIABILITY, of agent: See Warranty of Authority. # PERSONAL TRUSTS, cannot be delegated: See Delegation. PLEDGE, authority to sell, does not warrant: Warner vs. Martin, 678. 740 Indbx. Pledge — Continued. authority of factor to: Warner vs. Martin, 678; Insurance Co. vs. Kiger, 686. POSSESSION OF GOODS, does not raise inference of power to sell: Levi vs. Booth, 89; Towle vs. Leavitt, 358. POSTOFFICE, contract to secure location of: Elkhart County Lodge vs. Crary, 18. POWER COUPLED WITH AN INTEREST, defined; Chambers vs. Seay, 252; Hunt vs. Rousmanier, 822. PRINCIPAL: (See Principal and Agent.) PRINCIPAL AND AGENT (See Agent; Master and Servants), when relation of exists: Regina vs. Walker, 1; Wakefield vs. Fargo, 4; Singer Mfg. Co. vs. Rahn, 8; Wilson vs. Owens, 9. for what purposes relation maybe created: Rice vs. Wood, 12; Atlee vs. Fink, 14; Mills vs. Mills, 17; Elkhart County Lodge vs. Crary, 18; Byrd vs. Hughes, 23. who may be principal: St. Andrews Bay Land Co. vs. Mitchell, 26; Lucas vs. Bank of Darien, 27; Trueblood vs. Trueblood, 29; Wies- brod vs. Ry. Co., 81; Nash vs. Mitchell, 33. who may be agent: Lyon vs. Kent, 37; Cox vs. Hoffman, 39; Deakin vs. Underwood, 68; Killingsworth vs. Portland Ti-ust Co., 40. joint principals: Ash vs. Guie, 45; Davison vs. Holden, 47. joint agents: Hawley vs. Keeler, 50; First National Bank vs. Mt. Tabor, 53; McNeil vs. Boston Chamber of Commerce, 63; Deakin vs. Under- wood, 68. relation created by law: Benjamin vs. Dockham, 71; Benjamin vs. Benjamin, 72; McLaren vs. Hall, 77; Johnson vs. Stone, 78; Bennett vs. Gillette, 79. relation created by act of parties: Pole vs. Leask, 81; Graves vs. Hor- ton, 82; Johnson vs. Hurley, 84; Crane vs. Gruenewald, 87; Bickford vs. Menier, 93. sealed instrument, when necessary: Long vs. Hartwell, 92. written authority, when necessary: Long vs. Hartwell, 92. apparent authority binds principal when: Johnson vs. Hurley, 84; Bick- ford vs. Menier, 93; Breckenridge vs. Lewis, 103. evidence of relation: Hatch vs. Squires, 106; Howe Machine Co. vs. Clark, 107. ratification by principal of unauthorized acts: See Ratification. delegation by agent of his authority: See Delegation. termination of relation: See Termination of Agency. PRIVATE INSTRUCTIONS: (See Instructions.) PROFESSIONAL SERVICES, contractu for, when valid: Mills vs. Mills, 17; Elkhart County Lodge vs. Crary, 18; Stanton vs. Embrcy, 631. PROFITS, made by agent belong to principal, when: Gardner vs. Ogden, 465; Leach vs. Railroad Co., 480. Index. 741 PROMOTERS, ratification by corporation of their acts: McArthur vs. Times Printing Co., 128; BelVs Gap B. B. vs. Christy, 131. PUBLIC AGENCY, revocation of: Missouri vs. Walker, 277. PUBLIC AGENTS, when majority of may act: First Nat. Bank vs. Mt. Tabor, 53; McNeil vs. Chamber of Commerce, 63. PUBLIC OFFICERS, contracts for influencing: See Public Policy. liability on contracts made by them: Knight vs. Clark, 434; Broum vs. Bradlee, 451. can not be interested in contracts made by them: People vs. Board, 459. PUBLIC POLICY, forbids agencies for what purposes: Bice vs. Wood, 12; Atlee vs. Fink, 14; Mills vs. Mills, 17; Elkhart County Lodge vs. Crary, 18. whether sale of interest in agency is opposed to: Peterson vs. Christen- sen, 234. PUBLIC TRUSTS, can not be delegated: Birdsall vs. Clark, 231. PURCHASE, when agent has implied power to: Wheeler vs. McGuire, 362. can not buy on credit when furnished with funds: Komorowski vs. Krumdick, 413. when principal bound by agent's: Hubbard vs. Tenbrook, 367; Watteau vs. Fenwick, 869. by general agent binds principal though contrary to instructions: But- ler vs. Maples, 340; Davison vs. Holden, 47. by agent, liability of principal for: See Sale to Agent. QUANTUM MERUIT, no recovery on, when contract exists: Wallace vs. Floyd, 525. recovery on. when contract broken by principal: Howard vs. Daly, 526; Liddell vs. CJiidester, 535. RAILROAD COMPANY: (See Carries.) RATIFICATION, what is meant by: McCracken vs. San Francisco, 109. what acts may be ratified: Greenfield Bank vs. Crafts, 110; Henry vs. Heeb, 115. who may ratify— corporations: McArthur vs. Times Printing Co., 128; BelVs Gap B. B. vs. Christy, 131. municipal corporations: School District vs. JEtna Ins. Co., 194. infants: Trueblood vs. Trueblood, 29; Patterson vs. Lippincott, 507. married woman: Drury vs. Foster, 120; McLaren vs. Hall, 77. partners: Forbes vs. Hageman, 122. agents: Ironwood Stove Co. vs. Harrison, 124. conditions essential to; present ability: McCracken vs. San Francisco, 109. 742 Index. Ratification — Continued. present existence of principal: Foster vs. Bates, 127; McArthur vs. Times I^rinting Co., 128. knowledge of material facts: BelVs Gap R. R. Co. vs. Christy, 131; Hamlin vs. Sears, 136; Wheeler vs. Sleigh Co., 138; Roberts vs. Rumley, 143; Combs vs. Scott, 146; Baldioin vs. Burrows, 196; Bank of Owensboro vs. Western Bank, 206; Wheeler vs. McGuire, 362; Craighead vs. Peterson, 873. when knowledge presumed: Scott vs. Railroad Co., 148. knowledge of legal effect not necessary: Hyatt vs. Clark, 177. must ratify all or none: Eberts vs. Selover, 150; Wheeler & Wil- son Co. vs. Aughey, 152; Shoninger vs. Peabody, 172. how in case of special agency: Smith vs. Tracy, 154. party must have acted as agent: Hamlin vs. Sears, 136; Ironwood Stove Co. vs. Harrison, 124. intervening rights not affected: Cook vs. Tullis, 160. may ratify even after disapproval: Woodward vs. Harlow, 165. what amounts to ratification, — sealed instrument when necessary: Hawkins vs. McOroarty, 167; Mclntyre vs. Park, 170. writing when necessary: Hawkins vs. McGroaity, 167. bringing suit upon contract: Shoninger vs. Peabody, 172. accepting benefits: Hyatt vs. Clark, 177; Wheeler vs. Sleigh Co., 138; Smith vs. Tracy, 154; Eberts vs. Selover, 150; School Dis- trict vs. Insurance Co., 194; Baldwin vs. Burrows, 196; Thacher vs. Pray, 204. failure to dissent within reasonable time: Hazard vs. Spears, 182; Heyn vs. CHagen, 186; Jones vs. Atkinson, 192. authority subsequently conferred: Rice vs. McLarren, 190. Irrevocable when once made: Jones vs. Atkinson, 192; Hyatt vs. Clark, 177. results of ratification — as between principal and agent: Hazard vs. Spears, 182; Bank of Owensboro vs. Western Bank, 206. entitles agent to compensation: Wilson vs. Dame, 526. as between principal and other party: Dodge vs. Hopkins, 215; McClintock vs. Oil Co., 219; Bolton vs. Lambert, 222. as between agent and other party: Stephens vs. Elwall, 226. retroactive effect of: Dodge vs. Hopkins, 215; McClintock vs. Oil Co., 219; Bolton vs. Lambert, 222. effect as adoption of means of procuring a contract: Baldioin vs. Bur- rows, 196; Thacher vs. Pray, 204. question of ratification for the court when facts undisputed, otherwise for jury: Savings Fund Society vs. Savings Bank, 371. intention to ratify or not, how shown: Craighead vs. Peterson, 878. READINESS TO PERFORM, wh'tlur w-rvnnt wrongfully discharged must be in: Howard vs. Daly, 526. REAL ESTATE AGENT, whf-n entitled to commissions: Plant vs. Thompson, 666; Vinton vs. Baldwin, 664. Index. 743 REIMBURSEMENT, agent entitled to: VArcy vs. Lyle, 542; Jacobs vs. Warfield, 287; Alworth vs. Seymour, 314. of factor: Hatcher vs. Comer, 698; Lehman vs. Pritchett, 693; Davis vs. Kobe, 700. RENUNCIATION, (See Termination of Agency.) REPRESENTATIONS, of agent as to his authority, when binding on principal; Hatch vs. Squires, 106; Howe Machine Co. vs. Clark, 107; Bank of Batavia vs. Railroad Co., 576; Friedlander vs. Railway Co., 579. when principal bound by: Bickford vs. Menier, 93. not admissible to prove his authority: Hatch vs. Squires, 106; Howe Machine Co. vs. Clark, 107; Graves vs. Horton, 82. REPUDIATION, of unauthorized contract: See Ratification. of hiring: See Wrongful Discharge. REPUTATION, agency can not be proved by general reputation: Graves vs. Horton, 82. See Evidence. RECISSION, of unauthorized contract: See Ratification. RES GESTAE, admissions of agent as part of: Vicksburg R. R. vs. O'Brien, 572. RETROACTTVE EFFECT, of ratification: See Ratification. REVOCATION, (See Termination of Agency.) RIVAL BUSINESS, engaging in, warrants termination of agency: LHennger vs. Meyer, 289. SALE, (See Sell.) when broker entitled to commissions for making: Sibbald vs. Bethle- hem Iron Co., 801; Plant vs. Thompson, 666; Vinton vs. Baldwin, 664. damages to agent for not being allowed to make: Durkee vs. Gunn, 312. SALE TO AGENT, when principal liable for: Watteau vs. Fenwick, 369; Hubbard vs. Ten- brook, 367; Paterson vs. Gandasequi, 545; Thompson vs. Davenport, 547; Irvine vs. Watson, 550; Kayton vs. Barnett, 553; Cleveland vs. Pearl, 556. QT? AT, authority under, when necessary: Long vs. Hartwell, 92; Gardner vs. Gardner, 100. unnecessary, may be disregarded: Long vs. Hartwell, 92; Thomas vs. Joslin, 427. tt . ratification-by sealed instrument, when necessary: Hawkins vs. McGroarty, 167; Mclntyre vs. Park, 170. SEALED INSTRUMENTS, «,«.«,, how to be executed: McClure vs. Herring, 429; Knight vs. Clark, 434. when principal may sue upon: Briggs vs. Partridge, 486. 744 Index. SECRET LDITTATTONS, on authority of general agent: Butler va. Maples. 840; Hatch vs. Taylor, 345; Bryant va. Moore, 855. SELL, (See Salb.) authority to, when implied: Towle va. Leavitt, 358; Levi vs. Booth, 391; Smith vs. Clew, o96. authority to, does not warrant collecting: Mc Kindly vs. Dunham, 399. authority to sell does not justify sale on credit: School District vs. Insurance Co., 194. authority to sell property of two does not authorize sale of one: Dodge vs. Ho2)J:ins, 215. agent to sell can not delegate, Atlee vs. Fink, 14. or promise commissions on sub-sales: Id.; Hibbard vs. Peek, 403. or take other goods in payment: Billings vs. Mason, 406. implied authority of, to hire horses: Huntley vs. Mathias, 408. to give warranty of goods: Pickett i~s. Marston, 411. agent to, cannot buy for himself: Greenfield Bank vs. Simons, 476; Gardner vs. Ogden, 465. unless with principal's full knowledge and consent: Rochester vs. Levering, 478. agent to sell, can not sell at auction: Toicle vs. Leavitt, 358. authority to, does not justify pledge: Warner vs. Martin, 678. agent to, liable for brrach of instructions: Laverty vs. Snethen, 486. power to, when coupled with an interest: Hunt vs. Rousmanier, 822; Knapp va. Ahord, 823. SERVANT, how distinguished from agent: Regina vs. Walker, i; Wakefield vs. Fargo, 4; Singer Mfg. Co. vs. Rahn, 8; Wilson va. Owens, 9. SEVERAL AGENTS, principal may employ: Ahem vs. Baker, 288. SIGNATURE, ratification of unauthorized: See Forgery; Ratification. SIGNING (See Deeds; Contracts; Negotiable Instruments). SILENCE. may amount to ratification: Jones vs. Atkinson, 192; Hazard vs. Spears, 182; Heyn v. O'Hagen, 186. SLAVE, may be agent: Lyon va. Kent, 87. SOCIETY, liability of agent of: Leuis vs. Tilton, 510. liability of, for contracts of members: Ash vs. Guie, 45. SON, implied authority of, as father's agent: Johnson vs. Stone, 78; Ben- in It va. CHUetUt 70. BPEt IAL AGENT, who is; Butler va. Maples, 840; Hatch va. Taylor, 845; Bryant va. party dealing with must ascertain hia authority: Towle va. Leavitt, 35a Index. 745 Special Agent— Continued. how far acta of, are binding on principal: Id. ratification of act of: Smith vs. Tracy, 154. SPECIAL INSTRUCTIONS, can not limit authority of general agent: Insurance Co. vs. McCain, 299. SPECIFIC PERFORMANCE, of contract of agency not granted: Alworth vs. Seymour, 814. of contract of sale, mutuality when necessary: Bolton vs. Lambert, 222. STATUTE, governing liability to servants and laborers, how construed: Wake- field vs. Fargo, 4. STATUTE OF FRAUDS, " lawfully authorized" under: McClintock vs. Oil Co., 219. STATUTE OF LIMITATIONS, when begins to run against agent: Jett vs. Hempstead, 496. agent's fraud will prevent running of statute: Id. when runs against factor: Cooley V3. Betts, 702. STOCKHOLDER, liability of, for debts due servants: Wakefield vs. Fargo, 4. SUB-AGENT, authority to appoint: See Delegation. liability of agent for his acts: Exchange Nat. Bank vs. Third Nat. Bank, 239; Cummins vs. Heald, 247; Barnard vs. Coffin, 249. usage may justify appointment of: Warner vs. Martin, 678. SUE, right of agent to sue upon contract made by him: Rowe vs. Rand, 257; Rhoades vs. Blackiston, 564; Thompson vs. Kelly, 653; Fairlie vs. Fenton, 6G9. SUIT, (See Action.) effect of bringing, to ratify contract: Shoninger vs. Peabody, 172. TENDER OF SERVICES, necessity for by agent wrongfully discharged: Howard vs. Daly, 526. TERMINATION OF AGENCY, mere agency may be terminated at any time by principal: Rowe vs. Rand, 257. or renounced by agent: Rowe vs. Rand, 257. unless coupled with an interest, authority of agent is revocable at any time: Chambers vs. Seay, 252; Blackstone vs. Buttermore, 255; Mi* souri vs. Walker, 277; Wilcox <& Gibbs Sewing Mach. Co. vs. Ewing, 283; Jacobs vs. Warfield, 287; Sibbald vs. Bethlehem Iron Co., 301; Alworth vs. Sej/mour, 314; Hunt vs. Rousmanier, 322. fact that it is called " irrevocable " or «■ exclusive " makes no differ- ence: Chambers vs. Seay, 252; Blackstone vs. Buttermore, 255. what constitutes a power coupled with an interest: Hunt vs. Rousmanier, 322; Chambers vs. Seay, 252; Blackstone vs. Butter- more, 255; Standard Gil Co. vs. Gilbert, 272; Missouri vs. Walker, 277. 746 Index. Termination op Agency— Continued. xmtract for fixed time, what amounts to: Rhodes vs. Foncood, 259; Turner vs. Goldsmith, 266; Lewis vs. Insurance Co., 269; Standard Oil Co. vs. Gilbert, 273; Norton vs. Cowell, 291. damages for wrongful termination: Standard Oil Co. vs. Gilbert, 278; Sibbald vs. Bethlehem Iron Co.. 801; Durkeevs. Gunn, 312. Bale of property by principal terminates selling agent's authority: Ahern vs. Baker, 288. justification for, engaging in rival business: Dieringer vs. Meyer, 289. drunkenness: Bass Furnace Co. vs. Glasscock, 291. notice of, must be given: Clajlin vs. Lenheim, 294; Insurance Co. vs. McCain, 299; Wheeler vs. McGuire, 362. how given: Clajlin vs. Lenheim, 294. contructive notice, what amounts to: Clajlin vs. Lenheim, 294. question for court or jury, when: Id. injunction against, when granted: Cort vs. Lassard, 316. death terminates unless coupled with an interest: Hunt vs. Rousmanier, 322; Knapp vs. Alvord, 328; Weber vs. Bridgman, 331. no damages for termination by death: Griggs vs. Swift, 537. insanity of principal terminates agency: Matthiessen Co. vs. McMalion, 835. war terminates agency: Insurance Co. vs. Davis, 336. TESTIMONY, (See Evidence.) of agent as to his authority: Howe Machine Co. vs. Clark, 107. TORT, (See Master.) liability of agent to third persons: Delaney vs. Roclvereau, 514; Osborne vs. Morgan, 518; Stephens vs. Elwall, 226. TROVER, (See Conversion.) when agtnt liable in: Laverty vs. Snethen, 486; Stephens vs. Eltoali, 226. TRUST FUNDS, principal may follow and recover bo long as they can be identified: Farmers' Bank vs. King, 590; Baker vs. New York Bank, 596; Boston vs. Simmons, 598. liability of attorney for loss of when deposited in his own name: Nalt- ner vs. Dolan, 623. TRUSTEE, how differs from agent: Rowe vs. Rand, 257. when agent will be charged as trustee for principal: Davis vs. Hamlin, 4'U; Gardner vs. Ogden, 465. not permitted to buy the trust estate: Gardner vs. Ogden, 466. UNAUTHORIZED ACTS, ratification of: Bee Ratification. UNAUTHORIZED CONTRACT, (See Warranty of Auttiority.) liability of agent upon: Kroeger vs. lHtcairn, 501; Simmons vs. More, 50o; Patterson vs. Lippincult, 007; liters vs. Farusuurth, 387. UNDISCLOSED PRINCIPAL, liable when diaoOTered: Vaterson vs. Gandasequi, 545; Addison vs. Gandasequi, 647; Thompson vs. Davenport, 547; Irvine vs. Watson, Indix. 747 Undisclosed Principal — Continued. 650; Kayton vs. Barnett, 554; Beymer vs. BonsaTl, 554; Cleveland vs. Pearl, 656; Bytngton vs. Simpson, 558. liable for purchases by agent: Hubbard vs. Tenbrook, 367; Watteau vs. Fenurick, 367. right to sue on contract made by agent: Huntington vs. Knox, 587. right to sue on sealed contract made by agent: Briggs vs. Partridge, 436. UNDUE INFLUENCE. by attorney on client: Stout vs. Smith, 628. UNINCORPORATED ASSOCIATIONS, (See Clubs; Societies; Partner- ship.) USAGE, effect of, in aiding interpretation of powers: LeRoy vs. Beard, 882; Hibbard vs. Peek, 403. may confer power to warrant goods sold: Pickert vs. Marston, 411. how affects powers and duties of factors: Phillips vs. Moir, 671; lear- ner vs. Martin, 678. evidence of in fixing attorney's compensation: Stanton vs. Embrey, 631. WAGES, servant continuing after termination of term, presumed to be at old wages: Standard Oil Co. vs. Gilbert, 273. when agent wrongfully discharged may recover: Howard vs. Daly, 526; Ldddell vs. Chidester, 535. WAR, terminates agency: Insurance Co. vs. Davis, 836. WAREHOUSEMEN, duty as to delivery of goods: Insurance Co. vs. Kiger, 686. WARRANTY, authority of selling agent to give: Smith vs. Tracy, 154 given by special agent, not binding: Bryant vs. Moore, 855. covenant of, when may be given by agent to sell land: LeRoy vs. Beard, 382; Peters vs. Farnsworth, 387. of personal property, when agent may give: Pickert vs. Marston, 411. WARRANTY OF AUTHORITY, agent impliedly makes when: Kroegervs. Pitcairn, 501; Simmons vs. More, 505; Patterson vs. Lippincott, 507; Peters vs. Farnsworth, 887; Bush vs. Cole, 650. agent liable where there is no principal: Lewis vs. Tilton, 510. by auctioneer: Bush vs. Cole, 650. WHOLE TIME, of agent when belongs to principal: Leach vs. Railroad Co., 480; Die- ringer vs. Meyer, 289. WIFE, may appoint husband her agent: Weisbrod vs. Railway Co., 81; Nash vs. Mitchell, 33. may be agent for her husband: Cox vs. Hoffman, 89; Benjamin vs. Benjamin. 72, MS LtfDEX. Wife— Continued. implied agency of: Benjamin vs. DocJcham, 71. ratification of husband's acts: McLaren vs. Hall, 77. ratification by of husband's contract: McClintock vs. OH Co., 219, WRITTEN AUTHORITY, when necessary: Long vs. LTartwell, 92. unnecessary to act in principal's presence and by hla direction: Gardner vs. Gardner, 100. to be construed by court: Savings Fund Society vs. Savings Bank, 871. strictly construed: Craighead vs. Peterson, 873. WRITTEN INSTRUMENTS, ratification by, when necessary: LTatcJcins vs. McGroarty, 167. liability on, not discharged by parol: Higgins vs. Senior, 456. WRONGFUL DISCHARGE, of agent, damages for: Howard vs. Daly, 526; LiddeU vs. Chidester, 535. action for, when may be brought: Id. termination by death, is not: Griggs vs. Sicift, 537. YEARLY HIRING, what amountB to: LiddeU vs. Chidester, 535. when general hiring deemed to be: Standard OH Co. vs. Gilbert, 878; Norton vs. CoweU, 28L STANDARD LAW SCHOOL CASE BOOKS Administration and Government — Goodnow's Cases on Government and Administra- tion, by Frank J. Goodnow, Eaton Professor of Administrative Law and Municipal Science in Columbia University. 1 volume $2.50 net. Agency — Mechem's Cases on the Law of Agency, by Floyd R. Mechem, Professor of Law in the University of Chicago. 1 volume $3.00 net. American Administrative Law — Goodnow's Cases on American Administrative Law Including Public Officers and Extraordinary Legal Remedies, by Frank J. Good- now. 1 volume $6.00 net. Appellate Practice — Sunderland's Cases on Appellate Practice, by Edson R. 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